Report No. 198
The Canadian Courts have laid down the principle of "innocence at stake" as part of the 'inherent power' jurisdiction. The Canadian Constitution Act, 1982 contains the Charter of Rights and Freedoms in Part I. section 7 speaks of personal integrity, and states:
"section 7: Personal Integrity: Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice"
section 11(d) speaks of 'fair public hearing':
section 11: Fair trial: Every person is
(a) ... ... ...
(b) ... ... ...
(c) ... ... ...
(d) to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal"
The principles laid down by the Canadian Supreme Court in R v. Dunette 1994(1) SCR 469 appear again to be based on 'inherent power' of the Courts. The Supreme Court held that the right to fair public trial was not treated as absolute. Relaxation was permissible in favour of granting anonymity only if the Crown showed that disclosure of identity would prejudice the interests of informants, or of innocent persons or of the lawenforcement authorities and also showed that such prejudice outweighed the interests of the accused.
In R v. Khela: 1995 (4) SCR 201, it was the case of identity of a police informer. section 24(1) of the Charter was relied on for the accused. section 24(1) deals with 'access to Courts' and section 24(2) says that 'where in proceedings under section 24(1), a Court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.
The question in the above case was about the denial of crossexamination of an 'approver' and at the time of cross-examination, the witness wore a 'hood' to ensure his safety. The Supreme Court held that if there was danger to the person's life, his name and address need not be disclosed till just before trial. In the first round that went upto the Supreme Court, the Court passed an order directing disclosure of anonymity of the witnesses.
In the second round, the Supreme Court held that the earlier order had to be implemented or the Crown must seek modification of the earlier order of the Supreme Court if it had fresh material to say that the life of the informant was endangered.
In R v. Leipert: 1997 (1) SCR 281, the Supreme Court held that the accused who sought to establish that a search warrant was not supported by reasonable grounds, was entitled to the information pertaining to the identity of the informer if the information was 'absolutely essential'. The accused had to establish that 'innocence was at stake'. Otherwise, the informer's identity must be protected in as much as certain schemes enabling voluntary submission of information would fail if the informers were not granted anonymity. On the facts of the case, the Supreme Court granted anonymity as the accused failed to prove that informer's identity was essential to prove his innocence.
In R v. Mentuck: 2001 (3) SCR 442, the Supreme Court allowed anonymity of the undercover police officers to prevent 'serious risk' to the 'proper administration of justice'. However, the Court refused to ban disclosure of the operational matters used in the investigation of the accused.
The above case law from Canada and the absence of any statute in this area, shows that the Supreme Court was indeed enunciating that anonymity orders could be passed under the inherent power of the Courts.