Her Majesty the Queen v. Toronto Star Newspapers Limited et al. [Indexed as: R. v. Toronto Star Newspapers Ltd.]

67 O.R. (3d) 577

[2003] O.J. No. 4006

Docket No. C40662

Court of Appeal for Ontario

Doherty, Rosenberg and Borins JJ.A.

October 17, 2003

*Application for leave to appeal granted with no order as to costs April 29, 2004 (Iacobucci, Binnie and Arbour JJ.).

Charter of Rights and Freedoms -- Freedom of expression -- Freedom of press -- Sealing order -- Crown applying for sealing order of court records -- Representative of media requesting opportunity to be heard -- Media having important role to play in applications brought to prohibit public access to court records or to prohibit publication of court proceedings -- Failure to allow interested party opportunity to be heard is denial of natural justice resulting in loss of jurisdiction.

Charter of Rights and Freedoms -- Freedom of expression -- Freedom of press -- Sealing order -- Protection of identity of confidential informant -- Crown applying for sealing order of court records -- Request for order sealing court documents subject to close scrutiny and must meet rigorous standards -- Party seeking sealing order must show necessity and balancing of positive and negative effects flowing from sealing order.

On or about August 26, 2003, an investigation by the Ministry of Natural Resources into the operation of Aylmer Meat Packers Inc. ("Aylmer") became the subject of widespread media reports. The suitability for human consumption of meat slaughtered and processed by Aylmer became a matter of public concern. On September 2, 2003, the Crown brought an ex parte application in open court before Livingstone J. of the Ontario Court of Justice for an order sealing six search warrants for various locations linked to the business of Aylmer. The Crown claimed that public disclosure of the material would identify a confidential informant and could interfere with an ongoing criminal investigation. During the hearing, a reporter from The London Free Press found out about the application, and he asked for an adjournment so that counsel for the media could attend. This request was denied, and Livingstone J. made an order directing that the warrants and informations be sealed along with certain other materials.

The Toronto Star Newspapers Limited and other media outlets brought a motion for certiorari and mandamus in the Superior Court. On September 24, 2003, McGarry J. quashed the sealing order and directed that the documents should be made public except to the extent that the contents of the informations could disclose the identity of a confidential informant. McGarry J. edited one of the informations to delete references to material that could identify the confidential informant. The Crown appealed.

Held, the Crown's appeal should be allowed but only to a very limited extent.

The order of Livingstone J. was subject to judicial review. She made a jurisdictional error when she refused to grant a brief adjournment to a representative of the media so that counsel might attend to make representations on the application for the sealing order. The London Free Press, as a representative of the media, had an interest in the subject matter of the proceedings. The media has an important role to play in applications brought to prohibit public access to court records or to prohibit publication of court proceedings. The failure to allow an [page578] interested party an opportunity to be heard was a denial of natural justice and resulted in a loss of jurisdiction.

The remedial powers of the Superior Court on a certiorari application involving challenges to non-publication and similar orders where Canadian Charter of Rights and Freedoms rights are engaged coincide with the remedial powers under s. 24(1) of the Charter, and the court has the jurisdiction to make the order that the court concludes should have been made on the initial hearing.

Once a search warrant is executed and something has been seized pursuant to that search warrant, the warrant and the information to obtain the warrant are available to the public unless a party seeking a sealing order can demonstrate that public access would subvert the ends of justice. Because of the importance of freedom of expression, including freedom of the press, any request for an order sealing court documents is subject to close scrutiny and must meet rigorous standards. The party seeking the order must show necessity and a balancing of the positive and negative effects flowing from the sealing order.

