Court Information

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

Before: Justice P. Downes

Heard: September 20, 2013

Reasons for Judgment Released: September 23, 2013

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: Jeffrey A. Levy

For the Accused Brett Kersey: Ashley Audet

For the Accused Abdullahi Harun: Anthony Bryant

For the Accused Daoud Hussein: Ariel Herscovitch

Agent for Edward H. Royle & Associates, Counsel for the Accused Curtis Elliot and Cory Peterson: Franklin Lyons

For the Accused Mohammed Dirie: John Navarette

For the Accused Monir Kasim: Robert Richardson

Agent for Adam Boni, Counsel for the Accused Ayamle Omar and Agent for John Rosen, Counsel for the Accused Brent Abrahams: Daniel Sheppard

DOWNES J.:

1.0 INTRODUCTION

[1] This ruling flows from further proceedings in relation to the unsealing of the May 31, 2013 ITO in Project Traveller. It also addresses the amended application seeking similar relief in relation to sealing orders attached to the judicial authorizations referred to in Appendix B of my September 16, 2013 judgment.

2.0 THE MAY 31 ITO

2.1 Investigative Technique Privilege

[2] The Crown says that portions of paragraph 347 of the May 31 ITO must be redacted because they reveal an investigative technique or operational method, the disclosure of which would result in a serious risk to the proper administration of justice.[1]

[3] I had concerns about the Crown's claim. Because I could see no practical way of hearing submissions on the issue without the contents of the paragraph being disclosed, I heard brief submissions from the Crown in camera: see Toronto Star Newspapers Ltd. v. Canada, 2009 ONCA 59, [2009] O.J. No. 288 (C.A.) at para. 101; affd 2010 SCC 21, [2010] 1 S.C.R. 721.

[4] I continue to have concerns about whether this paragraph should be redacted under s. 487.3. But I need not, indeed probably cannot, decide the issue at this time. The Crown has now advised that, unlike the portions of the ITO redacted on the basis of s. 193 of the Code, paragraph 347 was also redacted from the version of the May 31 ITO disclosed to the accused. The Crown submits that even if I ordered paragraph 347 of the May 31 ITO unsealed, it is then entitled to exercise its discretion to edit the ITO to redact privileged information prior to disclosure to the accused: R. v. Stinchcombe, [1991] 3 S.C.R. 326 at paras. 16 and 20.

[5] The Crown says that its decision to redact privileged information from an unsealed ITO is a disclosure decision reviewable only by the trial judge in the context of either a Stinchcombe or a Garofoli application: R. v. Garofoli, [1990] 2 SCR 1421. I agree.

[6] On a Stinchcombe application the accused seeks relief under s. 24(1) of the Charter for a violation of his or her s. 7 right to make full answer and defence: see R. v. Stinchcombe, supra, at para. 17; R. v. Mills, [1999] 3 S.C.R. 668 at para. 5. I do not have jurisdiction to rule on that issue on this application: R. v. Mills, [1986] 1 S.C.R. 863 at para. 265; R. v. Stinchcombe, supra, at para. 21. Nor of course do I have jurisdiction to rule on a Garofoli application, which is also at root an application for Charter relief before the trial judge.

[7] In light of this, there is no practical purpose in my expressing any view on whether paragraph 347 falls under the investigative technique privilege, and I decline to do so. The unsealing of the May 31 ITO will remain subject to the current redactions made by the Crown, including those in paragraph 347.

2.2 Scope of the Bail Hearing Redactions

[8] The Crown sought direction from the Court on the implementation of paragraphs 69 and 70 of my September 16 judgment. They relate to "those portions of the May 31 ITO that have been tendered by the Crown at a bail hearing."

[9] It is difficult to provide specific direction on what should be "unredacted" from the ITO without knowing what, and in what format, evidence of intercepted communications was tendered by the Crown at the bail hearings for the accused. I will simply say that the Crown should be guided by the terms of s. 193, which restricts disclosure of, "the private communication or any part thereof or the substance, meaning or purport thereof or of any part thereof."

[10] I appreciate that this brings a potentially wide range of material from the bail hearings into play, including excerpts from, and summaries of, intercepts as described by the Crown to the Justice at the bail hearing. I will say more about what flows from that process below.

2.3 The Unsealing Order

[11] As of the conclusion of the hearing before me on September 20, 2013 the May 31 order of Marin J. sealing the ITO has been varied to permit public disclosure of the redacted copy provided to counsel for the applicants by the Crown on August 7, 2013. There is no longer any restriction on public access to it and a copy of that version will be forwarded to the search warrant registry with these reasons.

