Patricia Hénault

The appellants challenged confidentiality orders made in proceedings involving a police informer who was charged with criminal offences and brought a motion for a stay of proceedings based on abusive state conduct.

The trial court proceeded entirely in camera without notice to the media and without listing the proceedings on the docket.

The Court of Appeal allowed the informer's appeal, stayed the conviction, but upheld sealing of all identifying information.

The Supreme Court held that no secret trial occurred, that the Vancouver Sun procedure should not be modified, that judges must retain discretion over notice to third parties, and that privileged information cannot be disclosed even to counsel for interested third parties.

However, the Court held that the trial judge should have created a parallel proceeding with its own record number, and that the Court of Appeal erred by not making public a redacted version of the trial judgment.

Appeals allowed in part and case remanded to the Quebec Court of Appeal.

A journalist was subpoenaed to testify in support of an accused's motion for a stay of proceedings on the ground of abuse of process, seeking to identify government sources responsible for leaking confidential information.

The Court considered the new federal statutory scheme for the protection of journalistic sources in s. 39.1 of the Canada Evidence Act, enacted by the Journalistic Sources Protection Act, S.C. 2017, c. 22.

The majority held that the new scheme shifts the burden of proof to the party seeking disclosure, establishes reasonable necessity as a threshold requirement, and requires a balancing of the public interest in the administration of justice against the public interest in preserving the confidentiality of journalistic sources.

The appeal against the Quebec Court of Appeal's finding that it lacked jurisdiction was dismissed.

The appeal against the Superior Court's authorization of disclosure was allowed in part due to the Crown's change of position, with the case remanded to the court of original jurisdiction for reconsideration once new evidence from a government investigation is disclosed.

The dissent would have set aside the disclosure authorization outright, finding fundamental legal errors in the Superior Court's application of the new statutory scheme.