Sealing and Unsealing Judicial Authorizations

From Canadian Criminal Law Notebook
Jump to: navigation, search

General Principles

Once a judicial authorization is executed (be it a warrant, production order or otherwise), the authorization and the supporting documents (usually the Information to Obtain) must be made available to the public unless the warrant is placed under a sealing order.[1]

Under s. 487.3(1), an application to seal a warrant and ITO can be made prohibiting disclosure of any information related to the warrant on the basis that access to it would subvert the ends of justice or the information would be put to an improper purpose.

Once an order is made, it must be made public "unless an applicant seeking a sealing order can demonstrate that public access would subvert the ends of justice".[2]

Section 487.3 provides statutory authority for a judge or justice to issue a sealing order:

Order denying access to information used to obtain a warrant or production order
487.3 (1) A judge or justice may, on application made at the time of issuing a warrant under this or any other Act of Parliament or a production order under section 487.012 or 487.013, or of granting an authorization to enter a dwelling-house under section 529 or an authorization under section 529.4 or at any time thereafter, make an order prohibiting access to and the disclosure of any information relating to the warrant, production order or authorization on the ground that

(a) the ends of justice would be subverted by the disclosure for one of the reasons referred to in subsection (2) or the information might be used for an improper purpose; and
(b) the ground referred to in paragraph (a) outweighs in importance the access to the information.

...
1997, c. 23, s. 14, c. 39, s. 1; 2004, c. 3, s. 8.


CCC

Sealing orders are to be the exception to the rule of openness.[3]

It is the responsibility of the Attorney General to be the responding party to any application to unseal where privilege may be at issue.[4]

Confidential police investigations require "a high level of secrecy to be effective" at least until after the warrant is executed.[5] Once the search is complete the presumption moves to one of openness.[6]

Effect of Sealing Order
The predominant view suggests that sealing orders function as an order restricting access to the court file rather than as a confidentiality order.[7]

  1. Toronto Star Newspaper Ltd. v Ontario, 2005 SCC 41 (CanLII)
  2. Toronto Star Newspapers Ltd. v Ontario, ibid.
    Attorney General of Nova Scotia v MacIntyre, 1982 CanLII 14 (SCC), [1982] 1 S.C.R. 175
  3. Application by the Winnipeg Free Press, 2006 MBQB 43 (CanLII) at para 10 per McKelvey SCJ
  4. Re Regina and Atout, 2013 ONSC 1312 (CanLII)
  5. Globe & Mail v Alberta, 2011 ABQB 363 (CanLII), at para 10
  6. Globe & Mail v Alberta, ibid. at para 10
  7. R. v. Moosemay, 2001 ABPC 156 (CanLII), at paras 19 to 31
    Konstan v Berkovits, 2016 ONSC 7958 (CanLII), per Myers J at paras 8 to 9
    Konstan v Berkovits, 2016 ONSC 3957 (CanLII) at para 10

Grounds to Sealing

See also: Open Court Principle and Statutory Publication Ban on Court Proceedings

Under s. 487.3(2), set out the basis of how the ends of justice would be subverted.

487.3
...
Reasons
(2) For the purposes of paragraph (1)(a), an order may be made under subsection (1) on the ground that the ends of justice would be subverted by the disclosure

(a) if disclosure of the information would
(i) compromise the identity of a confidential informant,
(ii) compromise the nature and extent of an ongoing investigation,
(iii) endanger a person engaged in particular intelligence-gathering techniques and thereby prejudice future investigations in which similar techniques would be used, or
(iv) prejudice the interests of an innocent person; and
(b) for any other sufficient reason.

...
1997, c. 23, s. 14, c. 39, s. 1; 2004, c. 3, s. 8.


