ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: M180/12
DATE: 20130301

B E T W E E N:

GHASSAN ATOUT

• and -

HER MAJESTY THE QUEEN

• and -

TORONTO POLICE SERVICE

Paul Genua, for the applicant,
Ghassan Atout

Daniel Guttman, for the respondent,
the Attorney General of Ontario

Marianne Wright, for the respondent,
the Toronto Police Service

HEARD: January 14, 2013

Mr. Justice Kenneth L. Campbell:

I

Overview

1Which public institution is the proper responding party to an application to unseal an information to obtain a search warrant, after the warrant has been executed, where nothing was seized from the premises searched by the police, no criminal charges were subsequently initiated, and the information was sealed in order to protect and preserve the identity of a confidential informant? That is the important issue raised in this matter.

2An order has already been made on this application requiring that the search warrant package be unsealed and a properly redacted copy of the information to obtain the search warrant be provided to the applicant, Ghassan Atout.

3Accordingly, the issue at this point is whether the important work of properly editing the information should be done by agents of the Attorney General of Ontario, or counsel for the Toronto Police Service. Each of these institutions contends that the other is responsible for performing this vital work.

II

Factual Background

4The applicant lives in Toronto with his wife and family. They own a home on Elinor Avenue. He is a Canadian citizen and works as a luxury automobile salesman. While he has a licence to possess restricted firearms, he does not actually own or possess any firearms. He is interested in eventually joining his brother in the hobby of target shooting, but he has not yet purchased a firearm.

5On July 27, 2012 a Justice of the Peace in Toronto issued a warrant authorizing the police to search Mr. Atout’s residential premises for illegal handguns. The warrant was issued on the basis of an information provided by an officer with the Toronto Police Service. At the time the search warrant was authorized, the issuing Justice of the Peace also ordered that the information be sealed. Apparently, this sealing order was made on the basis that public disclosure of the information would reveal the identity of a confidential informant.

6The police executed this search warrant later that same afternoon with the voluntary assistance of the applicant. A team of Toronto Police Service officers thoroughly searched the Atout residence, but found no firearms or contraband of any kind, and eventually left the premises with nothing. Needless to say, there were never any criminal charges instituted against anyone in connection with this search.

7Having their premises thoroughly searched was an unpleasant experience for the entire Atout family. The police appeared at the applicant’s place of business on July 27, 2012 with the search warrant, and he was asked to accompany them home. He was surprised and shocked by their appearance, but he cooperated fully with the police. Customers and the applicant’s fellow employees saw what was happening. When they got to his family residence, the applicant noticed that it was already surrounded by other police officers. His neighbours could not have failed to notice their presence around his home. His wife and three children were inside the residence. As the police executed their search warrant, the Atout family stayed confined together in the living room. The police searched the entire interior of the house as well as the detached garage, a shed and a boat that was on a trailer on the property. Accordingly to the applicant, this was a horrible and humiliating experience. His wife and children were scared, and he felt violated.

8The applicant believes that there could be “no possible basis for the police to reasonably believe” that he was “in possession illegally of any handguns, or any other contraband,” and it is his current intention to “exercise [his] rights fully under the law, and to hold the police, or anyone else, accountable” for the search of his family home that the applicant believes “should never have occurred.” In order to explore what remedies he may have under the law, such as a “civil law suit or some form of complaint,” the applicant wants to learn the basis for the issuance of the search warrant. Accordingly, he has brought an application to unseal the search warrant package, including the information to obtain the search warrant.¹

9On October 22, 2012, Nordheimer J. issued an order, on consent, requiring that the sealed search warrant package be unsealed for purposes of editing the materials contained therein and providing them to the applicant. Unfortunately, the Crown and the police cannot agree as to who is primarily responsible for performing that crucial editing process. As I have indicated, each contends that the other is responsible.

III

The Positions of the Parties

A. The Position of the Crown

10Mr. Guttman, on behalf of the Attorney General of Ontario, advanced the position that the Toronto Police Service is responsible for responding to this application and for vetting the sealed package of materials so as to protect the identity of the confidential informant.

