Canadian Broadcasting Corp. v. Named Person

Canadian Broadcasting Corp. v. Named Person
Collection
Supreme Court Judgments
Date
2024-06-07
Neutral citation
2024 SCC 21
Case number
40371
Judges
Wagner, Richard; Karakatsanis, Andromache; Côté, Suzanne; Rowe, Malcolm; Martin, Sheilah; Kasirer, Nicholas; Jamal, Mahmud; O’Bonsawin, Michelle; Moreau, Mary
On appeal from
Quebec
Subjects
Criminal law
Notes
Case in Brief SCC Case Information
Decision Content
SUPREME COURT OF CANADA
Citation: Canadian Broadcasting Corp. v. Named Person, 2024 SCC 21
Appeals Heard: December 12 and 13, 2023 Judgment Rendered: June 7, 2024 Docket: 40371
Between:
Canadian Broadcasting Corporation, La Presse inc., Coopérative nationale de l’information indépendante (CN2i), Canadian Press Enterprises Inc., MediaQMI inc. and Groupe TVA inc. Appellants
and
Named Person and His Majesty The King Respondents
And Between:
Attorney General of Quebec Appellant
and
Named Person and His Majesty The King Respondents
- and -
Attorney General of Canada, Attorney General of Ontario, Attorney General of Alberta, Lucie Rondeau, in her capacity as Chief Judge of the Court of Québec, Canadian Muslim Lawyers Association, Advocates’ Society, Barreau du Québec, Association québécoise des avocats et avocates de la défense, Association des avocats de la défense de Montréal-Laval-Longueuil, Centre for Free Expression, Canadian Civil Liberties Association, Ad IDEM/Canadian Media Lawyers Association, Postmedia Network Inc., Global News, a division of Corus Television Limited Partnership, Torstar Corporation, Glacier Media Inc. and Criminal Lawyers’ Association (Ontario) Interveners
Official English Translation
Coram: Wagner C.J. and Karakatsanis, Côté, Rowe, Martin, Kasirer, Jamal, O’Bonsawin and Moreau JJ.
Reasons for Judgment: (paras. 1 to 93)
The Court
Note: This document is subject to editorial revision before its reproduction in final form in the Canada Supreme Court Reports.
Canadian Broadcasting Corporation, La Presse inc.,
Coopérative nationale de l’information indépendante (CN2i),
Canadian Press Enterprises Inc., MediaQMI inc. and
Groupe TVA inc. Appellants
v.
Named Person and His Majesty The King Respondents
‑ and ‑
Attorney General of Quebec Appellant
v.
Named Person and His Majesty The King Respondents
and
Attorney General of Canada,
Attorney General of Ontario,
Attorney General of Alberta,
Lucie Rondeau, in her capacity as Chief Judge of the Court of Québec,
Canadian Muslim Lawyers Association,
Advocates’ Society, Barreau du Québec,
Association québécoise des avocats et avocates de la défense,
Association des avocats de la défense de Montréal-Laval-Longueuil,
Centre for Free Expression, Canadian Civil Liberties Association,
Ad IDEM/Canadian Media Lawyers Association,
Postmedia Network Inc.,
Global News, a division of Corus Television Limited Partnership,
Torstar Corporation, Glacier Media Inc. and
Criminal Lawyers’ Association (Ontario) Interveners
Indexed as: Canadian Broadcasting Corp. v. Named Person
2024 SCC 21
File No.: 40371.
2023: December 12, 13; 2024: June 7.
Present: Wagner C.J. and Karakatsanis, Côté, Rowe, Martin, Kasirer, Jamal, O’Bonsawin and Moreau JJ.
on appeal from the court of appeal for quebec
Criminal law — Informer privilege — Open court principle — Motion for stay of proceedings and appeal by accused person having police informer status heard in camera, and information that might tend to identify person sealed — Interested third parties challenging confidentiality orders — Whether confidentiality orders were justified.
A person who had acted as an informer for a police force was charged with criminal offences. They brought a motion for a stay of proceedings based in part on abusive state conduct related to the laying of the charges. Because the person’s informer status was at the centre of the relevant factual framework and the parties’ arguments, the judge dealing with the motion ordered that it be heard in camera. No notice was given to the media, since the judge was of the view that revealing anything about the motion, including its existence, would be likely to compromise the person’s anonymity. The motion, its content and the exhibits and transcripts submitted to the judge remained confidential and were not listed in any docket. The motion was dismissed in a written judgment, which had no file number and was not public.
