Court Information and Parties

Ontario Court of Justice

In the Matter of: An application for an order terminating or varying the order of Justice S.E. Marin dated May 31, 2013 sealing documents relating to search warrants and any related orders executed at various locations and addresses in the City of Toronto between May 31, 2013 and June 14, 2013.

Applicants:

• Toronto Star Newspapers Limited
• The Globe and Mail Inc.
• CTV, a Division of Bell Media Inc.
• Canadian Broadcasting Corporation
• Shaw Television Limited Partnership
• Postmedia Network Inc.
• Sun Media Corporation
• Canadian Press Enterprises Inc.

Respondent: Her Majesty the Queen in Right of Ontario

Counsel

For the Applicant Toronto Star Newspapers Ltd.: Ryder Gilliland

For the Applicants The Globe And Mail Inc., CTV, a Division of Bell Media Inc., Canadian Broadcasting Corporation, Shaw Television Limited Partnership, Postmedia Network Inc., Sun Media Corporation And Canadian Press Enterprises Inc.: Peter Jacobsen

For the Crown: G. Paul Renwick and Jeffrey A. Levy

Before

P. Downes, J.

Decision

Background

[1] The applicant media organizations seek an order terminating or varying the sealing order of Justice Marin made on May 31 2013 in relation to search warrants executed at various locations by the Toronto Police Service between May 31 and June 14 2013.[^1]

[2] The applicant Toronto Star Newspapers Ltd. filed its application on June 17, 2013. The other applicants joined in by way of Notice of Application dated June 26, 2013.

[3] On June 17 counsel for the Toronto Star and Crown counsel appeared before my colleague Justice Marin.[^2] While the transcript of that appearance was not before me, I understand that on that date Crown counsel advised the Court that the Crown would require some six months in order to respond substantively to the application. The matter was adjourned to today's date for the Crown to advise the Court of its position with respect to this application.

Crown's Position

[4] On June 27 Crown counsel filed a written response which included an affidavit sworn by Detective Gavin Horner, one of the lead investigators on the project to which this application relates. The heart of that affidavit simply relates the Crown's position as provided to Det. Horner by Crown counsel who appeared on this application, which in turn boils down to the assertion that while the Crown is not opposed to the unsealing of the Information to Obtain per se, such disclosure can only be made once the affidavit material has been properly vetted to redact portions which could reveal confidential or privileged information, the disclosure of which would be unlawful.

[5] Detective Horner goes on to say that in the Crown's view, proper editing of the May 31 ITO can only be undertaken while taking into account the need to also edit other documents which form part of this investigation, including other Informations to Obtain and affidavits in support of Part VI authorizations.

[6] In the final analysis the Crown advances two responses to this application. First, any final determination of what should be publicly disclosed must take into account the position of the various accused individuals who were arrested at the time the warrants in issue were executed. To date they have not been put on formal notice of this application. As I understand their position, the applicants do not strenuously oppose the Crown's submission in that regard, and agree that the accused individuals could be advised of it on or before the next appearance in this Court in response to the charges against them, which is on July 11, 2013, but take issue with the Crown's position that the accused's fair trial and privacy rights are engaged at the first stage of this proceeding.

[7] Second, the Crown submits, as it puts it in its written submissions, "that this application be adjourned for a period of a minimum of six months at which time, the Crown will be able to report to the Court, its progress in the vetting process, hopefully with an anticipated date upon which disclosure of the vetted document will be expected to be made to the accused, and after which time it will be appropriate to determine the merits of this application."

Applicants' Position

[8] The applicants submit that the Crown's position is unreasonable and is contrary to the well-established open court principle which has gained the firm constitutional protection of s. 2(b) of the Charter: see Toronto Star Newspapers Ltd. v. Ontario, 2005 SCC 41, at para. 29.

[9] The applicants readily concede that the Crown is entitled, indeed obliged, to edit the May 31 ITO in order to protect the identity of any confidential informants or to avoid any unlawful disclosure of Part VI authorizations. They submit, however, that the Crown's position that it requires a minimum of six months to simply report to the Court its progress in the vetting process is unwarranted on the record before me and fails to have proper regard for the principle that, "once a search warrant is executed, the warrant and the information upon which it is issued must be made available to the public unless an applicant seeking a sealing order can demonstrate that public access would subvert the ends of justice": Toronto Star Newspapers Ltd. v. Ontario, supra, at para. 18; Attorney General of Nova Scotia v. MacIntyre.

[10] The applicants also submit that the Crown's position was already at least implicitly rejected by Justice Marin on June 17 when it advised the Court it needed at least six months to respond to the application. In effect, they submit, principles of judicial comity should come into play in my assessment of the Crown's position.

[11] In sum, the applicants submit that I should order the Crown to provide a redacted version of the May 31 ITO along with a summary of the Crown's position on the reasons for each redaction by July 11, 2013. That redacted ITO would be provided on a "counsel only" basis until such time as either the parties are agreed on the redactions or this Court rules on any redactions that are challenged by the applicants. Since the Crown acknowledges that any redactions made for disclosure purposes would necessarily be made for the purposes of provision of the May 31 ITO to the media, any hearing to determine the appropriate scope of the redactions could then be conducted with the benefit of submissions from counsel for the accused parties, should they wish to be heard.

[12] At bottom, what is before me is an application by the Crown to adjourn any further proceedings on this application for at least six months, in response to which the applicants say that any such delay in providing at least an initial vetted version of the May 31 ITO should be delayed for not longer than a further nine days.

