Sealing and Unsealing Judicial Authorizations: Difference between revisions

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[[fr:Scellement_et_descellement_des_autorisations_judiciaires]]
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{{LevelZero}}{{HeaderWarrants}}
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==General Principles==
==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.<ref>
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.<Ref>Toronto Star Newspaper Ltd. v Ontario, [http://canlii.ca/t/1l27q 2005 SCC 41] (CanLII){{perSCC|Fish J}}</ref>
{{CanLIIRPC|Toronto Star Newspaper Ltd. v Ontario|1l27q|2005 SCC 41 (CanLII)|[2005] 2 SCR 188}}{{perSCC-H|Fish J}}</ref>


Under [http://canlii.ca/t/7vf2#sec487.3 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.  
Under [{{CCCSec|487.3}} 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".<ref>
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."<ref>
Toronto Star Newspapers Ltd. v Ontario{{ibid}}<br>
{{ibid1|Toronto Star Newspapers Ltd. v Ontario}}<br>
Attorney General of Nova Scotia v MacIntyre, [http://canlii.ca/t/1lpbn 1982 CanLII 14] (SCC), [1982] 1 SCR 175{{perSCC|Dickson J}}<br>
{{CanLIIRPC|Attorney General of Nova Scotia v MacIntyre|1lpbn|1982 CanLII 14 (SCC)|[1982] 1 SCR 175}}{{perSCC|Dickson J}}<br>
</ref>
</ref>


Section 487.3 provides statutory authority for a [[Definition of Judicial Officers and Offices|judge or justice]] to issue a sealing order:
Section 487.3 provides statutory authority for a [[Definition of Judicial Officers and Offices|judge or justice]] to issue a sealing order:
{{quotation|
{{quotation2|
'''Order denying access to information used to obtain a warrant or production order'''<br>
; Order denying access to information
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
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 {{AnnSec4|487.013 to 487.018}} or an authorization under section 529 {{AnnSec5|529}} or 529.4 {{AnnSec5|529.4}}, 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) or the information might be used for an improper purpose; and
:(a) the ends of justice would be subverted by the disclosure for one of the reasons referred to in subsection (2) {{AnnSec4|487.3(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.
:(b) the reason referred to in paragraph (a) {{AnnSec4|487.3(1)(a)}} outweighs in importance the access to the information.
{{removed|(2), (3) and (4)}}
{{LegHistory90s|1997, c. 23}}, s. 14, c. 39, s. 1;
{{LegHistory00s|2004, c. 3}}, s. 8;
{{LegHistory10s|2014, c. 31}}, s. 22.
{{Annotation}}
|{{CCCSec2|487.2}}
|{{NoteUp|487.3|1}}
}}


...<br>
Sealing orders are to be the exception to the rule of openness.<ref>
1997, c. 23, s. 14, c. 39, s. 1; 2004, c. 3, s. 8.
{{CanLIIRPC|Application by the Winnipeg Free Press|1mt4q|2006 MBQB 43 (CanLII)|70 WCB (2d) 54}}{{perMBQB|McKelvey J}}{{atL|1mt4q|10}}<br>
|[http://canlii.ca/t/7vf2#sec487.2 CCC]}}
 
Sealing orders are to be the exception to the rule of openness.<Ref>
Application by the Winnipeg Free Press, [http://canlii.ca/t/1mt4q 2006 MBQB 43] (CanLII){{perMBQB|McKelvey J}} at para 10 <br>
</ref>
</ref>


It is the responsibility of the Attorney General to be the responding party to any application to unseal where privilege may be at issue.<ref>
It is the responsibility of the Attorney General to be the responding party to any application to unseal where privilege may be at issue.<ref>
Re Regina and Atout, [http://canlii.ca/t/fwch7 2013 ONSC 1312] (CanLII){{perONSC|Campbell J}}
{{CanLIIRPC|Re Regina and Atout|fwch7|2013 ONSC 1312 (CanLII)|OJ No 899}}{{perONSC|Campbell J}}
</ref>
</ref>


Confidential police investigations require "a high level of secrecy to be effective" at least until after the warrant is executed.<ref>
Confidential police investigations require "a high level of secrecy to be effective" at least until after the warrant is executed.<ref>
Globe & Mail v Alberta, [http://canlii.ca/t/fm0ws 2011 ABQB 363] (CanLII){{perABQB|Tilleman J}}, at para 10<br>
{{CanLIIRPC|Globe & Mail v Alberta|fm0ws|2011 ABQB 363 (CanLII)|520 AR 279}}{{perABQB|Tilleman J}}{{atL|fm0ws|10}}<br>
</ref> Once the search is complete the presumption moves to one of openness.<ref>
</ref>  
Globe & Mail v Alberta{{ibid}} at para 10<br>
Once the search is complete the presumption moves to one of openness.<ref>
{{ibid1|Globe & Mail v Alberta}}{{atL|fm0ws|10}}<br>
</ref>
 
; 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.<ref>
{{CanLIIRx|Verrilli|j296d|2019 NSSC 263 (CanLII)}}{{perNSSC|Arnold J}}{{atL|j296d|56}}<Br>
cf. {{CanLIIRPC|National Post Co. v Ontario|6w6d|2003 CanLII 13 (ONSC)|176 CCC (3d) 432}}{{perONSC|McKinnon J}}
</ref>
The exception to this burden include the mandatory sealings provisions under s. 187(1)(a)(ii) relating to wiretaps.<ref>
{{CanLIIRPC|Michaud v Quebec (Attorney General)|1fr76|1996 CanLII 167 (SCC)|[1996] 3 SCR 3}}{{perSCC|Lamer CJ}}{{atsL|1fr76|3 to 5}}
</ref>
</ref>


