Scellement et descellement des autorisations judiciaires

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• < Fouilles, perquisitions et saisies
• < mandats de perquisitions

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.

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."

Section 487.3 provides statutory authority for a [[Définition des officiers et des bureaux judiciaires |judge or justice]] to issue a sealing order:

Order denying access to information

487.3 (1) On application made at the time an application is made for a warrant under this or any other Act of Parliament, an order under any of sections 487.013 to 487.018 or an authorization under section 529 [entrée en résidence pour arrêter] or 529.4 [exécuter un mandat pour entrer dans une résidence d'arrestation], or at a later time, a justice, a judge of a superior court of criminal jurisdiction or a judge of the Court of Quebec may make an order prohibiting access to, and the disclosure of, any information relating to the warrant, 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) [ordonnance de mise sous scellés relative aux mandats – motifs de mise sous scellés] or the information might be used for an improper purpose; and

(b) the reason referred to in paragraph (a) [ordonnance de mise sous scellés relative aux mandats – motifs de mise sous scellés] outweighs in importance the access to the information.

[omis (2), (3) and (4)]
1997, c. 23, s. 14, c. 39, s. 1; 2004, c. 3, s. 8; 2014, c. 31, s. 22.
[annotation(s) ajoutée(s)]

– CCC (CanLII), (Jus.)

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Sealing orders are to be the exception to the rule of openness.

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

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

Burden of Proof

Where a court document is subject to a discretionary sealing, the burden is upon the party seeking to maintain the sealing order. The exception to this burden include the mandatory sealings provisions under s. 187(1)(a)(ii) relating to wiretaps.

Duty to Unseal is On the Crown

The burden is on the Crown to unsealing judicial authorization materials. This duty is part of the Crown's Stinchcombe disclosure obligations.

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.

Residual Authority to Control Access

Even where there is no sealing order granted, the court may also restrict and prohibit access to court-record materials where it would "subvert" the "ends of justice" or "might" be used for an "improper purpose."

Grounds to Sealing

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

487.3
[omis (1)]

Reasons

(2) For the purposes of paragraph (1)(a) [ordonnance de mise sous scellés relative aux mandats – motifs de mise sous scellés], an order may be made under subsection (1) [ordonnance de mise sous scellés relative aux mandats] 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.

[omis (3) and (4)]
1997, c. 23, s. 14, c. 39, s. 1; 2004, c. 3, s. 8; 2014, c. 31, s. 22.
[annotation(s) ajoutée(s)]

– CCC (CanLII), (Jus.)

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There is a presumption in favour of access to information.

Dagenais/Mentuck Test

The Dagenais/Mentuck test applies to seal orders. 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

Standard of Proof

The risks of keeping the record unsealed must be established to be a "risk the reality of which is well-grounded in the evidence."

Proper Administration of Justice

The risk to "administration of justice" will include "real and substantial risk to the fairness of the trial."

The preservation of a witness's evidence is not a justification for sealing as the witnesses are free to speak to whomever they want and thier prior statement is already preserved in their statement.

It is not a general rule that the mere fact of publication that a witness cooperated with police is a reason to protect their identity. There would need to be evidence supporting a specific risk to the witness.

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."

"Ongoing investigation"

The risk posed to the investigation must be satisfied on a case-by-case basis and is not to be used as a class of prohibited records. Generalized or abstract assertions of potential prejudice is insufficient. However, generalized assertions are all that can be offered and that it may be that a "perceived risk may be more difficult to demonstrate in a concrete manner at that early stage."

Denial of access cannot be granted on the basis that there is an "investigative advantage" to the police in having documents sealed.

"innocent person"

Section 487.3(2)(iv) permits a court to seal a record where disclosure could "prejudice the interests of an innocent person".

"Innocent persons" include third parties whose premises have been searched and nothing was found.This does not mean that where something is seized from the premises that they can no longer be innocent persons.

Prejudice to innocent persons is "entitled to significant weight."

The interests of "innocent persons" includes preventing an "innocent person subject to intense media scrutiny that may irreparably tarnish that person’s reputation." 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.

An "innocent person" does not include the accused as "reporting of ...evidence is a price" that they must pay for "insuring the public accountability of those involved in the administration of justice" once the accused has "surrendered to the judicial process."

It is unsettled whether notice is required to be given to innocent third-parties with cases going both ways.

Right to a Fair Trial

Releasing information regarding an ongoing investigation can be "highly prejudicial to a person's right to a fair trial."

The release of certain types of "incriminating evidence" against the accused may result in such prejudice as to be unfair to be released to the public. 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."

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

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.

"any other sufficient reasons"

"Other sufficient reasons" within the meaning of s. 487.3 include "serious threat to trial fairness."

Procedure

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

Ruling

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

Sealing Procedure

487.3
[omis (1) and (2)]

Procedure

(3) Where an order is made under subsection (1) [ordonnance de mise sous scellés relative aux mandats], 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). [omis (4)]
1997, c. 23, s. 14, c. 39, s. 1; 2004, c. 3, s. 8; 2014, c. 31, s. 22.
[annotation(s) ajoutée(s)]

– CCC (CanLII), (Jus.)

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Unsealing

• Unsealing Judicial Authorizations

Wiretaps

Manner in which application to be kept secret

187 (1) All documents relating to an application made pursuant to any provision of this Part [Pt. VI – Atteintes à la vie privée (art. 183 à 196.1)] are confidential and, subject to subsection (1.1) [manière dont la demande doit être gardée secrète – exception], 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 [Pt. VI – Atteintes à la vie privée (art. 183 à 196.1)] need not be placed in the packet except if, under subsection 184.‍3(8) [écoute téléphonique avec consentement d'une seule partie par télémandat – lorsque les télécoms produisent un écrit' '], the original authorization is in the hands of the judge, in which case that judge must place it in the packet and the copy remains with the applicant.
[omis (1.2), (1.3), (1.4), (1.5), (2), (3), (4), (5), (6), (7) and (8)]

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; 2022, c. 17, s. 8.
[annotation(s) ajoutée(s)]

– CCC (CanLII), (Jus.)

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Non-Disclosure Order for Production Orders

A non-disclosure order is an order available to prohibit a named person or organization from disclosing the existence of a preservation demand, preservation order, or production order.

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 [ordre de préservation] 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 [formes] 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 [formes].

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) [ordonnance interdisant la divulgation des ordonnances de préservation ou de production] 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.
[annotation(s) ajoutée(s)]

– CCC (CanLII), (Jus.)

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peace officer and public officer

Section 2 defines "peace officer." Section 487.011 defines "public officer."

judge and justice

Section 2 defines "justice." Section 487.011 defines "judge."

See Also

• Privilège
• Access to Things Detained Under Section 490
• Access to Court-Filed Exhibits
• Precedent - Unsealing Authorizations