Following what the Quebec Court of Appeal characterized as a ‘secret trial’, a police informer was convicted of criminal offences, the nature of which remain sealed. The Court of Appeal reversed the conviction and granted a stay of criminal proceedings as it considered the proceedings to be an abuse of process.
In partially reversing the Court of Appeal’s decision, the Supreme Court of Canada reviewed the scope of police informer privilege and whether it should be modified to become more consistent with the open court principle.
At its core, this decision clarifies in what circumstances charges against a police informer may need to proceed entirely in camera, and why that does not offend public policy giving rise to the open court principle.
Background
A police informer, in the process of providing information to the police, had implicated themselves in a crime. The informer was originally interrogated by police as a witness due to his connection with another investigation. The parameters of his role as informer were described vaguely, with an emphasis on speaking truthfully to the complete facts. The officers indicated they were not interested in prosecuting the informer because they were not the target. In the process of sharing information regarding the target investigation, the informer spoke about his involvement in another crime. Subsequently, the police decided to terminate the informer relationship. During the final meeting, the officers continued to question the informer about their involvement in the crime. The police officers did not communicate an intention to terminate the informer relationship until the end of the meeting. The informer was then provided with the option of waiving informer privilege and testifying against the other participants in the crime or facing charges. At trial, the informer’s sole defence was a motion for stay of proceedings due to abusive state conduct.
At trial, two in camera hearings were held to determine the accused’s status as a police informer and whether to grant the motion. The trial judge took several precautions to protect the informer’s anonymity with measures including not providing notice to the media, sealing the motion itself, sealed reasons for judgment and keeping the hearings off the court docket with no formal record numbers. Essentially, the trial left no trace aside from the memories of the individuals involved.
The Court of Appeal found that the trial judge erred in declining to hold that the state acted abusively and entered a stay of criminal proceedings. The Court also found that the vague parameters of cooperation set by the police led the informer to believe that they must admit all the facts even if they implicate themselves in a crime. The Court stated that the behavior of the police was contrary to the goals of informer privilege and would effectively discourage people from providing information to the police.
The Court of Appeal also expressed disagreement with the scope of confidentiality measures taken by the trial judge. The Court provided a public judgment with redactions of the informer’s personal details, nature of the offences and identities of the judge and counsel involved.
The Court of Appeal’s use of the term ‘secret trial’ and their heavily redacted judgment sparked public concern and the media appealed the decision.
On appeal to the Supreme Court of Canada, the Court considered the following issues:
- Should the procedure set out in Named Person v. Vancouver Sun 2007 SCC 43 (“Vancouver Sun”) be modified to make it more consistent with the open court principle?
- How is the guiding rule from Vancouver Sun to be applied when proceeding in camera?
- Did the Court of Appeal err in refusing to vary or set aside its confidentiality orders?
The Role of Open Court Principle in Informer Privilege Cases
The SCC rejected the notion of secret trials in Canada, stating that their existence would go against the “democratic ideals that Canadians hold dear” (para 2). They also found that the procedure in Vancouver Sun, discussed below, provides judges the flexibility to adopt measures that are as consistent as possible with the open court principle without risking breach of informer privilege.
The court reviewed the importance of police informer privilege and indicated that the privilege is not granted in the interest of the informer but in the interest of furthering the effectiveness of law enforcement, and protection of public order (para 36).
The SCC reaffirmed police informer privilege does not depend on the balancing of interests or consideration of competing interests. Given the absolute nature of police informer privilege, the Court found the interests protected by the open court principle must yield to those protected by informer privileges (para 42).
However, the Court also clarified that the privilege does not entirely overshadow the need for open courts. While the trial judge acted with a sincere desire to protect the informer’s anonymity, the Court found there was no need for the motion to be left off the court’s docket and hearing roll. Instead, the SCC found that a rigorous application of the guiding principle in Vancouver Sun, at minimum allows for the existence of the in camera hearing and decision rendered as a result to be made public. The Court did not see a single situation in which the mere existence of an in camera hearing and decision rendered to remain confidential indefinitely would be incompatible with protecting an informer’s anonymity (para 74).
Following Vancouver Sun’s Procedure
In Vancouver Sun, informer privilege was invoked in an extradition proceeding. The trial judge was assisted by an amicus curiae to determine if the proceedings should remain in camera. Counsel for certain media groups were requested to attend a hearing after filing undertakings of confidentiality and non-disclosure. The trial judge also allowed counsel for media outlets to review documents prepared by the amicus curiae. Upon appeal by the Attorney General and Named Person, the judge’s order was set aside. The SCC provided a single guiding rule to apply when informer privilege is claimed: “giving full effect to the requirements of the [informer] privilege which is extremely broad and powerful, under which a complete and total bar on any disclosure of the informer identity applies, while limiting, as much as possible any impairment of the open court principle”.
The Vancouver Sun procedure is divided in two stages. First, the court must verify the existence of the privilege by holding an in camera hearing. If the accused is determined to be a police informant, the proceedings must be held in a manner that protects the identity of the informant (para 44), while still accommodating to the greatest extent possible the open court principle, the right to be heard and the adversarial nature of the proceedings. At this second stage, the media may, at the judge’s discretion, be granted standing to present arguments on how informer privilege can be respected with a minimal effect on the open court principle (para 50). The SCC rejected arguments that the second phase be modified to allow submissions from interested parties on the open-court principle (paras 53-54).
The procedure recommended by the SCC for in camera hearings is to create a parallel proceeding that is separate from the initial public proceeding. The record for the parallel proceeding would be sealed with its own record number, and thus allow it to be on the court’s docket and for a public judgment to be released in which information can be redacted. An unedited version of the judgment may be filed and sealed by the court and opened only with an order of the court.
The SCC found that the flexible procedure set out in Vancouver Sun did not need to be modified, and that the trial judge had made a justified discretionary decision that it was not appropriate to give notice to interested third parties. The Court of Appeal did not shield any non-confidential information, as the circumstances of the case required heavy redaction to prevent identification of the police informer. However, the SCC held that the Court of Appeal did err in ordering that the entire record should be shielded.
Conclusion
This decision is indicative of the SCC’s approach to prevent the absolute nature of police informer privilege from completely disregarding the value of open courts and right of submissions by media. While the SCC is reluctant to require judges to issue notices to interested third parties when informer privilege has been claimed, they also note that only in exceptional circumstances would no notice given to the public be justified.
With the growth of technology and AI, the public’s expectation of access to information will grow and the current procedure provided by Vancouver Sun may not satisfy the public’s desire for open courts. At the same time, as access to information will grow, so will the need to redact further information to protect informers from being identified. Thus, the inherent contradiction between informer privilege and the open court principle will continue. Counsel and the courts will need to continue finding creative ways of meeting both standards.
If you require additional information or further assistance, please contact David McKnight and Naomi Krueger.
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