11The Crown fairly concedes that if criminal charges had been instituted as a result of the execution of the search warrant, it would be the Crown’s responsibility to redact the sealed materials to preserve the confidential informer privilege. In such circumstances, the Crown would undoubtedly consult with the investigating police officers and, potentially the confidential informer’s police handler, with respect to the details of the proposed vetting, to ensure that the edited version of the sealed materials did not disclose the identity of the confidential informer. In cases where charges are laid against the accused, the final decision with respect to the appropriate vetting of the sealed search warrant materials is the responsibility of the Crown. Mr. Guttman argued that this is because the Crown is responsible for making disclosure to the accused, and is ultimately responsible for the prosecution against the accused.

12The Crown argued, however, that in cases where no charges result from the execution of the search warrant, the vetting of any sealed materials necessary to protect the identity of the confidential informant is the responsibility of the police, not the Crown. To hold otherwise, he argues, would diminish or ignore the recognized independence of the police from Crown supervision. Furthermore, requiring an agent of the Attorney General to read and vet the sealed materials would needlessly expand the circle of knowledge as to the identity of the confidential informant. In this regard, Mr. Guttman noted that the police can bring sealing applications with respect to search warrant materials without getting any prior legal advice or authorization from the Crown.

B. The Position of the Toronto Police Service

13Ms. Wright, on behalf of the Toronto Police Service, advanced the position that the Crown is responsible for responding to this application, and for vetting the sealed package of materials to protect the identity of the confidential informant.

14Ms. Wright conceded that the police certainly have a role in protecting the identity of confidential informants, and would always provide the necessary practical assistance to the Crown in ensuring that the vetting of search warrant materials achieved the desired balance between disclosure of as much information as possible as to the evidentiary basis for the search warrant, and ensuring that no details are disclosed that would compromise the continued secrecy of the identity of the confidential informant. That said, however, Ms. Wright argued that adopting a principled approach to the confidential informant privilege leads to the conclusion that the Crown is always ultimately responsible for the vetting of sealed search warrant materials, regardless of whether or not the execution of the search warrant leads to criminal charges against an accused.

C. The Position of the Applicant

15Mr. Genua, counsel for the applicant, took no position in relation to this question. While he certainly seeks an appropriately edited copy of the sealed search warrant materials so as to be able to advise his client as to what, if any, legal remedies he may have in relation to the execution of the search warrant at his family home, Mr. Genua cares not whether that vetting of the sealed materials is done by the Crown or the police.

IV

Analysis

A. Introduction

16I have concluded that, as a matter of law, it is the responsibility of the Attorney General to edit the sealed search warrant materials in this case so as to comply with the disclosure order of Nordheimer J., while at the same time properly and fully preserving the confidential informant privilege which protects the identity of the confidential informer.

17The police must do their part to helpfully assist the Crown in this editing process. The police may be invaluable in ensuring that the individual Crown assigned to undertake this responsibility fully understands any and all of the subtle nuances of the factual matrix so as to ensure that no detail is disclosed that would compromise the secrecy of the identity of the confidential informant. It is important to recall that the smallest details may be sufficient to reveal the identity of a confidential informant. Accordingly, it would be wise for the Crown to consult closely with the police to ensure that the edited search warrant materials do not contain factual details that reveal the identity of a confidential informant. But ultimately, it is the responsibility of the Crown to make the final decisions in relation to this editing process.

18Before outlining my specific reasons for reaching this conclusion, it will be useful to first review the main legal principles surrounding the scope and operation of the confidential informant privilege.

V

Conclusion

64An order has already been made on this application requiring that the sealed search warrant package be unsealed and a properly redacted copy of the information to obtain the search warrant be provided to the applicant.

65An order shall now issue declaring that the responsibility for editing that sealed search warrant package, as a matter of law, is that of the Attorney General of Ontario, or his duly assigned agent. Accordingly, the Attorney General of Ontario is the proper respondent in relation to this application by Mr. Atout for access to the sealed search warrant materials.

66This order shall also declare, however, that the Toronto Police Service shall provide whatever assistance is necessary to the Attorney General of Ontario in the completion of this responsibility.

Kenneth L. Campbell J.

Footnotes

1. 1At this point in the proceedings there is no dispute as to my jurisdiction to determine this issue. The two responding parties, namely, the Attorney General of Ontario and the Toronto Police Service, were not entirely ad idem on whether to characterize the application by Mr. Atout as an application under s. 487.3(4) of the Criminal Code, R.S.C. 1985, chap. C‑46, or a prerogative remedy application under s. 774 of the Criminal Code. Regardless, the parties invited me to determine this issue on the basis that there was jurisdiction in the Superior Court of Justice regardless of the specifics of the relief sought by the applicant.