Named Person v. Vancouver Sun
From Ad IDEM / CMLA
October 11, 2007
The Supreme Court of Canada has overruled an extradition judge’s decision to let media counsel and client representatives see information for the purposes of challenging an in camera hearing. The Court held that informer privilege is an absolute bar against revealing the identity of confidential informers, and does not permit any discretion or weighing of Dagenais principles, which only apply to discretionary orders limiting openness and not mandatory orders (paras. 21-27; 35-36).
The Court did, however, say that only information that could tend to reveal the identity of the informer is privileged. Everything else about the proceedings should be published under the open court principles (para. 40).
“41 In more practical terms, this will mean that a trial judge must have the authority to hold an entire proceeding in camera if informer privilege is found to be present; however, an entirely in camera proceeding should be seen as a last resort. A judge ought to make every effort to ensure that as much information as possible is made public, and that disclosure and publication are restricted only for that information which might tend to reveal the informer’s identity.
42 This approach is in line with the one taken to the open court principle in Dagenais and Mentuck. As noted above (at para. 35), the test set out in those cases is a particular attempt to balance open courts with secrecy requirements in situations of judicial discretion. In other words, it is one application of the open court principle to a situation of a secrecy. This case presents a different application: where the secrecy arises out of the informer privilege rule and allows the trial judge no discretion, Dagenais/Mentuck does not apply.”
The court set out guidelines, requiring an in camera determination of informer privilege, and if the privilege exists, an in camera process over any information which identifies the informer. The court may (not must) give notice to the public of the existence of the proceedings and grant standing to allow submissions on what restrictions on openness are necessary and how the open court principle can be minimally infringed.
“Restricted disclosure will of course be necessary to protect the privileged informer, but the protection of the open court principle demands that all information necessary to ensure that meaningful submissions which can be disclosed without breaching the privilege ought to be disclosed” (para. 51).
The guiding principles for such processes should be as follows:
“Instead, the judge retains discretion as to whether or not to provide public notice of the in camera proceeding involving informer privilege. The exercise of the discretion will depend on the circumstances, such as whether the holder of the privilege is present and plays an active role in court, for instance, as was the case here. Whether the judge issues notice, or (as can certainly happen) the media independently learns of the existence of the in camera proceeding, the next steps in the procedure is to hear submissions to determine the extent of the need for in camera proceedings. It is at this point that the media is granted standing to present arguments on how informer privilege can be respected with minimal effect on the open court principle.
The question that the judge must ask is that: Is a totally in camera proceeding justified on the basis that only an in camera proceeding will properly protect the informer privilege, or will sufficient protection be possible via other means, such as a partial in camera proceeding, or some other option? The guiding rule at this stage should always remain the following: The judge must accommodate the open court principle to as great an extent possible without risking a breach of the informer privilege. This rule is meant to protect informer privilege absolutely, while minimally impairing the open court principle.
When the media seek to make submissions on the proper procedure, they should only be given non?identifying information. Only minimal information which provides a general basis for the in camera hearing need be provided (para. 58). Whether the information can be provided to media, or media counsel only, is up to the judge. If it is to counsel only, counsel needs acceptance of this from their client (para. 59).