PASSAGE ONE OF THE DAY: "The case deals with a confidential informant who unsuccessfully appealed their conviction and sentence to the Ontario Court of Appeal. It bears a striking similarity to a case in Quebec in which a confidential informant was tried in secret and then appealed. The revelation last year of the secret trial by Montreal newspaper La Presse caused an uproar in the province, and it is now the focus of an upcoming Supreme Court of Canada appeal. It’s well-established law that information that could identify a confidential police informant cannot be divulged except in the most narrow of circumstances. But experts expressed concern at the level of redaction in the Ontario appeal judgment and the possibility that an entire trial may have been held in camera. The secret nature of the proceedings pits it against the long-standing principle that to maintain confidence in the administration of justice, courts must be open to the public. “I would like the court to explain at least in a general way why the degree of restrictions were necessary in the circumstances,” said Jamie Cameron, a professor emerita of law at Osgoode Hall Law School whose specialties include open courts. “There needs to be some acknowledgment that this is a fairly significant departure from the norm of our justice system,” she said. “Any time there’s secrecy in the justice system, it places the public’s confidence in the system at risk.”
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PASSAGE TWO OF THE DAY: "MacKinnon said it’s hard to believe that some of the redacted information could identify the informant, including the level of court, the lawyers, and the offence or offences. Secret trials and heavily redacted judgments are a rare exception because they “violate the constitutionally protected open courts principle,” he said. “If this became the norm or occurred on a more regular basis, we would never see justice being done,” he said. “It’s to protect the confidence of the public, that trials are being conducted properly and fairly and that rights are being upheld. Open and public trials are a critical component of a free and democratic society.”
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PASSAGE THREE OF THE DAY: "La Presse reported in March of last year on “Case X,” a secret trial whose existence was made public through a heavily redacted Quebec Court of Appeal decision, after the convicted confidential informant appealed. That person’s crime was also withheld. The appeal court came down strongly on the secrecy of the proceedings, while still redacting much of the basic information. Applications by media outlets to access the appeal record and trial judgment were unsuccessful, and they eventually appealed to Canada’s top court, which will hear the case in December. In the wake of the revelation, Quebec’s justice minister vowed that secret trials would never happen again, with the agreement of the chief justices of Quebec’s two trial courts."
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STORY: "‘The [Redacted] Court of Justice’: Ontario courts held apparently secret trial," by Courts, Justice and Legal Affairs Reporter Jacques Gallant, published by The Toronto Star, on July 24, 2023.
SUB-HEADING: "A recent Court of Appeal ruling lists no offender name, no crime, no date, no judge, no sentence and no reasons — the ruling even redacts the court in which the original criminal trial was held."
GIST: "“[Redacted]” So begins a recent appeal ruling from Ontario’s highest court dealing with what appears to be a secret trial, in which nearly all basic information has been shielded from the public.
It’s a highly unusual departure from the fundamental principle of open courts, experts say, which risks undermining public confidence in the justice system.
The names of the offender, lawyers and trial judge are all withheld. The crime or crimes for which the person was convicted, along with their sentence, have also been kept secret. Even the level of court that handled the trial has been taken out — “the [Redacted] Court of Justice.”
The unredacted appeal judgment and court file remain sealed, which means the public is prohibited from accessing the documents.
“This is highly unusual. This is not standard at all,” said Iain MacKinnon, former president of the Canadian Media Lawyers Association. “The fact that so much is redacted, including counsel and most of the judgment, that’s extreme.”
The appeal ruling does not indicate if the trial was held either partly or entirely behind closed doors. Based on the way the decision is written, “it would appear that the trial itself was secret and in camera,” MacKinnon said, using the legal term for when the public is excluded from a hearing. “I think that’s the logical conclusion.
The case deals with a confidential informant who unsuccessfully appealed their conviction and sentence to the Ontario Court of Appeal.
It bears a striking similarity to a case in Quebec in which a confidential informant was tried in secret and then appealed. The revelation last year of the secret trial by Montreal newspaper La Presse caused an uproar in the province, and it is now the focus of an upcoming Supreme Court of Canada appeal.
It’s well-established law that information that could identify a confidential police informant cannot be divulged except in the most narrow of circumstances. But experts expressed concern at the level of redaction in the Ontario appeal judgment and the possibility that an entire trial may have been held in camera.
The secret nature of the proceedings pits it against the long-standing principle that to maintain confidence in the administration of justice, courts must be open to the public.
“I would like the court to explain at least in a general way why the degree of restrictions were necessary in the circumstances,” said Jamie Cameron, a professor emerita of law at Osgoode Hall Law School whose specialties include open courts.
“There needs to be some acknowledgment that this is a fairly significant departure from the norm of our justice system,” she said. “Any time there’s secrecy in the justice system, it places the public’s confidence in the system at risk.”
MacKinnon said it’s hard to believe that some of the redacted information could identify the informant, including the level of court, the lawyers, and the offence or offences. Secret trials and heavily redacted judgments are a rare exception because they “violate the constitutionally protected open courts principle,” he said.
“If this became the norm or occurred on a more regular basis, we would never see justice being done,” he said. “It’s to protect the confidence of the public, that trials are being conducted properly and fairly and that rights are being upheld. Open and public trials are a critical component of a free and democratic society.”