CCC

There is a presumption in favour of access to information.[1]

Dagenais/Mentuck Test
The Dagenais/Mentuck test applies to sealing orders.[2] The test permits discretionary court orders prohibiting access to legal proceeding where:

  1. an order is necessary to prevent a serious risk to the proper administration of justice because reasonably alternative measures will not prevent the risk; and
  2. the salutary effects of the publication ban outweigh the deleterious effects on the rights and interests of the parties and the public, including the effects on the right to free expression, the right of the accused to a fair and public trial, and the efficacy of the administration of justice

Other Options to Sealing
It is an error of law for the authorizing judge or justice to fail "to consider alternative measures short of a full-fledged non-access order".[3]

Innocent Persons
Prejudice to innocent persons is "entitled to significant weight".[4]

The interests of "innocent persons" includes preventing an "innocent person subject to intense media scrutiny that may irreparably tarnish that person’s reputation".[5] Where the allegations found in the ITO may be "extremely harmful to [the] reputations" of innocent persons, including the suspect, then the public interest will be against releasing information identifying them.[6]

Right to a Fair Trial
Releasing information regarding an ongoing investigation can be "highly prejudicial to a person's right to a fair trial".[7]

Release of certain types of "incriminating evidence" against the accused may result in such a prejudice as to be unfair to be released to the public.[8] Such evidence would have the effect of "place irreversible ideas in the minds of potential jurors that would prevent them from being impartial at trial, or that would make it impossible for them to distinguish between evidence heard during the trial and information acquired outside of the courtroom."[9]

There is suggestion that protecting of trial rights are better protected by a publication ban rather than a sealing order.[10]

Commercial Interests
A "real and substantial risk" to commercial interests of a company in revealing the allegations in the ITO may create a public interest in confidentiality.[11]

"any other sufficient reasons"
"Other sufficient reasons" within the meaning of s. 487.3 include "serious threat to trial fairness".[12]

Procedure
The applicant must be specific on the grounds of sealing, there must be "particularized grounds". Generalized assertions are not enough.[13]

Ruling
The Judge must give reasons for any decision to issue the sealing of a public record.[14]

  1. Phillips v Vancouver Sun, 2004 BCCA 14 (CanLII)
  2. Dagenais v Canadian Broadcasting Corp., 1994 CanLII 39 (SCC), [1994] 3 SCR 835
    R v Mentuck, 2001 SCC 76 (CanLII), [2001] 3 SCR 442
  3. R v CBC, 2008 ONCA 397 (CanLII), per Juriansz JA, at paras 18, 26
  4. Phillips v Vancouver Sun, at para 66
  5. Globe & Mail v Alberta, 2011 ABQB 363 (CanLII) at para 15
  6. Globe & Mail v Alberta at para 18
  7. Globe & Mail v Alberta at para 21
    Flahiff v Cour Du Québec, 1998 CanLII 13149 (QC CA), [1998] RJQ 327, 157 DLR (4th) 485, per Rothman JA, at pp. 19 to 20
  8. Flahiff, ibid. at p 91
    R v CBC, 2008 ONCA 397 (CanLII) at paras 29 to 32
  9. CBC, ibid. at para 32
  10. CBC, ibid. at paras 43 to 46
  11. Globe & Mail v Alberta at para 18
    Sierra Club of Canada v Canada (Minister of Finance), 2002 SCC 41 (CanLII), [2002] 2 SCR 522
  12. Flahiff v Cour Du Québec, 1998 CanLII 13149 (QC CA)
  13. Toronto Star v Ontario, at paras 36 to 42
  14. CBC, supra at para 55

Sealing Procedure

487.3
...

Procedure
(3) Where an order is made under subsection (1), all documents relating to the application shall, subject to any terms and conditions that the justice or judge considers desirable in the circumstances, including, without limiting the generality of the foregoing, any term or condition concerning the duration of the prohibition, partial disclosure of a document, deletion of any information or the occurrence of a condition, be placed in a packet and sealed by the justice or judge immediately on determination of the application, and that packet shall be kept in the custody of the court in a place to which the public has no access or in any other place that the justice or judge may authorize and shall not be dealt with except in accordance with the terms and conditions specified in the order or as varied under subsection (4).
...
1997, c. 23, s. 14, c. 39, s. 1; 2004, c. 3, s. 8.


CCC


Unsealing

Under s. 487.3(4), the sealing order may be varied or terminated:

487.3
...
Application for variance of order
(4) An application to terminate the order or vary any of its terms and conditions may be made to the justice or judge who made the order or a judge of the court before which any proceedings arising out of the investigation in relation to which the warrant or production order was obtained may be held.
1997, c. 23, s. 14, c. 39, s. 1; 2004, c. 3, s. 8.