The person was subsequently convicted and appealed the conviction. The appeal was heard in camera, and no notice was given to the media. The Court of Appeal allowed the person’s appeal, stayed the conviction and entered a stay of the criminal proceedings on the ground of abuse of process by the state. The Court of Appeal decided to open a record at its court office, accompanied by a sealing order, and to make public a version of its judgment in which the following information was redacted: the person’s name; the identity of the court and the judge who heard the motion; the judicial district in which the proceeding was held; the identity of the prosecutor, counsel for the prosecution on appeal and counsel for the person; the identity of the police force and the police officers involved; the nature of the crime with which the person was charged and the circumstances of its commission. In that judgment, the Court of Appeal denounced the holding of a “secret trial”, which alarmed the public and the media. It also expressed its disagreement with the scope of the confidentiality measures put in place for the person’s trial.
A number of media organizations, the Attorney General of Quebec and the Chief Judge of the Court of Québec then asked the Court of Appeal to review the confidentiality orders made in the person’s case. In a second judgment, the Court of Appeal upheld the sealing of all information that might tend to identify the person. In its view, there was no possibility of disclosing any information that might tend to identify the person, at the risk of endangering them — it was therefore not possible to reveal their personal information, the nature, dates and circumstances of the offences with which they were charged, and the identity of the judge, the trial court, the judicial district, the prosecutor and counsel for the prosecution, counsel for the person and the police force involved. The Court of Appeal also refused to partially unseal the appeal record by redacting the same information as in the public version of its judgment. The media organizations and the Attorney General of Quebec appealed that second judgment to the Court.
Held: The appeals should be allowed in part.
No secret trial was held in this case. The magnitude of the controversy that arose after the Court of Appeal’s first judgment was released could have been limited if that court had not used the expression “secret trial” to describe what were actually in camera hearings held in a proceeding that began and initially moved forward publicly. When a court proceeds in camera, it is important that it rigorously apply the guiding rule from Named Person v. Vancouver Sun, 2007 SCC 43, [2007] 3 S.C.R. 253, requiring it to protect informer privilege while minimizing, as much as possible, any impairment of the open court principle. In this case, the Court of Appeal was correct to dismiss the motions for disclosure of the information that had been kept confidential up to that time, but it erred in upholding its order that the entire appeal record be sealed. The case is remanded to the Court of Appeal so that it can make public a redacted version of the trial judgment included in the appeal record, after consulting the parties concerned on a proposal for partial unsealing and redaction.
Under the open court principle, every person, as a general rule, has the right to access the courts, to attend hearings, to consult court records and to report on their content. Court openness supports an administration of justice that is impartial, fair and in accordance with the rule of law. It also helps the public gain a better understanding of the justice system and all of its participants, which can only enhance public confidence in their integrity. Because of the fundamental importance of court openness, confidentiality orders limiting it can be made by the courts only in rare circumstances. These exceptions are predicated on the idea that openness cannot prevail if the ends of justice, or the interests that openness is meant to protect, would be better served in some other way.
One of these exceptions is informer privilege, which is a rule that protects from revelation in public or in court of the identity of those who give information related to criminal matters in confidence. The privilege is not limited simply to the informer’s name, but rather extends to any information that might lead to identification. It applies whenever it is established that the police have received information under a promise of confidentiality, whether implicit or explicit. Informer privilege is non‑discretionary. Once informer status is established, courts are not permitted to weigh the maintenance or scope of the privilege on a case‑by‑case basis in light of the circumstances of the case and competing legitimate interests, such as the level of risk faced by the informer, the pursuit of truth or the preservation of public confidence in the administration of justice. Recognition of the non‑discretionary and thus virtually absolute nature of informer privilege means that the interests protected by the open court principle yield to those protected by the privilege. The social justification for this privilege is found in the need to ensure performance of the policing function and maintenance of law and order. The ban on revealing the informer’s identity has dual objectives: to protect the informer from possible retribution and to encourage other people to cooperate with the police in the future by sending them a signal that their identity too will be protected.
