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Open Court - Informer Privilege. Canadian Broadcasting Corp. v. Named Person
In Canadian Broadcasting Corp. v. Named Person (SCC, 2024) the Supreme Court of Canada allows an appeal, here where open court doctrine competes with informer privilege.
Here the court re-considers (and affirms) the informer privilege versus open court doctrine test set out in Named Person v. Vancouver Sun (SCC, 2007) - and [at paras 66-83] it's application to in camera proceedings:C. Procedure Proposed in Vancouver Sun
[47] In Vancouver Sun, this Court addressed the relationship between the openness of court proceedings and informer privilege. It proposed a procedure to be applied when informer privilege is claimed, a procedure that is both flexible and malleable. This procedure has a single guiding rule: giving full effect to the requirements of this “privilege which is extremely broad and powerful”, under which “a complete and total bar on any disclosure of the informer’s identity applies”, while limiting, as much as possible, any impairment of the open court principle (para. 30; see also paras. 40‑41, 44 and 55).
[48] This Court has since applied the procedure in various decisions (see, e.g., Basi; Durham). It is divided into two stages. First, the court must verify the existence of the privilege. For this purpose, it will hold an in camera hearing that, if necessary, will be ex parte (see Vancouver Sun, at paras. 46 and 49; Basi, at paras. 41‑44; Durham, at paras. 36‑37). At this first stage, “even the claim of informer privilege must not be disclosed” (Vancouver Sun, at para. 47). Generally, only the police informer and the Crown — that is, the holders of the privilege — may attend the hearing (Vancouver Sun, at para. 46; Durham, at para. 35). Exceptionally, the hearing may also be attended by those who are in the circle of privilege, such as a police officer called to testify about the existence of the privilege. In addition, an amicus curiae may be present “in those unusual situations in which the judge finds this to be necessary” because the non‑adversarial nature of the proceeding gives cause for concern (Vancouver Sun, at paras. 47‑49; see also Basi, at para. 38; Brassington, at para. 38). This stage requires the greatest caution to be exercised: no third party — which is to say no one outside the circle of privilege — may attend the hearing (Vancouver Sun, at para. 49; see also paras. 46‑47; Basi, at para. 44; Durham, at para. 35). The judge’s responsibility at this stage is “to demand from the parties some evidence which satisfies the judge, on balance, that the person is a confidential informer” (Vancouver Sun, at para. 47). We emphasize that, at this stage, evidence that a person is a police informer automatically engages the privilege (at para. 47); the judge has no discretion in this regard (Barros, at para. 1). This is a rule of public order (Leipert, at para. 13, quoting Bisaillon, at p. 93).
[49] At the second stage, having established the existence of informer privilege, the judge is charged with carrying on the proceedings without violating the privilege while at the same time accommodating, to the greatest extent possible, the open court principle, the right to be heard and the adversarial nature of the proceedings (Vancouver Sun, at paras. 50‑51). At this stage, the court will determine the appropriate measures to protect informer privilege. For the purposes of this determination, it may be helpful — and even generally desirable — for the court to allow third parties to make submissions on the confidentiality orders that would be appropriate to protect the informer’s anonymity while limiting any impairment of the open court principle. In lieu of or in addition to submissions from interested third parties, the court may consider it advisable to appoint an amicus curiae to provide it with guidance on the matter. The reason for opting for this solution is that, in most cases, the court does not have the benefit of adversarial debate on the matter — given that, with some exceptions, it is in the interest of both the Crown and the police informer to argue strenuously in favour of non‑disclosure of all the information in issue. Regardless of the approach chosen, the court should, while exercising great vigilance, disclose as much information as possible to the third parties or the amicus curiae to help ensure that that their submissions are helpful. No information, even the smallest detail, that might compromise the informer’s anonymity can be disclosed to them (paras. 51 and 58).
[50] If the court decides to issue a public notice inviting interested third parties to make submissions on confidentiality orders, or if interested third parties learn in some other way that arguments are to be made on confidentiality orders, the judge will then have to hear their submissions in order to determine what confidentiality orders are appropriate. It is at this point that “the media is granted standing to present arguments on how informer privilege can be respected with minimal effect on the open court principle” (Vancouver Sun, at para. 54; see also para. 56).
