Court File and Parties

Court File No.: Toronto

Date: April 16, 2015

Ontario Court of Justice

In the matter of an Application pursuant to section 487.3(4) of the Criminal Code to vary or terminate two sealing Orders made in relation to search warrants executed on the home of the Applicants

Before: Justice H. Borenstein

Heard on: February 4, 2015

Reasons released on: April 16, 2015

Counsel:

• Mr. Jeff Carolin for the Applicants Nathan and Rosaline Duru-Obisi
• Mr. David Boulet for the Attorney General for Ontario
• Mr. Chris De Sa for the Public Prosecution Service of Canada

BORENSTEIN J.:

Overview

[1] This is an Application brought by Nathan and Rosaline Duru-Obisi pursuant to 487(3)(4) of the Criminal Code to vary or terminate two sealing Orders made in relation to two search warrants issued for their home, one in 2013 and the other in 2014.

[2] Nathan and Rosaline Duru Obisi live in their home with their son Michael. In August of 2013 and again in September of 2014, the Toronto Police Service ("TPS") obtained and executed search warrants upon their home. The police seized nothing and laid no charges. Both Informations to Obtain in support of the warrants ("I.T.O.") were ordered sealed by the issuing Justice at the time the warrants were issued.

[3] During the first search, the Applicants allege that damage was done to their home and that Nathan Duru-Obisi was injured and taken to the hospital. The Applicants submits that Nathan was detained at home and at the hospital for six hours without knowing why the police were searching his home.

[4] During the second search, no injuries or damage occurred. Again, nothing was seized and no charges were laid.

[5] The Applicants want to know why their home was searched and why, in their words, they have been the focus of such intense police scrutiny. They have brought these Applications to vary or terminate the sealing Orders so that they can get complete access to the ITOs in order to hold the police or others accountable for what they allege are serious infringements of their rights. They submit that their right to security of the person, liberty, to be free from unreasonable search and seizure and arbitrary detention as well as Mr. Duru-Obisi's right to be promptly informed of the reasons for his detention and the right to counsel are all engaged in this case.

[6] As a preliminary response to this Application, the sealing Orders were varied on consent to enable the Crown to edit the ITO's. The Applicants have been given redacted copies of the two ITO's. The redacted ITO in relation to the first search reveals that the police believed that two persons were dealing guns and drugs and were stashing the contraband at the Duru-Obisi home through their connection to Michael Duru-Obisi. The second ITO reveals that the police believed that Michael was in possession of guns at his home.

[7] The Crown has advised that one or more confidential informants provided information leading to the search warrants and the only redactions made were made to redact information that might tend to identify the confidential informant or informants.

[8] The Applicants accept that confidential informants provided information and do not suggest that the Crown edited the ITO's in bad faith. However, the Applicants submit that, in light of the open court principle, they should be entitled to as much information as can possibly be given without compromising the identity of the confidential informant or informants and that neither they nor the Court should have to rely on the Crown's assertion that all redactions are proper and appropriate. The Applicants continue this Application as they believe the redactions are too extensive. At a minimum, they want the Court to exercise what they submit is its jurisdiction to ensure that the redactions are not overbroad.

[9] Further, the Applicants filed an affidavit suggesting that some of the facts asserted to in the ITO were plainly wrong though I fail to see how that fact is relevant on this Application where the only issue before me is whether to vary or terminate the sealing Orders.

Positions of the Parties

Applicants' Position

[10] The Applicants submit that there is a presumption that, once the search warrants have been executed, the warrants and entire I.T.O.s are presumptively accessible to them. The Applicants further submit that the Crown bears the onus of rebutting that presumption if it seeks to maintain the sealing Orders with respect to all or part of the I.T.O.'s. Moreover, they submit that the continuation of the sealing Orders after execution without fewer redactions or judicial summaries of the redacted information would have deleterious effects on the rights and interests of the applicants that outweigh the salutary effects of continuing the Orders.

[11] Irrespective of the onus, the Applicants seek relief in the form of answers to the following questions:

1. Are the redactions overbroad.

To that end, they ask the Court to draw on what they submit is its statutory power to require the Crown to produce un-redacted versions of the I.T.O.s for the Court to then determine if the redactions are overbroad.

2. If the redactions are not overbroad are there other reasonable alternatives available to convey more information to the Applicants that would vindicating the open court principle and still protect the confidential informant(s) such as judicial summaries of the redacted information.