In Vancouver Sun, the Court addressed the relationship between the openness of court proceedings and informer privilege. It proposed a procedure to be applied when informer privilege is claimed, a procedure that is both flexible and malleable. This procedure has a single guiding rule: giving full effect to the requirements of this extremely broad and powerful privilege, under which a complete and total bar on any disclosure of the informer’s identity applies, while limiting, as much as possible, any impairment of the open court principle. The procedure is divided into two stages. First, the court must verify the existence of the privilege. At this stage, evidence that a person is a police informer automatically engages the privilege. This is a rule of public order. Second, having established the existence of informer privilege, the judge is charged with carrying on the proceedings without violating the privilege while at the same time accommodating, to the greatest extent possible, the open court principle, the right to be heard and the adversarial nature of the proceedings. It is at this stage that the court will determine the appropriate measures to protect the privilege. For the purposes of this determination, it may be helpful — and even generally desirable — for the court to allow third parties to make submissions on the confidentiality orders that would be appropriate to protect the informer’s anonymity while limiting any impairment of the open court principle. In lieu of or in addition to submissions from interested third parties, the court may consider it advisable to appoint an amicus curiae to provide it with guidance on the matter.
In order for a police informer’s anonymity to be protected, it is necessary and desirable that judges have the discretion to determine whether it is in the interests of justice to issue a notice to interested third parties advising them that the privilege has been claimed and that confidentiality orders are being contemplated. The existence of a discretion to issue a notice provides the court with the flexibility needed to ensure that, in each case, justice is served by adopting a procedure that is as consistent as possible with court openness without risking a breach of informer privilege. Well‑settled jurisprudence unequivocally recognizes the importance of preserving this discretion, and there is no reason to depart from these precedents.
Nor is there any reason to depart from the current state of the law, under which as much information as possible should be disclosed to interested third parties, but never any information that might compromise the police informer’s anonymity. It is not appropriate for information directly identifying the informer to be protected differently than information that is seemingly innocuous but may indirectly identify the informer. The disclosure of such privileged information to interested third parties or their representatives, even subject to undertakings of confidentiality, would unduly expand the circle of privilege, thus undermining the dual objectives of the informer privilege rule.
Where an informer is on trial, the informer asserts their status in a proceeding that began publicly in which they face charges that do not cause them to lose their status, and the informer‑police relationship is central to the proceedings, the appropriate way to protect the informer’s anonymity will generally be to proceed totally in camera. But even in these most confidential of cases, it is possible and even essential to protect the informer’s anonymity while still favouring confidentiality orders that do not entirely or indefinitely conceal the existence of the in camera hearing and of any decision rendered as a result. This may require some creativity and perhaps some administrative arrangements, but at least one approach can be taken. This approach involves creating a parallel proceeding that is completely separate from the public proceeding in which informer privilege is initially invoked. The record for the parallel proceeding thereby created, though sealed, will have its own record number. Subject to the redaction of information that might tend to reveal the informer’s identity, it will generally be possible for the proceeding to be on the court’s docket and hearing roll and for a public judgment to be released. This solution makes it possible to disclose at least a minimum amount of information to interested third parties, including the news media, that wish to file a motion for review of the confidentiality orders.
In this case, first of all, the person was not convicted following a secret criminal proceeding. The criminal proceeding against the person began and moved forward publicly until they filed a motion for a stay of proceedings. The Court of Appeal should not have used the expression “secret trial”, which could have suggested that the person had been convicted following a secret criminal proceeding. In addition to being inaccurate, this expression is needlessly alarming and has no basis in Canadian law. The very concept of “secret trial” does not exist in Canada, and any comparison of hearings held totally in camera to a “secret trial” is wrong.
Next, having confirmed the person’s informer status, the judge hearing the motion for a stay of proceedings correctly found that it had to be heard in camera, and his discretionary decision not to give notice to interested third parties was justified. However, there was no need for the motion for a stay of proceedings to be left off the court’s docket and hearing roll and for no formal number to be assigned to it. In retrospect, after finding that it was necessary to proceed in camera, the trial judge should have made an order to that effect while creating a parallel proceeding completely separate from the criminal proceeding in which the person had been appearing publicly until that time. Subject to the redaction of information that might link the parallel proceeding to the public proceeding and thus reveal the person’s identity, the new proceeding thereby created could have been on the court’s docket and hearing roll, and a redacted version of the judgment on the motion could have been released. As for the Court of Appeal, it had no choice but to redact its judgments as heavily as it did. However, it erred in upholding its order that the entire appeal record be sealed. It should have made public a version of the trial judgment that was redacted in such a way as to protect the person’s anonymity. This was an entirely feasible undertaking that would have accommodated the open court principle and given a certain materiality to the confidential proceedings in issue.
