Three-judge panel on B.C.’s highest court has recommended procedure for media seeking to find out information about trials being held in total secrecy
B.C.’s highest court has recommended a procedure to help the news media and members of the public trying to find out information about the rare instances when trials are held in total secrecy.
It found that revealing even the nature of the confidential information would have the effect of disclosing that information.
“However, this is obviously an unsatisfactory place to leave the analysis, since Postmedia and the public at large must accept the word of now two courts that their Charter rights to freedom of expression and freedom of the press are being limited in a justifiable way on the basis of a record that they cannot see,” said the panel.
The panel accepted Postmedia’s submission that it would be preferable for a judge in a secret trial to appoint a so-called amicus curiae, an independent lawyer deemed to be a friend of the court, for a precise role, namely that of making argument as to the proper way of both protecting the legal privilege in issue and realizing the open court principle.
It noted that there may be some circumstances where the risks presented by any disclosure at all are so grave, the only way to minimize the risk yet still receive meaningful submissions in favour of court openness is to appoint an amicus to “provide submissions regarding the importance of ensuring that the privileges in issue are not overextended, and the way this can be accomplished in the context of the case.”
The secret trial came to light in June when a reporter for Postmedia, a national newspaper chain that publishes the Vancouver Sun and Province newspapers, went to a courtroom where the case was on the docket.
The reporter was advised that there was a publication ban and that the court file was sealed. When the case went in-camera, or behind closed doors, the reporter left the courtroom.
A lawyer for Postmedia appeared before Hinkson in a bid to find out what the case was about, but the judge declined to disclose anything about the trial, which was scheduled to run six weeks.
Court proceedings in Canada are presumed to be open to the public and orders that displace the open court principle can adversely affect the rights of Canadian citizens and the media to observe and report on the business of the courts.
From time to time, proceedings temporarily go behind closed doors to address discrete and valid issues, such as police informant issues. But trials are rarely entirely secret and close to the public.