3. Is there any basis to continue the sealing Orders indefinitely

[12] The Applicants also want the Crown to answer a series of questions and provide source documents such as police memo books and other materials. The Applicants submit that these questions and documents are an attempt to vindicate the open court principle while still respecting the need to protect the identity of any informants. While these questions and documents would undoubtedly convey more information to the Applicants and is consistent with the open court principle, it is fair to characterize these requests as akin to seeking full disclosure in a criminal case and subjecting the Crown to an examination for discovery in the context of an application to vary or terminate the sealing Orders.

[13] The Attorney General of Ontario and the Public Prosecution Service of Canada both responded to this Application. Their positions are generally similar though there are some differences.

Crown's Position

[14] The Provincial Crown submits that the I.T.O.'s are not presumptively public. Their concerned is that, if the I.T.O.'s were presumptively public, the clerk of the court would have to turn them over to any member of the public upon request. However, this concern conflates public access with accessible for these purposes.

[15] The Crown concedes that the Applicants are "interested parties" as referred to in the case law. As such, they have a right to know why their home was searched and whether the search was lawful in order to assess any potential remedies they may have. According to the Provincial Crown, that is all they have a right to know at this stage given the absence of any legal proceeding such as a criminal charge or civil lawsuit. The Crown submits that this is an appropriate and principled basis to resolve this Application. To that end, they submit that the Applicants have been given appropriately edited copies of the two I.T.O.'s. They know why their home was searched. They know it was pursuant to presumptively valid search warrants and they know the essence of what the police believed in order to obtain those warrants. They also know that the police relied on information from one or more confidential informants. The Provincial Crown submits that the I.T.O.'s, as redacted, are sufficient to demonstrate that lawful grounds existed for issuance of the warrants in accordance with the Debot standards of review. Moreover, they note that this Application is not the forum to challenge the search warrants. The Applicants do not enjoy the rights of an accused in a criminal trial as there is no fair trial or liberty interest at stake in these proceedings. Should the Applicants pursue other remedies such as a lawsuit, they will have access to whatever materials they need in accordance with the rules in relation to those proceedings.

[16] While the Provincial Crown initially asserted that the Applicants were entitled to only enough information to answer the questions why their home searched and whether the search was lawful, as the argument unfolded, they agreed that, in principle, the Applicants as occupiers of the residence searched, should have all the information in the I.T.O. other than what would tend to identify the confidential informant and that this Application may come down to assessing whether the redactions were proper. They Provincial Crown was not concerned with the court reviewing the un-redacted I.T.O. but was concerned that the I.T.O. not be held to presumptively available to the public.

The Federal Crown

[17] The Federal Crown submits that the sealing Orders are presumptively valid. There is no presumption of public access to the I.T.O. While not seeking to press the point or have the Court rule on the issue, the Federal Crown submitted that the redacted I.T.O.'s given to the Applicants were given as a courtesy. The Federal Crown submits that there ought not be any review of the edits absent some basis to believe that the edits were overbroad or improper. The Federal Crown points out that, even in a step 6 procedure in Garofoli, where an individual's liberty is in jeopardy, the Court requires a basis before reviewing the edits of an I.T.O. Accordingly, absent any basis to believe that the Crown edits were improper, and given the Applicants' limited interests in this case as they are not facing any legal proceedings, and given the risks involved of revealing information that might tend to identify a confidential informant, the Court should not engage in any review of the edits. The Applicants are merely fishing. They have a right to information for the purpose of being able to assess their legal position and they have that information. The Crown submits that the Applicants are not really reviewing the sealing Orders but are either seeking to challenge the warrant or to obtain discovery for a potential civil action, both of which are beyond the scope of this Court's jurisdiction pursuant to section 487.3(4) or its inherent jurisdiction to control its own processes and records.

[18] In reply, the Applicants submit that the Crowns' position shifts the onus with respect to access to the I.T.O. Moreover, the Applicants and the Court ought not to have to rely on the Crown that the edited material is appropriate and relates only and narrowly to confidential informants. While not impugning the Crown, the Applicants submit that, given the absence of any charges and therefore the absence of any need for the Crown to eventually rely on the redacted I.T.O. in a judicial proceeding to support the search warrant, there is less of an incentive to edit the I.T.O. as narrowly as possible. Finally, the Applicants submit that, what the Crown calls a fishing expedition, the Applicants call essential civil liberties.

Findings

Governing Authority

[19] The governing authority is section 487.3 of the Criminal Code which provides:

Order denying access to information

487.3 (1) On application made at the time an application is made for a warrant under this or any other Act of Parliament, an order under any of sections 487.013 to 487.018 or an authorization under section 529 or 529.4, or at a later time, a justice, a judge of a superior court of criminal jurisdiction or a judge of the Court of Quebec may make an order prohibiting access to, and the disclosure of, any information relating to the warrant, order or authorization on the ground that

(a) the ends of justice would be subverted by the disclosure for one of the reasons referred to in subsection (2) or the information might be used for an improper purpose; and

(b) the reason referred to in paragraph (a) outweighs in importance the access to the information.