Cases Cited
Applied: Named Person v. Vancouver Sun, 2007 SCC 43, [2007] 3 S.C.R. 253; considered: R. v. B. (A.), 2015 ONSC 5541, 24 C.R. (7th) 191; referred to: Canadian Broadcasting Corp. v. Manitoba, 2021 SCC 33; Sherman Estate v. Donovan, 2021 SCC 25, [2021] 2 S.C.R. 75; Endean v. British Columbia, 2016 SCC 42, [2016] 2 S.C.R. 162; Vancouver Sun (Re), 2004 SCC 43, [2004] 2 S.C.R. 332; Canadian Broadcasting Corp. v. New Brunswick (Attorney General), [1996] 3 S.C.R. 480; Edmonton Journal v. Alberta (Attorney General), [1989] 2 S.C.R. 1326; Attorney General of Nova Scotia v. MacIntyre, [1982] 1 S.C.R. 175; Canadian Broadcasting Corp. v. Canada (Attorney General), 2011 SCC 2, [2011] 1 S.C.R. 19; Denis v. Côté, 2019 SCC 44, [2019] 3 S.C.R. 482; Khuja v. Times Newspapers Ltd., [2017] UKSC 49, [2019] A.C. 161; Scott v. Scott, [1913] A.C. 417; R. v. Brassington, 2018 SCC 37, [2018] 2 S.C.R. 616; R. v. Named Person B, 2013 SCC 9, [2013] 1 S.C.R. 405; R. v. Barros, 2011 SCC 51, [2011] 3 S.C.R. 368; R. v. Durham Regional Crime Stoppers Inc., 2017 SCC 45, [2017] 2 S.C.R. 157; R. v. Hiscock (1992), 72 C.C.C. (3d) 303; R. v. Leipert, [1997] 1 S.C.R. 281; R. v. Basi, 2009 SCC 52, [2009] 3 S.C.R. 389; R. v. National Post, 2010 SCC 16, [2010] 1 S.C.R. 477; Canada (Transportation Safety Board) v. Carroll-Byrne, 2022 SCC 48; Bisaillon v. Keable, [1983] 2 S.C.R. 60; Bilodeau v. Directeur des poursuites criminelles et pénales, 2020 QCCA 1267; Dagenais v. Canadian Broadcasting Corp., [1994] 3 S.C.R. 835; R. v. Mentuck, 2001 SCC 76, [2001] 3 S.C.R. 442; R. v. Omar, 2007 ONCA 117, 218 C.C.C. (3d) 242; R. v. A.B., 2024 ONCA 111; R. v. Bacon, 2020 BCCA 140, 386 C.C.C. (3d) 256; R. v. Henry, 2005 SCC 76, [2005] 3 S.C.R. 609; Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653; Nishi v. Rascal Trucking Ltd., 2013 SCC 33, [2013] 2 S.C.R. 438; R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631; Vetrovec v. The Queen, [1982] 1 S.C.R. 811; Brooks v. Canada Safeway Ltd., [1989] 1 S.C.R. 1219; Hamstra (Guardian ad litem of) v. British Columbia Rugby Union, [1997] 1 S.C.R. 1092; M. (A.) v. Toronto Police Service, 2015 ONSC 5684, 127 O.R. (3d) 382; Lizotte v. Aviva Insurance Company of Canada, 2016 SCC 52, [2016] 2 S.C.R. 521; John Doe v. Halifax (Regional Municipality), 2017 NSSC 17, 7 C.P.C. (8th) 164; Her Majesty the Queen v. Named Person A, 2017 ABQB 552; R. v. X and Y, 2012 BCSC 325; Postmedia Network Inc. v. Named Persons, 2022 BCCA 431, 476 D.L.R. (4th) 747.
Authors Cited
Bailey, Jane, and Jacquelyn Burkell. “Revisiting the Open Court Principle in an Era of Online Publication: Questioning Presumptive Public Access to Parties’ and Witnesses’ Personal Information” (2016), 48 Ottawa L. Rev. 143.
Fournier, Julien. “Les privilèges en droit de la preuve: un nécessaire retour aux sources” (2019), 53 R.J.T.U.M. 461.
