Ontario Court of Appeal

Date: 2005-06-03

Court File No. C42288

McMurtry C.J.0., Laskin and MacPherson JJ.A.

Counsel:

Richard G. Dearden, for appellants, Ottawa Citizen Group Inc. and Kate Jaimet.

Croft Michaelson and Andrea Hammell, for respondent, Attorney General of Canada.

John Corelli, for respondent, Attorney General of Ontario.

The judgment of the court was delivered by MACPHERSON J.A.:—

A. INTRODUCTION

[1] In 2002, search warrants were executed at seven locations in the City of Ottawa. Justice Célynne Dorval of the Ontario Court of Justice issued a sealing order with respect to the search warrants. The media became aware of the search warrants and sought access to them with a view to ascertaining whether Canadian, American and Syrian authorities relied on them in connection with the incarceration of Abdullah Almalki and Maher Arar in Syrian prisons.

[2] The Ottawa Citizen Group Inc. and a reporter, Kate Jaimet, applied to have the sealing order varied or terminated. Dorval J. unsealed some of the records, but continued in force the component of the sealing order relating to the names of seven individuals whose premises had been searched. Two months later, after hearing further submissions, Dorval J. affirmed this component of her previous order.

[3] The Ottawa Citizen and Ms. Jaimet applied for an order granting a writ of certiorari quashing Dorval J.'s order sealing the names of the subjects of the search warrants. In a decision released on August 3, 2004, Justice Catherine D. Aitken of the Superior Court of Justice denied the application.

[4] The Ottawa Citizen and Ms. Jaimet (collectively, the "Ottawa Citizen") appeal Aitken J.'s order. The appeal requires a careful consideration of s. 487.3 of the Criminal Code, R.S.C. 1985, c. C-46, as well as several leading decisions of the Supreme Court of Canada, especially Nova Scotia (A.G.) v. MacIntyre, 1982 14 (SCC), [1982] 1 S.C.R. 175, 65 C.C.C. (2d) 129, 132 D.L.R. (3d) 385, Canadian Broadcasting Corp. v. New Brunswick (A.G.), 1996 184 (SCC), [1996] 3 S.C.R. 480, 110 C.C.C. (3d) 193, 139 D.L.R. (4th) 385, R. v. Mentuck, 2001 SCC 76, [2001] 3 S.C.R. 442, 158 C.C.C. (3d) 449, 205 D.L.R. (4th) 512, and Vancouver Sun (Re), 2004 SCC 43, [2004] 2 S.C.R. 332, 184 C.C.C. (3d) 515, 240 D.L.R. (4th) 147, sub nom. R. v. Bagri.

[5] Essentially, this appeal involves a balancing of three fundamental values in Canadian society: freedom of the press, the principle of open courts, and protection of the privacy interests of innocent persons.

B. FACTS

(1) The parties and the events

[6] On January 21, 2002, Dorval J. of the Ontario Court of Justice issued a sealing order in respect of certain search warrant records, including:

• seven Informations to obtain search warrants

• seven search warrants (issued on January 21, 2002)

• any other records relating to the warrants, such as records seized pursuant to the execution of the search warrants

• any Reports to Justice and Detention Orders, and

• all records pertaining to the ex parte Application made pursuant to s. 487.3(1) of the Criminal Code to obtain the Sealing Order.

[7] It is common ground that the search warrant records relate to searches executed at the residences of Abdullah Almalki and six other unnamed persons, that items were seized during the searches, and that no criminal charges have been laid against any of the subjects of the search warrants.

[8] The Ottawa Citizen, which had been investigating and writing stories about the lengthy incarceration in Syria of two Canadian citizens, Mr. Almalki and Mr. Arar, sought access to the search warrant records. On November 10, 2003, the Ottawa Citizen filed an application before Dorval J. requesting an order terminating or varying the sealing order.

