The revelation of a “secret trial” provoked cries of outrage. The media reaction was bitter. Stunned chief justices reacted negatively.
Posted at 12:00 p.m.
For one, the Chief Justice of the Supreme Court, Richard Wagner, took the news badly: “When we talk about access to justice, we are talking about transparency. We have a principle that is fundamental in Canada, in Quebec, it is the principle of public hearings […]. It is to allow citizens to see justice in action. There is nothing hidden. He added this: “The more you have a credible justice system with the population, the better your democracy will be. »
Seized of the mysterious affair of the secret trial, the Court of Appeal of Quebec defends itself from “minimizing the constitutional principle of the publicity of legal proceedings, pillar of a truly democratic society”. Since informer privilege would be absolute, sacred and vital to criminal justice, it would be a permitted constitutional exception, the appellate court opined.
The Supreme Court has already described a functional reality: “police informer privilege proves to be of great use to the police in the context of their criminal investigations and their mission to protect the public”. 1
In itself, utilitarianism should not sanctify a privilege born of the common law. This component of the law comes from an accumulation of judicial decisions. It is not based on a foundation of rational principles. In a democracy, it is the doctrinaire jurists and elected officials who should formulate the emerging precepts.
The Canadian Charter of Rights and Freedoms allows for a dynamic interaction between the legislative, executive and judicial powers. These three branches of government dialogue with each other, it being understood that the right to the last word belongs to the legislator. It is accepted that the promotion and protection of rights and freedoms is not the monopoly of the courts. 2
The legislator plays an important role in this regard. Respecting the Constitution, he can modify the common law. In short, Parliament could and should reform the guidelines for informer privilege…unless the Supreme Court decides to intervene and reform this concept.
Faced with a diversity of formulas employed by the judges of the Supreme Court, the ingenious faculty of the three judges of the Court of Appeal seems to have frozen. This docility towards the senior judiciary can harm the modernization of criminal law.
Of all the criminal cases, few trials involve the active and decisive participation of a police informer. A common law creature, informer privilege is an evolving rule of court. Common sense demands that it be interpreted and applied with flexibility. Legal inertia is rarely a promising option.
Judicial weighting
When weighing the scope of informer privilege against the requirement of judicial transparency, the Court of Appeal set aside the usual standard of the perception of a reasonable person: the “perspective which governs the examination of this The question is that of the informant’s accomplices, of the criminal milieu in which he operates, of the accused whom his information will have made it possible to indict, and not the honest perspective of the reasonable person”.
Confidence in the administration of justice cannot be decreed. It is built and nourished over time. A justice system that loses public respect undermines its effectiveness. Public confidence in the administration of justice is vital to its efficiency.
Any reasonable person may well be suspicious of decisions made in the shadows, without any accountability or accountability. The Court of Appeal should have favored this reference, rather than focusing its analysis on the opacity of the criminal milieu and its individual consequences.
The scale of Canadian values comes into play. Although desirable, the physical integrity of an informer should not allow the transparency of judicial proceedings, an important democratic principle, to be undermined.
The Court of Appeal reproaches a serious error to the State (accuser and police) to have charged an informant, from where the cancellation of its condemnation. Some could legitimately reproach the judges of appeal for a second error – institutional this time – with respect to the constitutional principle ensuring the administration of open and transparent justice.
The philosopher and jurisconsult Jeremy Bentham considered advertising “the soul of justice”. When a secret misleads justice, it is democracy that looks bad. The beneficial effects of a judicial secrecy must be greater on the rights and interests of the parties and the public than the harmful repercussions which follow.
1. R. vs. Durham Regional Crime Stoppers Inc. SCC (2017)
2. R. vs. mills (1999)