Hubbard, Robert W., and Katie Doherty. The Law of Privilege in Canada. Toronto: Thomson Reuters, 2024 (loose-leaf updated April 2024, release 2).
Menétrey, Séverine. “L’évolution des fondements de la publicité des procédures judiciaires internes et son impact sur certaines procédures arbitrales internationales” (2008), 40 Ottawa L. Rev. 117.
Paciocco, David M., Palma Paciocco and Lee Stuesser. The Law of Evidence, 8th ed. Toronto: Irwin Law, 2020.
Rossiter, James. Law of Publication Bans, Private Hearings and Sealing Orders. Toronto: Thomson Reuters, 2023 (loose‑leaf updated November 2023, release 2).
Vauclair, Martin, Tristan Desjardins and Pauline Lachance. Traité général de preuve et de procédure pénales 2023, 30th ed. Montréal: Yvon Blais, 2023.
APPEALS from a judgment of the Quebec Court of Appeal (Bich, Vauclair and Healy JJ.A.), 2022 QCCA 984, [2022] AZ‑51867649, [2022] J.Q. no 7045 (Lexis), 2022 CarswellQue 9416 (WL), dismissing motions for review of confidentiality orders and upholding the sealing of certain information. Appeals allowed in part.
Christian Leblanc, Patricia Hénault and Isabelle Kalar, for the appellants the Canadian Broadcasting Corporation, La Presse inc., Coopérative nationale de l’information indépendante (CN2i), Canadian Press Enterprises Inc., MediaQMI inc. and Groupe TVA inc.
Pierre‑Luc Beauchesne, Simon‑Pierre Lavoie and Michel Déom, for the appellant the Attorney General of Quebec.
Ginette Gobeil and Marc Ribeiro, for the intervener the Attorney General of Canada.
Jim Clark and Katie Doherty, for the intervener the Attorney General of Ontario.
Deborah Alford, for the intervener the Attorney General of Alberta.
Olivier Desjardins and Ariane Gagnon‑Rocque, for the intervener Lucie Rondeau, in her capacity as Chief Judge of the Court of Québec.
Sherif M. Foda, for the intervener the Canadian Muslim Lawyers Association.
Bernard Amyot, Alexandra R. Lattion and Geneviève Gaudet, for the intervener the Advocates’ Society.
Nicolas Le Grand Alary, Sylvie Champagne and André‑Philippe Mallette, for the intervener Barreau du Québec.
Mairi Springate and Chantal Bellavance, for the interveners Association québécoise des avocats et avocates de la défense and Association des avocats de la défense de Montréal‑Laval‑Longueuil.
Alexi Wood and Abby Deshman, for the intervener the Centre for Free Expression.
Adam Goldenberg and Simon Bouthillier, for the intervener the Canadian Civil Liberties Association.
Scott Dawson and Catherine George, for the interveners Ad IDEM/Canadian Media Lawyers Association, Postmedia Network Inc., Global News, a division of Corus Television Limited Partnership, Torstar Corporation and Glacier Media Inc.
Anil K. Kapoor and Alexandra Heine, for the intervener the Criminal Lawyers’ Association (Ontario).
English version of the judgment delivered by
The Court —
TABLE OF CONTENTS
Paragraph
I. Overview
1
II. Procedural and Judicial History
7
A. Judgment at Trial Dismissing the Motion for a Stay of Proceedings
9
B. Judgment of the Quebec Court of Appeal of March 23, 2022, Entering a Stay of Proceedings for Abuse of Process, 2022 QCCA 406, 424 C.C.C. (3d) 322 (Bich, Vauclair and Healy JJ.A.)
11
C. Judgment of the Quebec Court of Appeal of July 20, 2022, Dismissing the Motions for Review of the Confidentiality Orders, 2022 QCCA 984 (Bich, Vauclair and Healy JJ.A.)