[51] It should be noted that the appropriate confidentiality orders will vary with the circumstances of each case. As the Court of Appeal pointed out, echoing Bastarache J.’s remarks in Vancouver Sun, it will be necessary in some cases to proceed totally or partially in camera and to seal the court record in whole or in part, while in other cases it may be sufficient to protect only a few documents or the informer’s name, and there is a wide range of situations possible between these two extremes. Everything depends on the unique circumstances of each case — and first and foremost on the nature and extent of the informer’s participation in the proceeding. If this individual is involved as an informer in a third party’s trial, which is the most common scenario, the protection required may vary based, among other things, on whether or not they testify. Similarly, the confidentiality orders needed to protect this individual’s anonymity will vary according to whether their role in the proceeding is secondary or whether, on the contrary, the individual and their informer status are at the centre of the case, as here (see Vancouver Sun, at para. 56; 2022 QCCA 984, at para. 65).
[52] The Canadian Broadcasting Corporation et al. argue that it is time to modify this second stage of the Vancouver Sun procedure to make it more consistent with the open court principle. In their opinion, the present case and a similar one from British Columbia, the existence of which was kept from the public, reveal the shortcomings of this stage (A.F., at paras. 11, 14 and 78, citing R. v. Bacon, 2020 BCCA 140, 386 C.C.C. (3d) 256). They submit that these cases demonstrate the need to limit or even eliminate the judge’s discretion and also to ease restrictions on the disclosure of information that might tend to identify a police informer to interested third parties wishing to make submissions on confidentiality orders.
[53] Specifically, the Canadian Broadcasting Corporation et al. first ask that this Court transform what has so far been the judge’s discretion to hear interested third parties on confidentiality orders into a duty to do so. They suggest that a duty be imposed on the presiding judge to issue a notice to interested third parties, and principally the media, advising them that informer privilege has been claimed and that arguments will soon be made on the appropriate measures to protect it (A.F., at paras. 76‑84). In their opinion, transforming the judge’s discretion into a duty in this manner is the only way to ensure that a case is never again [translation] “removed from the view” of the public (para. 14; see also transcript, at pp. 27, 31 and 41‑46). In addition, to enable interested third parties to make detailed submissions and to ensure that there is an informed adversarial debate on confidentiality orders, they take the view that all information that does not directly identify the informer should be disclosed to interested third parties, or at least to their counsel, possibly with undertakings of confidentiality given in return. In the alternative, if the disclosure of this information is not possible, they suggest that interested third parties, or only their counsel, be apprised of the nature of the information sought to be shielded from public view and the reason for keeping the information confidential so that they can make arguments in this regard (A.F., at paras. 85, 87‑90, 96 and 98).
[54] With respect, we disagree. In addition to departing from well‑settled jurisprudence, the changes called for are not necessary or even desirable.
(1) Judges Must Retain the Discretion to Issue a Notice to Interested Third Parties
[55] Since there are many circumstances in which informer privilege is claimed, it is imperative that judges have the discretion to determine whether it is in the interests of justice to issue a notice to interested third parties advising them that the privilege has been claimed and that arguments will soon be made on the appropriate confidentiality orders (Vancouver Sun, at paras. 52‑54). While it can be presumed that issuing a notice will generally be in the interests of justice, it is always possible that doing so will not be appropriate in a particular case, such as where the “holder of the privilege is present and plays an active role in court” (para. 54).