In the immediate case, the Crown made two arguments that a sealing order was necessary. The first argument was that the order was necessary to preserve the integrity of the ongoing criminal process. The second argument was that the order was necessary to protect the identity of the confidential informant. The first argument failed. The necessity standard is a high standard. The Crown must demonstrate, based on evidence, viewed through the lens of judicial experience, that in the particular case there is a serious risk to the proper administration of justice unless there is a sealing order. It is not enough to rely on the general proposition that pre-trial publication of the details of a police investigation risks the tainting of statements taken from witnesses. Access to court documents cannot be denied solely because maintaining the secrecy of those proceedings would give the police an advantage in the conduct of their investigation. The Crown's second argument succeeded. Information that could identify a confidential informant is properly excluded from the public domain. In editing to avoid disclosure, the court should proceed with caution. If there is any doubt as to whether disclosure would reveal that identity, disclosure should not be made. In the immediate case, the court was satisfied that the information could be edited.

APPEAL from an order of the Superior Court of Justice setting aside an order of the Ontario Court of Justice sealing court documents.

Cases referred to Nova Scotia (Attorney General) v. MacIntyre, 1982 14 (SCC), [1982] 1 S.C.R. 175, 49 N.S.R. (2d) 609, 132 D.L.R. (3d) 385, 40 N.R. 181, 96 A.P.R. 609, 65 C.C.C. (2d) 129, 26 C.R. (3d) 193 (sub nom. MacIntyre and R. (Re)); Canadian Broadcasting Corp. v. Dagenais, 1994 39 (SCC), [1994] 3 S.C.R. 835, 20 O.R. (3d) 816n, 120 D.L.R. (4th) 12, 175 N.R. 1, 25 C.R.R. (2d) 1, 94 C.C.C. (3d) 289, 34 C.R. (4th) 269 (sub nom. Dagenais v. Canadian Broadcasting Corp.); Forsythe v. R., 1980 15 (SCC), [1980] 2 S.C.R. 268, 112 D.L.R. (3d) 385, 32 N.R. 520, 53 C.C.C. (2d) 225, 15 C.R. (3d) 280 (sub nom. R. v. Forsythe); R. v. Leipert, 1997 367 (SCC), [1997] 1 S.C.R. 281, 143 D.L.R. (4th) 38, 207 N.R. 145, [1997] 3 W.W.R. 457, 41 C.R.R. (2d) 266, 112 C.C.C. (3d) 385, 4 C.R. (5th) 259; R. v. Mentuck, [2001] 3 S.C.R. 442, 163 Man. R. (2d) 1, 205 D.L.R. (4th) 512, 277 N.R. 160, 269 W.A.C. 1, [2002] 2 W.W.R. 409, 158 C.C.C. (3d) 449, 47 C.R. (5th) 63, 2001 SCC 76 (sub nom. R. v. Mentuck (C.G.)) Statutes referred to Canadian Charter of Rights and Freedoms, s. 24(1) Criminal Code, R.S.C. 1985, c. C-46, s. 487.3 Provincial Offences Act, R.S.O. 1990, c. P.33, ss. [page579]

Scott C. Hutchison, for appellant. Paul B. Schabas and Tony S.K. Wong, for respondents.

The judgment of the court was delivered by

DOHERTY J.A.: --

I

Overview

[1] On August 20, 2003, a justice of the peace issued six search warrants for various locations linked to the business of Aylmer Meat Packers Inc. ("Aylmer"). The informations sworn to obtain the warrants were identical. The warrants were obtained under the provisions of the Provincial Offences Act, R.S.O. 1990, c. P.33 and related to alleged violations of provincial legislation regulating the slaughter of cattle. The informations were sworn by Roger Weber, an agricultural investigator with the Ministry of Natural Resources. The warrants were executed on August 21 and 22, 2003.

[2] On about August 26, 2003, the investigation by the Ministry of Natural Resources into the operation of Aylmer became the subject of widespread media reports. The suitability for human consumption of meat slaughtered and processed by Aylmer became a matter of public concern.

[3] On about August 27, 2003, the Ontario Provincial Police commenced a fraud investigation into the business affairs of Aylmer. The officers involved in that investigation were advised that Inspector Weber had applied for and obtained the search warrants described above.

[4] On September 2, 2003, the Crown brought an ex parte application in open court in the Ontario Court of Justice for an order sealing the search warrants, the informations used to obtain the warrants and related documents. The Crown claimed that public disclosure of the material could identify a confidential informant and could interfere with the ongoing criminal investigation.

