Posted at 12:00 p.m.
I read with interest the comment of Mr.e Jean-Claude Hébert. A long-time criminal in national and international criminal matters and in the area of national security, I remain deeply interested in the issue of the protection of informants. I fully agree with the commentator’s statement of principle.
However, I was surprised to read that “utilitarianism should not sanctify a privilege born of the common law” and “that in a democracy it is the doctrinaire jurists and elected officials who should formulate the emerging precepts”.
I would not say that informer secrecy is sanctified since there is an important exception which “desacralizes” it when the innocence of the accused is at stake. As Judge Beetz writes, “its application in no way falls within the discretion of the judge because it is a legal rule of public order which is binding on the judge”.2
Nor would I say that the only democracy that exists is one where doctrinaire jurists and elected officials formulate the principles that emerge.
The common law is the foundation of the oldest democratic system in the world. It is certainly not perfect but certainly the least worst and includes a judicial power which must be truly independent of the legislative and judicial powers.
With regard to the trial in civil and criminal matters, did Jeremy Bentham not write in the English of his time what I translate as follows: “If, in the mind of the applicant, it is a question of ‘a case of the kind for which, for a specific purpose, secrecy must be preserved with regard to the other actors in the judicial theatre, he gives the judge a folded note, in which the request for secrecy is expressed, as well as the reason for it: after which the judge, as he believes to be for the besteither continue the hearing in the public chamber, or transfer it immediately to the private chamber, taking with him the petitioner and the acting clerk3. »
The principle of the publicity of the hearings therefore suffers from an important exception, the applicant being able to rely on the judge to judge the merits according to a procedure which corresponds entirely to the simple and effective procedure still used today.
It was undoubtedly doctrinaire lawyers and elected officials who submitted the director general of the Permanent Anti-Corruption Unit (UPAC) and the Sûreté du Québec (SQ) to the appointment and control of two-thirds of the National Assembly. The police, like the judiciary, must be independent of both executive and legislative power. As Lord Denning wrote, “under the common law every constable should be independent of the executive…he is the servant of no one but the law itself. No Minister of the Crown can tell him that he should or should not watch such and such a place or should not prosecute such and such a man… The responsibility for the application of the law rests with him. He is responsible before the law and before the law alone.4. »
Doctrinaire lawyers and elected officials also attack the judiciary by dictating to the provincial courts how to do their job or by removing from their review laws affecting fundamental freedoms because “that is what Quebecers are asking for”. This easy clientelism undermines democracy.
Judges must not be docile nor become the mouthpiece of the popular clamor of the moment which carries with it the rigor of a “political system or of a doctrine and which supports with intransigence and dogmatically its ideas” as Larousse defines the doctrinaire and associates it with dogmatism.
They must apply the laws, so that they aid reason and not thwart it. The Ward case is a good example.5.
Our laws, our clerks, our lawyers and our judges are used to the “secret files” in our justice system and have the tools to keep secret or make public what needs to be. Everything surrounding the issuance of warrants or electronic authorizations proves it. In this case, that was not done and I regret that the prosecution did not refer it to the Attorney General in accordance with the provisions of section 13 of the Director of Public Prosecutions Act of Canada which obliges the Director of Prosecutions to inform it of any case raising important questions of public interest. It was indeed too serious a matter to be left to the Headmaster alone.
2. Bisaillon c. Keable, [1983] 2 RCS 60, p. 93
3. Principles of judicial procedure, Edinburgh, William Tait, 107 Prince’s street, 1843, Chap. VIII, Section 15 (Proceedings, when secret)
4. [1968] 2 QBs 118 at 135-36 [Ex parte Blackburn]. Lord Denning, pp. 135-136
5. Ward c. Quebec (Commission des droits de la personne et des droits de la jeunesse, 2021 SCC 43