[56] In Vancouver Sun, a majority of this Court considered and rejected the idea that issuing a notice to interested third parties becomes mandatory where the making of confidentiality orders is being contemplated to protect a police informer’s anonymity. The Court explained that this discretion is justified on the basis that no one has a constitutional right to be informed of all situations in which informer privilege is claimed:The decision to post a public notice regarding the existence of the proceeding is a matter of discretion on the part of the judge. In other words, no one has a right, constitutional or otherwise, to be informed of all situations in which informer privilege is claimed. The reason for this is simply practical: there is no real difference — vis‑à‑vis the open court principle — between a situation in which informer privilege exists and any other situation in which some part of a proceeding takes place in camera — be it a situation of a child sexual assault victim, or a situation involving solicitor‑client privilege. It would be unworkable and unreasonable to expect that literally every time an in camera proceeding is taking place, a judge has the obligation to publicize its existence and invite submissions from all comers on whether that proceeding should be held in camera. Nor should a judge choose “worthy” interveners. [Emphasis added; para. 53.] [57] Similarly, the importance of maintaining discretion in issuing such a notice was recently reiterated by the majority in C.B.C. v. Manitoba in the context of discretionary confidentiality orders:To be clear, limits on court openness, such as a publication ban, can be made without prior notice to the media. Given the importance of the open court principle and the role of the media in informing the public about the activities of courts, it may generally be appropriate to give prior notice to the media, in addition to those persons who would be directly affected by the publication ban or sealing order, when seeking a limit on court openness (see Jane Doe v. Manitoba, 2005 MBCA 57, 192 Man. R. (2d) 309, at para. 24; M. (A.) v. Toronto Police Service, 2015 ONSC 5684, 127 O.R. (3d) 382 (Div. Ct.), at para. 6). But whether and when this notice should be given is ultimately a matter within the discretion of the relevant court (Dagenais, at p. 869; M. (A.), at para. 5). I agree with the submissions of the attorneys general of British Columbia and Ontario that the circumstances in which orders limiting court openness are made vary and that courts have the requisite discretionary authority to ensure justice is served in each individual case. [Emphasis added; para. 51.] [58] There is no reason to depart from these precedents. Anecdotal examples of the misapplication of the guiding rule from Vancouver Sun cannot on their own justify altering well‑settled jurisprudence, which unequivocally recognizes the importance of preserving the courts’ discretion to issue a public notice when they are about to make orders limiting court openness. Such cases do not suffice to show that one of our precedents can be overturned either because it is unworkable and undermines one of the purposes of stare decisis (see, e.g., R. v. Henry, 2005 SCC 76, [2005] 3 S.C.R. 609, at paras. 42‑44; Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653, at paras. 18‑22; Nishi v. Rascal Trucking Ltd., 2013 SCC 33, [2013] 2 S.C.R. 438, at paras. 24‑28; R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631, at paras. 32 and 38; Vetrovec v. The Queen, 1982 CanLII 20 (SCC), [1982] 1 S.C.R. 811, at pp. 817‑18 and 824‑25) or because its foundations have been eroded (see, e.g., Brooks v. Canada Safeway Ltd., 1989 CanLII 96 (SCC), [1989] 1 S.C.R. 1219, at pp. 1243‑46; Hamstra (Guardian ad litem of) v. British Columbia Rugby Union, 1997 CanLII 391 (SCC), [1997] 1 S.C.R. 1092, at paras. 15‑17, 19, 23 and 25).
[59] Furthermore, we agree with the attorneys general of Canada and Ontario that it is necessary and desirable for the courts to have the discretion to decide whether issuing a notice to interested third parties is in the interests of justice where confidentiality orders are being contemplated to protect a police informer’s anonymity (I.F., Attorney General of Canada, at paras. 15‑18; I.F., Attorney General of Ontario, at paras. 18‑23). We take this view because one cannot exclude the possibility that a rigid rule would prevent an informer’s anonymity from being preserved in a particular case. For this reason, the existence of a discretion to issue a notice — rather than an absolute duty to do so — provides the court with the flexibility needed to ensure that, in each case, justice is served by adopting a procedure that is as consistent as possible with the open court principle without risking a breach of informer privilege. Finally, when the court is considering whether it is appropriate to issue a notice to interested third parties, the court must still bear in mind that it is only exceptionally that the best interests of justice will require that no notice be given to the public (see C.B.C. v. Manitoba, at para. 51, citing, among others, M. (A.) v. Toronto Police Service, 2015 ONSC 5684, 127 O.R. (3d) 382 (Div. Ct.), at para. 6). . Canadian Broadcasting Corp. v. Named Person
In Canadian Broadcasting Corp. v. Named Person (SCC, 2024) the Supreme Court of Canada allows an appeal, here where open court doctrine competes with informer privilege. Here the court summarizes it's decision:I. Overview
[1] When justice is rendered in secret, without leaving any trace, respect for the rule of law is jeopardized and public confidence in the administration of justice may be shaken. The open court principle allows a society to guard against such risks, which erode the very foundations of democracy. By ensuring the accountability of the judiciary, court openness supports an administration of justice that is impartial, fair and in accordance with the rule of law. It also helps the public gain a better understanding of the justice system and its participants, which can only enhance public confidence in their integrity. Court openness is therefore of paramount importance to our democracy — an importance that is also reflected in the constitutional protection afforded to it in Canada.
