⚖️ Off the record

Secret trials under scrutiny at the SCC. Plus a First Nations water law, a courthouse murder plot, and the election penalty given to Rebel News.

Good morning.

If you’re on the fence about whether your litigation strategy sounds too much like extortion, it’s probably best not to describe the strategy in a detailed slide deck. Well, at least if you don’t want to end up in the same position as the law firm and the litigation funder being sued by Valve.

— Dylan Gibbs

TODAY’S DOCKET

  • Secret trials under scrutiny at the SCC

  • Feds introduce water law for First Nations

  • Murder plot at BC courthouse

  • Rebel News lawn signs counted as election advertisements

SCC

How secret is too secret?

Dark and secretive courtroom with mysterious figures at counsel tables

Over the next two days, the Supreme Court is hearing arguments about the secrecy measures used to keep a criminal trial completely under wraps. Quebec’s Superior Court went as far as to scrub the hearing from its docket — a practice condemned by the Court of Appeal.

Going dark: Police recruited Person X as a confidential informer but reneged on the agreement after Person X shared incriminating information. The police gave Person X a tough choice: either give up your confidentiality and testify against your associates, or face criminal charges. Person X refused to testify, so police laid charges for the offences Person X disclosed.

Person X was convicted at a trial that took place in total secrecy. Never mind being excluded, the media and the public had no way of knowing the case existed because it wasn’t listed on the Court’s docket. And it didn’t stop there — the parties examined witnesses outside the courtroom, the trial judge made decisions using transcripts of the examinations, and the trial judgment was never published. As the Court of Appeal said, “no trace of this trial exists, except in the memories of the individuals involved.”

Into the light: The Court of Appeal drew attention to the trial when it published a decision last year criticizing the level of secrecy adopted in the lower court. The heavily redacted appeal decision still omits the names of the lawyers involved, the name of the trial judge, and even the date of the appeal hearing. The Court of Appeal refused to release any further information to media organizations, prompting the appeal to the Supreme Court.

Big picture: This isn’t the only secret trial in recent memory. Since the Court of Appeal released its decision, similar cases have cropped up in BC and Ontario. Expect guidance from the Supreme Court on the proper procedure to follow in cases that warrant an unusual amount of secrecy.

In case you were wondering: The Court of Appeal also overturned Person X’s conviction. The Court said it was “plainly offensive” and an abuse of process for police to charge an informant after leading them to believe they were immune. Person X is now suing the authorities involved in the prosecution.

HEARSAY ROUNDUP

Canadiana

💧 The federal government tabled legislation introducing clean water standards for First Nations communities.

🧑‍🌾 Migrant farmers filed a proposed class action against the federal government, taking aim at work permits that bind farmers to a specific employer. The suit alleges that employer-specific work permits force migrant workers to pay EI even though they’ll never be able to claim the benefits. It also alleges the government introduced employer-specific work permits for discriminatory reasons. The claim covers a 15-year period and seeks $500 million in damages.

😳 According to a defence lawyer involved in the case, someone attended a recent murder trial in BC with a loaded handgun and an intent to kill. The lawyer received death threats for defending a man now convicted of murdering a 13-year-old girl.

Beyond the border

🕹️ In a win for Epic Games, a jury concluded that Google used its app store to unlawfully squash competition. The lawsuit targeted Google’s requirement that developers distribute Android apps through the Play Store, where Google takes a cut of revenue. Epic didn’t sue for monetary damages — the company wants a declaration that developers are free to create their own app stores and billing systems on the Android platform. A judge will decide the appropriate remedy in the new year.

🧠 A 17-year-old passed the California bar exam.

ELECTIONS

Rebel News stuck with election fines

Rebel News stick figure drawing, depicting Ezra Levant laughing, law signs, and Justin Trudeau crying

The Federal Court upheld penalties issued against Rebel News for unlawful advertising during the 2019 election period.

Rebel News put out lawn signs advertising Ezra Levant’s book, Libranos, which is billed as an exposé of Justin Trudeau’s corruption. Although the Elections Act says book promotion generally doesn’t count as election advertising, that’s only true “if the book was planned to be made available to the public regardless of [the election].” The Election Commissioner concluded that wasn’t the case for Libranos, because the book launch was planned to coincide with the election. The Federal Court said that was a reasonable conclusion.

Sticking it to the man: Rebel Media had a chance to explain the book launch and distance it from the election, but the organization sent a drawing to the Commissioner instead (pictured above).

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