IN THE MATTER OF AN APPLICATION BY THE TORONTO POLICE SERVICE FOR THE FURTHER DETENTION OF ITEMS SEIZED AND A SEALING ORDER

Date: 2023-11-29 Superior Court of Justice - Ontario

Before: N.J. Spies

Counsel: Ari Linds, for the Applicant

Heard: November 22, 2023

ENDORSEMENT

[1] This Application was brought without notice on November 20, 2023 by the Toronto Police Service, hereinafter called "the Applicant," for orders pursuant to ss. 487.3 and 490(3) of the Criminal Code of Canada, for the further detention of six electronic devices, five articles of clothing, a firearm magazine and a firearm case, (collectively the "Items Seized"), as particularized in the Affidavit of Officer James Moyer, sworn on November 17, 2023 ("Affidavit"), which were seized during the execution of a s. 487.1 search warrant on November 21, 2022, and December 2, 2022; and for other relief. The Application was heard by me in chambers, on November 22, 2023.

[2] I reviewed the Application Record that was filed under seal with this Court, and in particular the Affidavit and Appendices attached to the Affidavit, and the previous orders made by Justices of the Peace in the Ontario Court of Justice, all made under seal, which confirmed the fact that the Items Seized were reported as a seized item in a s. 489.1 Report to Justice submitted on December 18, 2022 and that all of the Items Seized were subject to the necessary s. 490(2) orders for continued detention, all made under seal by Justices of the Peace in the Ontario Court of Justice. I also received brief submissions from Mr. Linds, counsel for the Applicant, both orally in my chambers and in writing. Mr. Linds also provided a copy of a fifth order made under seal for the continued detention of some of the Items Seized with an expiry of November 21, 2023.

[3] After reviewing the material filed and considering the submissions from Mr. Linds, including the cases files, I was satisfied that this application should be heard summarily without notice and in camera and that an order should be made pursuant to s. 490(3) of the Criminal Code that the Items Seized be subject to further detention in the custody of the Applicant until November 21, 2024.

[4] I was also satisfied that I have jurisdiction to order that the information provided by the Applicant under seal, including the Notice of Application, Affidavit and Appendices, remain under seal pending the conclusion of any charges or trials arising out of this investigation in relation to which the search warrant was obtained, or the conditions of my Order have been varied pursuant to s. 487.3(4) of the Criminal Code.

[5] I advised Mr. Linds that I would provide brief reasons for my decision that would not be under seal. These are those reasons.

[6] After reviewing the Application Record, I was satisfied that pursuant to s. 490(3) of the Criminal Code that given the complex investigation as described by Officer Moyer in his Affidavit, that has been ongoing for a year, that further detention of the Items Seized was warranted for one more year to allow police to complete their investigation and determine the significance of the Items Seized to that investigation.

[7] However, s. 490(3) clearly states that it must be made to a judge of this Court by way of a summary application after giving three clear days’ notice to the person from whom the thing detained was seized. In addition, with respect to the request that the materials filed remain under seal, as they had in the Ontario Court of Justice, s. 487.3(1) of the Criminal Code, which permits the making of an order prohibiting access to and disclosure of any information relating to a warrant on certain grounds, does not expressly refer to applications pursuant to s. 490(3).

[8] Although Mr. Linds had provided some case law in the Application Record, I asked that he attend before me, in my chambers, to address the issue of hearing the application without notice and the sealing of the material. When he attended, he advised me that he was only aware of one other application of this nature brought to this Court but that in that case notice had been given.

[9] With respect to proceeding without notice, Mr. Linds relies on the decision of the British Columbia Supreme Court in Further Detention of Things Seized (Re), 2018 BCSC 2506, [2018] BCJ No 7208, which is a case where the Crown applied for an order pursuant to s. 490(3) of the Criminal Code, extending the period of detention for items that were seized pursuant to a general warrant. Like the case at bar, notice had not been given to the parties who had an interest in the detained items and the Crown asked the application take place in camera because of concerns that notice would jeopardize the ongoing investigation.

[10] Justice Schultes noted that other judges of his court had granted previous applications for extensions in that particular investigation, and in other similar situations, following an in camera hearing and without notice. However, despite granting the applications, some of those judges had expressed reservations about their authority to do so, in light of the express notice requirements of s. 490(3).

[11] Schultes J. accepted the Crown’s argument that a careful examination of s. 490, in the context of the search provisions of the Criminal Code, reveals a gap in the legislation, which will lead to an absurd outcome if it is not supplemented to allow notice to be dispensed with. In essence, when the police are conducting complex and sensitive investigations that exceed the initial permitted periods of detention, of up to one year, they will be forced either to violate the Charter by refusing to seek an extension of the detention period, or to allow the suspects to become aware of the continuing investigative interest in them, which could have serious harmful effects. Crown counsel submitted before him that Parliament cannot have intended such a situation and that by supplementing the gap, courts are doing no more than remedying a serious unintended consequence.

[12] The Crown in that case also argued that the court has inherent jurisdiction to supplement gaps in legislation to prevent an absurdity relying on R. v. Caron, 2011 SCC 5. In that case the Supreme Court of Canada described this Court’s inherent jurisdiction as "a residual source of powers, which the court may draw upon as necessary whenever it is just or equitable to do so "... to enable "the judiciary to uphold, to protect and to fulfil the judicial function of administering justice according to law in a regular, orderly and effective manner" (para. 24). The important qualification of the exercise of this jurisdiction, at para. 32, is that a court must be able to do so without "contravening" any statutory provision.

