Ipsofactoj.com: International Cases  Part 5 Case 5 [SCC]
SUPREME COURT OF CANADA
- vs -
Toronto Star Newspapers Ltd
29 JUNE 2005
(delivered the judgment of the court)
In any constitutional climate, the administration of justice thrives on exposure to light – and withers under a cloud of secrecy.
That lesson of history is enshrined in the Canadian Charter of Rights and Freedoms. Section 2(b) of the Charter guarantees, in more comprehensive terms, freedom of communication and freedom of expression. These fundamental and closely related freedoms both depend for their vitality on public access to information of public interest. What goes on in the courts ought therefore to be, and manifestly is, of central concern to Canadians.
The freedoms I have mentioned, though fundamental, are by no means absolute. Under certain conditions, public access to confidential or sensitive information related to court proceedings will endanger and not protect the integrity of our system of justice. A temporary shield will in some cases suffice; in others, permanent protection is warranted.
Competing claims related to court proceedings necessarily involve an exercise in judicial discretion. It is now well established that court proceedings are presumptively “open” in Canada. Public access will be barred only when the appropriate court, in the exercise of its discretion, concludes that disclosure would subvert the ends of justice or unduly impair its proper administration.
This criterion has come to be known as the Dagenais/Mentuck test, after the decisions of this Court in which the governing principles were established and refined. The issue in this case is whether that test, developed in the context of publication bans at the time of trial, applies as well at the pre-charge or “investigative stage” of criminal proceedings. More particularly, whether it applies to “sealing orders” concerning search warrants and the informations upon which their issuance was judicially authorized.
The Court of Appeal for Ontario held that it does and the Crown now appeals against that decision.
I would dismiss the appeal. In my view, the Dagenais/Mentuck test applies to all discretionary court orders that limit freedom of expression and freedom of the press in relation to legal proceedings. Any other conclusion appears to me inconsistent with an unbroken line of authority in this Court over the past two decades. And it would tend to undermine the open court principle inextricably incorporated into the core values of s. 2(b) of the Charter.
The Dagenais/Mentuck test, though applicable at every stage of the judicial process, was from the outset meant to be applied in a flexible and contextual manner. A serious risk to the administration of justice at the investigative stage, for example, will often involve considerations that have become irrelevant by the time of trial. On the other hand, the perceived risk may be more difficult to demonstrate in a concrete manner at that early stage. Where a sealing order is at that stage solicited for a brief period only, this factor alone may well invite caution in opting for full and immediate disclosure.
Even then, however, a party seeking to limit public access to legal proceedings must rely on more than a generalized assertion that publicity could compromise investigative efficacy. If such a generalized assertion were sufficient to support a sealing order, the presumption would favour secrecy rather than openness, a plainly unacceptable result.
In this case, the evidence brought by the Crown in support of its application to delay access amounted to a generalized assertion of possible disadvantage to an ongoing investigation. The Court of Appeal accordingly held that the Crown had not discharged its burden. As mentioned earlier, I would not interfere with that finding and I propose, accordingly, that we dismiss the present appeal.
The relevant facts were fully and accurately set out in these terms by Doherty J.A. in the Court of Appeal for Ontario ((2003), 67 O.R. (3d) 577) [paras. 1-6]:
On August 20, 2003, a justice of the peace issued six search warrants for various locations linked to the business of Aylmer Meat Packers Inc. (“Aylmer”). The informations sworn to obtain the warrants were identical. The warrants were obtained under the provisions of the Provincial Offences Act, R.S.O. 1990, c. P.33 and related to alleged violations of provincial legislation regulating the slaughter of cattle. The informations were sworn by Roger Weber, an agricultural investigator with the Ministry of Natural Resources. The warrants were executed on August 21 and 22, 2003.
On about August 26, 2003, the investigation by the Ministry of Natural Resources into the operation of Aylmer became the subject of widespread media reports. The suitability for human consumption of meat slaughtered and processed by Aylmer became a matter of public concern.
On about August 27, 2003, the Ontario Provincial Police commenced a fraud investigation into the business affairs of Aylmer. The officers involved in that investigation were advised that Inspector Weber had applied for and obtained the search warrants described above.
On September 2, 2003, the Crown brought an ex parte application in open court in the Ontario Court of Justice for an order sealing the search warrants, the informations used to obtain the warrants and related documents. The Crown claimed that public disclosure of the material could identify a confidential informant and could interfere with the ongoing criminal investigation.
Justice Livingstone made an order directing that the warrants and informations were to be sealed along with the affidavit of Detective Sergeant Andre Clelland, dated August 30, 2003 filed in support of the application for a sealing order and a letter, dated September 2, 2003, from Roger Weber indicating that the Ministry of Natural Resources took no objection to the application. The sealing order was to expire December 2, 2003. The Clelland affidavit and Inspector Weber’s letter were subsequently made part of the public record on the consent of the Crown.
