Secret Trials in a Free and Democratic Society?

An interview with Shakir Rahim of the Canadian Civil Liberties Association about the ones that have been happening right here in Canada.

On December 12, 2023, the Canadian Civil Liberties Association (CCLA) appeared before the Supreme Court of Canada in Canadian Broadcasting Corporation, et al. v. His Majesty the King, et al. It was a case involving informer privilege and whether a trial judge should be allowed to proceed with a case outside of the justice system – totally in camera – so that essentially there is no record of the court proceedings. Contrary to the open court principle, which is protected by the Canadian Charter of Rights and Freedoms, there have been several court cases since 2020 that have been held in secret in this country. The CCLA, and others are sounding the alarm.

Outside of the legal media, there has been little media coverage of the hearing that just took place in the Supreme Court of Canada. Shakir Rahim, is the Director of the Canadian Civil Liberties Association’s (CCLA) Criminal Justice Program, and was an intervenor in the case, along with many others including the CBC, La Presse, the Attorney Generals of Canada, British Columbia, Ontario, and Alberta. You can see the long list of intervenors as well as the factum put out by the CCLA here.

You can also find the Supreme Court’s helpful plain language summary of the legal issues and facts in the case here.

To find out more about this case, its importance and implications, I reached out to Rahim by phone for an interview.

[The following transcript has been edited for length and clarity]

Linda Pannozzo (LP): Can you walk us through the initial case, because my understanding is this hearing, in which the CCLA was an intervenor, was an appeal. Is that right?

Shakir Rahim (SR): That's correct. So, I think it all begins with understanding something called the open court principle, and what this principle is as a general rule, court proceedings should be open to the public. You can go watch a court hearing. You can look up cases that might be happening. You can request information about a case and there are a number of reasons why that principle is important, a significant one being to ensure transparency and accountability in the justice system by being able to see justice is done and where mistakes are made, and the public being able to know about them.

In this case, there was an individual who had received something called informer privilege, and what informer privilege is, is if there's somebody who's acting as a confidential informant to the police. So, for example, they have some information about an organized crime group. The court is obligated to take certain steps to protect their identity. So, for example, they may only be referred to by their initials in a proceeding or the public may not be allowed in the courtroom when they testify. So, there's different kinds of steps that can be taken to protect their identity. In some cases, it can be so significant such that, any information that tends to identify them may not be permitted to be publicized.

In this case, the police had a confidential informant (CI) who they decided to prosecute for a criminal offence. So usually, the CI is providing information to the police about something other people did, allegedly. In this case, the police concluded this person committed or allegedly committed an offence and so laid a charge and they were prosecuted. This is where things get quite unusual. In this case, the entire proceeding was essentially secret. There was no report of the case in what's called the docket. Even if there is a case that has all kinds of privacy protections, we will at least know that it's happening. There would at least be a record of the case somewhere. In this case, there was no entry of it onto the docket. Some of the proceedings weren't even held in a courtroom. Basically, there was no way for anyone to know that the case ever happened. So that is very unusual for there to be no public information at all about a proceeding.

I think that's at the heart of this case, because there is no dispute that informer privilege -- protecting the identity of informants -- is something that does occur and needs to occur in the system, but can it go so far as to shield the public from any information about a proceeding at all? That's the perspective that the CCLA and others have had brought to bear in saying, ‘No, because it just eviscerates the open court principle, which is so important for democracy.’

LP: So this initial trial was held completely in secret. How did you or anybody find out about it?

SR: So it was because there was an appeal -- the conviction itself was appealed to the Quebec Court of Appeal, and the Quebec Court of Appeal commented on it. They did release some type of decision, even though it was also heavily redacted, and media organizations in Quebec picked up on it and then, of course, it also ricocheted beyond Quebec as well, to some other publications.

LP: Was this confidential informant convicted in the original trial? And then they appealed the decision?

SR: The informer in this case was convicted at trial, but the conviction was stayed by the Quebec Court of Appeal.

LP: Among the interveners are the attorney generals of several provinces, why would they get involved?

SR: That's correct. That's in part because they want to really have a strong interpretation of informer privilege. Most of them have taken the position that you really have to do everything you can to protect that when it comes to court secrecy.

LP: What normally happens with trials that include police informants?

SR: It can be a range of measures that the court can implement. So, they might anonymize information so that the confidential informant is not identified. But to be honest, in most cases, if a proceeding is going to reveal the identity of an informant, the crown will often stay the charge because they don't want the identity of the informant to be revealed.

This is an unusual case because it’s not usually the case that an informant is prosecuted. So, I think that's why this kind of results in this odd arrangement. Usually, an informant is assisting the police in the investigation and the prosecution of a third party. So, often, let's say for some reason through evidence that the defence is entitled to receive, their identity is going to become known. The crown may just stay the charge. The Court is obligated to protect their identity. And so, again, they might use other measures to do that. You can have a publication ban, for example, or you can have the court room closed to the public. There are all these steps you can take, but certainly not so far as no information at all about the entire proceedings ever becoming public.

Shakir Rahim is the Director of the Canadian Civil Liberties Association’s (CCLA) Criminal Justice Program

LP: So, going through the CCLA factum in the case, I noticed that there have been three secret trials since 2020, including this one, is that correct?

SR: Yes, that's correct. That we know of.