'''Duty to Unseal is On the Crown'''<Br>
; 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.<ref>
The burden is on the Crown to unsealing judicial authorization materials. This duty is part of the Crown's Stinchcombe disclosure obligations.<ref>
R v Osei, [http://canlii.ca/t/1qq31 2007 CanLII 5681] (ON SC){{perONSC|Nordheimer J}}<br>
{{CanLIIRP|Osei|1qq31|2007 CanLII 5681 (ON SC)|152 CRR (2d) 152}}{{perONSC|Nordheimer J}}<br>
</ref>
</ref>


'''Effect of Sealing Order'''<br>
; 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.<ref>
The predominant view suggests that sealing orders function as an order restricting access to the court file rather than as a confidentiality order.<ref>
R v Moosemay, [http://canlii.ca/t/5bzf 2001 ABPC 156] (CanLII){{perABPC|Fradsham J}}, at paras 19 to 31<br>
{{CanLIIRP|Moosemay|5bzf|2001 ABPC 156 (CanLII)|297 AR 34}}{{perABPC|Fradsham J}}{{atsL|5bzf|19| to 31}}<br>
Konstan v Berkovits, [http://canlii.ca/t/gwhnp 2016 ONSC 7958] (CanLII){{perONSC|Myers J}} at paras 8 to 9<br>
{{CanLIIRxC|Konstan v Berkovits|gwhnp|2016 ONSC 7958 (CanLII)}}{{perONSC|Myers J}}{{atsL|gwhnp|8| to 9}}<br>
Konstan v Berkovits, [http://canlii.ca/t/h4jjn 2016 ONSC 3957] (CanLII){{perONSC|Myers J}} at para 10
{{CanLIIRxC|Konstan v Berkovits|h4jjn|2016 ONSC 3957 (CanLII)}}{{perONSC|Myers J}}{{atL|h4jjn|10}}
</ref>
 
; 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."<ref>
{{CanLIIRPC|AG (Nova Scotia) v MacIntyre|1lpbn|1982 CanLII 14 (SCC)|[1982] 1 SCR 175}}{{perSCC|Dickson J}}{{atp|189}} (SCR) ("Undoubtedly every court has a supervisory and protecting power over its own records. Access can be denied when the ends of justice would be subverted by disclosure or the judicial documents might be used for an improper purpose. The presumption, however, is in favour of public access and the burden of contrary proof lies upon the person who would deny the exercice of the right.")<Br>
{{CanLIIRP|Garofoli|1fss5|1990 CanLII 52 (SCC)|[1990] 2 SCR 1421}}{{perSCC-H|Sopinka J}} ("The power to edit clearly exists and derives from the supervisory and protecting power which a court possesses over its own records")
 
</ref>
</ref>


{{reflist|2}}
{{reflist|2}}
===Wiretaps===
{{seealso|Wiretaps}}
{{quotation3|
; Manner in which application to be kept secret
187 (1) All documents relating to an application made pursuant to any provision of this Part {{AnnSec|Part VI}} are confidential and, subject to subsection (1.1) {{AnnSec1|187(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) {{AnnSec1|187(1.2) to (1.5)}}.
<br>
; Exception
(1.‍1) An authorization given under this Part {{AnnSec|Part VI}} need not be placed in the packet except if, under subsection 184.‍3(8) {{AnnSec1|184.3(8)}}, 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.
<br>
{{removed|(1.2), (1.3), (1.4), (1.5), (2), (3), (4), (5), (6), (7) and (8)}}<br>
R.S., {{LegHistory80s|1985, c. C-46}}, s. 187;
R.S., {{LegHistory80s|1985, c. 27 (1st Supp.)}}, s. 24;
{{LegHistory90s|1993, c. 40}}, s. 7;
{{LegHistory00s|2005, c. 10}}, s. 24;
{{LegHistory10s|2014, c. 31}}, s. 10;
{{LegHistory20s|2022, c. 17}}, s. 8.
{{Annotation}}
|{{CCCSec2|187}}
|{{NoteUp|187|1|1.1}}
}}


==Grounds to Sealing==
==Grounds to Sealing==
{{seealso|Open Court Principle|Statutory Publication Ban on Court Proceedings}}
{{seealso|Open Court Principle|Statutory Publication Ban on Identity Information}}
Under s. 487.3(2), set out the basis of how the ends of justice would be subverted.
Under s. 487.3(2), set out the basis of how the ends of justice would be subverted.


{{quotation|
{{quotation2|
487.3<br>...<br>
487.3<br>
'''Reasons'''<br>
{{removed|(1)}}
(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
; Reasons
(2) For the purposes of paragraph (1)(a) {{AnnSec4|487.3(1)(a)}}, an order may be made under subsection (1) {{AnnSec4|487.3(1)}} on the ground that the ends of justice would be subverted by the disclosure
:(a) if disclosure of the information would
:(a) if disclosure of the information would
::(i) compromise the identity of a confidential informant,
::(i) compromise the identity of a confidential informant,
Line 64: Line 109:
::(iv) prejudice the interests of an innocent person; and
::(iv) prejudice the interests of an innocent person; and
:(b) for any other sufficient reason.
:(b) for any other sufficient reason.
 