[5] Justice Livingstone made an order directing that the warrants and informations were to be sealed along with the affidavit of Detective Sergeant Andre Clelland, dated August 30, 2003 filed in support of the application for a sealing order and a letter, dated September 2, 2003, from Roger Weber indicating [page580] that the Ministry of Natural Resources took no objection to the application. The sealing order was to expire December 2, 2003. The Clelland affidavit and Inspector Weber's letter were subsequently made part of the public record on the consent of the Crown.

[6] The Toronto Star Newspapers Limited and other media outlets (respondents) brought a motion for certiorari and mandamus in the Superior Court. That application proceeded before McGarry J. on September 15 and 16, 2003. On September 24, 2003, McGarry J. released reasons quashing the sealing order and directing that the documents should be made public except to the extent that the contents of the informations could disclose the identity of a confidential informant. McGarry J. edited one of the informations to delete references to material that could identify the confidential informant and told counsel that the edited version would be made available to the respondents unless the Crown appealed within two days. Although there is some ambiguity in his reasons, counsel agree that the intention was to deny public access to the edited parts of the informations unless and until a court ordered otherwise.

[7] The Crown appealed the order of McGarry J. Consequently, the respondents have not seen the information as edited by McGarry J. They have, of course, not seen the original unedited informations. Counsel for the respondents was provided at the hearing before McGarry J. with a summary of the contents of the informations on the undertaking that they would not share that summary with anyone, including their clients.

[8] The sealed material filed in this court by the appellant included the edited version of the information prepared by McGarry J. The court also received the original documents from both the Ontario Court of Justice and the Superior Court and read one of the unedited informations.

[9] At the conclusion of oral argument in this court on October 10, the court announced that the Crown's appeal would be allowed to a very limited extent. This court affirmed the order of McGarry J. setting aside the sealing order, and also affirmed his order directing that the informations should be released to the public only after they were edited to avoid disclosure of any information that might identify the confidential informant. This court concluded that two paragraphs in the informations that were not removed by McGarry J., should be deleted before the informations were released to the public. The court advised counsel that reasons for its decision would follow within seven days. These are those reasons. [page581]

II

[10] There are six warrants for six different locations in issue in this proceeding. Except for the locations referred to, the warrants are identical. As indicated above, the informations sworn in support of these warrants are identical. Each information is one page long and incorporates several appendices. Appendix "C", entitled "Grounds of Belief" contains the information which the Crown argues should not be in the public domain. Appendix "D" entitled "List of Sources" contains a reference to the confidential informant which the Crown contends should not be in the public domain. Each warrant also consists of a single page and incorporates several appendices, some of which are the same as some of the appendices referred to in the informations. The warrants do not incorporate by reference Appendix "C" or Appendix "D".

[11] In the course of his helpful submissions, Mr. Hutchison, for the Crown, advised that the Crown would not oppose the release of the search warrants. He also indicated that with two minor exceptions, the Crown would not oppose the release of paras. 1 through 22 set out in Appendix "C" to the information. He submitted, however, that the remaining paragraphs of Appendix "C" and Appendix "D" should remain sealed (paras. 23 to 45). We agree with the concessions made by Mr. Hutchison.

III

The Standard of Review

[12] Usually, relief by way of certiorari is available only where jurisdictional error is established. In Canadian Broadcasting Corp. v. Dagenais, 1994 39 (SCC), [1994] 3 S.C.R. 835, 94 C.C.C. (3d) 289, at pp. 864-65 S.C.R., p. 307 C.C.C., the court accepted that where certiorari was brought to challenge a non- publication order, the Superior Court could intervene if the non-publication order limited Canadian Charter of Rights and Freedoms rights in an unjustifiable or unauthorized way. Counsel agree Dagenais has application to this case, which involves a sealing order as opposed to a non-publication order. Counsel also agree that Dagenais permits intervention by way of prerogative writ for errors that are not jurisdictional in the strict sense. Counsel disagree, however, as to how far Dagenais departs from jurisdictional error as a precondition to intervention by way of certiorari. The Crown submits that the Dagenais standard is met only if the decision under attack is one that no judicial officer acting reasonably could have made. Mr. Schabas, for the respondents, submits that Dagenais introduces a correctness standard of review. [page582]