[9] In support of its application, the Ottawa Citizen filed an affidavit by Ms. Jaimet in which she affirmed:

(a) Abdullah Almalki

2. I have been assigned by The Ottawa Citizen to report on the case of Abdullah Almalki (a Canadian citizen and Ottawa resident) who is reportedly incarcerated today in a Syrian prison.

3. Abdullah Almalki...was imprisoned in a Syrian jail approximately four months after the execution of one or more of the search warrants. Mr. Almalki reportedly remains in prison in Syria today and his incarceration has generated a great deal of public interest and public concern both locally and nationally.

4. I am unaware of any charges being laid in Canada against Abdullah Almalki.

(b) Maher Arar

7. The Ottawa Citizen has been reporting upon the incarceration and subsequent release of Maher Arar (a Canadian citizen and Ottawa resident) from a Syrian jail. Mr. Arar has alleged that he was tortured while in custody in Syria....

8. I am unaware of any charges being laid in Canada against Mr. Arar.

9. On Wednesday November 5, 2003, The Ottawa Citizen published the entire text of Maher Arar's prepared statement to the media about events leading to his incarceration in Syria (Exhibit "D"). In his statement, Mr. Arar described some of the questions he was asked by U.S. authorities after being detained in New York. Some of the questions pertained to Abdullah Almalki:

"They asked me about different people, some I know, and most I do not. They asked me about Abdullah Almalki, and I told them I worked with his brother at high-tech firms in Ottawa, and that the Almalki family had corne from Syria about the same time as mine. I told them I did not know Abdullah well, but I had seen him a few times and I described the times I could remember. I told them I had a casual relationship with him.

They were so rude with me, yelling at me that I had selective memory. Then they pulled out a copy of my rental lease from 1997. I could not believe that they had this. I was completely shocked. They pointed out that Abdullah had signed the lease as a witness. I had completely forgotten that he had signed it for me — when we moved to Ottawa in 1997, we needed someone to witness our lease, and I phone Abdullah's brother, and he could not corne, so he sent Abdullah.

But they thought I was hiding this. I told them the truth. I had nothing to hide. I had never had problems in the United States before, and I could not believe what was happening to me."

The search warrants in issue (and the informations sworn to obtain those search warrants) may list Mr. Arar's lease as a document to be seized in the search. Mr. Arar's lease may also be mentioned in Reports to Justice and Detention Orders on the items that had been seized through the execution of the warrants. I seek access to the materials subject to the Sealing Order to ascertain the Canadian Government's actions in Mr. Arar's case and to ascertain whether any of the records seized pursuant to the sealed search warrants may have been relied upon by U.S. authorities in Mr. Arar's interrogation and deportation.

10. The incarceration of Mr. Arar has generated public interest and public concern locally and nationally and has been subject to heated debate in Parliament and a call for a public inquiry into the Canadian Government's actions in the Arar case.

• • (c) Public Interest and Concern

11. I seek access to the records sought in this Application so that I can report about this matter of public interest and public concern.

[10] On November 20, 2003, the Canadian Broadcasting Corporation ("CBC") also filed an application seeking to vary or terminate the January 21, 2002 sealing order.

[11] On November 20 and December 1, 2003, the Attorney General of Canada was notified pursuant to s. 38.01(2) of the Canada Evidence Act, R.S.C. 1985, c. C-5, as amended by S.C. 2001, c. 41, s. 43 (the "CEA"), of the possibility that sensitive information or potentially injurious information relating to the applications for, and execution of, search warrants was about to be disclosed in the Ottawa Citizen's application before Dorval J.

[12] On December 1, 2003, the Attorney General of Canada authorized the disclosure of redacted pages 1-5 and page 97 of an Infoimation to obtain one of the search warrants in issue pursuant to s. 38.03(3) of the CEA. The Attorney General of Canada did not authorize disclosure of any of pages 696 of the Information or of any other records on grounds of national security.