{{removed|(3) and (4)}}
...<br>
{{LegHistory90s|1997, c. 23}}, s. 14, c. 39, s. 1;  
1997, c. 23, s. 14, c. 39, s. 1; 2004, c. 3, s. 8.
{{LegHistory00s|2004, c. 3}}, s. 8;
|[http://canlii.ca/t/7vf2#sec487.2 CCC]}}
{{LegHistory10s|2014, c. 31}}, s. 22.
{{Annotation}}
|{{CCCSec2|487.2}}
|{{NoteUp|487.3|2}}
}}


There is a presumption in favour of access to information.<ref>
There is a presumption in favour of access to information.<ref>
Phillips v Vancouver Sun, [http://canlii.ca/t/1g6f8 2004 BCCA 14] (CanLII){{perBCCA|Prowse JA}}
{{CanLIIRPC|Phillips v Vancouver Sun|1g6f8|2004 BCCA 14 (CanLII)|182 CCC (3d) 483}}{{perBCCA|Prowse JA}}
</ref>
</ref>


'''Dagenais/Mentuck Test'''<br>
; Dagenais/Mentuck Test
The Dagenais/Mentuck test applies to seal orders.<ref>
The Dagenais/Mentuck test applies to seal orders.<ref>
Dagenais v Canadian Broadcasting Corp., [http://canlii.ca/t/1frnq 1994 CanLII 39] (SCC), [1994] 3 SCR 835{{perSCC|Lamer CJ}}<br>
{{CanLIIRPC|Dagenais v Canadian Broadcasting Corp|1frnq|1994 CanLII 39 (SCC)|[1994] 3 SCR 835}}{{perSCC|Lamer CJ}}<br>
R v Mentuck, [http://canlii.ca/t/51x5 2001 SCC 76] (CanLII), [2001] 3 SCR 442{{perSCC|Iacobucci J}}
{{CanLIIRP|Mentuck|51x5|2001 SCC 76 (CanLII)|[2001] 3 SCR 442}}{{perSCC|Iacobucci J}}
</ref> The test permits discretionary court orders prohibiting access to legal proceeding where:
</ref>
The test permits discretionary court orders prohibiting access to legal proceeding where:
# 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
# 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
# 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
# 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


'''Proper Administration of Justice'''<br>
; Standard of Proof
The risk to "administration of justice" will include "real and substantial risk to the fairness of the trial".<Ref>
The risks of keeping the record unsealed must be established to be a "risk the reality of which is well-grounded in the evidence."<Ref>
Globe & Mail v Alberta, [http://canlii.ca/t/fm0ws 2011 ABQB 363] (CanLII){{perABQB|Tilleman J}} at para 8<br>
{{supra1|Mentuk}} at 34 ("he first branch of the test contains several important elements that can be collapsed in the concept of ‘necessity’, but that are worth pausing to enumerate.  One required element is that the risk in question be a serious one, or as Lamer C.J. put it at p.878 in Dagenais, a ‘real and substantial’ risk.  That is, it must be a risk the reality of which is well-grounded in the evidence.  It must also be a risk that poses a serious threat to the proper administration of justice.  ")
</ref>
</ref>


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. <ref>
; Procedure
''R v CBC'', [http://canlii.ca/t/httgp 2018 ONSC 5167] (CanLII){{perONSC|Goldstein J}} at para 36<Br>
The applicant must be specific on the grounds of sealing, there must be "particularized grounds". Generalized assertions are not enough.<ref>
{{CanLIIRPC|Toronto Star Newspapers Ltd v Canada|1m820|2005 CanLII 47737 (ON SC)|204 CCC (3d) 397}}{{perONSC|Nordheimer J}}{{atsL|1m820|36| to 42}}<Br>
</ref>
</ref>


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.<Ref>
; Ruling
CBC{{ibid}} at para 36 (". I also do not accept that as a general rule mere publication of the fact of cooperation with the police will prejudice future cooperation. It might. People might be willing to cooperate with the police only where they do not believe that the fact of cooperation is unknown. Such an assertion would require specific evidence — such as in the case of a person fearing physical harm in a gang-related case. ")<BR>
The Judge must give reasons for any decision to issue the sealing of a public record.<ref>
{{supra1|CBC}}{{atL|g1vsp|55}}<br>
</ref>
</ref>


'''Other Options to Sealing'''<br>
; 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".<ref>
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."<ref>
''R v CBC'', [http://canlii.ca/t/1wzkb 2008 ONCA 397] (CanLII){{perONCA|Juriansz JA}}, at paras 18, 26<br>
{{CanLIIRP|CBC|1wzkb|2008 ONCA 397 (CanLII)|231 CCC (3d) 394}}{{perONCA|Juriansz JA}}{{atsL|1wzkb|18|}}, {{atsL-np|1wzkb|26|}}<br>
</ref>
</ref>


'''"ongoing investigation"'''<br>
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.<Ref>
R v Vice Media Canada Inc., [http://canlii.ca/t/gp2lh 2016 ONSC 1961] (CanLII){{perONSC|MacDonnell J}}, at para 64<Br>
</ref>
Generalized assertions of potential prejudice is insufficient.<ref>
Vice Media Canada{{ibid}} at para 66<br>
</ref>


Denial of access cannot be granted on the basis that there is an "investigative advantage" to the police in having documents sealed.<ref>
{{reflist|2}}
Toronto Star Newspapers Ltd v Ontario, [2005] 2 SCR 188, [http://canlii.ca/t/1l27q 2005 SCC 41] (CanLII){{perSCC|Fish J}} ("...access to court documents cannot be denied solely for the purpose of giving law enforcement officers an investigative advantage...")<br>
===Proper Administration of Justice===
Generally, the administration of justice ""thrives" when exposed and "withers" when kept secret.<Ref>
Toronto Star Newspapers Ltd. v. Ontario, 2005 SCC 41 (CanLII), [2005] 2 SCR 188, <https://canlii.ca/t/1l27q>, at para 1
</ref>
The risk to "administration of justice" will include "real and substantial risk to the fairness of the trial."<ref>
{{CanLIIRPC|Globe & Mail v Alberta|fm0ws|2011 ABQB 363 (CanLII)|520 AR 279}}{{perABQB|Tilleman J}}{{atL|fm0ws|8}}<br>
</ref>
</ref>


'''"innocent person"'''<br>
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. <ref>
Section 487.3(2)(iv) permits a court to seal a record where disclosure could "prejudice the interests of an innocent person".
{{CanLIIRx|CBC|httgp|2018 ONSC 5167 (CanLII)}}{{perONSC|Goldstein J}}{{atL|httgp|36}}<Br>
 