[13] I need not attempt to resolve this controversy. Livingstone J. fell into clear jurisdictional error when she refused to grant a brief adjournment to a representative of the media so that counsel for the media might attend to make representations on the application for a sealing order. The Crown had moved ex parte but in open court for that order. After counsel for the Crown had made his submissions, Livingstone J. adjourned to consider the motion. In the interim, a reporter for The London Free Press managed to find out about the Crown's application for a sealing order and was present when court resumed. He asked for an adjournment so that counsel for the media could attend. Livingstone J. declined the request stating:

With all due respect to Mr. Sher [the newspaper reporter] and I thank him for his attendance this afternoon and being familiar with the Dagenais case which he has alluded to, which case in fact is provided in the material presented by the Crown Attorneys Office, in my view the ruling should be given at this time and if the London Free Press wishes, obviously, to appeal any order of this court, it is free to do so in any forum it chooses.

[14] The London Free Press, as a representative of the media, had a clear interest in the subject matter of the proceedings. A brief adjournment could have been allowed to permit counsel to make submissions on behalf of The London Free Press without in any way compromising the secrecy of the documents. The media has an important role to play in applications brought to prohibit public access to court records or to prohibit publication of court proceedings: Dagenais, supra, at pp. 867-68 S.C.R., pp. 309-11 C.C.C. The potentially positive role of the media is evident in this case. The sealing order granted in the Ontario Court of Justice was beyond what even the Crown now asserts. Had counsel for the media been given an opportunity to make submissions, at a minimum, counsel may have convinced the court that the proposed sealing order was too broad.

[15] There was no good reason to deny The London Free Press an opportunity to make submissions. The only reason mentioned by Livingstone J., the availability of an appeal, is irrelevant to the question of whether The London Free Press should have been given an opportunity to be heard and is also wrong in law, since in fact The London Free Press did not have a right of appeal.

[16] The failure to allow an interested party an opportunity to be heard constitutes a denial of natural justice and results in a loss of jurisdiction: Forsythe v. R., 1980 15 (SCC), [1980] 2 S.C.R. 268, 53 C.C.C. (2d) 225, at pp. 270-73 S.C.R., pp. 228-29 C.C.C.

[17] Usually, where a party is denied a right to be heard, the appropriate remedy on certiorari is to quash the challenged decision and remit the matter back to the lower court for a proper [page583] hearing. However, as pointed out in Dagenais, supra, at pp. 865-66 S.C.R., p. 308 C.C.C., the remedial powers of the Superior Court on a certiorari application involving challenges to non-publication orders and similar orders where Charter rights are engaged should be expanded to coincide with the remedial power under s. 24(1) of the Charter. Section 24(1) certainly allows the Superior Court judge to decide the merits of the sealing order application and make the order which the court concludes should have been made on the initial hearing. I do not understand Mr. Hutchison to have suggested that if this court found jurisdictional error, it should not address the merits of the request for a sealing order.

IV

The Merits of the Sealing Application

[18] Once a search warrant is executed and something has been seized pursuant to that search warrant, the warrant and the information to obtain the warrant are available to the public unless a party seeking a sealing order can demonstrate that public access would subvert the ends of justice: Nova Scotia (Attorney General) v. MacIntyre, 1982 14 (SCC), [1982] 1 S.C.R. 175, 65 C.C.C. (2d) 129, at pp. 188-90 S.C.R., p. 149 C.C.C. The narrow grounds upon which a sealing order may be obtained and the requirement that the sealing order be carefully tailored so as to minimize restriction on public access are demonstrated in s. 487.3 of the Criminal Code, R.S.C. 1985, c. C-46, which deals with sealing orders in respect of Criminal Code search warrants. Although that provision does not apply to these search warrants, which were issued under the Provincial Offences Act, the controlling common law principles are identical to those set out in s. 487.3.

