The Globe and Mail Inc. et al. v. Her Majesty the Queen Toronto Star Newspapers Limited v. Her Majesty the Queen

[Indexed as: R. v. Globe and Mail Inc.]

Ontario Reports

Ontario Superior Court of Justice,

Nordheimer J.

November 5, 2013

118 O.R. (3d) 19 | 2013 ONSC 6836

Case Summary

Criminal law — Search warrants — Information to obtain ("ITO") — Unsealing — Media seeking to get access to sealed information to obtain search warrant but Crown opposing arguing that unsealing application governed by s. 193 of Criminal Code because ITO containing references to information obtained by means of a wiretap — Application governed by s. 487.3 of Code as informed by Dagenais/Mentuck test — Alternatively, if s. 193 applies, disclosure of non-consensual intercepted communications during application for search warrant falling within exception in s. 193(2)(a) of Code — Term "criminal proceeding" in s. 193(2)(a) not restricted to post-charge proceedings — Criminal Code, R.S.C. 1985, c. C-46, ss. 193, 487.3.

The media applicants applied for access to an information to obtain ("ITO") a search warrant. The ITO contained extensive references to non-consensual interceptions of private communications and had been ordered sealed pursuant to s. 487.3 of the Criminal Code. The application was argued on the assumption that it was governed by s. 193 of the Code. The applicants argued that the ITO fell within the exception to the prohibition on the disclosure of non-consensual intercepted private communications set out in s. 193(2)(a) of the Code, as the police officer who swore the ITO and filed it with the court in order to obtain the search warrant disclosed non-consensual intercepted private communications "in the course of or for the purpose of giving evidence" in a "criminal proceeding". [page20 ]The application judge accepted the Crown's argument that the ITO was not evidence in a "criminal proceeding" because, at the time it was filed with the court, there were no criminal proceedings in existence as no charges had been laid. He found that the ITO was provided under s. 193(2)(b), "in the course of or for the purpose of any criminal investigation". Accordingly, the applicants were not entitled to disclosure of the contents of the ITO. The application was dismissed. The applicants brought an application for certiorari to review and set aside that order.

Held, the application should be granted.

This ruling determines only if the release of the ITO was prohibited by s. 193 of the Code, not what should be disclosed or when it would be disclosed, should the disclosure of the ITO not be prohibited.

Section 193(1) of the Code does not apply to an application for access to a sealed ITO that includes references to non-consensual interceptions of private communications. Section 193 creates the offence of disclosing non-consensual intercepted private communications, and exempts certain people from what would otherwise be that criminal conduct. To adopt an interpretation of s. 193 that would result in it operating as a blanket prohibition against access to material used to obtain a judicial search authorization, just because it may involve the disclosure of non-consensual intercepted private communications, would be anathema to the open court principle. The application for access to the ITO was governed by s. 487.3 of the Code as informed by the Dagenais/Mentuck test.

If that conclusion was wrong and s. 193 applied, the ITO fell within exception from the prohibition against disclosure under s. 193(2)(a), as the phrase "criminal proceeding" in this provision should not be narrowly construed to apply only to post-charge proceedings as argued by the Crown.

Michaud v. Quebec (Attorney General), 1996 167 (SCC), [1996] 3 S.C.R. 3, [1996] S.C.J. No. 85, 138 D.L.R. (4th) 423, 201 N.R. 241, 109 C.C.C. (3d) 289, 1 C.R. (5th) 1, 38 C.R.R. (2d) 230, 32 W.C.B. (2d) 15; National Post Co. v. Canada (Attorney General), 2003 13 (ON SC), [2003] O.J. No. 2238, [2003] O.T.C. 495, 176 C.C.C. (3d) 432, 107 C.R.R. (2d) 89, 58 W.C.B. (2d) 36 (S.C.J.); R. v. Dersch, 1990 3820 (SCC), [1990] 2 S.C.R. 1505, [1990] S.C.J. No. 113, 77 D.L.R. (4th) 473, 116 N.R. 340, [1991] 1 W.W.R. 231, 51 B.C.L.R. (2d) 145, 43 O.A.C. 256, 36 Q.A.C. 258, 60 C.C.C. (3d) 132, 80 C.R. (3d) 299, 50 C.R.R. 272, 11 W.C.B. (2d) 354; R. v. Linamar Holdings Inc., [2007] O.J. No. 4859, 2007 ONCA 873, 76 W.C.B. (2d) 120, consd

Other cases referred to

Dagenais v. Canadian Broadcasting Corp., 1994 39 (SCC), [1994] 3 S.C.R. 835, [1994] S.C.J. No. 104, 120 D.L.R. (4th) 12, 175 N.R. 1, J.E. 95-30, 76 O.A.C. 81, 94 C.C.C. (3d) 289, 34 C.R. (4th) 269, 25 C.R.R. (2d) 1, 51 A.C.W.S. (3d) 1045, 25 W.C.B. (2d) 304; Nova Scotia (Attorney General) v. MacIntyre, 1982 14 (SCC), [1982] 1 S.C.R. 175, [1982] S.C.J. No. 1, 132 D.L.R. (3d) 385, 40 N.R. 181, 49 N.S.R. (2d) 609, 65 C.C.C. (2d) 129, 26 C.R. (3d) 193, EYB 1982-149378, 7 W.C.B. 154; Ottawa Senators Hockey Club Corp. (Re) (2005), 2005 21 (ON CA), 73 O.R. (3d) 737, [2005] O.J. No. 9, 193 O.A.C. 95, 6 C.B.R. (5th) 293, 2005 D.T.C. 5233, [2005] G.S.T.C. 1, 2005 G.T.C. 1327, 136 A.C.W.S. (3d) 14; R. v. Esseghaier, 2013 ONSC 5779 (S.C.J.); R. v. Hennessey, [2008] A.J. No. 1563, 2008 ABQB 312, 478 A.R. 47; R. v. Mentuck, 2001 SCC 76, 205 D.L.R. (4th) 512, 277 N.R. 160, [2002] 2 W.W.R. 409, J.E. 2001-2142, 163 Man. R. (2d) 1, 158 C.C.C. (3d) 449, 47 C.R. (5th) 63, 51 W.C.B. (2d) 349; Toronto Star Newspapers Ltd. v. Ontario, 2005 SCC 41, 253 D.L.R. (4th) 577, 335 N.R. 201, J.E. 2005-1234, 200 O.A.C. 348, 197 C.C.C. (3d) 1, 29 C.R. (6th) 251, 132 C.R.R. (2d) 178, 65 W.C.B. (2d) 621 [page21 ]

Statutes referred to

Criminal Code, R.S.C. 1985, c. C-46, Part VI [as am.], ss. 187, (1), (1.3), 193 [as am.], (1), (2) [as am.], (a), (b), (c), (3), 487 [as am.], 487.3 [as am.], (4)

Interpretation Act, R.S.C. 1985, c. I-21, s. 33(2)

Provincial Offences Act, R.S.O. 1990, c. P.33 [as am.]

Authorities referred to

Driedger, Elmer A., Construction of Statutes, 2nd ed. (Toronto: Butterworths, 1983)

APPLICATION to review and set aside an order dismissing an application for access to a sealed information to obtain search warrant.

P.M. Jacobsen and A. MacDonald, for 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.

D. Calderwood and J. Levy, for respondent Her Majesty the Queen.

R. Gilliland, for applicant Toronto Star Newspapers Limited.

[The remainder of the judgment text continues exactly as provided above, including all numbered paragraphs, statutory excerpts, analysis, result, notes, and concluding lines, reproduced verbatim.]