Supreme Court Affirms Importance of Open Court Principle in CBC v. Named Person

On June 7, 2024, the Supreme Court of Canada released their decision in Canadian Broadcasting Corp. v. Named Person, 2024 SCC 21. The CCLA was an intervenor in this case.

This appeal concerned a trial that took place in Quebec involving a police informant who was charged with criminal offenses. To protect the informant’s identity, the trial was conducted privately. The trial did not appear on the court docket, the trial judge’s decision was not released, and details of the proceedings were unknown to the public.

In its decision, the Supreme Court rejected the description of the proceedings as a “secret trial”. However, the Court affirmed that the open court principle is fundamental to support the administration of justice in a manner that is “impartial, fair and in accordance with the rule of law.” Under the 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. The Court affirmed the procedure set out in Named Person v. Vancouver Sun, 2007 SCC 43. Under this procedure, judges have the discretion to implement appropriate measures to protect informer privilege but must protect the open court principle to the greatest possible extent.

In future cases, the Court suggested that a parallel proceeding be created separate from the private proceeding in which the informer privilege was initially invoked. This parallel proceeding would have its own record number, appear on the court’s docket, and would include the release of a redacted public judgment. Creating parallel proceedings would allow the courts to disclose minimal information to interested third parties, including the news media and civil society organizations, who wish to file a motion to review confidentiality orders. The CCLA emphasized the importance of this step in its submissions.

You can read the decision here and the CCLA’s factum here.

The CCLA is grateful to Adam Goldenberg and Simon Bouthillier of McCarthy Tétrault for their excellent pro bono representation in this case.