Contributed by: Megan Goldie
On an unknown date in the recent past, a “designated person” (DP) was convicted for an unknown criminal offence. This happened somewhere in Quebec, where an unknown police force was investigating an unknown person for unknown crimes and entered a confidential informant relationship with DP. During their dealings, DP confessed to being a party to an offence.
Upon ending their relationship with DP, the police presented them with a choice: testify against the police target in open court or face criminal charges. DP chose the latter and was convicted. The Quebec Court of Appeal (QCCA) then stayed the conviction and the proceedings stating:
The fact that charges were laid in the circumstances is plainly offensive. The fairness of the trial was certainly compromised by the limits imposed on the right to make full answer and defence. That being said, such State conduct risks undermining the integrity of the legal process.
The trial was held completely in secret. There was no docket number assigned to the case, we do not know who the judge, lawyers, witnesses, or defendant were, or where it took place. As the QCCA stated in its judgment: “In sum, no trace of this trial exists, except in the memories of the individuals involved.”
The tension between the principles of Informant Privilege and Open Courts is not new in our legal system. This case, however, is of particular interest due to both the complete secrecy of the trial and the egregious state conduct which it covered. Had DP not appealed, the public would be none the wiser as to the police coercion at issue. This case of course raises the question of whether similar violations are occurring with some frequency in Quebec, or indeed throughout the country. Is it possible that other criminal defendants have been tried in such a way and simply decided to accept a conviction and be thankful to remain unexposed?
The Supreme Court of Canada (SCC) heard the appeal of the Canadian Broadcasting Corporation (CBC) and the Attorney General of Quebec on December 13, 2023. The CBC’s first question gets right to the point: “Can a trial judge proceed outside the justice system, in camera, without creating a record or revealing the very existence of proceedings before the courts, contrary to the open court principle, protected by s. 2(b) of the Charter?”
I came to this case for the wild, if heavily obscured details of the trial, but I will continue to follow it to see the result, which has the potential to change the course of Canadian law on open courts and the ways that Confidential Informants are handled and protected.