LP: That we know of! Do they all involve police informants, the ones that we know of?

SR: The Bacon case does not involve the prosecution of a confidential informant, but parts of the proceedings were conducted in secret, it would appear for reasons related to informer privilege. The John Doe case does involve the prosecution of a confidential informant. As you can tell from the judgment, it is hard to understand the nature of the legal issues because of the redactions.

LP: How is this happening in Canada?

SR: It is quite shocking, yes. As you might have seen in our factum, there's supposed to be a whole procedure that's followed when you have this type of order, where the media are notified, they can make submissions to the court about the scope of any confidentiality provision. In some cases, NGOs can be notified, but none of that happened here. We do have certain safeguards, where a court is looking to impose that kind of restriction on public access. But essentially those safeguards weren't followed in this case.

LP: So how does that even happen? As you say, there are these checks and balances that I would have thought would be in place that ensure something like this does not happen. Was there someone who just didn't do what they were supposed to do or is there something more nefarious going on?

SR: I wouldn't go so far as to say nefarious. But certainly, a judge is in control of their court and the decisions they make about the course of a trial. Subject to there being an appeal of what a judge has ruled on in a trial, they are the final word. We certainly think that the judge in this case went beyond their powers to the extent to which they ordered the secrecy of this trial. So that's a problem. But I think part of the reason this case is so important is the Supreme Court really has to ensure that it's clear that this kind of trial run entirely in secret can never be a possibility. That's why the case is so important, because it is shocking that this happened and there has to be very clear judicial guidance that it can't happen again.

LP: Since this has happened before, starting in 2020, that we know of, as you said, why is this the first time the CCLA is bringing it up?

SR: Part of our role is we examine what significant issues are going to be coming before the Supreme Court of Canada. We heard about the Quebec Court of Appeal case. We heard about this other case that happened in Ontario that's also referenced in the factum. So, it was an opportunity for us to provide our perspectives on it in court and the only way in which we formally get to do that when it comes to shaping the law on this type of issue is through the courts.

LP: Do you think Canadians should be alarmed by this? What are the issues that make it so important for Canadians to be informed?

SR: I think that Canadians should be alarmed that a trial occurred that had this extent of secrecy because that really is contrary to having adequate transparency and accountability in the justice system. Sometimes there are proceedings that need to have some restrictions on public access, but there's a process to be followed and a very high threshold to meet, and that didn't occur here. So, there should be concern about that.

When thinking about why that transparency and accountability is important, if the public wants to assess whether a judge made a good decision or not, whether somebody was convicted according to the proper standard of proof, or whether the police committed any violation we should be concerned about, all of those things can only happen if we know there is a proceeding that's occurring. Or if the media want to dig into an issue and report on some kind of malfeasance. So, this issue is not only critical just as a general matter of principle on this case, but we don't want to have a situation where courts feel that this level of secrecy is acceptable because then there could be all kinds of things that could end up happening in courtrooms that we never hear about but the public would really care about when it comes to their rights and freedoms being protected and upheld.

LP: Can you just give us an example of what something like this unchecked could lead to?

SR: Yes, well, let's say hypothetically, there was a case that involved a confidential informant and the police engaged in a really significant rights violation in the course of their investigation of that person. Maybe that was a systemic issue within the police force. We would never know that that occurred if a trial is entirely secret.

LP: Is it possible that something like this could theoretically happen to someone other than a police informant?

SR: It would be unlikely that any other type of anonymization or confidentiality order could go this far. But there is a test in the law, whenever you want any part of a proceeding to be confidential, that an entity can follow. So, there's a case called the Donovan Estate that was before the Supreme Court that talks a bit about that. And there's all kinds of reasons sometimes, so for example, a sexual assault victim often has their name anonymized in a case. So, I think this case, in its interpretation, it bears on the overall approach that courts take toward openness.

If, for example, this level of secrecy was allowed to stand, I would be worried about how that could dilute how vociferously the court is ensuring the open court principle is upheld. I think whenever you have an attempt to have part of a trial in secret or be anonymous, it really has to be a high threshold met and exacting standards. That's why I think how the court talks about the open court principle in this case is so important.

LP: Do you have a sense of how the hearing went?

SR: I think the hearing went well in the sense of the bench asked good questions, there were able submissions from all the different parties involved. But it's hard to know where the court might be going in terms of their ultimate decision.

LP: What is the range of what their decision could be?

SR: Well, for example, they could say that, look, even if you're going to have secrecy of some parts of court proceeding, it can't go so far as to not have any entry that the proceeding ever occurred.

Or they could say, in this case, the procedure to notify the media and other organizations wasn’t followed, and we want to make it very clear that this must be followed in every case and you can't just decide to have a totally secret proceeding without that input.

So it's really going to be about them interpreting the scope of informer privilege, how it's applied, and how the open court principle interplays with that. I think they’re going to provide a lot of guidance for the court about how to deal with the situation in the future. Our hope is that the guidance upholds the open court principle.

LP: You said earlier about there being three cases since 2020 that we know of. Do you think that it's possible that there have been others?

SR: It certainly is. It certainly is possible. And there's no way for us to know, which is which is the concerning part.

LP: This Supreme Court hearing happened on December 12^th. What’s next?

SR: That's the end of the legal proceedings, and we're just awaiting the court's judgment, which, can take anywhere from six months to longer some times.