Canadian Broadcasting Corp. v. Named Person, 2022 QCCA 984, 2024 SCC 21 (40371)

“A person who had acted as an informer for a police force was charged with criminal offences. They brought a motion for a stay of proceedings based in part on abusive state conduct related to the laying of the charges. Because the person’s informer status was at the centre of the relevant factual framework and the parties’ arguments, the judge dealing with the motion ordered that it be heard in camera. No notice was given to the media, since the judge was of the view that revealing anything about the motion, including its existence, would be likely to compromise the person’s anonymity. The motion, its content and the exhibits and transcripts submitted to the judge remained confidential and were not listed in any docket. The motion was dismissed in a written judgment, which had no file number and was not public.

The person was subsequently convicted and appealed the conviction. The appeal was heard in camera, and no notice was given to the media. The Court of Appeal allowed the person’s appeal, stayed the conviction and entered a stay of the criminal proceedings on the ground of abuse of process by the state. The Court of Appeal decided to open a record at its court office, accompanied by a sealing order, and to make public a version of its judgment in which the following information was redacted: the person’s name; the identity of the court and the judge who heard the motion; the judicial district in which the proceeding was held; the identity of the prosecutor, counsel for the prosecution on appeal and counsel for the person; the identity of the police force and the police officers involved; the nature of the crime with which the person was charged and the circumstances of its commission. In that judgment, the Court of Appeal denounced the holding of a “secret trial”, which alarmed the public and the media. It also expressed its disagreement with the scope of the confidentiality measures put in place for the person’s trial.

A number of media organizations, the Attorney General of Quebec and the Chief Judge of the Court of Québec then asked the Court of Appeal to review the confidentiality orders made in the person’s case. In a second judgment, the Court of Appeal upheld the sealing of all information that might tend to identify the person. In its view, there was no possibility of disclosing any information that might tend to identify the person, at the risk of endangering them — it was therefore not possible to reveal their personal information, the nature, dates and circumstances of the offences with which they were charged, and the identity of the judge, the trial court, the judicial district, the prosecutor and counsel for the prosecution, counsel for the person and the police force involved. The Court of Appeal also refused to partially unseal the appeal record by redacting the same information as in the public version of its judgment. The media organizations and the Attorney General of Quebec appealed that second judgment to the Court.”

The S.C.C. (9:0) allowed the appeals in part.

The Court wrote as follows (at paras. 5-6, 42, 64, 89-90, 92-93):

“These appeals therefore provide this Court with an opportunity to set the record straight, to reassure the public and to reaffirm the importance of ensuring that justice is administered openly and transparently. First, the appeals allow the Court to reiterate the relevance of the procedure set out in Named Person v. Vancouver Sun, 2007 SCC 43, [2007] 3 S.C.R. 253, and its guiding rule that a court must protect informer privilege while minimizing, as much as possible, any impairment of the open court principle.

Second, the appeals illustrate the excesses that may occur when the guiding rule from Vancouver Sun is not rigorously applied at the stage of conducting in camera proceedings. The appeals highlight the importance of reviewing how this rule should be applied, for the benefit of trial judges who, as in this case, determine that a police informer’s identity can be protected only by proceeding totally in camera. Indeed, if the principles enunciated by this Court had been rigorously applied by the trial judge in dealing with the motion for a stay of proceedings, he would have created a parallel proceeding separate from the one in which Named Person had invoked informer privilege. This approach would have made the public aware of at least the existence of any in camera hearing held at trial and of any decision rendered as a result. The record for the parallel proceeding thereby created, though sealed, would have had its own number. Moreover, subject to the redaction of information that could link that new record to the proceeding that began publicly, the parallel proceeding could have been on the court’s docket and hearing roll, and a redacted public judgment could have been released.



In short, recognition of the non‑discretionary and thus virtually absolute nature of informer privilege means that the interests protected by the open court principle yield to those protected by informer privilege. This is a difficult societal choice in the sense that it may, in some circumstances, prevail over other very important public interest objectives — for example, promoting the accountability of the judiciary through open justice, favouring adversarial proceedings and ensuring the pursuit of truth — but it is a choice that is essential in guaranteeing the effectiveness of police investigations, the maintenance of public order and the protection of the Canadian public.



In short, we are not convinced that there is any reason to depart from the current state of the law, under which as much information as possible should be disclosed to interested third parties, but never any information that might compromise the police informer’s anonymity. The Canadian Broadcasting Corporation et al. may consider this rule imperfect or insufficient, insofar as the submissions made by interested third parties might be even more relevant if they had access to more information, but it is a rule that must be reiterated because it has the advantage of ensuring that the dual objectives underlying the informer privilege rule are achieved while at the same time maximizing the helpfulness of the submissions made by interested third parties.



Named Person was not convicted following a secret criminal proceeding. The controversy that arose after the release in March 2022 of the Court of Appeal’s judgment in which it denounced the holding of a “secret trial” is unfortunate and could have been avoided. First and foremost, it could have been avoided if the trial judge had proceeded in camera by creating a parallel proceeding completely separate from the criminal proceeding in which Named Person had been appearing publicly until that time. The magnitude of the controversy could also have been limited if the Court of Appeal had not used the expression “secret trial” to describe what were actually in camera hearings held in a proceeding that began and initially moved forward publicly. In addition to being inaccurate, this expression is needlessly alarming and has no basis in Canadian law.

Moreover, we want to reiterate the relevance of the Vancouver Sun procedure and the importance of rigorously applying its guiding rule requiring a court to protect informer privilege while minimizing, as much as possible, any impairment of the open court principle. For this purpose, the courts must be flexible and creative. What is in issue is the maintenance of public confidence in the administration of justice and respect for the rule of law.


 

In closing, even though errors were made, there is no doubt that all of the justice system participants involved were in good faith and acted with integrity. They were all motivated by a sincere desire to protect Named Person’s anonymity, as was their duty. We believe that this decision will be helpful and will guide trial judges who must proceed in camera, in order to ensure that they accommodate the open court principle to the greatest extent possible. For these reasons, the Court allows the appeals in part and remands the case to the Quebec Court of Appeal so that it can make public a redacted version of the trial judgment included in the appeal record, after consulting the respondents on a proposal for partial unsealing and redaction.”