Criminal Law Notebook

Sealing and Unsealing Judicial Authorizations

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This page was last substantively updated or reviewed January 2020. (Rev. # 96069)

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")

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]

Proper Administration of Justice

The risk to "administration of justice" will include "real and substantial risk to the fairness of the trial."[4]

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. [5]

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.[6]

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."[7]

"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.[8] Generalized or abstract assertions of potential prejudice is insufficient.[9] 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."[10]

Denial of access cannot be granted on the basis that there is an "investigative advantage" to the police in having documents sealed.[11]

"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.[12]This does not mean that where something is seized from the premises that they can no longer be innocent persons.[13]

Prejudice to innocent persons is "entitled to significant weight."[14]

The interests of "innocent persons" includes preventing an "innocent person subject to intense media scrutiny that may irreparably tarnish that person’s reputation."[15] 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.[16]

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."[17]

It is unsettled whether notice is required to be given to innocent third-parties with cases going both ways.[18]

Right to a Fair Trial

Releasing information regarding an ongoing investigation can be "highly prejudicial to a person's right to a fair trial."[19]

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.[20] 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."[21]

There is some suggestion that protecting of trial rights are better protected by a publication ban rather than a sealing order.[22]

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.[23]

"any other sufficient reasons"

"Other sufficient reasons" within the meaning of s. 487.3 include "serious threat to trial fairness."[24]

Procedure

The applicant must be specific on the grounds of sealing, there must be "particularized grounds". Generalized assertions are not enough.[25]

Ruling

The Judge must give reasons for any decision to issue the sealing of a public record.[26]

  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. ↑ Globe & Mail v Alberta, 2011 ABQB 363 (CanLII), 520 AR 279, per Tilleman J, at para 8
  5. ↑ R v CBC, 2018 ONSC 5167 (CanLII), per Goldstein J, at para 36
  6. ↑ 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. ")
  7. ↑ R v CBC, 2008 ONCA 397 (CanLII), 231 CCC (3d) 394, per Juriansz JA, at paras 18, 26
  8. ↑ 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)
  9. ↑ 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")
  10. ↑ 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.”")
  11. ↑ Toronto Star, supra ("...access to court documents cannot be denied solely for the purpose of giving law enforcement officers an investigative advantage...")
  12. ↑ Globe & Mail v Alberta, supra, at para 16
    MacIntyre, supra
  13. ↑ Globe & Mail, supra, at para 16
    Phillips v Vancouver Sun, supra
  14. ↑ Phillips v Vancouver Sun, supra, at para 66
  15. ↑ Globe & Mail v Alberta, 2011 ABQB 363 (CanLII), 520 AR 279, per Tilleman J, at para 15
  16. ↑ Globe & Mail v Alberta, ibid., at para 18
  17. ↑ R v DM, 1993 CanLII 5661 (NS CA), per Kelly JA
  18. ↑ 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
  19. ↑ 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
  20. ↑ Flahiff, ibid., at p. 91
    CBC, supra, at paras 29 to 32
  21. ↑ CBC, supra, at para 32
  22. ↑ CBC, supra, at paras 43 to 46
  23. ↑ 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
  24. ↑ Flahiff v Cour Du Québec, 1998 CanLII 13149 (QC CA), 123 CCC (3d) 79, per Rothman JA
  25. ↑ Toronto Star Newspapers Ltd v Canada, 2005 CanLII 47737 (ON SC), 204 CCC (3d) 397, per Nordheimer J, at paras 36 to 42
  26. ↑ CBC, supra, at para 55

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

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}}}

Non-Disclosure Order for Production Orders

See also: 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 [preservation demand] or a preservation or production order made under any of sections 487.013 to 487.018 [provisions on production orders] 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 [forms] 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 [forms].

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) [order prohibiting disclosure of preservation or production orders] 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) added]

– CCC (CanLII), (DOJ)

Note up: 487.0191(1), (2), (3), and (4)


peace officer and public officer

Section 2 defines "peace officer."[1] Section 487.011 defines "public officer."[2]

judge and justice

Section 2 defines "justice."[3] Section 487.011 defines "judge."[4]

  1. ↑ Peace Officers
  2. ↑ Definitions of Parties, Persons, Places and Organizations
  3. ↑ Definition of Judicial Officers and Offices
  4. ↑ Definition of Judicial Officers and Offices

See Also

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