Court File and Parties
Court File No.: Hamilton
Ontario Court of Justice
Between:
The Hamilton Spectator
— and —
Royal Canadian Mounted Police — and — Her Majesty The Queen — and — Morteza Jafarpour-Davatger — and — Nese Burgaz — and — Robert Salama
Before: Justice M. Speyer
Heard on: October 18, 2012
Reasons for Judgment released on: November 22, 2012
Counsel
James Vincelli — Counsel for the Crown
Brian Rogers — Counsel for the Hamilton Spectator
Lauren Wilhelm — Counsel for Morteza Jafarpour-Davatger
Andrew Confente — Counsel for Nese Burgaz
John Abrams — Counsel for Robert Salama
SPEYER, J.:
INTRODUCTION
[1] Nese Burgaz, Morteza Jafarpour-Davatger and Robert Salama face various charges of theft, uttering forged documents and fraud in relation to their dealings with an agency known as the Settlement and Integration Services Organization (hereinafter referred to as "SISO").
[2] It is alleged that these accused defrauded Citizenship and Immigration Canada of more than four million dollars. In the course of their investigation, the RCMP obtained production orders from five financial institutions: Scotiabank, Canadian Tire Bank, AMEX, and MBNA. The applications were supported by affidavits, known as Informations to Obtain (ITOs) setting out the officer's reasonable grounds for believing that offences of fraud, forgery and theft had been committed and that documents from these financial institutions would provide evidence of such offences.
[3] On September 30, 2011, Justice of the Peace D'Ignazio granted the production orders and also ordered that the production orders and the ITOs be sealed. Justice of the Peace D'Ignazio granted the sealing orders on the basis of s. 487.3(2)(a)(ii) and (iii). He was satisfied that disclosure of the materials would compromise the nature and extent of the investigation and would prejudice the interests and safety of innocent persons named in the ITOs. The Justice of the Peace did not specify a date or event upon which the sealing orders would terminate.
[4] The production orders were executed and the investigation by the RCMP into these matters is now complete. Morteza Jafarpour-Davatger was the first person charged. He has elected to be tried by a court composed of a judge and jury. In July of 2012 he waived his right to a preliminary hearing and is now awaiting trial in the Superior Court.
[5] Nese Burgaz and Robert Salama were arrested and charged after Mr. Jafarpour-Davatger and their charges are still in the Ontario Court of Justice. Their matters are at the intake stage. They have not yet elected their mode of trial.
[6] On May 25, 2012, the Hamilton Spectator brought an application before me to unseal the production orders and ITOs. At the time, Mr. Jafarpour-Davatger's charges were still in the Ontario Court of Justice. On consent of all parties, I allowed the materials to be unsealed for the limited purpose of permitting the Crown to make disclosure to the accused. I also ordered the Crown to deliver a copy of the materials to Mr. Brian Rogers, counsel for the Hamilton Spectator. He was ordered to not make any copies or otherwise disseminate the material until further submissions were heard. The production orders, the ITO and related documents remained sealed. The hearing into the Hamilton Spectator's application to terminate the sealing order was heard by me on October 18, 2012.
POSITION OF THE PARTIES
[7] The Hamilton Spectator takes the position that the investigation and subsequent charges are a matter of public interest as they relate to public funds provided by the federal government and to the operations of SISO, a large agency working with refugees and immigrants. Mr. Rogers argues that the continued sealing of the production orders and ITOs constitutes an ongoing violation of the presumption of openness of court proceedings and is a breach of s. 2(b) of the Canadian Charter of Rights and Freedoms.
[8] Jafarpour-Davatger and Nese Burgaz oppose the unsealing of the production orders and ITOs on the basis that to make the material public will prejudice their right to a fair trial. They argue that the ITOs contain hearsay evidence and highly incriminating, prejudicial and untested statements from witnesses who were employed by SISO. Some of the witnesses were implicated in and benefitted from the wrongdoing. They argue that the case has generated a great deal of public interest and that the release of incriminating untested hearsay allegations could negatively impact on their right to a fair trial by poisoning the jury pool.
[9] Mr. Jafarpour-Davatger and Ms. Burgaz requested that if I grant the Application to unseal the information, I should impose a publication ban prohibiting the publication of the material until the charges against all accused are concluded.
[10] The Crown and Robert Salama took no position on this application and did not file any materials.
