In the list of cases worth investigating, those involving bullshit by the police come very high.
Posted at 6:00 a.m.
It is precisely this type of case that has become the famous “shadow trial”, revealed by the Court of Appeal this week.
In this case, the police recruited an informant, who gave him information on the criminal world. A very classic operation: in exchange for money, the informant tells the police what is happening in the mafia, among bikers, in short, in his criminal milieu.
Obviously, this double game is very dangerous and, if unmasked, the police informer is a dead man. In exchange for his good services, he therefore not only receives money, but also a form of immunity from charges and protection if things go wrong.
In the case now known as “Designated Person”, the informant believed he had obtained a police discharge for his past crimes. All the while knowing that, if we pinched him for a new crime, there would be no more agreement and that he would be accused.
But this verbal agreement rather haywire, thank you, was not understood as such by the police.
When “Designated Person” confessed to a past crime, the police said to him: oops, sorry my old man, there is no agreement, we have to accuse you.
Problem: it was still an indicator… How to bring to justice a person who has the right to anonymity?
Panic among the lawyers, panic in the judge’s office…
The solution ?
A secret trial!
This is how this trial, which took place no one knows where, when, before whom, or with what lawyers, was born badly. A trial that did not even take place in a courthouse: the interrogations were out of court, and the judge judged by reading the transcripts…
A trial that the Court of Appeal has just cut to pieces on the merits: the police did not play fair with the indicator, who should never have been accused. It’s the deal what they had done with the devil. The informant was cleared of all charges because of the police’s messy process.
You can hardly find a cause that is more in the public interest: how do the police fight organized crime? Is she competent? What kind of arrangement is made with criminals to arrest bigger criminals? How do judges decide these cases? Where do they draw the line between what is justifiable and what is reprehensible in police techniques?
In Russia (I take a random example), do not try to get this information by covering a lawsuit.
It is the very essence of the rule of law to have public access (for anyone in the public) to trials to know how justice is done.
It is the foundation of this “public trust” on which justice is supposed to rest, and which is the mantra of the courts.
Contemporary conspiracy, like that of past generations, feeds precisely on state secrets, true or false, and on everything that happens behind closed doors.
How, then, was it possible to go so far in the absurdity of secrecy, to the point of having a trial on paper where the judge could not even see the faces of the witnesses?
There is no such extreme precedent, but there is still a related case in British Columbia, settled in 2007. An immigration case where the judge ordered a closed session because the “designated person was a police informer. But at least the judge sought the opinion of an independent lawyer and media lawyers, to obtain a somewhat contrary opinion. And he did a real trial.
In this type of case, you have to understand this: the defence, which is defending a compromised accused, wants as much anonymity as possible; and the prosecution, which does not want to reveal police secrets, wants the same thing. Everyone wants behind closed doors! There remains the judge, supposed to preserve the integrity of the trial… and its constitutionality.
In the case before us, the judge did not require any outside opinion. Nothing. And he invented this remote procedure.
Having spoken to several judges, ex-judges and lawyers over the past two days, this case is absolutely unprecedented in Canada.
Did the judge decide this strange procedure on his own? Did he consult the Chief Justice? On the one hand, the decision is so extreme: it is hard to imagine that it was taken solo. But on the other hand, when a judge does not even dare to publish his name, perhaps he preferred not to tell anyone?
What about the prosecutor? Did he consult his superiors? Did it go up to director Patrick Michel, appointed last year, or his predecessor, Annick Murphy?
But maybe it was a federal prosecution case, involving the Royal Canadian Mounted Police?
Indicators have an absolute right to anonymity: there is no debate on that. They are an essential crime-fighting tool and risk their lives.
But what must be protected is their identity, or the information allowing it to be known. Not everything, everything, everything, even the name of the judge. A judge supposed to “take all possible measures to ensure the public the most complete access to the proceedings and to restrict the communication and publication of information only if this information is likely to reveal the identity of the informant”, as said the Supreme Court.
The Court of Appeal, which tells us about the existence of this phantom trial, and which is very critical of the judge… does not give us any new information, and has not even requested an outside opinion. She denounces as “exaggerated” the extreme measures of the judge, says that it violates all the principles of transparency… but does nothing to inform us minimally.
Is that how we intend to preserve the “public trust”?
What remains to be done?
Go back to the Court of Appeal, to ask for the bare minimum of information. Because there’s no way to investigate a sealed case otherwise.
It should be the Attorney General’s job, but there’s no indication it’s going to happen.
It will remain to question those responsible, the Director of Criminal and Penal Prosecutions (?), the Court (which one?), the Bar, so that they can explain themselves.
I know, I’m dreaming.
Because apart from the anonymity of the indicator, which everyone obviously respects, no explanation has been given, not even by the Court of Appeal. So with this pretext, oh so morally indisputable, we will throw aside all the beautiful principles of transparency. Everyone deplores it, everyone laments. But these people are all complicit in this secret which they claim is detestable.
What about this statement by the DPCP, which can “neither confirm nor deny” that he participated in a trial in Quebec? Must do it! We don’t ask for the CI’s name or PIN. Just… were you there?
If the prisoners of Guantánamo can be judged more or less in public, if the informers who have convicted terrorists, gang leaders, like Maurice Boucher or others, have been able to be protected while testifying in public… we should at least know less… the name of the judge and the crime alleged against “Designated Person”… Maybe two, three dates?
Because it also remains to know: has it happened other times?