Court File and Parties
Court File No.: 6177/12 & 4686/19 Date: 2019-03-28 Superior Court of Justice – Ontario
Re: Janice Campbell and Edward Turasz, plaintiffs And: Regional Municipality of Niagara Police Services Board et al., defendants And: William Brock Campbell, third party
Before: Mr Justice Ramsay
Counsel: Margaret Hoy for the plaintiff Mickey Cruickshank for the defendants Luigi De Lisio for the third party Stephanie Ford for the D.P.P.
Heard: March 27, 2019 at Welland
Endorsement
1The plaintiffs live upstairs in a house in Fort Erie. The third party, their grown son, lives downstairs. The plaintiffs are suing for damages as the result of the execution of a search warrant at their residence. The third party was the target of the investigation. The warrant was issued on February 23, 2011. The search occurred the same day. Discoveries were conducted in 2014. The plaintiff set the action down for trial in 2015. The trial is scheduled to begin on the sittings of April 3, 2019, that is, next week.
2The plaintiff, supported by the third party, moves for an order unsealing the search warrant and for an order requiring the defendant to produce items that were refused on examination for discovery.
3The plaintiffs are saying essentially that the police had no right to search their premises and that they carried out the search with excessive force. The defendants claim indemnity from the third party. The defendants dispute that the third party was a tenant in a separate part of the building.
The motion to compel answers to questions on discovery
4A party who sets down a matter for trial may not continue any form of discovery without leave of the court: Rule 48.04(1) of the Rules of Civil Procedure. I deny leave for the following reasons.
a. There is no explanation for the five-year delay in asking for answers that were refused. b. Apart from refusals that have since been answered, the questions require disclosure of the facts that had been placed before the justice who issued and then sealed the warrant. Answering the questions would contravene the sealing order and could identify any confidential informant, even if his name is cut out.
Unsealing the search warrant
5The plaintiffs, supported by the third party, apply under s.487.3 of the Criminal Code for an order terminating the sealing order. Section 487.3 provides that a justice who issues a search warrant may make an order prohibiting access to any information relating to the warrant. It then provides as follows:
487.3 (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.
6The application, then, is not properly brought here. It must be brought to the justice who made the order or another justice or a judge of “the court before which any proceedings arising out of the investigation may be held.” The present action is not a proceeding arising out of the investigation.
7The application to unseal the warrant is quashed.
8The parties may make submissions in writing as to costs, not exceeding three pages in length, to which a bill of costs and an offer to settle may be appended, the defendants by April 1 next, the plaintiffs by April 5. I do not contemplate any order for costs being made or sought by or against the third party.
J.A. Ramsay J.
Date: 2019-03-28