(2) For the purposes of paragraph (1)(a), an order may be made under subsection (1) on the ground that the ends of justice would be subverted by the disclosure

(a) if disclosure of the information would

(i) compromise the identity of a confidential informant,

(ii) compromise the nature and extent of an ongoing investigation,

(iii) endanger a person engaged in particular intelligence-gathering techniques and thereby prejudice future investigations in which similar techniques would be used, or

(iv) prejudice the interests of an innocent person; and

(b) for any other sufficient reason.

(3) Where an order is made under subsection (1), all documents relating to the application shall, subject to any terms and conditions that the justice or judge considers desirable in the circumstances, including, without limiting the generality of the foregoing, any term or condition concerning the duration of the prohibition, partial disclosure of a document, deletion of any information or the occurrence of a condition, be placed in a packet and sealed by the justice or judge immediately on determination of the application, and that packet shall be kept in the custody of the court in a place to which the public has no access or in any other place that the justice or judge may authorize and shall not be dealt with except in accordance with the terms and conditions specified in the order or as varied under subsection (4).

Application for variance of order

(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.

Presumptions

[20] In my view, both I.T.O.s in their entirety are presumptively accessible to the Applicants unless the Crown can justify continuing part or all of the sealing Orders. Given the existence of valid sealing Orders, there is no risk that the clerk of the court would hand over the I.T.O.s to members of the public including the Applicants without a Court Order. Accordingly, the procedure the Applicants must undertake to obtain the I.T.O. is the procedure they have undertaken; namely, an application pursuant to section 487.3(4).

[21] The Provincial Crown's position that the I.T.O. is presumptively public only once the warrant has been executed and items seized is based on Justice Dickson's comments in A.G. (Nova Scotia) v. MacIntyre, 1982 1 SCR 175 where he draws a distinction between searches where items are seized and not and finds that, where items are not seized, the warrant and ITO are not presumptively public.

[22] There are two problems with the Crown's position. First, the Applicants are seeking access to the I.T.O. in their capacity as the occupiers of the home that was searched. They are not seeking that the I.T.O. be presumptively public. The Crown's opposition conflates the Applicants request for access with public accessibility. Second, Justice Dickson was concerned with avoiding the potential public embarrassment to those whose premises are searched where nothing is found. He was not seeking to limit an occupier's right to the information upon which his or her home was searched.

[23] In MacIntyre, Justice Dickson held:

Many search warrants are issued and executed, and nothing is found. In these circumstances, does the interest served by giving access to the public outweigh that served in protecting those persons whose premises have been searched and nothing has been found? Must they endure the stigmatization to name and reputation which would follow publication of the search? Protection of the innocent from unnecessary harm is a valid and important policy consideration. In my view that consideration overrides the public access interest in those cases where a search is made and nothing is found. The public right to know must yield to the protection of the innocent. If the warrant is executed and something is seized, other considerations come to bear.

[24] Moreover, MacIntyre was decided prior to Charter. Since the Charter, the open court principle has been infused with even more force. In decisions subsequent to MacIntyre, the Supreme Court of Canada and the Ontario Court of Appeal have repeatedly held that, once a search warrant has been executed, the warrant and I.T.O. are presumptively public. They no longer speak of the requirement that property be seized. For example, see Justice Fish in Toronto Star Newspapers Ltd. v. Ontario, 2005 SCC 41, [2005] 2 SCR 188 at para 18 where the Court held:

Once a search warrant is executed, the warrant and the information upon which it is issued can be made available to the public unless a party seeking a sealing order can demonstrate that public access would subvert the ends of justice.

[25] The Ontario Court of Appeal in R. v. CBC, 2008 ONCA 397, 231 CCC (3d) 394 at para 53 held:

[O]nce 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 the disclosure of the information.

[26] Accordingly, while there exists valid reason to seal a search warrant and I.T.O. prior to execution, that rationale evaporates once the warrant has been executed subject to necessary redactions or sealing Orders as prescribed by section 487.3 in the context of the test in Dagenais/Mentuck test. Apart from those restrictions in that context, the rationale prohibiting public access following execution where nothing is seized does not apply and certainly does not apply to the occupier of the residence searched.

[27] Moreover, there is no principled reason why the occupier of a home searched should have less access to the information than the media would have had items been seized.