[13] On December 5, 2003, Dorval J. ordered the release of the six redacted pages that the Attorney General of Canada had approved for disclosure.

[14] On December 18, 2003, the Attorney General of Canada authorized the disclosure of additional records pursuant to s. 38.03(1) of the CEA. These additional records consisted of redacted pages of the search warrants in issue and certain returns on those search warrants.

[15] The Attorney General of Canada also authorized the disclosure of certain information to Michael Edelson, counsel for Mr. Almalki:

Authorization is hereby given to permit the disclosure of the search warrant in relation to the residence of Abdullah Almalki for examination, without copying, to Mr. Almalki's counsel on the condition that his counsel not make any copy of the search warrant nor disclose its contents except to Mr. Almalki or the Court in the absence of counsel for the other parties.

[16] In proceedings on December 19, 2003, Dorval J. advised counsel that she would be exercising her discretion to redact further information, specifically the names of certain individuals that had not been redacted by the Attorney General of Canada. As a result, on December 22, 2003 Dorval J. varied the sealing order to permit access to the records authorized for disclosure by the Attorney General of Canada, except for the names of the individuals who had been the subjects of the search warrants.

(2) The legal proceedings giving rise to the appeal

[17] The Ottawa Citizen renewed its application to terminate the sealing order that had been imposed on the individuals' names. On January 5, 2004, the Ottawa Citizen also made an application to the Federal Court of Canada pursuant to s. 38 of the CEA seeking access to the unedited search warrant records and other material that the Attorney General of Canada had objected to disclosing on grounds of national security.

[18] On January 29, 2004, Dorval J. heard further submissions relating to the Ottawa Citizen and CBC applications for disclosure of the names. Counsel for the Attorney General of Canada and the Attorney General of Ontario opposed disclosure. They were joined by Michael Edelson, counsel for a person identified as A.A, whom we now know is Abdullah Almalki. In addition, Mr. Edelson indicated that an Ottawa lawyer, Patrick McCann, who had not been formally retained by an unnamed party, was expected to appear in the afternoon.

[19] On February 9, 2004, Dorval J. dismissed the applications. She concluded:

The Applicants have both indicated in their respective factums that they seek access to the records, (for the purpose of this application, the names) in order to report on this matter or related matters. Most of the information contained in all of the search warrant documents remains sealed until the Application pursuant to s. 34 of the Evidence Act is heard. Access to a name or names would therefore be completely without context. This greatly prejudices the interests of the innocent as reporting could only be placed in the context of vague references and/or associations. Given the Attorney-General's position with respect to section 38 of the Canada Evidence Act and that such procedures relate to issues of international relations and national security, any such inference could cause substantial harm. In the context of this Application, the societal interest in protecting the innocent is paramount, and the order is necessary to prevent a serious risk to the proper administration of justice.

The Order of December 22, 2003 will remain in force until such time as the Federal Court has ruled on the disclosure of the information. The context of this Application will then differ considerably.

[20] On July 30, 2004, the Federal Court issued a decision adjourning sine die the Ottawa Citizen's application brought under s. 38 of the CEA: see Ottawa Citizen Group Inc. v. Canada (Attorney General), [2004] F.C.J. No. 1303 (QL), 132 A.C.W.S. (3d) 1093. Lufty C.J. was of the view that the s. 38 CEA application was premature since it would be preferable for the Ontario Court of Justice to complete its s. 487.3 Criminal Code proceedings before the Federal Court heard the Attorney General of Canada's objections to disclosure on national security grounds. Lufty C.J. observed at para. 23:

Consideration of section 38 will be timely when the determination under section 487.3 has been completed. The reasons for decision would indicate which portions, if any, of the documents in issue the judge of the Ontario Court of Justice was prepared to have disclosed. The parties could then consider their positions and, if necessary, pursue their rights under section 38 before the information was made public.

