A trial of which all traces have been removed. If the case had not been examined by the Court of Appeal, which rendered a decision publicized by the journalist Vincent Larouche, of The Press, it is likely that the public would never have heard of it. The parties had agreed with the judge to decide in secret that the trial would take place in “complete and total closed session”. No formal case number appears on the trial judge’s substantive judgment, witnesses were questioned out of court, the parties asked the judge to decide on the basis of the transcripts, in a secret hearing, and the judgment was kept secret. In short, explains the Court of Appeal, “no trace of this trial exists, except in the memory of the individuals involved”.
The Court of Appeal had to recall what was thought to be obvious. The three judges write that “ […] if trials are to protect certain information disclosed therein, such a secret procedure […] is absolutely contrary to modern criminal law and respectful of the constitutional rights not only of the accused, but also of the media, as well as incompatible with the values of a liberal democracy”.
Even if it were to prove isolated, this event could serve as fuel for those who question the credibility of the judicial process. This did not escape the Chief Justice of the Superior Court, who expressed his amazement at such an unusual event. For it is however well established that the power to impose limits on the openness of court proceedings in order to serve other public interests is recognized, but it must be exercised with moderation and always taking care to maintain the strong presumption that the justice must be done in full view of the public.
Media executives have demanded that light be shed on this sham trial. With good reason, they ask if other trials than the one mentioned in the decision of the Court of Appeal took place in secret. The question is legitimate. In this troubling case, we have concealed even the traces of the course of the trial. Have there been others? How many of these situations have the parties been able to convince a judge to ignore the Supreme Court’s directives to such an extent and to hold a trial under conditions that bring us back to the painful memory of the Stalin era?
There are countless decisions by courts of appeal that remind us that the decision to shield information from the public eye must be justified and limited to the sole demonstrated need to protect human life or important values.
Given these clear signals from the highest courts, it is to the persistence of systemic secretive reflexes that the holding of such a phantom trial must be attributed.
Systemic bias
The conduct of trials is affected by a systemic bias that tends to favor secrecy. By default, the public prosecutor and the defense are alone before the judge. The media and third parties are not direct parties to the lawsuit. This can stimulate the temptation to agree on “arrangements” so that things go as quietly as possible. In a trial, if it happens that the prosecution and the defense believe that they have more to gain by concealing than by acting in full transparency, they are in a position to convince the judge to opt for secrecy.
The media, practically the only bulwark to guarantee the public nature of justice, are structurally excluded from these deliberations during which the parties agree to hide everything. The only safeguard is the vigilance of the judge, which can sometimes be lacking. There is a systemic flaw here that appeal courts have to date tried to correct by issuing strong messages about the imperative of open justice. But this seems insufficient to reverse the reflex of several players in the judicial system.
No one disputes the need to protect the vulnerable or those who risk their lives by agreeing to help the police force. Similarly, we readily agree that we must not sink into naivety when police forces have to grapple with criminals who have nothing to do with respect for human life.
But concealing a judicial process by erasing all traces of a trial is to jeopardize the very credibility of the courts.
The courts have the task of deciding between the scope and the limits of fundamental rights. They are the ultimate ramparts of the rules that underpin our democratic society. What distinguishes a democratic society from an autocratic regime is precisely the existence of independent judges capable of deciding in complete transparency on the scope and limits of rights and laws. This presupposes that it is possible for the public to observe the progress of the trials. It is on this condition that the legitimacy of judicial processes can be demonstrated. Otherwise, it is to be feared that some will be inclined to doubt the integrity of the process by which judges evaluate and weigh the values that form the bedrock of rights and freedoms.
To tolerate processes that eliminate the possibility of public scrutiny of judicial processes is to play with fire. The fire that ignites the social fabric when trust in the courts is compromised. Democracy risks coming out burnt.