Court's Analysis

[13] In my view the Crown's position is unjustified and unreasonable. The Crown advised that the May 31 ITO, which is the document in issue, is approximately 205 pages in length. While I accept that evidence contained in that document may be connected to evidence found elsewhere in court documents related to this investigation, I do not accept that it could or should take in excess of six months for the Crown to properly vet that document. I say that for the following reasons:

(1) The Crown should have been well aware at the time the May 31 ITO was sworn that it may well become the subject of an application of this nature;[^3]

(2) The Crown at this stage is simply being asked to undertake an initial vetting and redaction. It may choose to err on the side of caution if necessary, and any final disclosure to the public would not be made until so ordered after a full hearing;

(3) I am not persuaded on the evidence before me that proper editing of the single 205-page May 31 ITO would take six to nine months of Crown time to accomplish;

(4) The Crown's position is not compatible with the presumption that judicial proceedings are open and public. Justice delayed can in some circumstances mean that justice is denied. This may be one of those instances;

(5) The warrants in issue have been executed, thus enhancing the presumption of openness: Toronto Star Newspapers Ltd. v. Ontario, supra, at para. 21. It is the Crown's onus to establish that its objection to disclosure and, in my view, any conditions associated with continued delay in disclosure, are reasonable;

(6) It is a factor, although not a critical one, that Justice Marin set today's date in response to her apparent disapproval of the Crown's position before her on June 17. While the Crown has provided some further material in support of that position, in my view it is insufficient to justify a departure from the view seemingly taken by my colleague on the previous date;

(7) The time required by the Crown does not start today. In my view the Crown was put on formal notice of this application on June 17. That is the date on which the clock should start ticking with respect to the time required to respond to the application.

[14] Having determined that the Crown's proposed timeline is unreasonable, I am faced with the challenging exercise of determining exactly what is a reasonable amount of time for the Crown to provide a redacted copy of the May 31 ITO.

[15] In my view the Crown must be given some leeway to accomplish this task. While the Charter values advanced by the applicants are of undisputed importance, they do at the same time compete with other values associated with the proper administration of justice, such as the need to ensure the protection of privileged information, the need to ensure that other court orders are respected, and the Crown's obligation to make timely disclosure of all relevant evidence to the accused persons. Crown counsel on a prosecution of this nature undoubtedly face many demands on their time, and while openness and access are the default positions, they do not mean, and indeed the applicants do not assert, that disclosure must be immediate.

Court's Order

[16] Having regard to the factors already outlined, and taking into account the record before me, and the important constitutional entitlements of the media, the public, and the accused persons, I order the following:

(1) All accused persons associated with the May 31 ITO are to be notified of this application on or before their next court date, which I understand to be July 11, 2013. Crown counsel Mr. Renwick has offered to facilitate that notification at that court appearance;

(2) Crown counsel will provide a redacted version of the May 31 ITO on a "counsel only" basis[^4] to counsel for the applicants and the accused on or before August 27, 2013. The Crown should prepare a table setting out its position with respect to the redactions in an organized format: see R. v. Canadian Broadcasting Corp., [2008] O.J. No. 1966 para 48 (C.A.);

(3) Crown counsel will at the same time provide me with the redacted version, but the redacted portions should be marked by highlighter to facilitate any review by me that may be necessary: see R. v. Toronto Star Newspapers Ltd., [2005] O.J. No. 5533 at para. 5 (SCJ);

(4) Counsel are to arrange with the Trial Coordinator at 1911 Eglinton Ave. East an attendance before me on this application at the earliest convenient date after August 27 but no later than September 12. If counsel are unable to agree on a date I may be spoken to by way of a telephone conference call for scheduling purposes only, which call can be arranged through the Trial Coordinator;

(5) If any party, including any accused person, wishes to dispute any of the Crown's redactions, written submissions outlining those objections should be filed with the Trial Coordinator's office a minimum of two business days in advance of the return date;

(6) If by August 9 the Crown does not believe it will be able to meet the August 27 deadline, the parties may arrange to have this matter brought before me in open court to be spoken to at which time I would expect the Crown to provide the Court with specific reasons for its position.

Additional Relief Sought

[17] Finally, Mr. Jacobsen on behalf of his clients seeks further relief in the form of "specific information on the number of search warrants (and/or general warrants and/or production orders), their scope, date(s) of issuance, date(s) of any sealing order(s) attached to them and date(s) of execution." Before me, Mr. Jacobsen expressed his clients' frustration at not being able to access material relating to search warrants, including basic information such as the fact of a sealing order from the court offices in which that material may be held.

[18] I am sympathetic to the difficulty faced by the media and the public in obtaining access to court documents that are not the subject of any order restricting access. Where there is no such order, and where a warrant has been executed and material seized, I do not understand why there should be any resistance to providing the material sought by the media: see Attorney General of Nova Scotia v. MacIntyre, supra. But I am not persuaded it is within the scope of my authority on this application to make any blanket order with respect to how court offices should respond to requests from the media or the public for access to court documents. That must be for another day on an appropriate record.

P. Downes, J.

July 2, 2013

Footnotes

[^1]: I will refer to the material sought as the May 31 Information to Obtain, (ITO).

[^2]: While in the normal course Justice Marin would remain seized with this application, because she was unavailable, and given the time-sensitive nature of this issue, the application was put before me for today's date. I will remain seized of any further proceedings in relation to it.

[^3]: Crown counsel in this jurisdiction are required to review any materials submitted to a judge of this court in support of an application for a search warrant: "Ontario Court of Justice Toronto Region Protocol for Obtaining General Warrants, DNA Warrants, Authorizations and Other Similar Orders" May 17, 2005.

[^4]: In other words, counsel may review the document for the purposes of making any submissions on the proper scope of the redactions, but the document may not be published, broadcast or disseminated in any manner without further order of this Court.