This is not a secret trial

Two years later, the Supreme Court of Canada put an end to the “secret trial” affair by affirming more strongly than ever the need for public justice.

We didn’t really learn more, but at least we understand a little why. And above all, the message is sent to the entire judicial system: before decreeing a closed session, which is a final remedy, it is desirable to hear the opinion of the public – of the media, in particular.

This is all very good.

But I smile a little when I see with what insistence the highest court in the country tells us and repeats 15 times like a mantra that it there was no secret trial.

Such a notion does not exist in Canada, insists the Court. And in this specific case, what happened is that a normal trial, therefore public, became along the way… (I’m looking for the word) non-public. It’s a bit secret, it seems to me, a trial based on the transcription of testimonies and without a trace in the archives…

We understand better how it happened. An individual was charged with a crime in a completely normal and public trial. In his defense, he revealed that he was a police informer. The anonymity of police informers is absolutely protected. There was therefore no longer any question of proceeding publicly. The judge in this trial, in good faith, decided to move the case into complete closed session. So far, no problem.

The problem is that the judge went way too far. He proceeded without a file number. His judgment was not made public, even redacted.

And we only learned about this case because the case went to appeal. This is where the Court of Appeal spoke of a “secret trial” and said that this way of doing things was unacceptable.

We now understand why even the name of the judge, the place and the date of the trial are secret: we could by cross-checking find the name of the accused, because the first part took place in public.

But it’s a bit strong for the Supreme Court to accuse the Court of Appeal of misleading the public by using the term “secret trial.”

In doing so, the Quebec Court of Appeal would have led the public to believe that the informer was convicted “at the end of a secret criminal proceeding, the existence of which would have been indefinitely hidden from the public eye, had it not been for the appeal to the Court of Appeal. Public concern and outrage was further fueled by the use of the erroneous term “secret trial,” which was used by the news media in a number of articles and reports. .

However, what happened was a bit much. First, without the appeal, we would not have known of the existence of this judgment. Secondly, whether we call it a “secret trial” or “closed procedure without a number” or otherwise does not change much: an individual was tried without the public being able to have access to the trial, and without anyone could find the slightest trace of it in the archives, since he had no file number.

That the start of the affair took place normally, and in public, changes nothing. It effectively became a trial held in secret, without reference. The outrage comes from that, not from the term “secret trial.”

The Chief Justice of the Supreme Court, Richard Wagner, himself jumped into the fray in 2022 in an interview with Dutydenouncing the process as “implausible” and “very deplorable”.

This was before hearing the case in turn, and concluding that most of the measures taken to ensure the anonymity of the accused, whose life was at stake, were justified.

The Supreme Court therefore feels the need to press the keyboard very hard to tell Canadians that even if we can hardly say anything about it, there has never been and there will never be a “trial” in this country. secret “.

All right…

The good news is that the Court also teaches transparency for the judicial system. A notion of “paramount importance for our democracy”.

Transparency should not be seen as a threat, but as a support for the rule of law: “By ensuring the accountability of the judicial power, the publicity of debates supports the administration of impartial, fair and respectful justice. the rule of law. »

Therefore, “the very idea that “secret trials” – that is, criminal proceedings of which there is no trace – can take place in our liberal democracy is indeed intolerable.”

In the future, if one of these extremely rare cases occurs (the informers are witnesses or informants, not accused), the judge will have to proceed in camera, but by creating a “parallel instance”. This will make it impossible to link to the accused’s public record. Even if it means having another judge sit. Except that he will do it with a file number and by publishing a judgment, even if it means redacting it 100%.

Then, writes the Court, it may be appropriate (not necessarily) to invite the public (the media in practice) to contest the extent of the closed session. There is no question of disseminating confidential information, but the judge must ensure a “minimum threshold of publicity”.

The media didn’t get everything they asked for or new information, but we understood a little better why. Ultimately, it is a judgment which strongly reaffirms the principles of public justice.