"Innocent persons" include third parties whose premises have been searched and nothing was found.<Ref>
Globe & Mail v Alberta{{supra}} at para 16<br>
MacIntyre{{supra}}
</ref>This does not mean that where something is seized from the premises that they can no longer be innocent persons.<ref>
Globe & Mail{{supra}} at para 16<Br>
Phillips v Vancouver Sun{{supra}}<br>
</ref>
 
Prejudice to innocent persons is "entitled to significant weight".<ref>
Phillips v Vancouver Sun{{supra}}, at para 66
</ref>
</ref>


The interests of "innocent persons" includes preventing an "innocent person subject to intense media scrutiny that may irreparably tarnish that person’s reputation".<ref>
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.<ref>
Globe & Mail v Alberta, [http://canlii.ca/t/fm0ws 2011 ABQB 363] (CanLII){{perABQB|Tilleman J}} at para 15<br>
{{ibid1|CBC}}{{atL|httgp|36}} (". I also do not accept that as a general rule mere publication of the fact of cooperation with the police will prejudice future cooperation. It might. People might be willing to cooperate with the police only where they do not believe that the fact of cooperation is unknown. Such an assertion would require specific evidence — such as in the case of a person fearing physical harm in a gang-related case. ")<br>
</ref>
</ref>
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.<ref>
Releasing information regarding an ongoing investigation can be "highly prejudicial to a person's right to a fair trial."<ref>
Globe & Mail v Alberta{{ibid}} at para 18<br>
{{ibid1|Globe & Mail v Alberta}}{{atL|fm0ws|21}}<br>
{{CanLIIRPC|Flahiff v Cour Du Québec|1ndd5|1998 CanLII 13149 (QC CA)|[1998] RJQ 327, 157 DLR (4th) 485}}{{perQCCA|Rothman JA}}{{atps|19 to 20}}<br>
</ref>
</ref>


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".<ref>
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.<ref>
''R v DM'', [http://canlii.ca/t/1zg5q 1993 CAanLII 5661] (NSCA){{perNSCA|Kelly JA}}<br>
{{ibid1|Flahiff}}{{atp|91}}<br>
{{supra1|CBC}}{{atsL|g1vsp|29| to 32}}<Br>
</ref>
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."<ref>
{{supra1|CBC}}{{atL|g1vsp|32}}<br>
</ref>
</ref>


It is unsettled whether notice is required to be given to innocent third-parties with cases going both ways.<Ref>
There is some suggestion that protecting of trial rights are better protected by a publication ban rather than a sealing order.<ref>
Vice Media Canada Inc{{supra}} at para 73<Br>
{{supra1|CBC}}{{atsL|g1vsp|43| to 46}}<Br>
''R v CBC'', [http://canlii.ca/t/g1vsp 2013 ONSC 6983] (CanLII){{perONSC|Nordheimer J}}, at para 11<br>
R v Esseghaier, [http://canlii.ca/t/g0r8r 2013 ONSC 5779] (CanLII){{perONSC|Durno J}} at para 160<br>
</ref>
</ref>


'''Right to a Fair Trial'''<br>
Releasing information regarding an ongoing investigation can be "highly prejudicial to a person's right to a fair trial".<ref>
Globe & Mail v Alberta{{ibid}} at para 21<br>
Flahiff v Cour Du Québec, [http://canlii.ca/t/1ndd5 1998 CanLII 13149] (QC CA), [1998] RJQ 327, 157 DLR (4th) 485{{perQCCA|Rothman JA}}, at pp. 19 to 20<br>
</ref>


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.<ref>
Flahiff{{ibid}} at p 91<br>
CBC{{supra}} at paras 29 to 32<Br>
</ref> 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."<ref>
CBC{{supra}} at para 32<br>
</ref>


There is some suggestion that protecting of trial rights are better protected by a publication ban rather than a sealing order.<Ref>
{{reflist|2}}
CBC{{supra}} at paras 43 to 46<Br>
</ref>


'''Commercial Interests'''<br>
==="Ongoing investigation"===
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.<ref>
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.<ref>
Globe & Mail v Alberta{{supra}} at para 18<br>
{{CanLIIRP|Vice Media Canada Inc|gp2lh|2016 ONSC 1961 (CanLII)|352 CRR (2d) 60}}{{perONSC|MacDonnell J}}{{atL|gp2lh|64}} - appealed to 2017 ONCA 231 (CanLII) and 2018 SCC 53 (CanLII)<Br>
Sierra Club of Canada v Canada (Minister of Finance), [http://canlii.ca/t/51s4 2002 SCC 41] (CanLII), [2002] 2 SCR 522{{perSCC|Iacobucci J}}<br>
</ref>
</ref>
 
Generalized or abstract assertions of potential prejudice is insufficient.<ref>
'''"any other sufficient reasons"'''<br>
{{ibid1|Vice Media Canada}}{{atL|gp2lh|66}}<br>
"Other sufficient reasons" within the meaning of s. 487.3 include "serious threat to trial fairness".<ref>
{{CanLIIRPC|Toronto Star Newspapers Ltd v Ontario|1l27q|2005 SCC 41 (CanLII)|[2005] 2 SCR 188}}{{perSCC-H|Fish J}}{{atL|1l27q|23}} ("the ground must not just be asserted in the abstract; it must be supported by particularized grounds related to the investigation that is said to be imperilled")<br>
Flahiff v Cour Du Québec, [http://canlii.ca/t/1ndd5 1998 CanLII 13149] (QC CA){{perQCCA|Rothman JA}}
</ref>
</ref>
 