The Toronto Star Newspapers Limited and other media outlets (respondents) brought a motion for certiorari and mandamus in the Superior Court. That application proceeded before McGarry J. on September 15 and 16, 2003. On September 24, 2003, McGarry J. released reasons quashing the sealing order and directing that the documents should be made public except to the extent that the contents of the informations could disclose the identity of a confidential informant. McGarry J. edited one of the informations to delete references to material that could identify the confidential informant and told counsel that the edited version would be made available to the respondents unless the Crown appealed within two days ....
The Crown did, indeed, appeal – but with marginal success.
The Court of Appeal for Ontario held that Livingstone J. had exceeded her jurisdiction by refusing to grant a brief adjournment to allow counsel for the media to attend and make submissions on the application for a sealing order. Speaking for the court, Doherty J.A. found that the media can legitimately be expected to play an important role on applications to prohibit their access, and that of the public they serve, to court records and court proceedings. “There was no good reason”, he stated, “to deny The London Free Press an opportunity to make submissions” (para. 15). This amounted, in his view, to a denial of natural justice and resulted in a loss of jurisdiction. I find it unnecessary to express a decided view on this branch of the matter, since it is not in issue before us, and find it sufficient for present purposes to refer to the guidelines on notice to the media and media standing set out in Dagenais v. Canadian Broadcasting Corp.,  3 S.C.R. 835, particularly at pp. 868-69 and 890-91.
Doherty J.A. next addressed the merits of the request for a sealing order. Applying this Court’s decision in R. v. Mentuck,  3 S.C.R. 442, 2001 SCC 76, he concluded that the Crown had not displaced the presumption that judicial proceedings are open and public. Like McGarry J., Doherty J.A. recognized that the materials had to be edited to exclude information that could reveal the identity of the confidential informant and the editing he found appropriate was “somewhat more extensive than that done by McGarry J.” (para. 28).
The order of the Court of Appeal has now become final and the factual basis for a sealing order has evaporated with the passage of time. In the absence of a stay, the edited material was released on October 29, 2003, and the proceedings have to that extent become moot.
The Crown nonetheless pursues its appeal to this Court with respect to the underlying question of law: What is the governing test on an application to delay public access to search warrant materials that would otherwise become accessible upon execution of the search warrant?
Essentially, the Crown contends that the Court of Appeal erred in law in applying the “stringent” Dagenais/Mentuck test without taking into account the particular characteristics and circumstances of the pre-charge, investigative phase of the proceedings.
Once a search warrant is executed, the warrant and the information upon which it is issued must be made available to the public unless an applicant seeking a sealing order can demonstrate that public access would subvert the ends of justice: Attorney General of Nova Scotia v. MacIntyre ,  1 S.C.R. 175. “[W]hat should be sought”, it was held in MacIntyre, “is maximum accountability and accessibility but not to the extent of harming the innocent or of impairing the efficiency of the search warrant as a weapon in society’s never-ending fight against crime” (Dickson J., as he then was, speaking for the majority, at p. 184).
MacIntyre was not decided under the Charter. The Court was nonetheless alert in that case to the principles of openness and accountability in judicial proceedings that are now subsumed under the Charter’s guarantee of freedom of expression and of the press.
Search warrants are obtained ex parte and in camera, and generally executed before any charges have been laid. The Crown had contended in MacIntyre that they ought therefore to be presumptively shrouded in secrecy in order to preserve the integrity of the ongoing investigation. The Court found instead that the presumption of openness was effectively rebutted until the search warrant was executed – but not thereafter. In the words of Dickson J. [pp. 188-89]:
.... the force of the ‘administration of justice’ argument abates once the warrant has been executed, i.e. after entry and search. There is thereafter a “diminished interest in confidentiality” as the purposes of the policy of secrecy are largely, if not entirely, accomplished. The need for continued concealment virtually disappears .... The curtailment of the traditionally uninhibited accessibility of the public to the working of the courts should be undertaken with the greatest reluctance.
After a search warrant has been executed, openness was to be presumptively favoured. The party seeking to deny public access thereafter was bound to prove that disclosure would subvert the ends of justice.
These principles, as they apply in the criminal investigative context, were subsequently adopted by Parliament and codified in s. 487.3 of the Criminal Code. That provision does not govern this case, since our concern here is with warrants issued under the Provincial Offences Act, R.S.O. 1990, c. P.33 of Ontario. It nonetheless provides a useful reference point since it encapsulates in statutory form the common law that governs, in the absence of valid legislation to the contrary, throughout Canada.