[12] The order is varied, however, to also include a ban on the publication, broadcast or transmission of the contents of the redacted ITO. I am satisfied that my authority to impose such a condition flows from the direction in Dagenais that a judge should consider all reasonable alternative measures that would prevent a serious risk to the proper administration of justice short of a complete and indefinite sealing order: Dagenais v. Canadian Broadcasting Corp., [1994] 3 S.C.R. 835 at para. 73; Toronto Star Newspapers Ltd. v. Ontario, 2005 SCC 41, [2005] 2 S.C.R. 188.

[13] The publication ban was not sought by either the Crown or, of course, the applicants. It is in place now only because counsel for some of the accused who intervened on this application wish to make submissions on that issue with the benefit of a full opportunity to review the May 31 ITO.[2] Until that happens I am satisfied that there should be a publication ban in place in order to avoid any potential prejudice to the accused's fair trial interests that may result from publication of any details relating to this investigation.

[14] Counsel for the accused also submitted that until the Crown completes its further editing of the ITO to take into account evidence adduced at their bail hearings, they will not know the precise scope of what will be unsealed in the May 31 ITO. It is also unclear as to whether all of the bail hearings were in fact subject to a publication ban. I will make a final ruling on this publication ban after hearing from counsel for the intervener accused on these issues in accordance with the timetable outlined below.

3.0 TIMING & PROCEDURE

3.1 The May 31 ITO

[15] It is not unreasonable for the Crown to assert that the process of editing the May 31 ITO to take into account the bail hearings will take some time to complete. I did not understand counsel for the applicants to disagree with that position. The Crown also says, however, that the applicants can see everything they want to see simply by ordering the transcripts of the bail hearings.[3]

[16] The applicants nonetheless say that the Crown should be ordered to complete this further editing without delay, principally for two reasons: first, any unjustified redaction restricts their ability to see what evidence was before Marin J. when she issued the May 31 warrant. As a result, the legitimate role played by the media in overseeing judicial decision making is diminished; and second, while any order made under s. 517 at the accused's bail hearings would prohibit the applicants from publishing the contents of the bail transcripts, they would not be similarly prohibited from publishing the same evidence if it is contained in the May 31 ITO. The applicants rely for this latter proposition on the circumstances described in R. v. White, 2006 ABCA 65, [2006] A.J. No. 179 (C.A.) at paras. 28 to 38.

[17] I do not intend to impose a firm deadline on the Crown for completing the editing of the May 31 ITO. The transcripts of the bail hearings are available to be ordered, although it is unclear as to how long it will take to have them produced. Without them the Crown cannot reasonably undertake the further editing. Once they are produced, however, the applicants will have all of the information they are able to receive at this stage, only from a different source.

[18] I do not accept that the need to know exactly what was before Marin J. is a sufficient basis for imposing a particular deadline on the Crown. The application before me is largely motivated by the applicants' wish to see as much as the evidence in this investigation as possible for reasons other than simply the public interest in overseeing the judicial decision-making process. In other words, the applicants are interested in what the evidence discloses about alleged criminal activity because of what it may tell them about issues of public safety and civic engagement rather than because they are concerned that these warrants were improperly issued.

[19] This is a perfectly legitimate reason for the media to pursue this application. But if their primary goal is to access as much of the evidence in the possession of the Crown as possible, that goal can be achieved at this stage by reading the transcripts of the bail hearings. It does not require the Crown to devote valuable resources to an editing process in order to respond to this application while the accused wait for the disclosure to which they have at least an equal constitutional entitlement.

[20] Second, I do not accept that the media could simply ignore any publication ban imposed at the bail hearings and publish the exact same evidence because it is contained in the ITOs. It seems absurd that the purpose and intent of an order under s. 517 − to preserve the fair trial rights of the accused − could be so easily and deliberately undermined. If I am wrong, then I would have thought that I would be all but obliged to impose a publication ban under my s. 487.3 jurisdiction with respect to the contents of the ITO so as to ensure that the intent of any order made at the bail hearings was respected.

[21] I will say more about timing in my summary below.

3.2 The Remaining Applications Under s. 487.3(4)

[22] As I have already said, since this application first came before me on July 2, 2013 it has become clear that there were a large number of applications for various judicial authorizations in relation to Project Traveller. The Crown estimates there are thousands of pages of material. The media organizations have filed further applications seeking to have the ITOs in support of these authorizations unsealed.