[21] As well as pursuing its application in the Federal Court, the Ottawa Citizen brought an application in the Ontario Superior Court for certiorari to quash Dorval J.'s order relating to the names. On August 3, 2004, Aitken J. dismissed this application. She concluded:

Under s. 487.3(3), Dorval J. could have provided the Applicants with access to the names of the individuals concerned, while at the same time imposing a publication ban. She declined to do this, presumably because she believed the right of those individuals to privacy and to be free of significant media attention trumped the value of openness of judicial processes and freedom of the press. I am not convinced that Dorval J. made a jurisdictional error in balancing the respective interests in this fashion. As well, she specifically noted that once the decision of the Federal Court in regard to the s. 38.04 application was released, there would be other considerations to raise in a renewed application under s. 487.3(4).

While it would have been preferable for Dorval J. to have made specific reference to the balancing of interests that lead to her conclusion, and to the Charter values which informed that balancing process, I am satisfied on the record before me, and in particular the transcript of proceedings on February 9, 2004, that Dorval J. exercised her discretion judicially in light of the test in s. 487.3 of the Code. She applied the provisions in s. 487.3, she took into account the Charter rights and values, she recognized the importance of openness in judicial matters and the importance of freedom of the press in our society, but in the end result she concluded, based on the evidence and based on those factors of which she was entitled to take judicial notice, that the concern for prejudice to innocent persons outweighed freedom of the press in the immediate circumstances of this case.

[22] The Ottawa Citizen appeals Aitken J.'s refusal to make an order granting a writ of certiorari quashing Dorval J.'s sealing order relating to the names of persons who were the subjects of the search warrants issued and executed in 2002.

[23] For the sake of completeness, I observe that, following Lufty C.J.'s decision on July 30, 2004, the Ottawa Citizen again renewed its application to Dorval J. to terminate or vary the sealing order. On December 17, 2004, Dorval J. held that the sealing order remained necessary with respect to some of the material at issue in order to protect ongoing police investigations, but that other material could be released since it was already in the public domain. Included in the material ordered released was the name of Abdullah Almalki. The sealing order remains in effect in relation to the names of the six other individuals.

C. ISSUE

[24] The sole issue on the appeal is whether Aitken J. erred by dismissing the Ottawa Citizen's application for an order granting a writ of certiorari to quash Dorval J.'s order dated February 9, 2004 in which she declined to release the names of individuals subject to the search warrants.

D. ANALYSIS

(1) Standard of Review

[25] Aitken J. held that the nature and scope of her power to review Dorval J.'s sealing order were governed by Dagenais v. Canadian Broadcasting Corp., 1994 39 (SCC), [1994] 3 S.C.R. 835 at 864-65, 94 C.C.C. (3d) 289, 120 D.L.R. (4th) 12 ("Dagenais") per Lamer C.J.C.:

Provincial superior courts have jurisdiction to hear applications for the extraordinary remedy of certiorari against provincial court judges for excesses of jurisdiction and for errors of law on the face of the record...[T]he common law rule governing the issuance of orders banning publication must be consistent with the principles of the Charter. Since the common law rule does not autho-rize publication bans that limit Charter rights in an unjustifiable manner, an order implementing such a publication ban is an error of law on the face of the record. Therefore, if a publication ban order is made by a provincial court judge, the media can apply to the superior court for certiorari and argue that the ban is not authorized by the common law rule. If this is the case, the ban will then constitute an error of law on the face of the record [emphasis added].

[26] In my view, Aitken J. was correct to regard Dagenais as controlling. In R. v. Toronto Star Newspapers Ltd. (2003), 2003 13331 (ON CA), 67 O.R. (3d) 577 at 581, 178 C.C.C. (3d) 349, 232 D.L.R. (4th) 217, sub nom. Toronto Star Newspapers Ltd. v. Ontario (C.A.), leave to appeal to Supreme Court of Canada granted [182 C.C.C. (3d) vi, 236 D.L.R. (4th) vii], appeal heard and judgment reserved on February 9, 2005, [2003] S.C.C.A. No. 567 (QL) ("Toronto Star"), this court held that the standard of review enunciated in Dagenais, a publication ban case, applied as well in a case where the issue is the validity of a sealing order. Accordingly, the question on appeal is whether Aitken J. erred by holding that Dorval J. did not commit a jurisdictional error or make an error of law on the face of the record when she made a sealing order with respect to the names of the persons who were the subjects of the search warrants.

