Informant’s Case will Be heard in open Court
A judge declined to grant a request for what would have amounted to a sweeping ban on a case that pits a gang informant against those in charge of the Witness Protection Program.
Noel Harder launched a lawsuit earlier this year, accusing the federal government and the RCMP of failing to keep him safe while he and his family were under the WPP.
The case came before Regina Court of Queen’s Bench on Thursday, after the lawyer representing the Attorney General applied on behalf of his client for an order that would have effectively barred the media from reporting on the matter.
According to the application, the requested order would have anonymized names in the statement of claim, sealed the statement of claim and any subsequent materials filed, and ensured “that any court proceedings related to this action be held in camera” under provisions of the Witness Protection Program Act (WPPA).
While AG lawyer Chris Bernier backed away from requests pertaining to the statement of claim — noting existing media coverage means “the horse is out of the barn on that one” — he argued for the other protections going forward.
But Court of Queen’s Bench Chief Justice Martel Popescul said he was reluctant to issue a ban of that magnitude.
“At this point, I think it might be difficult for a court to rule that this file from here on in shall be absolutely secret, and nobody is ever going to see anything in that file ever again ...,” Popescul said.
“One option is to recognize that the courts are public and to start with the presumption of openness. And then we start to whittle away at what absolutely needs to be kept confidential, as opposed to the other way around — (to) start with the presumption of confidentiality and disclose certain pieces as we go through.”
Bernier disagreed, arguing the open-court principle doesn’t override the WPPA.
In the end, Popescul decided against ordering a blanket ban in favour of looking at future filings and proceedings on a “piecemeal” basis. In that way — with Popescul staying on as case management judge — he will be able to consider the positions of various parties while deciding whether specific materials or proceedings should be kept confidential.
Sean Sinclair, the lawyer representing several media outlets, including the Leader-post and Saskatoon Starphoenix, didn’t dispute Popescul’s ruling.
Although Harder has opted to go public with his name and his story, Bernier argued the same doesn’t hold true for those who work within the WPP. He told the court those individuals, and the workings of the program itself, would come under threat should such details be made public.
Bernier said handlers’ names, locations of safe houses, and methods of getting protected witnesses’ kids to school, among other sensitive details, could be exposed but for a court order.
“We’re dealing with nefarious criminal elements that would cause harm to handlers and personnel if their identities and locations were disclosed,” he said. “In addition to that, there’s also a harm (to) their involvement and future involvement in the Witness Protection Program. If the identities and locations are revealed as to handlers in the Witness Protection Program, their ability to operate covertly is essentially burned.”
A statement of defence from the AG is likely the next document to be filed — and possibly argued over in terms of public disclosure. Popescul’s ruling means notice will go out to various parties, including the media, should additional publication bans be sought.
Speaking after court, Harder’s lawyer Tony Merchant questioned why the government is trying to close the case to the public.
“In my view, they’re trying to do that because they don’t want people to understand how witness protection really works,” he said. “They don’t want people to know that all over Canada, people are disappointed in what happens when they’re in witness protection. They’re angry. People are telling me their lives have been ruined.”