[13] After considering these arguments Schultes held as follows at para. 11-16:

11 On the face of it, as other judges have pointed out, there is the unambiguous requirement in s. 490(3) of three days' notice to the persons from whom the items were seized. To permit anything else could certainly be characterized as judicial legislation, outside the permitted ambit of inherent jurisdiction.

12 However, when one looks at 490 as a whole, it is clear that the ostensibly complete regime for the management of property seized by the police pursuant to investigations lacks a provision to defer notice in situations such as the present one.

13 As examples of such deferral provisions elsewhere in the Code, materials relating to a search warrant can be sealed pursuant to s. 487.3, notification of a general warrant can be delayed pursuant to s. 487.01 (5.2) (such an order is in place here) and a similar delay of notification is available for targets of an authorization to intercept private communications (s. 196(3)).

14 In contrast, under s. 490 as it stands, investigators who wish to retain seized items face the stark choice described by Crown counsel - between deliberately committing a Charter violation by refusing to comply with the section, and forgoing their ability to complete investigations of serious crimes (or worse, risking the safety of vulnerable participants in those investigations). Regardless of their choice the outcome will be undesirable - a classic example of an absurdity.

15 The point of applying inherent jurisdiction here, therefore, is not to contravene ss. (3), which continues to apply in its existing explicit terms in the vast majority of situations, but rather to supplement the overall structure of the section to allow for deferrals in circumstances that are conceptually quite distinct. Put another way, supplementary authority is required to address a fundamentally different situation, one that the legislation does not envision - a situation where, in addition to the complexity that justifies an extension, notification will jeopardize the investigation and/or endanger the safety of a participant.

16 The significance of this absence of a deferral of notice provision has likely been intensified by the increasing complexity of investigations in recent years, including the investigative techniques that are now being used and the time they take to complete. As a result, we are seeing investigations remaining active for longer periods than might have been contemplated when the regime was put in place. [Emphasis added]

[14] Considering these arguments, Schultes J. found at para. 18 that permitting a deferral of notice in this narrow range of circumstances is a necessary exercise of the court's inherent jurisdiction.

[15] I agree with the reasoning of Schultes J. In the case at bar, there is no evidence that anyone would be in danger should notice be given, but I am satisfied based on the information disclosed that this is a complex and serious investigation and that there are proper reasons for why the police have not yet been able to propose charges or definitively conclude the investigation with no charges.

[16] Turning to the request for a sealing order, Mr. Linds concedes that s. 487.3(1) of the Criminal Code is not specific to this context but notes that it does provide that:

On application made at the time an application is made for a warrant under this … Act of Parliament … or at a later time, …a judge of a superior court of criminal jurisdiction … may make an order prohibiting access to, and the disclosure of any information relating to the warrant, order or authorization on the ground that

a) the ends of justice would be subverted for one of the reasons referred to in subsection (2) or the information might be used for an improper purpose; and

b) the reason referred to in paragraph (a) outweighs in importance the access to information.

[17] Section 487.3(2) sets out the reasons to consider why the ends of justice would be subverted by the disclosure of the information and includes under (a) (ii) compromise the nature and extent of an ongoing investigation; and (b) for any other sufficient reason.

[18] As Mr. Linds submitted, in this case the warrant, report to a justice and the s. 490(1) extension orders have all been previously sealed. He submits that s. 487.3(1) does apply in that this Application deals with “information relating to the warrant, order or authorization” previously granted and an application for a sealing order can be made at a later time after the issuance of the warrant.

[19] I agree that the Application before me deals with information relating to the warrant as that term must be interpreted. Given the conclusion I have come to that this Application can properly proceed without notice, it would be another absurd result if s. 487.3(1) were interpreted narrowly and not permit a sealing order in these circumstances. Obviously, my reasons for proceeding with this Application without notice would be moot because refusing to seal the information before me would likely compromise a serious and complex investigation which was the very reason I decided to proceed without notice.

[20] This interpretation is supported by the reasons set out in s. 487.3 for justifying the sealing of a warrant where “the ends of justice would be subverted by the disclosure” for one of the reasons referred to in subsection (2), which includes as a reason that the disclosure would “compromise the nature and extent of an ongoing investigation” (at 487.3(2) (a)(ii)). In this case I find that this reasons outweighs the importance of access to the information. This reason for sealing a warrant in the first place would be frustrated if in these circumstances s. 490(3) applications were not also sealed in appropriate circumstances.

[21] Mr. Linds also relies on Phillips v. Vancouver, (2004) 2004 BCCA 14, 182 CCC (3d) 483 (BCCA) at paras 20-36, which interprets s. 487.3(4) specifically but also s. 487.3 generally in a case where charges were not laid and there was a question of whether a different jurist than the judge who sealed the materials was being asked to vary the order. I agree that although not on point, the analysis in that case, particularly at paras. 25-27 supports my conclusion that s. 487.3 should not be narrowly construed.

[22] Having concluded that I have jurisdiction to make a sealing order, I have concluded that the Application Record and materials filed before me should be sealed to avoid compromising this ongoing serious and complex investigation being conducted by the Applicant.

SPIES J.

Date: November 29, 2023