(2) The relevant statutory provision

[27] s. 487.3 of the Criminal Code authorizes a sealing order relating to search warrant records:

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 of granting an authori-zation 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 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

(b) the ground referred to in paragraph (a) outweighs in importance the access to the information.

(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

(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.

(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).

(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 was obtained may be held [emphasis added].

(3) The Mentuck test

[28] In Mentuck at para. 32, Iacobucci J. enunciated a two-part test to govern the analysis of whether a publication ban should be ordered:

A publication ban should only be ordered when:

(a) such an order is necessary in order to prevent serious risk to the proper administration of justice, because reasonably alternative measures will not prevent the risk; and

(b) 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.

[29] In Vancouver Sun at para. 31, the court, in a joint judgment by Iacobucci and Arbour JJ., held that the Mentuck test applies "to all discretionary actions by a trial judge to limit freedom of expression by the press during judicial proceedings." In Toronto Star, this court affirmed that the Mentuck test applies to a sealing order.

(4) Application

[30] The validity of the sealing order made by Dorval J. and upheld by Aitken J. must be assessed in light of both the wording of s. 487.3 of the Criminal Code and the two-part Mentuck test.

(a) "Innocent person"

[31] It is common ground that the only basis for the sealing order in this case, within the language of s. 487.3 of the Code, is that "disclosure of the information would...prejudice the interests of an innocent person" (s. 487.3 (2)(iv)).

[32] Both Dorval J. and Aitken J. held that the subjects of the search warrants were innocent persons within the meaning of this provision.

[33] The Ottawa Citizen contends that both judges erred in reaching this conclusion. The newspaper relies on A. G. (Nova Scotia) MacIntyre, wherein the Supreme Court of Canada held that "innocent persons" included third parties whose premises have been searched and nothing is found. However, Dickson J. also observed, at p. 187, that "[Uf the warrant is executed and something is seized, other considerations come to bear." The Ottawa Citizen submits that this sentence suggests a clear dichotomy — the subject of a search warrant whose premises are searched and nothing is found is an "innocent person", whereas the subject of a search warrant whose premises are searched and material is seized is not an "innocent person".

[34] I do not agree that Maclntyre creates such a rigid dichotomy. In my view, Dickson J. meant only what he said, namely, that when material is seized "other considerations corne to bear."

[35] Case law since Maclntyre confirms that the phrase "an innocent person" in s. 487.3 of the Code must be interpreted in light of a broad range of factors.

[36] For example, in Vickery u Nova Scotia Supreme Court (Prothonotary), 1991 90 (SCC), [1991] 1 S.C.R. 671 at 686, 64 C.C.C. (3d) 65, the court observed that in Maclntyre Dickson J. "did not daim to define exhaustively the limitations of rights of access." In Vickery, the court held that a person whose murder conviction was set aside and a judicial acquittal entered as a result of a violation of his Charter rights was an "innocent person" for the purpose of an application by a journalist for access to various trial exhibits.

[37] In Phillips v. Vancouver Sun (2004), 2004 BCCA 14, 238 D.L.R. (4th) 167, 182 C.C.C. (3d) 483 (B.C.C.A.), the court discussed Maclntyre and rejected the bright line dichotomy interpretation of Dickson J.'s language in that case. Indeed, Prowse J.A. observed, at para. 65, that "in this case, no one seriously disputes that Cst. Phillips qualifies as an 'innocent person' within the meaning of s. 487.3(2)(a)(iv) of the Code, given the fact that he was never charged with an offence, and despite the fact that materials were seized from his office in the course of the search."