CCC

Vetting Procedure

Where unsealing an unvetted ITO, the court should follow the procedure set out in Garofoli:[1]

  1. Upon opening of the packet, if the Crown objects to disclosure of any of the material, an application should be made by the Crown suggesting the nature of the matters to be edited and the basis therefor. Only Crown counsel will have the affidavit at this point.
  2. The trial judge should then edit the affidavit as proposed by Crown counsel and furnish a copy as edited to counsel for the accused. Submissions should then be entertained from counsel for the accused. If the trial judge is of the view that counsel for the accused will not be able to appreciate the nature of the deletions from the submissions of Crown counsel and the edited affidavit, a form of judicial summary as to the general nature of the deletions should be provided.
  3. After hearing counsel for the accused and reply from the Crown, the trial judge should make a final determination as to editing, bearing in mind that editing is to be kept to a minimum and applying the factors listed above.
  4. After the determination has been made in (3), the packet material should be provided to the accused.
  5. If the Crown can support the authorization on the basis of the material as edited, the authorization is confirmed.
  6. If, however, the editing renders the authorization insupportable, then the Crown may apply to have the trial judge consider so much of the excised material as is necessary to support the authorization. The trial judge should accede to such a request only if satisfied that the accused is sufficiently aware of the nature of the excised material to challenge it in argument or by evidence. In this regard, a judicial summary of the excised material should be provided if it will fulfill that function. It goes without saying that if the Crown is dissatisfied with the extent of disclosure and is of the view that the public interest will be prejudiced, it can withdraw tender of the wiretap evidence.

The application judge should begin by making inquiry into the reason that the Crown opposes the unsealing.[2] The Crown should give an unedited copy to the judge with details on what portion of the warrant is to be unsealed. [3]

  1. R v Garofoli, 1990 CanLII 52 (SCC), [1990] 2 SCR 1421
  2. R v Canadian Broadcasting Corporation, 2008 ONCA 397 (CanLII)
  3. CBC

Procedure for Confidential Informers

See also: Confidential Informers

Step 6 can be adapted for the circumstances of a confidential informer where the redacted ITO is insufficient on its face, but the Crown wishes to rely upon redacted information without revealing details of identity.[1]

The Crown must apply to the Court to have it consider the unredacted version, while the accused receives only a "judicial summary" of the excised material. The judicial summary "should attempt to ensure the accused is sufficiently aware of the nature of the excised material to challenge it in argument or by evidence, while still protecting the identity of the confidential informant."[2] The judge will give feed-back on any inadequacies of the judicial summary provided until such time as the draft satisfies the judge or the procedure is terminated by the Crown.[3]

Step 6 must balance the right to full answer and defence by testing the reliability of the informant's evidence and the need for confidentiality of the informant's identity.[4]


  1. R v Learning, 2010 ONSC 3816 (CanLII) at para 100 to 109
    R v Rocha, 2012 ONCA 707 (CanLII), 112 O.R. (3d) 742, at paras 54-59
  2. R v Prosser, 2014 ONSC 2645 (CanLII), at para 9
  3. e.g. Prosser, ibid. at paras 14 to 17
  4. Prosser, ibid. at para 11

Wiretaps

See also: Wiretaps

Sealing of Authorization

See also: Sealing and Unsealing Warrants

Manner in which application to be kept secret
187 (1) All documents relating to an application made pursuant to any provision of this Part are confidential and, subject to subsection (1.1), shall be placed in a packet and sealed by the judge to whom the application is made immediately on determination of the application, and that packet shall be kept in the custody of the court in a place to which the public has no access or in such other place as the judge may authorize and shall not be dealt with except in accordance with subsections (1.2) to (1.5).
Exception
(1.1) An authorization given under this Part need not be placed in the packet except where, pursuant to subsection 184.3(7) or (8), the original authorization is in the hands of the judge, in which case that judge must place it in the packet and the facsimile remains with the applicant.
...
R.S., 1985, c. C-46, s. 187; R.S., 1985, c. 27 (1st Supp.), s. 24; 1993, c. 40, s. 7; 2005, c. 10, s. 24; 2014, c. 31, s. 10.

