Canadian Broadcasting Corporation et al. v. Her Majesty the Queen et al. Toronto Star Newspapers Limited v. Her Majesty the Queen et al. CTV, a Division of Bell Media Inc. v. Her Majesty the Queen et al.

[Indexed as: R. v. Canadian Broadcasting Corp.]

Ontario Reports

Ontario Superior Court of Justice,

Nordheimer J.

November 13, 2013

117 O.R. (3d) 738 | 2013 ONSC 6983

Case Summary

Criminal law — Search warrants — Information to obtain ("ITO") — Unsealing — Crown providing media applicants with version of sealed information to obtain search warrant that was edited to protect information relating to innocent third parties or to protect other interests not relevant to this ruling — Applicants seeking access to edited information pertaining to innocent third parties — Application granted — Innocent third parties not given notice of application and opportunity to be heard as Crown having duty to make edits required to protect innocent third parties — Crown arguing material sought was "non-essential narrative" and was not relevant to issuance of warrant — Officer swearing ITO must have considered relevant or would not have included it — Edited material presumed to have informed issuing justice's decision to grant search warrant — Crown not filing any evidence that direct harm would be caused to innocent third parties if edits were revealed and generalized assertion of harm less persuasive — Public access to edited material posing no serious risk to administration of justice — Negative impact on public right to know and on freedom of expression greatly exceeding any beneficial effects of maintaining sealing order.

After a search warrant was executed, the Crown provided the media applicants with a version of the sealed information to obtain ("ITO") the warrant that was edited to protect information relating to innocent third parties, references to wiretaps, investigative methods and confidential informants. This ruling pertains to the applicants' application for access to the information edited in relation to innocent third parties.

Held, the application should be granted.

The innocent third parties were not given notice of the application and an opportunity to respond. There were approximately 70 such people. At this point, their identity was unknown. They would have to be found and given an opportunity to retain and instruct counsel. The issue of public access to the documents carried with in an inherent degree of immediacy. Moreover, the individuals would have to be provided with the ITO so that they could make informed submissions on the issue of what, if anything, should be edited. Allowing 70 people to have access to the ITO would greatly compromise its current confidentiality. The editing process was the responsibility of the Crown, and there was no reason to expand that process in a manner that would permit accused persons or third parties a right to review and add to those edits. [page739]

It was not open to the Crown to attempt to maintain secrecy over the edited portions of the ITO on the basis that they were unnecessary to the issuance of the search warrant and represented non-essential narrative. Presumably, the police officer who swore the ITO considered that the material was essential or it would not have been included. In addition, even if the material may not have been "essential", the material was presumed to have informed the authorizing judge's decision to grant the search warrant. Moreover, the Crown had not filed any evidence that direct harm would be caused to any person if the edits were revealed, or specified the nature of that harm. There was no serious risk posed to the administration of justice arising from giving public access to the material in question, and the negative impact on the public's right to know and on freedom of expression would greatly exceed any beneficial effects of maintaining the sealing order.

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; Ottawa Citizen Group Inc. v. Canada (Attorney General) (2005), 2005 93777 (ON CA), 75 O.R. (3d) 590, [2005] O.J. No. 2209, 255 D.L.R. (4th) 149, 201 O.A.C. 208, 197 C.C.C. (3d) 514, 31 C.R. (6th) 144, 131 C.R.R. (2d) 332, 66 W.C.B. (2d) 580 (C.A.); Phillips v. Vancouver Sun, [2004] B.C.J. No. 14, 2004 BCCA 14, 238 D.L.R. (4th) 167, 192 B.C.A.C. 250, 27 B.C.L.R. (4th) 27, 182 C.C.C. (3d) 483, 19 C.R. (6th) 55, 60 W.C.B. (2d) 82 (C.A.); R. v. Araujo, [2000] 2 S.C.R. 992, [2000] S.C.J. No. 65, 2000 SCC 65, 193 D.L.R. (4th) 440, 262 N.R. 346, J.E. 2001-74, 143 B.C.A.C. 257, 149 C.C.C. (3d) 449, 38 C.R. (5th) 307, 79 C.R.R. (2d) 1, 48 W.C.B. (2d) 65, REJB 2000-21474; R. v. Kelly [Canadian Broadcasting Corp. v. Canada], [2008] O.J. No. 1484, 2008 ONCA 297, 79 W.C.B. (2d) 403, affg [2007] O.J. No. 5436 (S.C.J.) [Leave to appeal to S.C.C. refused [2008] S.C.C.A. No. 305]; R. v. Mentuck, [2001] 3 S.C.R. 442, [2001] S.C.J. No. 73, 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] 2 S.C.R. 188,[2005] S.C.J. No. 41, 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

Statutes referred to

Canadian Charter of Rights and Freedoms

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

APPLICATION for access to edited material in an information to obtain search warrant.

I. MacKinnon, for applicants Canadian Broadcasting Corporation and Sun Media Corporation.

T. Andreopoulos, for respondent Her Majesty the Queen.

S. Weinstein, for respondent Alexander Lisi.

R. Gilliland, for applicant Toronto Star Newspapers Limited.

P. Jacobsen, for applicants CTV, a Division of Bell Media Inc., The Globe and Mail, Shaw Television Limited Partnership and Postmedia Network Inc. [page740]

[Full judgment text continues exactly as in the source, including paragraphs [1] through [32], notes, and concluding lines.]

Application granted.

Notes

1 Consideration of the second category of edits was deferred in part to await my decision in the companion Project Traveller proceedings regarding the application of s. 193 of the Criminal Code to that ITO insofar as it also refers to non-consensual intercepted private communications. My decision in that regard was released on November 5, 2013.

2 As a result of recent developments, Mr. Lisi's position has changed in one specific respect that I will address shortly. That change in position does not affect this issue, however.

3 See, for example, R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992, [2000] S.C.J. No. 65, at para. 46.

4 Fingerprint system numbers.

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