[38] In summary, I do not think that Dorval J. and Aitken J. erred by concluding that the subjects of the search warrants are "innocent persons" within s. 487.3 of the Code. In particular, it cannot be said that their conclusion in this regard constitutes either a jurisdictional error or an error of law on the face of the record.

(b) The first branch of Mentuck

[39] As set out previously, the first branch of Mentuck, which applies to the interpretation of s. 487.3 of the Code and to sealing orders, is:

(a) such an order is necessary in order to prevent a serious risk to the proper administration of justice, because reasonably alternative measures will not prevent the risk.

[40] There are two components in the first branch of the Mentuck test: (1) a serious risk to the proper administration of justice, and (2) reasonably alternative measures. With respect to the first component, Dorval J. and Aitken J. concluded that press access to the names of the subjects of the search warrants presented a serious risk to the proper administration of justice. On this issue, both justices wrote careful and comprehensive reasons. Dorval J. was concerned that access would prejudice the interests of the innocent, especially where from the record it appeared that the searches were conducted in a context of international relations and national security. Aitken J., as well, articulated a concern for privacy and security of the person interests.

[41] Although I found some of the analysis of both justices to be speculative (I acknowledge that in this domain, where judges are looking at possible future events, this is perhaps inevitable), I cannot conclude that anything the justices said on this issue amounts to a jurisdictional error or an error of law on the face of the record.

[42] However, the crucial second component in the first branch of the Mentuck test is whether "reasonably alternative measures" will prevent the risk. The requirement to examine reasonably alternative measures is also, in my view, made explicit in s. 487.3(3) of the Code which permits a court to attach terms and conditions to a prohibition order.

[43] In my view, Dorval J. failed in this case to consider a reasonable alternative measure — namely, permitting press access to the names of the subjects of the search warrants but at the same time prohibiting their publication in any articles or editorials.

[44] Not surprisingly, this alternative measure was not the focus of the hearing before Dorval J. Instead, the Ottawa Citizen was seeking access for the purpose of writing potential articles relating to all of the information disclosed, including the names, whereas the Attorneys General of Canada and Ontario were seeking a full sealing order.

[45] However, it would be wrong to think that the potential alternative measure was invisible in the hearing before Dorval J. In his closing submissions, Michael Edelson, counsel for A.A., drew the court's attention to the decision of the Quebec Court of Appeal in R. y. Flahiff (1998), 1998 13149 (QC CA), 123 C.C.C. (3d) 79, 157 D.L.R. (4th) 485, where the court permitted press access to search warrant documents, but delayed publication of information concerning those documents until after the trial of the accused. Mr. Edelson described Flahiff as "a position that's sort of half-way. They permitted access to the information, but they banned publication until the trial was over. So the press were given access."

[46] Dorval J. said nothing, however, about the "reasonably alternative measures" component of the Mentuck test.

[47] Interestingly, Aitken J. referred explicitly to Flahiff, describing it in this fashion: "The Court of Appeal concluded, after balancing the right to a fair trial and freedom of the press, that in the circumstances of that case, the publication ban should remain, but the media should have access to the search warrant and supporting documentation." She continued:

Under s. 487.3(3), Dorval J. could have provided the Applicants with access to the names of the individuals concerned, while at the same time imposing a publication ban. She declined to do this, presumably because she believed the right of those individuals to privacy and to be free of significant media attention trumped the value of the openness of judicial processes and freedom of the press. I am not convinced that Dorval J. made a jurisdictional error in balancing the respective interests in this fashion.