CCC

Unsealing of Authorization

Defence counsel may apply to the court under s. 187(1.4) to unseal to authorization. The section states:

187
...
Opening for further applications
(1.2) The sealed packet may be opened and its contents removed for the purpose of dealing with an application for a further authorization or with an application for renewal of an authorization.
Opening on order of judge
(1.3) A provincial court judge, a judge of a superior court of criminal jurisdiction or a judge as defined in section 552 may order that the sealed packet be opened and its contents removed for the purpose of copying and examining the documents contained in the packet.
Opening on order of trial judge
(1.4) A judge or provincial court judge before whom a trial is to be held and who has jurisdiction in the province in which an authorization was given may order that the sealed packet be opened and its contents removed for the purpose of copying and examining the documents contained in the packet if

(a) any matter relevant to the authorization or any evidence obtained pursuant to the authorization is in issue in the trial; and
(b) the accused applies for such an order for the purpose of consulting the documents to prepare for trial.

Order for destruction of documents
(1.5) Where a sealed packet is opened, its contents shall not be destroyed except pursuant to an order of a judge of the same court as the judge who gave the authorization.
Order of judge
(2) An order under subsection (1.2), (1.3), (1.4) or (1.5) made with respect to documents relating to an application made pursuant to section 185 or subsection 186(6) or 196(2) may only be made after the Attorney General or the Minister of Public Safety and Emergency Preparedness by whom or on whose authority the application for the authorization to which the order relates was made has been given an opportunity to be heard.
Idem
(3) An order under subsection (1.2), (1.3), (1.4) or (1.5) made with respect to documents relating to an application made pursuant to subsection 184.2(2) or section 184.3 may only be made after the Attorney General has been given an opportunity to be heard.
Editing of copies
(4) Where a prosecution has been commenced and an accused applies for an order for the copying and examination of documents pursuant to subsection (1.3) or (1.4), the judge shall not, notwithstanding those subsections, provide any copy of any document to the accused until the prosecutor has deleted any part of the copy of the document that the prosecutor believes would be prejudicial to the public interest, including any part that the prosecutor believes could

(a) compromise the identity of any confidential informant;
(b) compromise the nature and extent of ongoing investigations;
(c) endanger persons engaged in particular intelligence-gathering techniques and thereby prejudice future investigations in which similar techniques would be used; or
(d) prejudice the interests of innocent persons.

Accused to be provided with copies
(5) After the prosecutor has deleted the parts of the copy of the document to be given to the accused under subsection (4), the accused shall be provided with an edited copy of the document. Original documents to be returned
(6) After the accused has received an edited copy of a document, the prosecutor shall keep a copy of the original document, and an edited copy of the document and the original document shall be returned to the packet and the packet resealed.
Deleted parts
(7) An accused to whom an edited copy of a document has been provided pursuant to subsection (5) may request that the judge before whom the trial is to be held order that any part of the document deleted by the prosecutor be made available to the accused, and the judge shall order that a copy of any part that, in the opinion of the judge, is required in order for the accused to make full answer and defence and for which the provision of a judicial summary would not be sufficient, be made available to the accused.
Documents to be kept secret — related warrant or order
(8) The rules provided for in this section apply to all documents relating to a request for a related warrant or order referred to in subsection 184.2(5), 186(8) or 188(6) with any necessary modifications.
R.S., 1985, c. C-46, s. 187; R.S., 1985, c. 27 (1st Supp.), s. 24; 1993, c. 40, s. 7; 2005, c. 10, s. 24; 2014, c. 31, s. 10.


CCC

Production Orders

See also: Production Orders

Order prohibiting disclosure
487.0191 (1) On ex parte application made by a peace officer or public officer, a justice or judge may make an order prohibiting a person from disclosing the existence or some or all of the contents of a preservation demand made under section 487.012 or a preservation or production order made under any of sections 487.013 to 487.018 during the period set out in the order.
Conditions for making order
(2) Before making the order, the justice or judge must be satisfied by information on oath in Form 5.009 that there are reasonable grounds to believe that the disclosure during that period would jeopardize the conduct of the investigation of the offence to which the preservation demand or the preservation or production order relates.
Form
(3) The order is to be in Form 5.0091.
Application to revoke or vary order
(4) A peace officer or a public officer or a person, financial institution or entity that is subject to an order made under subsection (1) may apply in writing to the justice or judge who made the order  —  or to a judge in the judicial district where the order was made  —  to revoke or vary the order.
2014, c. 31, s. 20.


CCC

See Also