17
III. Issues
22
IV. Analysis
26
A. Court Openness: A Pillar of Our Free and Democratic Society
27
B. Informer Privilege
33
(1) Rationale for Informer Privilege
35
(2) The Interests Protected by the Open Court Principle Yield to Those Protected by Informer Privilege
37
(3) Scope of Informer Privilege
43
C. Procedure Proposed in Vancouver Sun
47
(1) Judges Must Retain the Discretion to Issue a Notice to Interested Third Parties
55
(2) The Disclosure of Privileged Information to Interested Third Parties or Their Representatives Would Unduly Expand the Circle of Privilege
60
D. Review of How the Guiding Rule From Vancouver Sun Should Be Applied When Proceeding In Camera
66
(1) Named Person Was Not Convicted Following a Secret Proceeding
67
(2) How the Guiding Rule From Vancouver Sun Should Be Applied
71
E. Confidentiality Orders Made by the Court of Appeal
84
V. Conclusion
89
VI. Disposition
93
I. Overview
[1] When justice is rendered in secret, without leaving any trace, respect for the rule of law is jeopardized and public confidence in the administration of justice may be shaken. The open court principle allows a society to guard against such risks, which erode the very foundations of democracy. By ensuring the accountability of the judiciary, court openness supports an administration of justice that is impartial, fair and in accordance with the rule of law. It also helps the public gain a better understanding of the justice system and its participants, which can only enhance public confidence in their integrity. Court openness is therefore of paramount importance to our democracy — an importance that is also reflected in the constitutional protection afforded to it in Canada.
[2] In this context, it is therefore hardly surprising that this case concerning Named Person, a police informer who, according to the Court of Appeal, was convicted following a “secret trial”, has provoked both concern and indignation among the public. The very idea that “secret trials” — that is, criminal proceedings of which no trace exists — may be conducted in our liberal democracy is indeed an intolerable one. Such proceedings go against the democratic ideals that Canadians hold dear.
[3] The controversy, which arose after the Court of Appeal released a judgment in March 2022 in which it misguidedly denounced the holding of a “secret trial”, was largely due to the gap between what the public knew and what it did not know, combined with the effect of the unfortunate expression used by the Court of Appeal. That expression could in fact have suggested that Named Person had been convicted following a secret criminal proceeding. That state of affairs alarmed the public and the media. It also jeopardized public confidence in the justice system. But to be clear, no secret trial was held in this case. As can be seen from the Court of Appeal’s second decision in July 2022, the criminal proceeding against Named Person began and moved forward publicly until Named Person filed a motion for a stay of proceedings based in part on the state’s abusive conduct toward them as a police informer.
[4] In fact, the very concept of “secret trial” does not exist in Canada. This Court has long since delineated how the cardinal principle of court openness may be tempered where the circumstances of a case so require. Various confidentiality orders may be made during the proceeding for certain portions thereof, up to and including an order that all hearings be held in camera, that is, with all members of the public excluded for their entire duration. But it is well established that “secret trials”, those that leave no trace, are not part of the range of possible measures. In this context, any comparison of hearings held totally in camera to a “secret trial” is wrong and needlessly alarming.
[5] These appeals therefore provide this Court with an opportunity to set the record straight, to reassure the public and to reaffirm the importance of ensuring that justice is administered openly and transparently. First, the appeals allow the Court to reiterate the relevance of the procedure set out in Named Person v. Vancouver Sun, 2007 SCC 43, [2007] 3 S.C.R. 253, and its guiding rule that a court must protect informer privilege while minimizing, as much as possible, any impairment of the open court principle.
[6] Second, the appeals illustrate the excesses that may occur when the guiding rule from Vancouver Sun is not rigorously applied at the stage of conducting in camera proceedings. The appeals highlight the importance of reviewing how this rule should be applied, for the benefit of trial judges who, as in this case, determine that a police informer’s identity can be protected only by proceeding totally in camera. Indeed, if the principles enunciated by this Court had been rigorously applied by the trial judge in dealing with the motion for a stay of proceedings, he would have created a parallel proceeding separate from the one in which Named Person had invoked informer privilege. This approach would have made the public aware of at least the existence of any in camera hearing held at trial and of any decision rendered as a result. The record for the parallel proceeding thereby created, though sealed, would have had its own number. Moreover, subject to the redaction of information that could link that new record to the proceeding that began publicly, the parallel proceeding could have been on the court’s docket and hearing roll, and a redacted public judgment could have been released.
II. Procedural and Judicial History
[7] Named Person, a police informer, was charged with criminal offences. As their only defence, Named Person brought a motion for a stay of proceedings based both on the infringement of their right to be protected from any abusive state conduct that had the effect of undermining the integrity of the justice system and on the infringement of their right to be tried within a reasonable time.