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."<ref>
'''Procedure'''<br>
{{CanLIIRPC|Application by the Winnipeg Free Press|1mt4q|2006 MBQB 43 (CanLII)|200 Man R (2d) 196, 70 WCB (2d) 54}}{{atL|1mt4q|71}} ("... the R.C.M.P. is seeking to limit public access to information on the basis that resultant publicity through the media would harm the nature and extent of an ongoing investigation and subvert the ends of justice.  The R.C.M.P. is put in an unenviable position of endeavouring to support an application by reliance upon, in some respects, generalized assertions.  However, to do otherwise or to give specifics could well result in jeopardizing the very information that is sought to be protected by the R.C.M.P. from coming into the public domain.  ...However, “ … the perceived risk may be more difficult to demonstrate in a concrete manner at that early stage.”")
The applicant must be specific on the grounds of sealing, there must be "particularized grounds". Generalized assertions are not enough.<ref>
Toronto Star Newspapers Ltd v Canada, [http://canlii.ca/t/1m820 2005 CanLII 47737] (ON SC){{perONSC|Nordheimer J}} at paras 36 to 42<Br>
</ref>
</ref>


'''Ruling'''<br>
Denial of access cannot be granted on the basis that there is an "investigative advantage" to the police in having documents sealed.<ref>
The Judge must give reasons for any decision to issue the sealing of a public record.<ref>
{{supra1|Toronto Star}} ("...access to court documents cannot be denied solely for the purpose of giving law enforcement officers an investigative advantage...")<br>
CBC{{supra}} at para 55<br>
</ref>
</ref>


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


==Sealing Procedure==
"Innocent persons" include third parties whose premises have been searched and nothing was found.<ref>
{{CanLIIRPC|Globe & Mail v Alberta|fm0ws|2011 ABQB 363 (CanLII)|520 AR 279}}{{perABQB|Tilleman J}}{{atL|1l27q|16}}<br>
{{CanLIIRPC|Attorney General of Nova Scotia v MacIntyre|1lpbn|1982 CanLII 14 (SCC)|[1982] 1 SCR 175}}{{perSCC|Dickson J}}
</ref>This does not mean that where something is seized from the premises that they can no longer be innocent persons.<ref>
{{supra1|Globe & Mail}}{{atL|1l27q|16}}<Br>
{{supra1|Phillips v Vancouver Sun}}<br>
</ref>


{{quotation|
Prejudice to innocent persons is "entitled to significant weight."<ref>
487.3<br>...<br>
{{supra1|Phillips v Vancouver Sun}}{{atL|1g6f8|66}}
 
</ref>
'''Procedure'''<br>
(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).<br>
...<br>
{{LegHistory|1997, c. 23, s. 14, c. 39, s. 1; 2004, c. 3, s. 8.}}
|[http://canlii.ca/t/7vf2#sec487.2 CCC]}}
 
 
{{reflist|2}}
 
==Unsealing==
 
Under s. 487.3(4), the sealing order may be varied or terminated:
 
{{quotation|
487.3<br>...<br>
'''Application for variance of order'''<br>
(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.
<br>
{{LegHistory|1997, c. 23, s. 14, c. 39, s. 1; 2004, c. 3, s. 8.}}
|[http://canlii.ca/t/7vf2#sec487.2 CCC]}}


; Grounds for Continued Sealing After Charges
The interests of "innocent persons" includes preventing an "innocent person subject to intense media scrutiny that may irreparably tarnish that person’s reputation."<ref>
Aside from matters of privilege, the dominant reason for maintaining seal upon any part of an ITO would be for the purpose of preserving the integrity of the investigation.<ref>
{{CanLIIRPC|Globe & Mail v Alberta|fm0ws|2011 ABQB 363 (CanLII)|520 AR 279}}{{perABQB|Tilleman J}}{{atL|fm0ws|15}}<br>
R v Canadian Broadcasting Corporation, [http://canlii.ca/t/g1vsp 2013 ONSC 6983] (CanLII){{perONSC|Nordheimer J}}<br>
R v Canadian Broadcasting Corp., [http://canlii.ca/t/httgp 2018 ONSC 5167] (CanLII){{perONSC|Goldstein J}} at para 28 to 37<Br>
</ref>
</ref>
Generalized assertions of harm to particular third-party's reputation or mere embarassment is insufficient.<ref>
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.<ref>
CBC (2013)<Br>
{{ibid1|Globe & Mail v Alberta}}{{atL|fm0ws|18}}<br>
CBC (2018) at para 31<Br>
</ref>
</ref>


Exepctation of privacy for third parties is reducated after the charges are laid.<Ref>
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."<ref>
CBC (2018) at para 34<bR>
{{CanLIIRx|DM|1zg5q|1993 CanLII 5661 (NS CA)}}{{perNSCA|Kelly JA}}<br>
</ref>
</ref>


'''Unsealing Without Charges'''<br>
It is unsettled whether notice is required to be given to innocent third-parties with cases going both ways.<ref>
Where a judicial authorization has been executed, an accused person is entitled to a properly vetted copy of the ITO even before charges are laid, however, a third party is not. However, before charge an accused must present some evidence that the authorization was obtained unlawfully (ie. by fraud, wilful non-disclosure or other abusive conduct) before disclosure will be permitted.<ref>
{{supra1|Vice Media Canada Inc}}{{atL|gp2lh|73}}<Br>
R v Paugh, [http://canlii.ca/t/hsmlx 2018 BCPC 149] (CanLII){{perBCPC|Koturbash J}} at para 8<br>
{{CanLIIRx|CBC|g1vsp|2013 ONSC 6983 (CanLII)}}{{perONSC|Nordheimer J}}{{atL|g1vsp|11}}<br>
Michaud v Quebec (AG), [http://canlii.ca/t/1fr76 1996 CanLII 167] (SCC), [1996] 3 SCR 3{{perSCC|Lamer CJ}}<br>
{{CanLIIRx|Esseghaier|g0r8r|2013 ONSC 5779 (CanLII)}}{{perONSC|Durno J}}{{atL|g0r8r|160}}<br>
</ref> This rule applies whether it is a wiretap or a judicial authorization.<ref>Paugh{{supra}} at para 14<br></ref>
</ref>


