How to justify an “exaggerated” secrecy

Everything will therefore remain secret in the case of the “Designated Person”.

Why ? First, because the Court of Appeal came to the conclusion that it did not have the power to modify the order of total in camera proceedings decreed by the trial judge. But then that if she had it, she wouldn’t change anything: she wouldn’t disclose the dates, the city, the police involved, the court, the name of the judge, or the lawyers involved.

Because disclosing any of this generic information “would lead directly to Designated Person (DP)”.

How on earth can the name of the judge presiding over a trial “directly lead” to identifying PD?

The Court of Appeal did not explain it to us. Unless it is in the redacted passages of the judgment made public on Tuesday. But since they are redacted, we are in lack of pedagogy…

Because that’s what this is about. The lack of justification for such an exorbitant measure.

No media wants to identify PD This person is risking his life.

Nor is anyone seriously questioning the fact that such cases should be dealt with behind closed doors. It’s part of the short list of exceptions to the principle of public justice in a democracy: protecting someone risking their life by infiltrating the criminal world to help solve serious crimes.

But without even a minimal explanation, we cannot see the path that leads from the name of the court (we clearly know that it is the Court of Quebec) to the name of this mysterious individual. If it were so obvious, Chief Justice Lucie Rondeau would not have requested access to the file – which has just been refused.

For the Court of Appeal, everything starts from the fact that the State accused P. D., after having concluded an agreement with him. Because as PD gave information to the police, we realized that he himself had been involved in certain crimes. Without removing his privilege of anonymity, prosecutors filed criminal charges against him.

This sort of thing almost never happens. When the police make a pact with the devil – because informants are usually criminals themselves – they don’t turn against him. We use his information for investigations. It happens that we call him to testify. It is relatively easy to hide the identity of a witness in the mass of trial evidence.

Except that here, the informant is himself the accused. This is why his trial had to be held behind closed doors.

The mere fact that the state broke its pact by accusing him was a fault, the Court of Appeal said. That’s why PD received a full stay of criminal proceedings – the first judge found him guilty of a crime x.

“Accusing an informant of the crime he himself denounces has its own set of problems, including inevitably leading to a violation of the right to a public trial of the accused and the violation of the rights of the media,” wrote the Court in February, in the judgment which publicized the secret trial.

So far, no one is really saying otherwise. What the media argued last month was that the “absolute” protection for police informers does not include innocuous details like the judge’s name.

Well, according to the Court of Appeal, this time, yes.

Why ?

I just told you that we are not told…

It makes you wonder why the Court of Appeal seemed to remonstrate with the judge for the end of the secrecy measures he decided on.

After telling us that the total secrecy of this shadow trial was “absolutely contrary” to the fundamental principles of our law, after writing that the extent of the secrecy was “exaggerated”, the highest court in Quebec now tells us that the first anonymous judge didn’t really have a choice.

“Circumstances forced the hand of the judge,” wrote the Court. And the circumstances are this ill-advised decision to accuse an informant.

By the way, it was not the judge who wanted to remain anonymous. And all the parties involved worked with “honesty”, insists the Court of Appeal.

I have no doubt about it. From here, I can easily see the defence, which wants to protect the accused, and the prosecution, which wants to protect its former informant, agreeing to worry the trial judge about the disclosure of the slightest bit of information. And the judge decreed this total secrecy, including not only the content, but the very existence of the trial.

But the publicity of the debates exists precisely so that the public can judge for itself this honesty. Instead of relying on reassuring sentences: don’t worry, everything went well!

I read between the lines of this judgment the annoyance of the Court of Appeal in the face of the critics, which considers that it has done the maximum work of reparation by revealing the existence of this trial. She rendered a redacted judgment, but at least she provided some vague facts…

But how to accept such a result?

The Court of Appeal has just told us: the rights of the media (and especially of the public to know what is happening in court) have been violated, but you have no recourse, since you cannot legally modify the judge’s order – the Court of Appeal does not have this power. And since you didn’t know this trial was taking place, you couldn’t plead when it was time.

In short, there is nothing to do.

This result is all the more unacceptable since this judgment, which cannot correct the past but claims to influence the future, essentially says that the judge did the right thing. It’s only the state that should never have prosecuted PD

If, out of the impossible, another P.D. was accused, or another “delicate” case arose, would the next judge be authorized to proceed in the same way? Witnesses heard without his presence, sealed file, anonymity for all, etc. ?

This well-intentioned judge never requested the opinion of the media (it was optional, and the Court does not blame him for that); even less did he notify the chief justice of his court by taking these completely unprecedented measures, which were supposed to leave no trace.

What door is now open for these “extremely rare cases”?

How to accept being placed in front of such a bizarre conclusion: all this was exaggerated, unacceptable… but irreparable, and we cannot really explain to you why?

It’s downright messy.

It remains to be hoped that the Supreme Court will put some order.