[8] A first in camera hearing was held to verify Named Person’s status as a police informer. Following that hearing, there was no doubt in the mind of the judge hearing the motion that Named Person had acted as an informer for a police force. Because informer status was at the centre of the relevant factual framework and the parties’ arguments, the judge ordered that the motion for a stay of proceedings be heard in camera. No notice was given to the media at that time, since the judge was of the view that revealing anything about the motion, including its existence, would be likely to compromise Named Person’s anonymity. The motion, its content and the exhibits and transcripts submitted to the judge remained confidential and were not listed in any docket.
A. Judgment at Trial Dismissing the Motion for a Stay of Proceedings
[9] The motion for a stay of proceedings was dismissed. In the trial judge’s view, it could not be concluded from the record that the state had acted abusively in laying charges against Named Person or that a stay of proceedings was warranted on the basis of unreasonable delay. That judgment had no file number and, like its existence and content, was not public.
[10] Named Person was subsequently convicted. They decided to appeal the conviction on the ground that the trial judge had erred in declining to find that the state had acted abusively in laying charges. Their appeal did not concern the part of the judgment ruling on the infringement of their right to be tried within a reasonable time. Nor did the appeal relate to the existence of informer privilege or to the confidentiality orders made at trial to protect their anonymity.
B. Judgment of the Quebec Court of Appeal of March 23, 2022, Entering a Stay of Proceedings for Abuse of Process, 2022 QCCA 406, 424 C.C.C. (3d) 322 (Bich, Vauclair and Healy JJ.A.)
[11] On appeal, the parties asked that the proceedings remain in camera. The Court of Appeal agreed to their request while referring the question of whether the proceedings should be made public to the panel that was to hear the merits of the case. The appeal was therefore heard in camera and, as at trial, no notice was given to the media.
[12] On February 28, 2022, in a unanimous judgment, the Court of Appeal allowed Named Person’s appeal, stayed the conviction and entered a stay of the criminal proceedings on the ground of abuse of process by the state. The Court of Appeal condemned the [translation] “casual” approach that had been taken in recruiting Named Person as an informer (para. 148). Specifically, it criticized the police force that had recruited Named Person for not adequately informing Named Person before they began cooperating so that they would understand [translation] “the limits of the protection offered [to them] and the possible consequences of [their] anticipated revelations” (para. 150). The failure to adequately inform Named Person, including the vagueness surrounding the parameters of their cooperation with the police force, had led Named Person to believe that they [translation] “had to admit all of the facts even if this implicated [them] in a crime, that nothing would be held against [them], and that the investigation was not interested in what [they] may have done” (para. 146). The court expressed the view that it was [translation] “plainly offensive” for the state to turn against Named Person and lay charges on the basis of incriminating revelations (at para. 153) after implying to Named Person that they had to be transparent and “that [they] would not be prosecuted for past crimes” (para. 147). Such state conduct compromised the fairness of the trial and undermined the integrity of the judicial process, in addition to discouraging [translation] “persons [from] provid[ing] information to the police” (para. 148).
[13] It should be noted that this conclusion reached by the Court of Appeal did not concern the question of in camera proceedings — a question that was not before it and that it addressed through preliminary remarks. In those remarks, the Court of Appeal expressed its disagreement with the scope of the confidentiality measures put in place for Named Person’s [translation] “trial” (para. 11). It found that, as important as informer privilege may be, it cannot justify holding a trial of which [translation] “no trace . . . exists, except in the memories of the individuals involved” (para. 11). In the court’s view, [translation] “this manner of proceeding was exaggerated and contrary to the fundamental principles governing our legal system” (para. 14). A procedure that is [translation] “[so] secretive . . . is absolutely contrary to modern criminal law that respects the constitutional rights not only of the accused, but also of the media. It is also inconsistent with the values of a liberal democracy” (para. 15). Although the protection of informer privilege is of fundamental importance in our society, the fact remains that [translation] “the trial itself must be public, subject to specific non‑publication orders or partial in camera orders” (para. 16). For this reason, the Court of Appeal decided to open a record at its court office, accompanied by a sealing order, and to make public a redacted version of its judgment of February 28, 2022.
[14] Consequently, on March 23, 2022, after consulting the prosecutor and Named Person, the Court of Appeal released a version of its judgment in which the following information was redacted: Named Person’s name; the identity of the trial court and judge; the judicial district in which the proceeding was held; the identity of the prosecutor, counsel for the prosecution on appeal and counsel for Named Person; the identity of the police force and the police officers involved; the nature of the crime with which Named Person was charged and the circumstances of its commission. The nature of the redacted information was, however, indicated in brackets following each redacted passage.