Section 487.3(2) is of particular relevance to this case. It contemplates a sealing order on the ground that the ends of justice would be subverted, in that disclosure of the information would compromise the nature and extent of an ongoing investigation. That is what the Crown argued here. It is doubtless a proper ground for a sealing order with respect to an information used to obtain a provincial warrant and not only to informations under the Criminal Code. In either case, however, the ground must not just be asserted in the abstract; it must be supported by particularized grounds related to the investigation that is said to be imperilled. And that, as we shall see, is what Doherty J.A. found to be lacking here.
Since the advent of the Charter, the Court has had occasion to consider discretionary actions which limit the openness of judicial proceedings in other contexts. The governing principles were first set out in Dagenais.
In that case, four accused sought a ban on publication of a television mini-series, The Boys of St. Vincent, which was fictional in appearance – but strikingly similar in fact – to the subject matter of their trial. Writing for a majority of the Court, Lamer C.J. held that a ban should only be imposed where alternative measures cannot prevent the serious risk to the interests at stake and, even then, only to the extent found by the Court to be necessary to prevent a real and substantial risk to the fairness of the trial. In addition, a ban should only be ordered where its salutary effects outweigh its negative impact on the freedom of expression of those affected by the ban. Here, too, the presumption was said to favour openness, and the party seeking a restriction on disclosure was therefore required to justify the solicited limitation on freedom of expression.
The Dagenais test was reaffirmed but somewhat reformulated in Mentuck, where the Crown sought a ban on publication of the names and identities of undercover officers and on the investigative techniques they had used. The Court held in that case that discretionary action to limit freedom of expression in relation to judicial proceedings encompasses a broad variety of interests and that a publication ban should only be ordered when:
such an order is necessary in order to prevent a serious risk to the proper administration of justice because reasonably alternative measures will not prevent the risk; and
the salutary effects of the publication ban outweigh the deleterious effects on the rights and interests of the parties and the public, including the effects on the right to free expression, the right of the accused to a fair and public trial, and the efficacy of the administration of justice. [para. 32]
Iacobucci J., writing for the Court, noted that the “risk” in the first prong of the analysis must be real, substantial, and well grounded in the evidence: “it is a serious danger sought to be avoided that is required, not a substantial benefit or advantage to the administration of justice sought to be obtained” (para. 34).
The Dagenais/Mentuck test, as it has since come to be known, has been applied to the exercise of discretion to limit freedom of expression and of the press in a variety of legal settings. And this Court has recently held that the test applies to all discretionary actions which have that limiting effect:
While the test was developed in the context of publication bans, it is equally applicable to all discretionary actions by a trial judge to limit freedom of expression by the press during judicial proceedings. Discretion must be exercised in accordance with the Charter, whether it arises under the common law, as is the case with a publication ban ....; is authorized by statute, for example under s. 486(1) of the Criminal Code which allows the exclusion of the public from judicial proceedings in certain circumstances (Canadian Broadcasting Corp. v. New Brunswick (Attorney General), [ 3 S.C.R. 480], at para. 69); or under rules of court, for example, a confidentiality order (Sierra Club of Canada v. Canada (Minister of Finance),  2 S.C.R. 522, 2002 SCC 41).
(Vancouver Sun (Re),  2 S.C.R. 332, 2004 SCC 43, at para. 31)
Finally, in Vancouver Sun, the Court expressly endorsed the reasons of Dickson J. in MacIntyre and emphasized that the presumption of openness extends to the pre-trial stage of judicial proceedings. “The open court principle,” it was held, “is inextricably linked to the freedom of expression protected by s. 2(b) of the Charter and advances the core values therein.” It therefore applies at every stage of proceedings (paras. 23-27).
The Crown now argues that the open court principle embodied in the Dagenais/Mentuck test ought not to be applied when the Crown seeks to seal search warrant application materials. This argument is doomed to failure by more than two decades of unwavering decisions in this Court: the Dagenais/Mentuck test has repeatedly and consistently been applied to all discretionary judicial orders limiting the openness of judicial proceedings.
It hardly follows, however, that the Dagenais/Mentuck test should be applied mechanistically. Regard must always be had to the circumstances in which a sealing order is sought by the Crown, or by others with a real and demonstrated interest in delaying public disclosure. The test, though applicable at all stages, is a flexible and contextual one. Courts have thus tailored it to fit a variety of discretionary actions, such as confidentiality orders, judicial investigative hearings, and Crown-initiated applications for publication bans.
In Vancouver Sun, the Court recognized that the evidentiary burden on an application to hold an investigative hearing in camera cannot be subject to the same stringent standard as applications for a publication ban at trial [para. 43]:
Even though the evidence may reveal little more than reasonable expectations, this is often all that can be expected at that stage of the process and the presiding judge, applying the Dagenais/Mentuck test in a contextual manner, would be entitled to proceed on the basis of evidence that satisfies him or her that publicity would unduly impair the proper administration of justice.
