Unsealing Judicial Authorizations

General Principles

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

487.3
[omitted (1), (2) and (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; 2014, c. 31, s. 22.

– CCC (CanLII), (DOJ)

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Grounds for Continued Sealing After Charges

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. Generalized assertions of harm to particular third-party's reputation or mere embarassment is insufficient.

Expectation of privacy for third parties is reducated after the charges are laid.

In it not settled whether an unsealed ITO must be vetted for legislation requiring privacy including the SOIRA provision relating to confidential information about an offender.

Unsealing Without Charges

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. This rule applies whether it is a wiretap or a judicial authorization.

Vetting Procedure

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

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. The Crown should give an unedited copy to the judge with details on what portion of the warrant is to be unsealed.

Procedure for 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.

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." 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.

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.