The appeal ruling by justices Grant Huscroft, Alison Harvison Young and Julie Thorburn in the case of “John Doe” is brief, just 15 paragraphs, some of which are entirely redacted.
It indicates that the offender was asking for a conditional sentence — typically house arrest — rather than serving time in prison, arguing there “is a considerable risk that their safety will be jeopardized.” How much time they’re supposed to spend in prison is redacted.
“While we recognize the importance of ensuring the safety of confidential informants, and the possibility of harm that results from divulging their status, [redacted] a conditional sentence inappropriate,” the appeal court said.
The offender had also appealed their conviction for a redacted crime or crimes. They had asked the trial judge to stay the proceedings against them by arguing that their identity as a confidential informant had been divulged, and that the disclosure must have come from the police.
The offender failed to show evidence of the alleged police leak, and the trial judge dismissed the application for a stay. The top court dismissed the conviction appeal, with much of its reasoning redacted.
The court sent its full judgment to the parties and the trial judge on June 2 following the secret hearing and released the redacted version last week, after getting submissions from the lawyers.
Criminal defence lawyer Alison Craig said the redacted decision is “intriguing, but I think necessary” given what the law says about confidential informants and the near-absolute ban on information that could reveal an informant’s identity.
“There’s an inherent danger in being a CI; if someone were to find out you’re a CI, your life would be in imminent peril,” said Craig, who was not involved in this case.
“If a CI’s identity wasn’t a secret, CIs would essentially cease to exist. A lot of really important police investigations just couldn’t happen. So many investigations either start with, or are heavily based on, information provided by CIs.”
The Court of Appeal told the Star in a statement that notice to the media was posted on the court’s website on May 1 regarding the upcoming in camera hearing, inviting outlets to make submissions regarding the secret nature of the proceedings.
“That is clearly not sufficient to give notice,” MacKinnon said. “That does not qualify as notice, as the Supreme Court has said is required for these kinds of situations.”
In the Superior Court of Justice, for example, the court maintains a mailing list of media outlets and will send an email every time a party in a case is requesting a restriction on public access — including publication bans, sealing orders and in camera hearings — allowing media the opportunity to make arguments.
MacKinnon said the Court of Appeal should participate in that notice system. While the court has an RSS feed that sends notifications of changes to its website, MacKinnon said it doesn’t always seem to be working.
There are no practice directions in Ontario’s trial courts on holding secret trials, and it’s unclear how many have taken place over the years, given that the system for tracking cases does not include in camera proceedings.
La Presse reported in March of last year on “Case X,” a secret trial whose existence was made public through a heavily redacted Quebec Court of Appeal decision, after the convicted confidential informant appealed.
That person’s crime was also withheld.
The appeal court came down strongly on the secrecy of the proceedings, while still redacting much of the basic information.
Applications by media outlets to access the appeal record and trial judgment were unsuccessful, and they eventually appealed to Canada’s top court, which will hear the case in December.
In the wake of the revelation, Quebec’s justice minister vowed that secret trials would never happen again, with the agreement of the chief justices of Quebec’s two trial courts."
PUBLISHER'S NOTE: I am monitoring this case/issue/resource. Keep your eye on the Charles Smith Blog for reports on developments. The Toronto Star, my previous employer for more than twenty incredible years, has put considerable effort into exposing the harm caused by Dr. Charles Smith and his protectors - and into pushing for reform of Ontario's forensic pediatric pathology system. The Star has a "topic" section which focuses on recent stories related to Dr. Charles Smith. It can be found at: http://www.thestar.com/topic/charlessmith. Information on "The Charles Smith Blog Award"- and its nomination process - can be found at: http://smithforensic.blogspot.com/2011/05/charles-smith-blog-award-nominations.html Please send any comments or information on other cases and issues of interest to the readers of this blog to: hlevy15@gmail.com. Harold Levy: Publisher: The Charles Smith Blog;
SEE BREAKDOWN OF SOME OF THE ON-GOING INTERNATIONAL CASES (OUTSIDE OF THE CONTINENTAL USA) THAT I AM FOLLOWING ON THIS BLOG, AT THE LINK BELOW: HL
https://www.blogger.com/blog/post/edit/120008354894645705/47049136857587929
FINAL WORD: (Applicable to all of our wrongful conviction cases): "Whenever there is a wrongful conviction, it exposes errors in our criminal legal system, and we hope that this case — and lessons from it — can prevent future injustices.
Lawyer Radha Natarajan;
Executive Director: New England Innocence Project;
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FINAL, FINAL WORD: "Since its inception, the Innocence Project has pushed the criminal legal system to confront and correct the laws and policies that cause and contribute to wrongful convictions. They never shied away from the hard cases — the ones involving eyewitness identifications, confessions, and bite marks. Instead, in the course of presenting scientific evidence of innocence, they've exposed the unreliability of evidence that was, for centuries, deemed untouchable." So true!
Christina Swarns: Executive Director: The Innocence Project;
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YET ANOTHER FINAL WORD:
David Hammond, one of Broadwater’s attorneys who sought his exoneration, told the Syracuse Post-Standard, “Sprinkle some junk science onto a faulty identification, and it’s the perfect recipe for a wrongful conviction.”
https://deadline.com/2021/11/alice-sebold-lucky-rape-conviction-overturned-anthony-broadwater-1234880143/
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