Unsealing Judicial Authorizations

From Criminal Law Notebook

General Principles

See also: Sealing and Unsealing Judicial Authorizations

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)

Note up: 487.3(4)

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.[1] Generalized assertions of harm to particular third-party's reputation or mere embarassment is insufficient.[2]

Expectation of privacy for third parties is reducated after the charges are laid.[3]

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.[4] This rule applies whether it is a wiretap or a judicial authorization.[5]

  1. ↑ R v Canadian Broadcasting Corporation, 2013 ONSC 6983 (CanLII), per Nordheimer J
    R v Canadian Broadcasting Corporation, 2018 ONSC 5167 (CanLII), per Goldstein J, at paras 28 to 37
  2. ↑ CBC (2013)
    CBC (2018), at para 31
  3. ↑ CBC (2018), at para 34
  4. ↑ R v Paugh, 2018 BCPC 149 (CanLII), per Koturbash J, at para 8
    Michaud v Quebec (AG), 1996 CanLII 167 (SCC), [1996] 3 SCR 3, per Lamer CJ
  5. ↑ Paugh, supra, at para 14

Vetting Procedure

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

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

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

  1. ↑ R v Garofoli, 1990 CanLII 52 (SCC), [1990] 2 SCR 1421, per Sopinka J
  2. ↑ R v Canadian Broadcasting Corporation, 2008 ONCA 397 (CanLII), 231 CCC (3d) 394, per Juriansz JA
  3. ↑ CBC, ibid.

Procedure for Confidential Informers

See also: Confidential Informers

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

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

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

  1. ↑ R v Learning, 2010 ONSC 3816 (CanLII), 258 CCC (3d) 68, per Code J, at paras 100 to 109
    R v Rocha, 2012 ONCA 707 (CanLII), 112 OR (3d) 742, per Rosenberg JA, at paras 54 to 59
  2. ↑ R v Prosser, 2014 ONSC 2645 (CanLII), OJ No 2543, per Wilson J, at para 9
  3. ↑ e.g. Prosser, ibid., at paras 14 to 17
  4. ↑ Prosser, ibid., at para 11

Wiretap

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

187
[omitted (1) and (1.1)]

Opening for further applications

(1.2) The sealed packet may be opened and its contents removed for the purpose of dealing with an application for a further authorization or with an application for renewal of an authorization.

Opening on order of judge

(1.3) A provincial court judge, a judge of a superior court of criminal jurisdiction or a judge as defined in section 552 [definitions - judges] may order that the sealed packet be opened and its contents removed for the purpose of copying and examining the documents contained in the packet.

Opening on order of trial judge

(1.4) A judge or provincial court judge before whom a trial is to be held and who has jurisdiction in the province in which an authorization was given may order that the sealed packet be opened and its contents removed for the purpose of copying and examining the documents contained in the packet if

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

(1.5) Where a sealed packet is opened, its contents shall not be destroyed except pursuant to an order of a judge of the same court as the judge who gave the authorization.

Order of judge

(2) An order under subsection (1.2) [manner in which application to be kept secret – opening for further applications], (1.3) [opening on order of judge to copy and examine packet], (1.4) [opening on order of trial judge to copy and examine packet for trial] or (1.5) [order for destruction of documents] made with respect to documents relating to an application made pursuant to section 185 [procedure to apply for a 186 wiretap] or subsection 186(6) [authorization of wiretap – renewal] or 196(2) [suspension while extension application pending] 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.

Order of judge

(3) An order under subsection (1.‍2) [manner in which application to be kept secret – opening for further applications], (1.‍3) [opening on order of judge to copy and examine packet], (1.‍4) [opening on order of trial judge to copy and examine packet for trial] or (1.‍5) [order for destruction of documents] made with respect to documents relating to an application made under subsection 184.‍2(2) may only be made after the Attorney General has been given an opportunity to be heard.

Editing of copies

(4) Where a prosecution has been commenced and an accused applies for an order for the copying and examination of documents pursuant to subsection (1.3) [opening on order of judge to copy and examine packet] or (1.4) [opening on order of trial judge to copy and examine packet for trial], the judge shall not, notwithstanding those subsections, provide any copy of any document to the accused until the prosecutor has deleted any part of the copy of the document that the prosecutor believes would be prejudicial to the public interest, including any part that the prosecutor believes could

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

(5) After the prosecutor has deleted the parts of the copy of the document to be given to the accused under subsection (4) [editing of copies to remove certain information before disclosure], the accused shall be provided with an edited copy of the document.

Original documents to be returned

(6) After the accused has received an edited copy of a document, the prosecutor shall keep a copy of the original document, and an edited copy of the document and the original document shall be returned to the packet and the packet resealed.

Deleted parts

(7) An accused to whom an edited copy of a document has been provided pursuant to subsection (5) [order for destruction of documents] may request that the judge before whom the trial is to be held order that any part of the document deleted by the prosecutor be made available to the accused, and the judge shall order that a copy of any part that, in the opinion of the judge, is required in order for the accused to make full answer and defence and for which the provision of a judicial summary would not be sufficient, be made available to the accused.

Documents to be kept secret — related warrant or order

(8) The rules provided for in this section apply to all documents relating to a request for a related warrant or order referred to in subsection 184.2(5) [one-party consent wiretap – other concurrent authorizations], 186(8) [authorization of wiretap – other concurrent authorizations] or 188(6) [emergency wiretaps – related warrant or order] with any necessary modifications.
R.S., 1985, c. C-46, s. 187; R.S., 1985, c. 27 (1st Supp.), s. 24; 1993, c. 40, s. 7; 2005, c. 10, s. 24; 2014, c. 31, s. 10; 2022, c. 17, s. 8.


[annotation(s) added]

– CCC (CanLII), (DOJ)

Note up: 187(1.2), (1.3), (1.4), (1.5), (2), (3), (4), (5), (6), (7), and (8)

Retrieved from "https://criminalnotebook.ca/index.php?title=Unsealing_Judicial_Authorizations&oldid=96049"