[23] As indicated in my September 16 ruling, the Crown agrees that the sealing orders should be varied, but says that the ITOs must be redacted on the basis of privilege and s. 193 before they are released to the media or the public. The Crown is entitled, indeed obliged, to undertake that editing. It is an onerous endeavour, but as the Court of Appeal said in R. v. Canadian Broadcasting Corp., [2008] O.J. No. 1966 (C.A.) at para. 53:

Placing the onus on the Crown to perform the burdensome task just described reflects the presumption that once a search warrant has been executed, the warrant and the information upon which it is based must be made available to the public unless it is demonstrated that the ends of justice would be subverted by disclosure of the information. The Crown, as the only party with access to all of the information, is in the best position to perform this task.

[24] That said, I accept that this will not be a quick or necessarily easy task.

[25] The media is entitled to see the unredacted ITOs. But I must not lose sight of the other crucial interests at stake here. At the root of this proceeding are criminal prosecutions. The allegations are extremely serious. This investigation was a large, complex, sensitive and at times dangerous undertaking. The consequences of proceeding with anything less than caution and sensitivity to the content of the ITOs could be disastrous not only for individuals involved but for the administration of justice generally.

[26] I am advised that the individual accused do not yet have full disclosure of the search warrant material. They cannot receive it until the pertinent ITOs are properly and carefully redacted, particularly as they relate to the disclosure of the identity of confidential informants. It is not overstating matters to say that the failure to complete that task with scrupulous care could have catastrophic consequences.

[27] Ensuring that the Charter 11(b) right of an accused to a trial within a reasonable time is not the sole responsibility of the Crown. It is the responsibility of all participants in the criminal justice system to ensure that all reasonable steps are taken to ensure that an accused's s. 11(b) rights are respected: R. v. R.M., [2003] O.J. No. 4240 (C.A.). In my view those responsibilities apply even at this early stage of the proceedings. I simply cannot see how it would be reasonable to require the Crown to do anything that would make its disclosure obligations to the accused anything other than its first priority in these circumstances.

4.0 SUMMARY

[28] Trying to balance the interests of all parties in a reasonable and timely fashion is far from an easy task. Taking into consideration all of the factors described above, I order the following:

1. Under s. 487.03(4) the May 31 ITO, in its current redacted form, is ordered unsealed. A copy of that ITO will be provided to the warrant registry;

2. Incidental to that order, the contents of the May 31, 2013 ITO shall not be published in any document or publicly broadcast or transmitted in any way;

3. Counsel for any of the individual accused are invited to make brief written submissions on whether the ban on publication of the May 31 ITO as currently redacted should continue. Those submissions should be provided to the trial coordinator at this courthouse and served on the Crown and the media applicants by October 11, 2013. Counsel for the applicants and the Crown may provide a response by October 18, 2013. Unless I order otherwise, I will release a further ruling concerning publication of the redacted May 31 ITO shortly thereafter;

4. If they have not been already, all remaining Project Traveller ITOs are ordered unsealed for the limited purpose of being provided to Crown counsel for review and editing. Crown counsel may provide a draft order to me in this regard if it is required;

5. The Crown is ordered to provide redacted copies of those same ITOs along with a chart and any written submissions explaining its reasons for the redactions to counsel for the applicants and the accused, as well as submission on any publication ban no later than 30 days after it fulfills its Stinchcombe disclosure of the ITOs to the accused. Those copies will be provided to counsel for the applicants on the same terms as the redacted May 31 ITO was initially provided as described in my order of July 8, 2013 as amended on August 26, 2013;

6. The Crown will at the same time provide me with the redacted version, but the redacted portions should be marked in a manner that will facilitate any review by me that may be necessary;

7. By the same date, the Crown is ordered to provide counsel for the applicants with a further copy of the May 31 ITO edited to take into account the evidence tendered at bail hearings for the various accused. The Crown should indicate whether there should be an order pursuant to s. 487.3(4) banning publication of those excerpts;

8. Within 21 days of receiving the redacted ITOs from the Crown, counsel for the applicants and any interested accused may provide written submissions on the further unsealing of all ITOs, including the May 31 ITO as edited and what, if any, further order should be made under s. 487.3(4), including any publication ban;

9. The parties should indicated in their written submissions whether they wish to make oral submissions on any issues relating to the unsealing of any of the ITOs. If so, an appearance before me should be arranged through the trial coordinator.

Released: September 23, 2013

Signed: "Justice Downes"

Footnotes

[1] "Investigative technique" or "operational method" privilege is a subset of public interest immunity or public interest privilege: see R. v. Toronto Star Newspapers Ltd., [2005] O.J. No. 5533 (S.C.J.) at para. 14.

[2] Because of the number of accused, not all counsel have seen the redacted ITO.

[3] The Crown has undertaken to provide counsel for the applicants with a list of bail hearings including the date and courtroom that will facilitate their making a request for the transcripts.