[15] That decision, and more specifically the [translation] “[p]reliminary remarks on the secret trial”, did not go unnoticed (para. 6). The public understood them as revealing the conduct of a secret criminal proceeding that had led to Named Person’s conviction. The idea that criminal proceedings of which no trace exists may be conducted in our democracy was inevitably met with shock and widespread incomprehension.
[16] That was the context in which, in early April 2022, the Canadian Broadcasting Corporation, La Presse inc., Coopérative nationale de l’information indépendante (CN2i), Canadian Press Enterprises Inc., MediaQMI inc., Groupe TVA inc. (“Canadian Broadcasting Corporation et al.”) and the Attorney General of Quebec (“AGQ”) (collectively referred to as “appellants”), along with the intervener the Honourable Lucie Rondeau, then Chief Judge of the Court of Québec, asked the Court of Appeal to review the confidentiality orders made in Named Person’s case by both the trial court and the Court of Appeal. More specifically, they requested that the orders be lifted in whole or in part or at least that limited access be given to the information that remained confidential.
C. Judgment of the Quebec Court of Appeal of July 20, 2022, Dismissing the Motions for Review of the Confidentiality Orders, 2022 QCCA 984 (Bich, Vauclair and Healy JJ.A.)
[17] On July 20, 2022, in a carefully crafted judgment, the Court of Appeal dismissed the motions brought by the appellants and the intervener Rondeau for review of the confidentiality orders and upheld the sealing of all information that might tend to identify Named Person. This is the judgment under appeal, on which this Court must rule.
[18] First, the Court of Appeal considered and denied the appellants’ requests to set aside or vary the confidentiality orders it had itself made. The court began by noting that it was [translation] “indisputable” that Named Person was a police informer and was entitled to the privilege attaching to that status (at para. 103 (CanLII)), something that the appellants and the intervener Rondeau did not contest. This meant that there was no possibility [translation] “of disclosing any information that might tend to identify Named Person, at the risk of endangering them”, including any “information that would make it possible for the people informed on by Named Person, their accomplices and associates or other members of the circle to which Named Person belonged or still belongs to identify them” (paras. 104‑5). Therefore, while it was obviously not possible to reveal Named Person’s personal information (e.g., name, gender, address, employment, city of residence), it was also impermissible in this case to reveal [translation] “the nature, dates and circumstances of the offences with which Named Person was charged”, because that information could compromise informer privilege (para. 106). In the court’s view, the same was true — as unusual as this may have seemed — of the identity of the judge, the trial court, the judicial district, the prosecutor and counsel for the prosecution, counsel for Named Person and the police force involved. The reason for this was that, given the information known to the public about this case, these details, together or separately, might tend to identify Named Person.
[19] The Court of Appeal also rejected the alternative argument that it should have partially unsealed the appeal record by redacting the same information as in the public version of the judgment of March 23, 2022. It viewed such partial unsealing as a task that was [translation] “impracticable in light of the duty to preserve informer privilege” (para. 139). Even though [translation] “the record is not very lengthy, this partial unsealing would require a particularly careful and keen eye so as not to overlook details that might be revelatory” (para. 139). Given the complexity, sensitivity and high risk of error involved in such redaction, the Court of Appeal concluded that undertaking it was not appropriate.
[20] Second, the Court of Appeal considered the requests to set aside the confidentiality orders made by the trial court and denied them on the ground that it had no jurisdiction to set the orders aside. It explained that a court of appeal, unlike a superior court, has no inherent jurisdiction and that, as this Court held in Canadian Broadcasting Corp. v. Manitoba, 2021 SCC 33 (“C.B.C. v. Manitoba”), while a court of appeal can manage access to its records and review its own confidentiality orders, it cannot review orders made by another court unless they are before it on appeal, because [translation] “[i]t has no sovereign or inherent power in this regard” (para. 144). The Court of Appeal added that [translation] “the fact that, in its judgment on the appeal, [a court of appeal] criticized the manner of proceeding at trial (without being asked to rule on this question, which emerged on its own) does not mean that it acquired jurisdiction to correct or vary the trial judge’s orders” (para. 144). Finally, the court concluded, the fact that this situation put the appellants [translation] “in a position where it was impossible to