{{reflist|2}}
{{Reflist|2}}


===Vetting Procedure===
===Any Other Reasons===
Where unsealing an unvetted ITO, the court should follow the procedure set out in Garofoli:<ref>
; Commercial Interests
R v Garofoli, [http://canlii.ca/t/1fss5 1990 CanLII 52] (SCC), [1990] 2 SCR 1421{{perSCC|Sopinka J}}</ref>
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.<ref>
#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.
{{supra1|Globe & Mail v Alberta}}{{atL|fm0ws|18}}<br>
#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.
{{CanLIIRPC|Sierra Club of Canada v Canada (Minister of Finance)|51s4|2002 SCC 41 (CanLII)|[2002] 2 SCR 522}}{{perSCC|Iacobucci J}}{{atsL||68| and 91}}<br>
#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.
# After the determination has been made in (3), the packet material should be provided to the accused.
# If the Crown can support the authorization on the basis of the material as edited, the authorization is confirmed.
# 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.<ref>
R v Canadian Broadcasting Corporation, [http://canlii.ca/t/1wzkb 2008 ONCA 397] (CanLII){{perONCA|Juriansz JA}}
</ref> The Crown should give an unedited copy to the judge with details on what portion of the warrant is to be unsealed. <ref>
CBC{{ibid}}</ref>
 
{{reflist|2}}
 
===Procedure for Confidential Informers===
{{seealso|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.<ref>
R v Learning, [http://canlii.ca/t/2bn4q 2010 ONSC 3816] (CanLII){{perONSC|Code J}} at para 100 to 109<br>
R v Rocha, [http://canlii.ca/t/ftczl 2012 ONCA 707] (CanLII), 112 O.R. (3d) 742{{perONCA|Rosenberg JA}}, at paras 54-59<br>
</ref>
</ref>


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 an argument or by evidence, while still protecting the identity of the confidential informant."<ref>
; Privacy of an Uncharged Person
R v Prosser, [http://canlii.ca/t/g70sx 2014 ONSC 2645] (CanLII){{perONSC|Wilson J}}, at para 9<br>
There are privacy interests in the identity of a person who is suspected of a criminal offence but uncharged. <Ref>
</ref> 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.<ref>
R. v. Henry, 2009 BCCA 86 (CanLII), at para 11 and 17, <https://canlii.ca/t/22mm0#par11>
e.g. Prosser{{ibid}} at paras 14 to 17<br>
</ref>
</ref>


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.<ref>
; "any other sufficient reasons"
Prosser{{ibid}} at para 11<br>
"Other sufficient reasons" within the meaning of s. 487.3 include "serious threat to trial fairness."<ref>
{{CanLIIRPC|Flahiff v Cour Du Québec|1ndd5|1998 CanLII 13149 (QC CA)|123 CCC (3d) 79}}{{perQCCA|Rothman JA}}
</ref>
</ref>


{{Reflist|2}}


{{reflist|2}}
==Sealing Procedure==


==Wiretaps==
{{quotation2|
{{seealso|Wiretaps}}
487.3<br>
 
{{removed|(1) and (2)}}
===Sealing of Authorization===
; Procedure
{{seealso|Sealing and Unsealing Judicial Authorizations}}
(3) Where an order is made under subsection (1) {{AnnSec4|487.3(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).
{{quotation|
{{removed|(4)}}
'''Manner in which application to be kept secret'''<br>
{{LegHistory90s|1997, c. 23}}, s. 14, c. 39, s. 1;  
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).
{{LegHistory00s|2004, c. 3}}, s. 8;
<br>
{{LegHistory00s|2014, c. 31}}, s. 22.
'''Exception'''<br>
{{Annotation}}
(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.
|{{CCCSec2|487.2}}
<br>
|{{NoteUp|487.3|3}}
...<br>
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.|[http://canlii.ca/t/7vf2#sec187 CCC]
}}
}}


===Unsealing of Authorization===
{{reflist|2}}
Defence counsel may apply to the court under s. 187(1.4) to unseal to authorization. The section states:
{{quotation|
187<br>...<br>
'''Opening for further applications'''<br>
(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.
<br>
'''Opening on order of judge'''<br>
(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.
<br>
'''Opening on order of trial judge'''<br>
(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'''<br>
(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.
<br>
'''Order of judge'''<br>
(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.
<br>
'''Idem'''<br>
(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.
<br>
'''Editing of copies'''<br>
(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'''<br>
==Unsealing==
(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.
* [[Unsealing Judicial Authorizations]]
'''Original documents to be returned'''<br>
(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.
<br>
'''Deleted parts'''<br>
(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.
<br>
'''Documents to be kept secret — related warrant or order'''<br>
(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.
<br>
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.
|[http://www.canlii.ca/t/7vf2#sec187 CCC]}}


{{reflist|2}}


==Production Orders==
==Non-Disclosure Order for Production Orders==
{{seealso|Production Orders}}
* [[Non-Disclosure Order for Production Orders]]
{{quotation|
'''Order prohibiting disclosure'''<br>
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.
<Br>
'''Conditions for making order'''<br>
(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.
<br>
'''Form'''<br>
(3) The order is to be in Form 5.0091.
<br>
'''Application to revoke or vary order'''<br>
(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.
<Br>
2014, c. 31, s. 20.
|[http://canlii.ca/t/7vf2#sec487.0191 CCC]
}}


==See Also==
==See Also==
* [[Statutory Publication Ban on Evidence]]
* [[Privilege]]
* [[Privilege]]
* [[Access to Things Detained Under Section 490]]  
* [[Access to Things Detained Under Section 490]]  
* [[Access to Court-Filed Exhibits]]
* [[Access to Court-Filed Exhibits]]
* [[Precedent - Unsealing Authorizations]]

Latest revision as of 14:06, 30 October 2024

This page was last substantively updated or reviewed January 2020. (Rev. # 96667)

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

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 [provisions on production orders] or an authorization under section 529 [entry into residence to arrest] or 529.4 [executing a warrant to enter a residence of arrest], 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) [sealing order in relation to warrants – grounds] or the information might be used for an improper purpose; and
(b) the reason referred to in paragraph (a) [sealing order in relation to warrants – grounds to seal] outweighs in importance the access to the information.