[2] In this context, it is therefore hardly surprising that this case concerning Named Person, a police informer who, according to the Court of Appeal, was convicted following a “secret trial”, has provoked both concern and indignation among the public. The very idea that “secret trials” — that is, criminal proceedings of which no trace exists — may be conducted in our liberal democracy is indeed an intolerable one. Such proceedings go against the democratic ideals that Canadians hold dear.
[3] The controversy, which arose after the Court of Appeal released a judgment in March 2022 in which it misguidedly denounced the holding of a “secret trial”, was largely due to the gap between what the public knew and what it did not know, combined with the effect of the unfortunate expression used by the Court of Appeal. That expression could in fact have suggested that Named Person had been convicted following a secret criminal proceeding. That state of affairs alarmed the public and the media. It also jeopardized public confidence in the justice system. But to be clear, no secret trial was held in this case. As can be seen from the Court of Appeal’s second decision in July 2022, the criminal proceeding against Named Person began and moved forward publicly until Named Person filed a motion for a stay of proceedings based in part on the state’s abusive conduct toward them as a police informer.
[4] In fact, the very concept of “secret trial” does not exist in Canada. This Court has long since delineated how the cardinal principle of court openness may be tempered where the circumstances of a case so require. Various confidentiality orders may be made during the proceeding for certain portions thereof, up to and including an order that all hearings be held in camera, that is, with all members of the public excluded for their entire duration. But it is well established that “secret trials”, those that leave no trace, are not part of the range of possible measures. In this context, any comparison of hearings held totally in camera to a “secret trial” is wrong and needlessly alarming.
[5] 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.
[6] 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.
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[23] We are of the view that the procedure proposed in Vancouver Sun should not be modified. In addition to departing from well‑settled jurisprudence, the changes proposed by the Canadian Broadcasting Corporation et al. are not necessary or even desirable.
[24] Furthermore, we are of the view that the application of the guiding rule from Vancouver Sun — whereby full effect must be given to the requirements of informer privilege, which is broad and powerful, while minimizing any impairment of the open court principle — will necessarily ensure that, at a minimum, the existence of an in camera hearing and of any judgment rendered as a result will be made public. To this end, and in accordance with the circumstances of each case, it may be necessary to create a parallel proceeding that is completely separate from the public proceeding in which informer privilege is initially invoked. The record for the parallel proceeding thereby created, though sealed, will then have its own record number. Moreover, subject to the redaction of information that might tend to reveal the informer’s identity, it will generally be possible for the proceeding to be on the court’s docket and hearing roll and for a public judgment to be released. This is how the case before us should have moved forward at trial.
[25] Lastly, we are of the view that the Court of Appeal, in its redacted reasons, did not shield non‑confidential information from public view. The combination of circumstances in this case meant that the Court of Appeal had no choice but to redact its reasons as heavily as it did. That being said, the Court of Appeal erred in upholding its order that the entire appeal record be sealed. It should have made a redacted version of the trial judgment public. . Canadian Broadcasting Corp. v. Named Person
In Canadian Broadcasting Corp. v. Named Person (SCC, 2024) the Supreme Court of Canada allows an appeal, here where open court doctrine competes with informer privilege:(2) The Interests Protected by the Open Court Principle Yield to Those Protected by Informer Privilege
[37] Informer privilege is of such importance that it has repeatedly been characterized as “absolute” or “near absolute”. This characterization can be explained by the fact that the privilege is non‑discretionary, in the sense that its recognition does not depend on any balancing of interests. This means that once informer status is established, courts are not permitted to weigh the maintenance or scope of the privilege on a case‑by‑case basis in light of the circumstances of the case and competing legitimate interests, such as the level of risk faced by the informer, the pursuit of truth or the preservation of public confidence in the administration of justice (see Vancouver Sun, at paras. 4, 22, 26 and 55; R. v. Leipert, 1997 CanLII 367 (SCC), [1997] 1 S.C.R. 281, at paras. 12 and 14; R. v. Basi, 2009 SCC 52, [2009] 3 S.C.R. 389, at paras. 22 and 37; R. v. National Post, 2010 SCC 16, [2010] 1 S.C.R. 477, at para. 42; Barros, at paras. 1, 30 and 35; Durham, at paras. 1, 11 and 14‑15; Brassington, at para. 36; Canada (Transportation Safety Board) v. Carroll‑Byrne, 2022 SCC 48, at paras. 6 and 8; J. Fournier, “Les privilèges en droit de la preuve: un nécessaire retour aux sources” (2019), 53 R.J.T.U.M. 461, at pp. 489, 491‑92 and 495).
