Nicholas E. Devlin

The Canadian Broadcasting Corporation sought to vary a sealing order made at trial to gain access to DVD audio recordings of an undercover operative for journalistic purposes.

The trial judge had sealed the recordings to protect the identity of the undercover agent.

The Crown opposed the motion, arguing that the circumstances justifying the original sealing order remained unchanged.

The appellate court applied the Dagenais/Mentuck test and found that the sealing order was no longer necessary because reasonable alternative measures—specifically, voice and facial alterations—could adequately protect the operative's identity while allowing media access.

The court granted the motion subject to conditions regarding alteration of the recordings.

The accused appealed convictions for firearms and drug trafficking offences, challenging production orders used to obtain historical text messages from a telecommunications provider.

The Court held the accused had standing under s. 8 of the Charter because he had a reasonable expectation of privacy in the electronic conversation records.

The majority concluded that seizure of already sent and received messages from provider storage was lawfully authorized by the production order regime and did not require a Part VI wiretap authorization.

A dissent would have treated acquisition of those messages as requiring Part VI authorization and would have excluded the evidence under s. 24(2).

The appellant was convicted of multiple counts of possession for the purpose of trafficking and possession of proceeds of crime after police discovered drugs and cash following an anonymous call reporting a break-in at his residence.

The appellant sought to exclude the evidence, alleging that police had staged the break-in and made the anonymous call in breach of his Charter rights.

The pre-trial judge dismissed the application, finding the appellant had not met the burden of proving the illegality of the warrantless entry.

The Court of Appeal allowed the appeal on two grounds: (1) the trial judge erred in finding he lacked authority to permit the defence to record testimony with a high-quality microphone for voice identification analysis; and (2) the trial judge erred in placing the burden of proof on the appellant rather than the Crown to justify the warrantless entry.