[28] Accordingly, the I.T.O.s in their entirety in this case are accessible to the Applicants subject to the Crown satisfying the court that the continued sealing or redaction of any part is justified. The onus is upon the Crown. This is consistent with the open court principle. Further, in this regard, I refer to the decision of Justice Nordheimer in R. v. CBC, 2013 ONSC 6983, [2013] O.J. 5178 where search warrants were granted in a criminal case and the related ITO's were sealed by the issuing justice. The media litigants brought an application pursuant to s. 487.3.(4) to unseal the I.T.O. In response, like here, the Crown provided an edited version of the I.T.O. The redactions were divided into four categories. One of the categories related to information that might tend to identify confidential informants. The Applicants took no issue with those edits but did take issue with edits in other categories. Justice Nordheimer was left to review the edits to determine if they were proper. At paragraph 17, he held that "the Crown bears the onus of having to satisfy the court that the existing sealing Order should be maintained. The presumption is that, once a search warrant has been executed, the search warrant is to be made accessible to the public.

[29] While not necessary to decide in this case, in light of the case law referred to, it is my view that the I.T.O is also presumptively public even where nothing has been seized subject to the existence of a valid sealing Order.

Is a Sealing Order Necessary and, if so, What is Its Scope?

[30] The Supreme Court of Canada and the Court of Appeal have held that the issuance of sealing Orders must be in accordance with s. 487(3) and the Dagenais Mentuck test.

[31] Section 487(3) prescribes that a sealing Order may be granted where the ends of justice would be subverted for one of the reasons mentioned in (2) and the salutary effects of the Order outweigh the deleterious ones. The only relevant ground in (2) is that the information might tend to identify confidential informants.

[32] The Dagenais/Mentuck test provides that such orders may only be made where two conditions are satisfied:

Part 1 – the Order is necessary to prevent a serious risk to administration of justice as reasonable alternatives will not prevent the risk; and

Part 2 – the salutary effects of the Order outweigh the deleterious effects on the rights and interests of parties and public including right to free expression and fair and public trial and effect on administration of justice.

[33] In Ottawa Citizens Group v AG Canada (05- Ont CA), the Court of Appeal held that the justice who issued a sealing Order and the reviewing Justice both erred in granting and upholding a sealing Order without any consideration given to the second element of the first part of the Dagenais/Mentuck test, namely, whether there were reasonable alternatives to the sealing Order that would prevent the risk in question. The Court noted that the presumption against secrecy applies to sealing Orders and reasonable alternatives need to be considered.

[34] In this case, the only ground asserted for redaction is that the redacted information might tend to identify the confidential informant. In light of the presumption of openness, the restrictive nature of sealing Orders and the valid basis to seal information that might tend to identify confidential informant(s), the Applicants are entitled to all information other than information that might tend to identify any confidential informants. I see no principled reason to adopt a different standard whereby the Applicants would only receive information to enable them to assess their legal position. The I.T.O is presumptively accessible to them. They should get everything other than what is justifiably sealed. In this case, that means they should get everything other than what might tend to identify any confidential informants.

[35] With that in mind, if the redactions relate solely to information that might tend to identify the confidential informant, it meets the criteria in section 487.3 and the Dagenais/Mentuck test and those parts of the ITO will be sealed.

[36] In light of the risks that any information, even apparently innocuous information, might tend to identify a confidential informant, I do not propose to provide summaries of the redacted information except in the most general form where possible. Nor will I order the Crown to answer the questions posed by the Applicants or to provide the source documents they seek. I do not believe that any alternatives are reasonably available in light of the real risks of revealing information that might tend to identify the confidential informants. Further, I see no basis to time limit that Order. The risks that justify the Order do not disappear with time.

[37] However, given the absence of any reasonable alternatives, it makes it all the more important that the Court supervise and evaluate the scope of the edits and I propose to do that. The edits should be as narrow as reasonably possible. I recognize the difficulty the Court is in in evaluating those edits. Nonetheless, that is a necessary step. Therefore, I order the Crown to produce to the Court a sealed, un-redacted copy of the two ITO's for review together with a copy of the redacted ITO's.

[38] In my view, there is and needs to be a supervisory role of the Court to ensure that the redactions are not overbroad.

[39] Returning to the questions posed at the outset by the Applicants, the Court will draw upon its statutory authority to review the edits to determine if they are overbroad. If they are not overbroad, the Court will not provide judicial summaries of the redacted information other than its most generic form where possible. Finally, there is no basis to time limit the sealing Order.

Signed: Justice H. Borenstein

[i] Dagenais v. CBC, 1994 3 SCR 835; R. v. Mentuck, 2001 SCC 76, 2001 3 SCR 442