[48] I am inclined to agree with Aitken J. that Dorval J. did not make a jurisdictional error. However, in my view, Dorval J.'s failure to consider alternative measures short of a full-fledged non-access order amounts to an error of law on the face of the record. It ignores both the "terms and conditions" language in s. 487.3(3) of the Code, which invites consideration of tailored non-disclosure orders, and the explicit language in the first branch of the Mentuck test. Aitken J. stated that "presumably" Dorval J. engaged in this analysis. However, in a domain where careful balancing of fundamental rights is required — in this case freedom of the press and individual privacy — failure to address the Code provision or a component of a test articulated by the Supreme Court of Canada should not be considered as a proper analysis and reasonable conclusion.

[49] In summary, neither Dorval J. nor Aitken J. considered "reasonably alternative measures" as required by s. 487.3 of the Code and Mentuck. This failure constitutes an error of law on the face of the record. In light of this conclusion, it is necessary for this court to consider s. 487.3 of the Code and the Mentuck test and to determine the appropriate order in this case.

(c) The appropriate order

[50] The starting point for the s. 487.3 and Mentuck analysis is this fundamental point — Canada is a nation with a profound attachment to a free press and to open courts. The former is explicitly recognized in s. 2(b) of the Canadian Charter of Rights and Freedoms; the latter has been the centerpiece of many leading decisions of the Supreme Court of Canada.

[51] Moreover, there is a direct connection between these two fundamental values.

[52] The importance of open courts to the fulfilment of the role of the press in Canadian society was well-described by La Forest J. in Canadian Broadcasting Corp. v. New Brunswick (A.G.) at pp. 496-97:

That the right of the public to information relating to court proceedings, and the corollary right to put forward opinions pertaining to the courts, depend on the freedom of the press to transmit this information is fundamental to an understanding of the importance of that freedom. The full and fair discussion of public institutions, which is vital to any democracy, is the raison d'être of the s. 2(b) guarantees. Debate in the public domain is predicated on an informed public, which is in turn reliant upon a free and vigorous press. The public's entitlement to be informed imposes on the media a responsibility to inform fairly and accurately. This responsibility is especially grave given that the freedom of the press is, and must be, largely unfettered.

[53] The flip side of the relationship — namely, the importance of the press to the fulfilment of the role of the courts in Canadian society — was explained by Iacobucci and Arbour JJ. in Vancouver Sun at para. 26:

The open court principle is inextricably linked to the freedom of expression protected by s. 2(b) of the Charter and advances the core values therein....The freedom of the press to report on judicial proceedings is a core value. Equally, the right of the public to receive information is also protected by the constitutional guarantee of freedom of expression....The press plays a vital role in being the conduit through which the public receives that information regarding the operation of public institutions [case names and citations omitted].

[54] The consequence of the importance of, and the relationship between, freedom of the press and open courts is obvious: "the open court principle, to put it mildly, is not to be lightly interfered with": see Vancouver Sun at para. 26. Accordingly, any attempt by a party to obtain a sealing order in relation to any aspect of a court proceeding, including the obtaining of a search warrant"must be subject to close scrutiny and meet rigorous standards": see Toronto Star at para. 19 per Doherty J.A.

[55] However, although freedom of the press is "largely unfettered", it is not absolute. Press freedom, like an Charter rights, must be balanced with other important values in Canadian society. One such value is "the protection of the innocent": see MacIntyre at p. 187.

[56] How, then, should the balance between press freedom and open courts on the one hand and protection of the innocent on the other be struck in this case?

[57] In my view, the balance struck in the excellent reasons of Rothman J.A. of the Quebec Court of Appeal in Flahiff is a sound basis for the balance to be struck in this case. In Flahiff, the court held that a publication ban with respect to search warrant materials was necessary in order to ensure a fair trial for the well-known accused. However, in reasoning that anticipated (by three years) the "reasonably alternative measures" component of the Mentuck test, Rothman J.A. said at p. 92:

To assure that the impact of the publication ban is as narrowly circumscribed as possible, I would nonetheless permit the press and the media generally to have access to the documents so that they have full knowledge of the contents of the search warrant as well as the affidavit or information on which it was based. This would allow the press full scrutiny, in the public interest, of the search warrant documents notwithstanding the temporary ban on publication [emphasis added].