ANALYSIS
[11] The threshold issue to be addressed is whether this court has jurisdiction to grant the order requested. My concern on this issue arose because one of the accused, Mr. Jafarpour-Davatger, is now awaiting trial in the Superior Court and the mode of trial for the other two accused is yet to be determined.
[12] During the course of the hearing of this application, I concluded, on the basis of Canadian Broadcasting Corporation v. Giroux et al., [1995] O.J. No. 1612; 23 O.R. (3d) 621, (Ontario Court – Gen. Div.) that I had jurisdiction to make an order to unseal the production orders and ITOs but I had no jurisdiction to grant a publication ban prohibiting the publication of that material. However, on further consideration and closer reading of that case, I am of the view that I have neither the jurisdiction to order a publication ban or terminate the sealing order. The two types of orders are so inextricably intertwined, that they must be considered together by a judge of the court at the level the charges will be tried.
[13] Section 487.3(4) of the Criminal Code deals with applications to terminate or vary orders denying access to information used to obtain a search warrant or production order. It states as follows:
(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.
[14] Mr. Jafarpour-Davatger is now awaiting trial in the Superior Court. An application to terminate the sealing order must be made to a judge of the Superior Court as that is the court before which Mr. Jafarpour-Davatger's charges are to be tried.
[15] Since the Superior Court has jurisdiction to grant an order unsealing the material in relation to Mr. Jafarpour-Davatger, does the Ontario Court of Justice have concurrent jurisdiction since the other two accused are still before the Ontario Court of Justice?
[16] In Canadian Broadcasting Corp. v. Dagenais, [1994] 3 S.C.R. 835, 34 C.R. (4th) 269, and R. v. S. (T.), [1994] 3 S.C.R. 952, 34 C.R. (4th) 351, Chief Justice Lamer, stated at p. 857 S.C.R. and p. 283-84 C.R.:
To seek a ban under a judge's common law or legislated discretionary authority, the Crown and/or the accused should ask for a ban pursuant to that authority. This request should be made to the trial judge (if one has been appointed) or to a judge in the court at the level the case will be heard (if the level of court can be established definitively by reference to statutory provisions such as ss. 468, 469, 553, 555, 798 of the Criminal Code, R.S.C. 1985, c. Y-1). If the level of court has not been established and cannot be established definitively by reference to statutory provisions, then the request should be made to a Superior Court judge (i.e., it should be made to the highest court that could hear the case, in order to avoid later having a Superior Court judge bound by an order made by a Provincial Court judge). To seek or challenge a ban on appeal, the Crown and the accused should follow the regular avenues of appeal available to them through the Criminal Code (Parts XXXI and XXVI).
[17] In CBC v. Giroux, supra, Justice McRea stated that the Ontario Court of Justice had proper authority to set aside a sealing order and referred to RBC Dominion Securities Inc. v. Horne [1995] O.J. No. 145, Ontario Court (General Division) as precedent for this proposition. RBC Dominion Securities v. Horne dealt with the jurisdiction of the Ontario Court (General Division), now known as the Ontario Superior Court, to set aside an order made by a Justice of that court. It did not deal with orders made by a Provincial Court judge or a Justice of the Peace during the course of criminal proceedings.
[18] In CBC v. Giroux, supra Justice McRae went on to recognize that while a Provincial Court judge has inherent jurisdiction to control its own process, including sealing court files, in some circumstances the making of such an order is so inextricably intertwined with orders prohibiting the publication of court files, that the two should be viewed as a single order.
[19] I recognize that the application before me is not for an order sealing a court file as was the case in CBC v. Giroux, supra. This is an application to unseal materials filed in support of a search warrant. If I do not grant the order, the public will continue to be barred from having access to the production orders, the ITOs and any related documents. If I make the order, the Applicant will be free to publish the unsealed material, unless the accused or the Crown obtains an order from the Superior Court to ban its publication. Either way, my ruling will have a direct impact on the interests of Mr. Jafarpour-Davatger, a party over whom I have no jurisdiction.
[20] I cannot distinguish this scenario from the one outlined by the Supreme Court of Canada in Canadian Broadcasting Corp. v. Dagenais, supra. Any order I make will inevitably bind the Superior Court judge who will ultimately have jurisdiction over Mr. Jafarpour-Davatger and possibly the other two accused whose mode of trial has yet to be determined.
[21] Accordingly, I am not satisfied that I have jurisdiction to grant the order requested and the application is dismissed on that basis, without prejudice to the Hamilton Spectator to bring this application in the Superior Court.
Released: November 22, 2012
Signed: "Justice M. Speyer"