Similar considerations apply to other applications to limit openness at the investigative stage of the judicial process.
The Crown has not demonstrated, on this appeal, that the flexible Dagenais/Mentuck test as applied to search warrant materials is unworkable in practice. The respondents, on the other hand, have drawn our attention to several cases in which the test was effectively and reasonably applied. Sealing orders or partial sealing orders were in fact granted, for example, in National Post Co. v. Ontario, (2003), (176 C.C.C. (3d) 432 (Sup. Ct. J.); R. v. Eurocopter Canada Ltd.,  O.J. No. 1591 (QL) (Sup. Ct. J.); R. v. Flahiff (1998), 157 D.L.R. (4th) 485 (Que. C.A.); and Toronto Star Newspapers Ltd. v. Ontario,  O.J. No. 2398 (QL) (Sup. Ct. J.).
Nor has the Crown satisfied us that Doherty J.A. failed to adopt a “contextual” approach to the order sought in this case.
In support of its application, the Crown relied exclusively on the affidavit of a police officer who asserted his belief, “based on [his] involvement in this investigation that the release of the Warrants, Informations to Obtain and other documents would interfere with the integrity of the ongoing police investigation” (Appellant’s Record, p. 70). The officer stated that, should the contents of the information become public, witnesses could be fixed with information from sources other than their personal knowledge and expressed his opinion “that the release of the details contained in the Informations to Obtain [the search warrants] has the potential to make it more difficult for the Ontario Provincial Police to gather the best evidence in respect of its investigation” (Appellant’s Record, p. 72).
Doherty J.A. rejected these broad assertions for two reasons.
First, he found that they amounted to a “general proposition that pre-trial publication of the details of a police investigation risks the tainting of statements taken from potential witnesses” (para. 26). In Doherty J.A.’s view, if that general proposition were sufficient to obtain a sealing order [para. 26],
.... the presumptive rule would favour secrecy and not openness prior to trial. A general assertion that public disclosure may distract from the ability of the police to get at the truth by tainting a potential witness’s statement is no more valid than the equally general and contrary assertion that public disclosure enhances the ability of the police to get at the truth by causing concerned citizens to come forward with valuable information.
Second, Doherty J.A. found that the affiant’s concern, for which he offered no specific basis, amounted to a mere assertion that “the police might have an advantage in questioning some individuals if those individuals [are] unaware of the details of the police investigation” (para. 27). In oral argument before this Court, counsel for the Crown referred to this as the “advantage of surprise”. In this regard, Doherty J.A. noted Iacobucci J.’s conclusion in Mentuck, at para. 34, that access to court documents cannot be denied solely for the purpose of giving law enforcement officers an investigative advantage; rather, the party seeking confidentiality must at the very least allege a serious and specific risk to the integrity of the criminal investigation.
Finally, the Crown submits that Doherty J.A. applied a “stringent” standard – presumably, an excessively stringent standard – in assessing the merits of the sealing application. This complaint is unfounded.
Quite properly, Doherty J.A. emphasized the importance of freedom of expression and of the press, and noted that applications to intrude on that freedom must be “subject to close scrutiny and meet rigorous standards” (para. 19). Ultimately, however, he rejected the Crown’s claim in this instance because it rested entirely on a general assertion that publicity can compromise investigative integrity.
At no point in his reasons did Doherty J.A. demand or require a high degree of predictive certainty in the Crown’s evidence of necessity.
For all of these reasons, I propose that we dismiss the appeal, with costs to the respondents, on a party-and-party basis.
Dagenais v. Canadian Broadcasting Corp.,  3 S.C.R. 835; R. v. Mentuck,  3 S.C.R. 442, 2001 SCC 76; Attorney General of Nova Scotia v. MacIntyre,  1 S.C.R. 175; Vancouver Sun (Re),  2 S.C.R. 332, 2004 SCC 43; National Post Co. v. Ontario (2003), 176 C.C.C. (3d) 432; R. v. Eurocopter Canada Ltd.,  O.J. No. 1591 (QL); R. v. Flahiff (1998), 157 D.L.R. (4th) 485 [ R.J.Q. 327]; Toronto Star Newspapers Ltd. v. Ontario,  O.J. No. 2398 (QL).
Canadian Charter of Rights and Freedoms: s.2(b)
Criminal Code, R.S.C. 1985, c. C-46: s.487.3.
Provincial Offences Act, R.S.O. 1990, c. P.33.
Scott C. Hutchison and Melissa Ragsdale, for the appellant (instructed by Ministry of the Attorney General, Toronto).
Paul B. Schabas and Ryder Gilliland, for the respondents (instructed by Blake, Cassels & Graydon, Toronto).
Written submissions only by John Norris, for the intervener (instructed by Ruby & Edwardh, Toronto).
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