[38] The informer privilege rule applies in civil, administrative and criminal proceedings and admits but one exception, under the criminal law, in cases where this is “necessary to establish innocence in a criminal trial” (Vancouver Sun, at para. 27). The exception is a narrow one that is distinct from the broader right of an accused to make full answer and defence (see Basi, at paras. 22, 37 and 43; Bisaillon v. Keable, 1983 CanLII 26 (SCC), [1983] 2 S.C.R. 60, at pp. 93 and 107; Barros, at paras. 28 and 34; Durham, at para. 14; Brassington, at para. 36; Vancouver Sun, at para. 26; Hubbard and Doherty, at §§ 2:7 and 2:13).
[39] This privilege belongs “both to the Crown and to the informer and neither can waive it without the consent of the other” (Durham, at para. 11, citing Vancouver Sun, at para. 25). As long as its application has not been validly waived, the police, the Crown and the courts have a duty to keep the identity of informers confidential. These three actors are part of the very limited circle of privilege, which the courts have refused to widen to include, for example, defence counsel or the syndic of the Barreau du Québec (see Vancouver Sun, at paras. 21 and 25‑26; Basi, at paras. 44‑45; Barros, at para. 37; Bilodeau v. Directeur des poursuites criminelles et pénales, 2020 QCCA 1267; D. M. Paciocco, P. Paciocco and L. Stuesser, The Law of Evidence (8th ed. 2020), at p. 334).
[40] In the case of the courts, the duty to keep a police informer’s identity confidential means that they do not have “any discretion to disclose . . . information [that might tend to identify the informer] in any proceeding” (Vancouver Sun, at para. 30), even where limiting the scope of the privilege in a particular case would allow “more complete justice” to be done (Bisaillon, at p. 102). The application of the privilege is not subject to any formal requirement, and judges must even ensure respect for it of their own motion (see Bisaillon, at p. 93). Therefore, contrary to the arguments made by the Canadian Broadcasting Corporation et al. (A.F., at paras. 68 and 79), the test developed in Dagenais v. Canadian Broadcasting Corp., 1994 CanLII 39 (SCC), [1994] 3 S.C.R. 835, and R. v. Mentuck, 2001 SCC 76, [2001] 3 S.C.R. 442, and reformulated in Sherman is of no assistance, because a judge has no discretion once it is shown that informer privilege applies (Vancouver Sun, at paras. 34‑37).
[41] As the Court of Appeal correctly pointed out, non‑discretionary privileges must [translation] “take precedence over any other consideration, even of public order or public interest, with some limited exceptions” (2022 QCCA 984, at para. 53). Relying on this Court’s decision in National Post (at para. 42) and quoting Beetz J. in Bisaillon (at pp. 97‑98), the Court of Appeal then made the following comments, which are worth reproducing:[translation] It is a privilege that produces its effects “without regard to the particulars of the situation” (thus without regard to the facts of each case) and without it being necessary to establish harm, which is in fact presumed, or an increase in the risk of harm. Indeed, this is how it differs from privilege recognized on a case‑by‑case basis, which calls for such a balancing of the interests of those who claim confidentiality and must show that it is necessary against the interests of those who oppose it or seek access to information. As Beetz J. explained in Bisaillon, comparing Crown privilege and informer privilege:This procedure, designed to implement Crown privilege, is pointless in the case of secrecy regarding a police informer. In this case, the law gives the Minister, and the Court after him, no power of weighing or evaluating various aspects of the public interest which are in conflict, since it has already resolved the conflict itself. It has decided once and for all, subject to the law being changed, that information regarding police informers’ identity will be, because of its content, a class of information which it is in the public interest to keep secret, and that this interest will prevail over the need to ensure the highest possible standard of justice. [Bold added; para. 53.] [42] 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.
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