[19] The importance of freedom of expression, including freedom of the press, is obvious. The significant intrusion on that freedom effected by sealing orders such as the order in issue here cannot be minimized. It is the importance of the freedom infringed by this sealing order and the significance of the contemplated infringement that combine to require that any request seeking an order sealing court documents must be subject to close scrutiny and meet rigorous standards. In R. v. Mentuck, [2001] 3 S.C.R. 442, 2001 SCC 76, Iacobucci J. offered a two-step analytical approach to cases involving applications to ban publication or otherwise limit public access to court proceedings. He said, at para. 32: [page584]

A publication ban should only be ordered when:

(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, 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.

(Emphasis added)

[20] The two-step approach contemplates first a showing of necessity by the party seeking the sealing order and secondly, a balancing of the positive and negative effects flowing from the requested order. In discussing the necessity component of the analysis, Iacobucci J. said, at paras. 34-36:

One required element is that the risk in question be a serious one, or, as Lamer C.J. put it at page 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. In other words, it is a serious danger sought to be avoided that is required, not a substantial benefit or advantage to the administration of justice sought to be obtained. . . .

This aspect of the test for common law publication bans requires the judge not only to consider whether reasonable alternatives are available, but also to restrict the order as far as possible without sacrificing the prevention of the risk.

(Emphasis added)

[21] The only evidence placed before the court in support of the sealing application was the affidavit of Detective Sergeant Clelland. In his affidavit, he contended that the sealing order was necessary to preserve the integrity of the ongoing criminal investigation and to protect the anonymity of a confidential informant. He said, at para. 13:

I believe based on my involvement in this investigation that the release of the warrants, information to obtain and other documents would interfere with the integrity of the ongoing police investigation and furthermore that public access to the said warrants and the informations to obtain may tend to reveal the identity of a confidential informant.

[22] Mr. Hutchison contends that the two grounds advanced by Detective Sergeant Clelland justify non-disclosure of various parts of the informations and that together they justify non- disclosure of paras. 23 through 45 of the informations.

[23] In asserting that a sealing order was necessary to preserve the integrity of the ongoing criminal investigation, Detective Sergeant Clelland explained that witness statements should be based on the witness's personal knowledge and should not be [page585] tainted by information that the witness gets from outside sources such as the media. Detective Sergeant Clelland expressed concern that if the contents of the informations became public, the accuracy of statements provided by potential witnesses could be tainted by fixing those witnesses with information from sources other than their personal knowledge. He said, at para. 16 of his affidavit:

It is my belief that the release of the details contained in the informations to obtain has the potential to make it more difficult for the Ontario Provincial Police to gather the best evidence in respect of its investigation.

[24] In argument, Mr. Hutchison put the same point perhaps a little more bluntly. He suggested that there may well be individuals that the police will want to talk to in the course of the criminal investigation who will be more sympathetic to the potential accused than to the police. He suggested that the police would be at a significant disadvantage in questioning these individuals if they were aware of the contents of the informations used to obtain the search warrant before the police had an opportunity to question them. Mr. Hutchison expressed the concern that some potential witnesses will seek to hide rather than provide the truth. He contends that efforts by individuals to hide the truth will be facilitated if those individuals have access to the detailed facts found in the informations to obtain the warrants.

[25] The second reason advanced by Detective Sergeant Clelland in support of the sealing application relates to those parts of the information which refer to material provided by a confidential informant. Detective Sergeant Clelland indicates that the person requested anonymity when the information was supplied and is being treated as a confidential informant by the authorities. Mr. Hutchison submits that these facts justify non-disclosure of any information which runs the risk of revealing the identity of the confidential informant. Mr. Schabas does not take exception to the contention that the identity of a confidential informant must be protected. He has not seen the unedited informations and consequently cannot assist the court as to what part of the informations should be deleted to avoid disclosure of the informant's identity. Mr. Schabas is content to rely on the editing done by McGarry J.

