Supreme Court begins hearing arguments in secret trial case that challenges open courts principle

The Supreme Court of Canada began hearing arguments Tuesday on whether courts in Canada should be able to conduct secret off-the-books trials that are not listed on court dockets.

The Canadian Broadcasting Corporation and other media outlets, including The Canadian Press and La Presse, brought the case before Canada's top court. The Attorney General of Quebec is also an appellant.

Tuesday's proceedings at the Supreme Court stem from a criminal case involving an informant who was later convicted of participating in a crime that they had revealed to police.

The existence of the trial only became public when the informant appealed their conviction. The Quebec Court of Appeal subsequently released a redacted decision that set aside the conviction — but was also highly critical of the secrecy surrounding the trial.

The Supreme Court heard Tuesday that in the initial trial, the judge decided that providing details of the case to the public could compromise the identity of the informant and the trial should remain secret.

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

Appearing before the Supreme Court in Ottawa on Tuesday, Christian Leblanc, the lawyer representing the media organizations, quoted the Court of Appeal ruling which described the initial trial as "existing only in the memories of the individuals involved."

Leblanc noted that the appeal court said a secret trial is "contrary to the basic principle that governs our justice system."

"I know that the Court is aware of the importance of the fact of having public legal debates in Canada, and that the trust of the public rests on this fundamental pillar," Leblanc said.

"But once that has been said, how do we ensure that every Canadian knows that this cannot happen again in our country?"

The requirement to notify

Leblanc said allowing lower court judges to decide that a case can be heard in complete secrecy, without debating the matter in court, undermines confidence in the justice system.

"The way that we protect police informers, and the way that we ensure that there is no secret trial … it is to remove this discretionary power," Leblanc said. "What is most important here? It's the rule of law."

Leblanc said he was not arguing against the need for courts to sometimes hold hearings in-camera by excluding the public and banning media coverage. At a minimum, he said, Canadians should know a trial is taking place.

"What has to happen, to avoid that kind of decision from ever occurring again, is to have a systematic notice sent to the media so that there can be adversarial debate about the secrecy," he said.

Leblanc said if a judge decides that sending an automatic notice to the media informing them that a trial is taking place and naming the judge and lawyers involved compromises an informant's safety, the case should be stayed.

If a Crown prosecutor decides that a case could endanger the life of an informant if basic details are made public, it could choose not to pursue charges in the first place, he added.

Pierre-Luc Beauchesne, the lawyer for the Attorney General of Quebec, also criticized the decision to hold a secret trial — but he did not argue for removing that discretion from judges.

He said that imposing a requirement on judges that they notify the media when they are considering holding a secret trial could compromise the identity of informants.

Beauchesne said the Attorney General of Quebec wants the Supreme Court to send the case back to the Court of Appeal so it can release any additional information about the case, providing it redacts anything that would identify the informant.

Ontario, Alberta and the federal government

The Attorney General of Ontario, which is an intervener in the case, said that requiring courts to give automatic notice to the media in sensitive trials could compromise informant safety. He said imposing on judges "one-size-all requirements" to notify could undermine the cause of justice.

"The end result of mandatory requirements will not be that more information is revealed to the public. It will be that meritorious cases of public interest will not be prosecuted," said

The lawyer representing the Attorney General of Alberta also wants judges to retain the discretion to hold secret trials in some cases.

Ginette Gobeil, the lawyer intervening on behalf of the Attorney General of Canada, told the court it should not change the law to remove discretion.

"In our submission, it would be a bad idea to restrict judges' discretion," Gobeil said. "This would have a freezing effect on a system that is already overloaded."

The Supreme Court of Canada will continue to hear the case Wednesday, but all of the information presented in court will be subject to a publication ban, and the media and public will be excluded from the court.