[58] By analogy, the appropriate order in this appeal would be an access order permitting the press to have access to the names of the subjects of the search warrants coupled with an order prohibiting the press from publishing their names or any information that might disclose the names.

[59] Does such an order properly respect and promote the crucial role of a free press in Canadian society? In my view it does. In her affidavit in support of an access order, Ms. Jaimet identified her principal reason for seeking such an order — a desire to ascertain whether the execution of the search warrants implicated Canadian authorities in the incarceration in Syria of Mr. Almalki and Mr. Arar. She described this as a "matter of public interest and public concern." I agree; indeed Ms. Jaimet's description strikes me as obviously and entirely accurate.

[60] If an order coupling access to, but non-publication of, the names were made, Ms. Jaimet would learn the identities of the subjects of the search warrants. She could contact them, which is consistent with the news gathering role that is part of the constitutionally protected freedom of the press: see Canadian Broadcasting Corporation at para. 24. The press can contact any Canadian citizen in the investigation of a potential story.

[61] The subjects of the search warrants would have to respond to the press contact. Their responses, presumably, could range across the spectrum from "Get off my property, I have nothing to say" to "I'm so glad to see you; do I have a story to tell; please corne in".

[62] With the information it obtained, the Ottawa Citizen would be better positioned to prepare articles on the matter of public interest and concern that it is investigating — the potential role of Canadian authorities in the detention of Mr. Almalki and Mr. Arar in Syria. The only restriction on its article would be an inability to publish the names of the subjects of the search warrants or other information that might tend to identify them (an address, for example). This restriction, although not inconsequential, does not strike me as impeding the matter the Ottawa Citizen is investigating.

[63] Does such an order properly respect the privacy interests of deemed "innocent persons" in Canada? In my view it does. The order is more intrusive than a sealing order; the press will be able to contact the "innocent persons". However, such an intrusion is, in my view, both normal and minor. It is normal because it is already the law in Canada that search warrants are available for public inspection: see Maclntyre. Moreover, the press is already free to contact any person in Canada. The intrusion is minor because the "innocent person" can decline to respond to the press inquiry, and can do so in the knowledge that his or her identity will not be published.

[64] Moreover, I note that at the hearing before Dorval J., counsel for the only subject of the search warrants who made submissions, Michael Edelson representing A.A., pitched his submissions almost entirely in terms of "the stigmatization to name and reputation that would follow from publication" and "a certain stigma or stain attached to the name of the individual". This is precisely the risk that can be overcome by a non-publication order.

[65] In summary, the Mentuck test requires a balancing between the salutary and deleterious effects of any order that would impinge on freedom of the press. The test also commands a focus on "reasonably alternative measures". The word "balancing" conjures the image of neutrality or even-handedness. In my view, this image is misplaced. Because of the centrality of a free press and open courts in Canadian society and in the Canadian constitution, there is almost a presumption against any form of secrecy in ail aspects of court proceedings in Canada. As stated by Dickson J. in Maclntyre at p. 185"covertness is the exception, and openness the rule."

[66] The presumption against secrecy applies, specifically, to sealing orders. As expressed by Iacobucci and Arbour JJ. in Vancouver Sun at para. 50"the present facts clearly illustrate the mischief that flows from a presumption of secrecy. Secrecy then becomes the norm, is applied across the board, and sealing orders follow as a matter of course". The courts need to be vigilant to guard against this progression. In this case, an order combining press access to the names of the subjects of the search warrants with a prohibition on publishing those names strikes a proper balance.

E. DISPOSITION

[67] I would allow the appeal, set aside the sealing order, and make an order permitting the Ottawa Citizen and other media to have access to the names of the subjects of the search warrants, but subject to a prohibition against publishing those names or any information that might tend to identify them.

Appeal allowed; order accordingly.