Nearly every piece of valuable information
in a recent Ontario Court of Appeal ruling
is being kept
secret — even the reasons for why so much detail should be
withheld from the public.
“On appeal from the order [date redacted] of a judge [name of
judge redacted] of the Superior Court of Justice,” begins the
decision in R. v. X.Y., of which only six paragraphs have been
The name of the appellant, the offences he or she is facing, and
the description of the trial have also been censored. Most of
the oral arguments on the appeal were heard in camera (behind
closed doors), and all documents related to the case remain
The three-judge panel found that publishing their full reasons
could compromise the identity of a confidential informant,
without offering any further details.
“In camera hearings and heavily redacted reasons are serious
departures from the open justice rule and are not permissible
unless justified,” said Jamie Cameron, a professor at York
University’s Osgoode Hall Law School. “The (Court of Appeal’s)
reasons in this instance do not explain why such a high degree
of secrecy was necessary, and that is problematic.”
Legal experts who read the ruling told the Star it is “unusual”
to see so much information censored, and that such censorship
hinders the public’s right to know what is happening in the
The appeal appears to deal with the Superior Court judge siding
with the Crown during pre-trial motions in its refusal to turn
over information to the defence that it maintains could identify
a confidential informant. The three judges — David Doherty,
Kathryn Feldman and Janet Simmons — dismissed the appeal and
sent the matter back to Superior Court for the continuation of
“The trial judge was faced with a fluid and very unusual
situation,” the judges wrote in their decision, but the
situation is censored.
“I’ve never seen a measure this broad to protect the identity of
an informant,” said Toronto lawyer Rocco Galati. “I’ve always
been opposed to any secret proceedings. This seems excessive. I
can’t imagine how revealing the name of the trial judge would
reveal the identity of the informant.”
The defence lawyers, Joseph Di Luca and Erin Dann, did not
return requests for comment. Crown attorney Susan Magotiaux
declined to comment through a Ministry of the Attorney General
The full appeal decision was released to the appellant, the
lawyers involved and the trial judge on Nov. 20. After they
reviewed it and presented further submissions, the court decided
to publicly release the heavily censored version on Dec. 5.
Galati said this decision also presents another difficulty, more
specific to the legal profession — the acceptance under the law
that the Crown does not have to disclose information about a
confidential informant to the defence as they build their case.
Ottawa criminal lawyer Michael Spratt said that can hinder the
ability of the accused to mount a vigorous defence.
“The courts have been clear on the limited information we can
receive about informants, and that of course puts us at a great
disadvantage when we’re actually testing what these confidential
informants say to the police,” he said.
“You can have informants who have lengthy criminal records … and
may have great financial or other incentives to provide
misleading information about our clients, and the less that we
know about those people, the more the risk is that false
information could lead to wrongful convictions or illegal
Spratt said that heavily censored court decisions go against the
open courts principle, which has long been recognized by the
Supreme Court of Canada as a fundamental principle of the legal
system. He said it’s difficult to know if the censoring was
justified in this case due to the dearth of information.
He said that the open courts principle has been “under attack”
lately, pointing out that courts often tend to err on the side
of caution and keep more details secret than might be necessary.
Former Supreme Court of Canada justice John Major said that if
he were judging the case, he would like to see more information.
“I would want to know the why,” said Major, now a lawyer with
Calgary-based firm Bennett Jones. “In my view, one of the only
compelling reasons would be that it’s to protect somebody’s
life. The only hope we have of knowing is when the final
judgment comes out. If it’s not also redacted.”
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