[26] I reject the first argument advanced in support of the sealing order. The necessity standard described in Mentuck is a high one. The Crown must demonstrate, based on evidence, viewed through the lens of judicial experience, that absent a sealing order there is a serious risk to the proper administration of justice. No doubt, in a given case, early disclosure of material contained in an [page586] information to obtain a search warrant may significantly impair the ability of the police to obtain accurate statements from potential witnesses. Again, in a given case, that impairment may be such as to result in a serious risk to the proper administration of justice. The Crown must, however, demonstrate the risk in a particular case. It is not enough to rely on the general proposition that pre-trial publication of the details of a police investigation risks the tainting of statements taken from potential witnesses. If that general proposition was enough to obtain a sealing order, the presumptive rule would favour secrecy and not openness prior to trial. A general assertion that public disclosure may distract from the ability of the police to get at the truth by tainting a potential witness's statement is no more valid than the equally general and contrary assertion that public disclosure enhances the ability of the police to get at the truth by causing concerned citizens to come forward with valuable information.

[27] Detective Sergeant Clelland offers no specific basis for his concern that potential witnesses will be tainted if the contents of the information are revealed. He points to no specific information and to no specific individual. He very candidly acknowledges that disclosure would do no more than "make it more difficult for the Ontario Provincial Police to gather the best evidence in respect of the investigation". I can accept that the police might have an advantage in questioning some individuals if those individuals were unaware of the details of the police investigation. Fundamental freedoms, like the freedom of expression and freedom of the press, cannot, however, be sacrificed to give the police a "leg up" on an investigation. As Iacobucci J. observed in R. v. Mentuck, supra, at para. 34, access to court documents cannot be denied solely because maintaining the secrecy of those proceedings would give the police an advantage in the conduct of their investigation.

[28] I do accept the Crown's second submission. Disclosure of parts of the information used to obtain the search warrant could reveal the identity of a person who on the material is properly classified as a "confidential informant". Information that could identify that informant is properly excluded from the public domain. In editing the contents of the information to avoid disclosure of the identity of the confidential informant, the court should proceed with caution. If there is any doubt as to whether disclosure would reveal that identity, disclosure should not be made. In some cases, blanket non- disclosure is required, since it cannot be said with any confidence that disclosure of any kind would not run the risk of revealing the identity of the informant: R. v. Leipert, 1997 367 (SCC), [1997] 1 S.C.R. 281, 112 C.C.C. (3d) 385. Like McGarry J., the court is satisfied that this information can be [page587] edited to exclude any information which could reveal the identity of the confidential informant. Our editing is somewhat more extensive than that done by McGarry J. The following material should be deleted before any of the informations are made part of the public record:

-- The number referred to at the end of para. 32 should be deleted (this deletion was made by McGarry J.).

-- All of para. 33 should be deleted (McGarry J. did not delete this paragraph).

-- Paragraph 34 should be deleted (McGarry J. deleted this paragraph).

-- Paragraph 35 should be deleted (McGarry J. did not delete this paragraph).

-- The reference to the specific times in para. 38 should be deleted (this deletion was made by McGarry J.).

-- The reference under the heading "Confidential Informant" in para. 45 should be deleted (this deletion was made by McGarry J.).

[29] I note that a generic summary of the contents of the deleted paragraphs is found in Detective Sergeant Clelland's affidavit. That affidavit is part of the public record.

[30] A copy of one of the informations edited in the manner outlined above will be released to Mr. Hutchison with these reasons. He will have seven days to determine what steps, if any, the Crown proposes to take. If, at the end of seven days, no order has been made by this court or the Supreme Court of Canada continuing the sealing order, a copy of the information as edited by this court will be released to counsel for the respondent and will become part of the public record.

[31] The original informations and warrants are to be returned to the Ontario Court of Justice. Copies of the warrants should be made available, if requested. The original informations should be held under seal in the Ontario Court of Justice. Once the information as edited has been released to counsel for the respondents by this court, copies of the edited version may be released by the Ontario Court of Justice. The copy of the information as edited by McGarry J., received under seal by this court, should be returned to the Superior Court and held under seal.

Order accordingly.

[page588]