ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 15-13227
DATE: 2015/12/10

BETWEEN:

Her Majesty The Queen
Respondent

– and –

Farhan Nur and Mohamed Yusuf
Applicants

Colleen Liggett and Dallas Mack, for the Respondent

Yavar Hameed, for the Applicants

HEARD: December 10, 2015 at Ottawa

decision on applicaton to vary sealing order

LABROSSE J. (ORALLY)

[1] The Applicants move, pursuant to section 487.3(4) of the Criminal Code, to vary the sealing order of the search warrants executed in relation to 246‑1535 Heatherington Road and 1209‑E Ledbury Avenue by the RCMP on or about May 27, 2015 to allow disclosure of the Information to Obtain a Search Warrant (“ITO”) exclusively to the Applicants. Implicit in this request is that the Court would undertake a process of review of the ITOs for the purpose of redacting and determining what information should be removed prior to disclosure and to whom the disclosure would be made. The intent is to allow the Applicants to determine if their rights, pursuant to section 8 of the Canadian Charter or Rights and Freedom, Part 1 of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c. 11 [Charter] – right against unreasonable search and seizure – has been violated and allow them to evaluate the possibility to a remedy under the Charter.

[2] The ITOs in question were dated May 26, 2015 and were prepared by Sean Culligan, a peace officer and member of the RCMP. The search warrants were issued by Justice Alder of the Ontario Court of Justice and an Application was made in August 2015 requesting the continued detention for a period of not more than nine months. As of the hearing of this Application, all seized items had been returned and the Applicants have not been charged. As part of the issuance of the search warrants, orders were made, pursuant to section 487.3 of the Criminal Code, sealing all materials relating to the search warrant applications until further order of a court of competent jurisdiction.

[3] The Applicants’ counsel takes the position that his non‑accused clients have a presumptive right to access the ITOs once the search warrants have been executed and they rely principally on the matters of R. v. Canadian Broadcasting Corporation, 2008 ONCA 397, 31 C.C.C. (3d) 394 (paras. 47‑53) and the matter of Re Duru‑Obisi, 2015 ONCJ 216 [Duru‑Obisi]. They particularly rely on para. 28 of Duru-Obisi, in taking the position that the ITOs are presumptively available to them subject to the Crown having the onus of establishing why post‑execution, search warrant documents should not be made available to the public.

[4] The Applicants have filed no affidavit evidence in support of their position that the search warrants have been unlawfully issued. However, the Applicants rely on the wording of the search warrants on their face and point out the overly broad nature of allowing the RCMP to seize “Any document, date, and/or Internet search history pertaining to Islam…”

[5] The Crown opposes the Application and relies upon the establish jurisprudence stemming from Michaud v. Quebec (Attorney General), 1996 167 (SCC), [1996] 3 S.C.R. 3 [Michaud] where the Supreme Court of Canada deemed that to unseal a wiretap issued under Part VI of the Criminal Code, a non‑accused must make a preliminary showing, which tends to indicate that the initial authorization was obtained in an unlawful manner. The Crown states that the same analogy applies in the present circumstances to vary or terminate a sealing order for a general warrant under section 487.3(4) and they rely on a decision of the British Columbia Supreme Court in R. v. Schmidt, 1996 CarswellBC 2512 [Schmidt].

Analysis

[6] There are clearly two competing interests raised by the parties: the open‑court principle as raised by the Applicants and the need for preserving the secrecy of police investigative techniques and police informers as raised by the Crown.

[7] As set out in Michaud in the case of Part VI of the Criminal Code, the intention of Parliament was to confer on a judge considering the variation or termination of the sealing of a wiretap an unlimited discretion. The same can be said to apply to a judge considering an application under section 487.3(4) of the Criminal Code. The Supreme Court of Canada in Michaud, at para. 39, went on to state that in the case of a wiretap, and I quote: “[a]n interested non‑accused party who seeks access to the packet must demonstrate more than a mere suspicion of police wrongdoing; he or she will normally be compelled to produce some evidence which suggests that the authorization was procured through fraud or wilful non‑disclosure by the police.”

[8] The Supreme Court of Canada in Michaud highlighted at para. 49 that the rights of a non‑accused under section 8 of the Charter to obtain a confidential wiretap document must be weighed against the state’s legitimate interest in protecting the secrecy of its investigations. In Schmidt, the British Columbia Supreme Court went on to note that searches under a general warrant are as crucial an investigative tool as a wiretap. In a wiretap, the Criminal Code automatically seals the information. As for a general warrant under section 487.3, a provincial court judge has determined, after examining the ITO that it should remain confidential for the reasons set out in the sealing order. The provincial court judge also has the jurisdiction to impose limits on the sealing order, pursuant to section 487.3(3) of the Criminal Code. The British Columbia Supreme Court in Schmidt goes on to state that it is unable to distinguish the search warrant context from the wiretap context.

[9] This approach must be contrasted by the approach of the Ontario Court of Justice in Duru‑Obisi. It must be noted that the analysis in Duru‑Obisi relied upon relating the open‑court principle in cases involving the media to those of the non‑accused homeowner who is subject to a warrant and seizure. With respect, I am unable to agree. I note that the Ontario Court of Justice in Duru‑Obisi does not seem to have been presented with the reasoning in Michaud or Schmidt and I decline to apply the same reasoning as Duru-Obisi with the open‑court principle to these non‑accused Applicants. I am not able to conclude that the onus rests on the Crown to establish why the sealing order should be maintained.

[10] I adopt the approach taken by the British Columbia Supreme Court in Schmidt and conclude that before a court will consider varying or terminating a sealing order made under section 487.3, the non‑accused applicant must provide some evidentiary basis to suggest that the authorization for the search was obtained unlawfully. I note that the burden on an applicant should not be high given that the applicant is somewhat hampered by a lack of information. Further, it would, in my view, likely give the application judge reason to open the sealed packet and evaluate the evidence of the applicant against the ITO as a first step (see Michaud at para. 28). The application judge would then establish the procedure for redacting the documentation where required and assess any terms to the release of the documentation.

[11] In the present circumstances, there is no evidence before me on which I could conclude that the relevant search warrants were obtained other than lawfully and it is certainly not readily apparent on their face.

[12] The application is therefore dismissed.

Mr. Justice Marc R. Labrosse

Released: December 10, 2015 (delivered orally)

COURT FILE NO.: 15-13227
DATE: 2015/12/10

ONTARIO
SUPERIOR COURT OF JUSTICE

BETWEEN:

Her Majesty The Queen
Respondent

– and –

Farhan Nur and Mohamed Yusuf
Applicants

DECISION ON APPLIATION TO VARY SEALING ORDER

Labrosse J.

Released: December 10, 2015 (delivered orally)