Quebec Court of Appeal says details of secret trial must remain hidden from public

·3 min read

MONTREAL — Quebec's Court of Appeal ruled Wednesday it cannot publicly disclose any details about a secret trial involving a police informant that came to light earlier this year.

The province's high court delivered a redacted decision, ruling that the right of informants to stay anonymous supersedes the principle of court proceedings being open to the public.

"The court will dismiss the applications because of the requirements imposed on it by the protection of informer privilege," the ruling says.

Court of Appeal justices Marie-France Bich, Martin Vauclair and Patrick Healy ordered that all details of the case that could identify the informant, identified as the "designated person" in the ruling, remain sealed.

Four motions seeking more information about the secret case were heard in June — one from the province's attorney general, one from the chief judge of Quebec court and two from media organizations, including The Canadian Press.

All had requested the partial or total lifting of the sealing orders or access to the Appeal Court file. Motions from the media additionally asked for the Appeal Court to lift the confidentiality order imposed by the trial judge.

The original case involved an informant who was convicted of participating in a crime that he or she had revealed to police.

The existence of the trial only became public because the informant appealed his or her conviction and because the Court of Appeal in March released a redacted decision that set aside the conviction and was highly critical of the secrecy surrounding the trial.

The case was not given a docket number, and its details were kept secret, including the nature of the crime and where it allegedly took place, the name of the judge involved and the names of the lawyers.

"Collaboration with police informants, who are not always as pure as the driven snow, has its downsides, including that we cannot always prosecute them for their crimes," Wednesday's ruling reads.

"But it is the price of a relationship that, for a very long time, jurisprudence has considered essential to criminal justice, despite the compromises it necessarily generates."

The Court of Appeal noted there was no other way to prosecute an informant benefiting from privilege and the trial judge had no other options. The ruling said charging the informant was likely not the right decision, as the person's constitutional rights would be infringed, including the right to a public trial.

"It is indeed in the decision to lay charges against (the informant) that the source of the problem lies," the court writes, because it created "a situation from which it is now impossible to extricate ourselves." The only solution, it concluded, is to keep secret information that is usually public, including the identities of the police force, the prosecutor, the court, the judicial district and the trial judge.

The Court of Appeal panel said the decisions taken by the judge and lawyers involved in the secretive case were "dictated by the sole concern of preserving the privilege of the informant as they were and are still obliged to do, an obligation which also binds this court."

Lawyers for the media had asked the court to annul sealing orders by the trial judge, but the Court of Appeal ruled it had no jurisdiction to do so.

Christian Leblanc, a lawyer for media organizations including Radio-Canada, La Presse, the Montreal Gazette and The Canadian Press, said his clients are disappointed with the ruling and are studying whether to appeal.

Leblanc noted in an interview that the Court of Appeal recommends media address the court that rendered the initial ruling while recognizing the relevant information to do so isn't available.

In rejecting all of the motions, the court said the chief judge of Quebec court, Lucie Rondeau, could receive a copy of the ruling with several paragraphs unredacted pertaining to her arguments, which were held in part in camera. Her lawyer, Maxime Roy, said they are studying the ruling.

This report by The Canadian Press was first published July 20, 2022.

— With files from Michel Saba.

Sidhartha Banerjee, The Canadian Press

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