[omitted (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) added]

– CCC (CanLII), (DOJ)

Note up: 487.3(1)

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]

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.[7] The exception to this burden include the mandatory sealings provisions under s. 187(1)(a)(ii) relating to wiretaps.[8]

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.[9]

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.[10]

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."[11]

  1. ↑ Toronto Star Newspaper Ltd. v Ontario, 2005 SCC 41 (CanLII), [2005] 2 SCR 188, per Fish J
  2. ↑ Toronto Star Newspapers Ltd. v Ontario, ibid.
    Attorney General of Nova Scotia v MacIntyre, 1982 CanLII 14 (SCC), [1982] 1 SCR 175, per Dickson J
  3. ↑ Application by the Winnipeg Free Press, 2006 MBQB 43 (CanLII), 70 WCB (2d) 54, per McKelvey J, at para 10
  4. ↑ Re Regina and Atout, 2013 ONSC 1312 (CanLII), OJ No 899, per Campbell J
  5. ↑ Globe & Mail v Alberta, 2011 ABQB 363 (CanLII), 520 AR 279, per Tilleman J, at para 10
  6. ↑ Globe & Mail v Alberta, ibid., at para 10
  7. ↑ R v Verrilli, 2019 NSSC 263 (CanLII), per Arnold J, at para 56
    cf. National Post Co. v Ontario, 2003 CanLII 13 (ONSC), 176 CCC (3d) 432, per McKinnon J
  8. ↑ Michaud v Quebec (Attorney General), 1996 CanLII 167 (SCC), [1996] 3 SCR 3, per Lamer CJ, at to 5 paras 3 to 5{{{3}}}
  9. ↑ R v Osei, 2007 CanLII 5681 (ON SC), 152 CRR (2d) 152, per Nordheimer J
  10. ↑ R v Moosemay, 2001 ABPC 156 (CanLII), 297 AR 34, per Fradsham J, 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), per Myers J, at para 10
  11. ↑ AG (Nova Scotia) v MacIntyre, 1982 CanLII 14 (SCC), [1982] 1 SCR 175, per Dickson J, at p. 189 (SCR) ("Undoubtedly every court has a supervisory and protecting power over its own records. Access can be denied when the ends of justice would be subverted by disclosure or the judicial documents might be used for an improper purpose. The presumption, however, is in favour of public access and the burden of contrary proof lies upon the person who would deny the exercice of the right.")
    R v Garofoli, 1990 CanLII 52 (SCC), [1990] 2 SCR 1421, per Sopinka J ("The power to edit clearly exists and derives from the supervisory and protecting power which a court possesses over its own records")

Wiretaps

See also: 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 – Invasion of Privacy (ss. 183 to 196.1)] are confidential and, subject to subsection (1.1) [manner in which application to be kept secret – 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) [manner in which application to be kept secret – opening for further applications].

Exception

(1.‍1) An authorization given under this Part [Pt. VI – Invasion of Privacy (ss. 183 to 196.1)] need not be placed in the packet except if, under subsection 184.‍3(8) [one-party consent wiretap by telewarrant – where telecomm. produces writing], 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.
[omitted (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) added]

– CCC (CanLII), (DOJ)

Note up: 187(1) and (1.1)


{{{4}}}

Grounds to Sealing

See also: Open Court Principle and Statutory Publication Ban on Identity Information

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

487.3
[omitted (1)]

Reasons

(2) For the purposes of paragraph (1)(a) [sealing order in relation to warrants – grounds to seal], an order may be made under subsection (1) [sealing order in relation to warrants] 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.

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

– CCC (CanLII), (DOJ)

Note up: 487.3(2)

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

Dagenais/Mentuck Test

The Dagenais/Mentuck test applies to seal 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
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."[3]

Procedure

The applicant must be specific on the grounds of sealing, there must be "particularized grounds". Generalized assertions are not enough.[4]

Ruling

The Judge must give reasons for any decision to issue the sealing of a public record.[5]

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."[6]


  1. ↑ Phillips v Vancouver Sun, 2004 BCCA 14 (CanLII), 182 CCC (3d) 483, per Prowse JA
  2. ↑ Dagenais v Canadian Broadcasting Corp, 1994 CanLII 39 (SCC), [1994] 3 SCR 835, per Lamer CJ
    R v Mentuck, 2001 SCC 76 (CanLII), [2001] 3 SCR 442, per Iacobucci J
  3. ↑ Mentuk, supra at 34 ("he first branch of the test contains several important elements that can be collapsed in the concept of ‘necessity’, but that are worth pausing to enumerate. One required element is that the risk in question be a serious one, or as Lamer C.J. put it at p.878 in Dagenais, a ‘real and substantial’ risk. That is, it must be a risk the reality of which is well-grounded in the evidence. It must also be a risk that poses a serious threat to the proper administration of justice. ")
  4. ↑ Toronto Star Newspapers Ltd v Canada, 2005 CanLII 47737 (ON SC), 204 CCC (3d) 397, per Nordheimer J, at paras 36 to 42
  5. ↑ CBC, supra, at para 55
  6. ↑ R v CBC, 2008 ONCA 397 (CanLII), 231 CCC (3d) 394, per Juriansz JA, at paras 18, 26

Proper Administration of Justice

Generally, the administration of justice ""thrives" when exposed and "withers" when kept secret.[1] The risk to "administration of justice" will include "real and substantial risk to the fairness of the trial."[2]

