@B,00021303,OR
@1@Z20050609
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The Ottawa Citizen Group Inc. et al. v. Her Majesty the Queen et al.
[Indexed as: Ottawa Citizen Group Inc. v. R.]
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2005 93777 (ON CA), 75 O.R. (3d) 607
2005 93777 (ON CA), [2005] O.J. No. 2298
Docket: C42288
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Court of Appeal for Ontario,
McMurtry C.J.O., Laskin and MacPherson JJ.A.
June 9, 2005
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Criminal law -- Search and seizure -- Sealing orders pursuant to s. 487.3 of Criminal Code -- Court of Appeal releasing reasons in appeal on June 3, 2005 -- Court proceeding on basis that sealing order pertained to persons whose premises had been searched -- After release of judgment, counsel for Attorney General of Canada advising that names redacted were not those of persons whose premises searched but rather two individuals referred to in materials pertaining to warrants -- Court completely surprised by information and rejecting submission of Attorney General of Canada that original judgment be revised -- Court releasing addendum and reasons of June 3, 2005 stand apart from order of court -- Order varied to permit media access to names redacted pursuant to s. 487.3(2)(a)(iv) and made subject of sealing order and maintaining ban -- Criminal Code, R.S.C. 1985, c. C-46, s. 487.3.
Charter of Rights and Freedoms -- Freedom of press -- Sealing orders pursuant to s. 487.3 of Criminal Code -- Court of Appeal releasing reasons on appeal on June 3, 2005 -- Court proceeding on basis that sealing order pertained to persons whose premises had been searched -- After release of judgment, counsel for Attorney General of Canada advising that names redacted were not those of persons whose premises searched but rather two individuals referred to in materials pertaining to warrants -- Court completely surprised by information and rejecting submission by Attorney General of Canada that original judgment be revised -- Court releasing addendum and reasons of June 3, 2005 stand apart from order of court -- Order varied to permit media access to names redacted pursuant to s. 487.3(2)(a)(iv) and made subject of sealing order and maintaining publication ban -- Criminal Code, R.S.C. 1985, c. C-46, s. 487.3 -- Canadian Charter of Rights and Freedoms.
After the reasons for judgment in Ottawa Citizen Group Inc. were released, it was brought to the court's attention for the first time that the sealing order did not relate to the names of the persons whose premises were searched but to two other persons whose names were found in the material relating to the search warrants. The Attorney General of Canada asked the court to release a new version of its reasons for judgment making the necessary changes.
Held, the reasons for judgment should not be changed.
The new information was noted in an addendum, and the formal order was varied to permit media access to the names redacted by the issuing judge.
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Statutes referred to
Criminal Code, R.S.C. 1985, c. C-46, s. 487.3(2)(a)(iv)
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RULING on newly disclosed information from the order of Aitken J. of the Superior Court of Justice dated August 3, 2004, [page608] affirming the order of Dorval J. of the Ontario Court of Justice dated February 9, 2004.
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Richard G. Dearden, for appellants.
Croft Michaelson and Andrea Hammell, for respondent Attorney General of Canada.
John Corelli, for respondent Attorney General of Ontario.
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ADDENDUM
[1] BY THE COURT: -- The reasons for judgment in this appeal were released on Friday, June 3, 2005 [see 2005 93777 (ON CA), 75 O.R. (3d) 590, 2005 93777 (ON CA), [2005] O.J. No. 2209 (C.A.)]. The reasons relate to the names of persons who were the subjects of six search warrants executed in Ottawa in 2002. On Monday, June 6, counsel for the Attorney General of Canada wrote to the court and to other counsel with the information that the sealing order made by Dorval J. did not relate to these individuals; rather it covered two other persons whose names are found in the materials relating to the search warrants.
[2] This information comes as a complete surprise to the court. It also surprised counsel for the Ottawa Citizen, who informed the court in a letter dated June 8, 2005 that on June 7 "I learned for the first time that the 'names' that Judge Dorval sealed (and were subject to the judicial review before Justice Aitken and the appeal before the Court of Appeal)" were not the subjects of six search warrants executed in Ottawa in 2002.
[3] We note that the first two sentences in the Attorney General of Canada's factum filed on this appeal state:
The Appellants seek access to the names of certain individuals redacted from search warrant materials by Justice Dorval of the Ontario Court of Justice pursuant to s. 487.3(2)(a)(iv) of the Criminal Code. The seven search warrants at issue were executed in furtherance of a criminal investigation involving issues of national security, and the names were redacted on the grounds that their disclosure would prejudice the interests of innocent persons.
[4] In our view, the wording of this paragraph, and indeed the facta and oral arguments by all parties, establish that this appeal proceeded on the basis that what this case was about was a sealing order by Dorval J. relating to the names of the persons who were the subjects of the search warrants. Regrettably, this does not appear to be the case.
[5] The Attorney General of Canada submits that the court should release a new version of its reasons for judgment involving changes to 17 paragraphs. The Ottawa Citizen opposes this submission and suggests that, if any amendment is to be made, it [page609] be done as an "addendum" or "post-script" to the reasons released on June 3, 2005, and not as a "corrigendum".
[6] We agree with the Ottawa Citizen. Accordingly, the reasons released on June 3, 2005 stand as they are. However, the formal order of the court relating to those reasons should provide that the Ottawa Citizen and other media are granted access to the names redacted by Dorval J. pursuant to s. 487.3(2)(a)(iv) of the Criminal Code, R.S.C. 1985, c. C-46 and kept sealed by virtue of her order dated February 9, 2004. In all other respects, the formal order should reflect para. 67 of the reasons for judgment released on June 3, 2005.
Order accordingly.
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