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. [3]

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.[4] Releasing information regarding an ongoing investigation can be "highly prejudicial to a person's right to a fair trial."[5]

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.[6] 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."[7]

There is some suggestion that protecting of trial rights are better protected by a publication ban rather than a sealing order.[8]


  1. ↑ Toronto Star Newspapers Ltd. v. Ontario, 2005 SCC 41 (CanLII), [2005] 2 SCR 188, <https://canlii.ca/t/1l27q>, at para 1
  2. ↑ Globe & Mail v Alberta, 2011 ABQB 363 (CanLII), 520 AR 279, per Tilleman J, at para 8
  3. ↑ R v CBC, 2018 ONSC 5167 (CanLII), per Goldstein J, at para 36
  4. ↑ CBC, ibid., at para 36 (". I also do not accept that as a general rule mere publication of the fact of cooperation with the police will prejudice future cooperation. It might. People might be willing to cooperate with the police only where they do not believe that the fact of cooperation is unknown. Such an assertion would require specific evidence — such as in the case of a person fearing physical harm in a gang-related case. ")
  5. ↑ Globe & Mail v Alberta, ibid., 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
  6. ↑ Flahiff, ibid., at p. 91
    CBC, supra, at paras 29 to 32
  7. ↑ CBC, supra, at para 32
  8. ↑ CBC, supra, at paras 43 to 46

"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.[1] Generalized or abstract assertions of potential prejudice is insufficient.[2] 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."[3]

Denial of access cannot be granted on the basis that there is an "investigative advantage" to the police in having documents sealed.[4]

  1. ↑ R v Vice Media Canada Inc, 2016 ONSC 1961 (CanLII), 352 CRR (2d) 60, per MacDonnell J, at para 64 - appealed to 2017 ONCA 231 (CanLII) and 2018 SCC 53 (CanLII)
  2. ↑ Vice Media Canada, ibid., at para 66
    Toronto Star Newspapers Ltd v Ontario, 2005 SCC 41 (CanLII), [2005] 2 SCR 188, per Fish J, at para 23 ("the ground must not just be asserted in the abstract; it must be supported by particularized grounds related to the investigation that is said to be imperilled")
  3. ↑ Application by the Winnipeg Free Press, 2006 MBQB 43 (CanLII), 200 Man R (2d) 196, 70 WCB (2d) 54, at para 71 ("... the R.C.M.P. is seeking to limit public access to information on the basis that resultant publicity through the media would harm the nature and extent of an ongoing investigation and subvert the ends of justice. The R.C.M.P. is put in an unenviable position of endeavouring to support an application by reliance upon, in some respects, generalized assertions. However, to do otherwise or to give specifics could well result in jeopardizing the very information that is sought to be protected by the R.C.M.P. from coming into the public domain. ...However, “ … the perceived risk may be more difficult to demonstrate in a concrete manner at that early stage.”")
  4. ↑ Toronto Star, supra ("...access to court documents cannot be denied solely for the purpose of giving law enforcement officers an investigative advantage...")

Prejudice to "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.[1]This does not mean that where something is seized from the premises that they can no longer be innocent persons.[2]

Prejudice to innocent persons is "entitled to significant weight."[3]

The interests of "innocent persons" includes preventing an "innocent person subject to intense media scrutiny that may irreparably tarnish that person’s reputation."[4] 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.[5]

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."[6]

It is unsettled whether notice is required to be given to innocent third-parties with cases going both ways.[7]

  1. ↑ Globe & Mail v Alberta, 2011 ABQB 363 (CanLII), 520 AR 279, per Tilleman J, at para 16
    Attorney General of Nova Scotia v MacIntyre, 1982 CanLII 14 (SCC), [1982] 1 SCR 175, per Dickson J
  2. ↑ Globe & Mail, supra, at para 16
    Phillips v Vancouver Sun, supra
  3. ↑ Phillips v Vancouver Sun, supra, at para 66
  4. ↑ Globe & Mail v Alberta, 2011 ABQB 363 (CanLII), 520 AR 279, per Tilleman J, at para 15
  5. ↑ Globe & Mail v Alberta, ibid., at para 18
  6. ↑ R v DM, 1993 CanLII 5661 (NS CA), per Kelly JA
  7. ↑ Vice Media Canada Inc, supra, at para 73
    R v CBC, 2013 ONSC 6983 (CanLII), per Nordheimer J, at para 11
    R v Esseghaier, 2013 ONSC 5779 (CanLII), per Durno J, at para 160

Any Other Reasons

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.[1]

Privacy of an Uncharged Person

There are privacy interests in the identity of a person who is suspected of a criminal offence but uncharged. [2]

"any other sufficient reasons"

"Other sufficient reasons" within the meaning of s. 487.3 include "serious threat to trial fairness."[3]

  1. ↑ Globe & Mail v Alberta, supra, at para 18
    Sierra Club of Canada v Canada (Minister of Finance), 2002 SCC 41 (CanLII), [2002] 2 SCR 522, per Iacobucci J, at paras 68 and 91
  2. ↑ R. v. Henry, 2009 BCCA 86 (CanLII), at para 11 and 17, <https://canlii.ca/t/22mm0#par11>
  3. ↑ Flahiff v Cour Du Québec, 1998 CanLII 13149 (QC CA), 123 CCC (3d) 79, per Rothman JA

Sealing Procedure

487.3
[omitted (1) and (2)]

Procedure

(3) Where an order is made under subsection (1) [sealing order in relation to warrants], 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). [omitted (4)]
1997, c. 23, s. 14, c. 39, s. 1; 2004, c. 3, s. 8; 2014, c. 31, s. 22.
[annotation(s) added]

– CCC (CanLII), (DOJ)

Note up: 487.3(3)

Unsealing


Non-Disclosure Order for Production Orders

See Also

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