Law Times

Page 4 October 7, 2013 Law Times • NEWS Courts differ in approach to media access to search warrants Two Ontario rulings focus on public's right to view informations to obtain BY SHANNON KARI For Law Times T he clash between the open-courts principle and the desire of the Crown and police to restrict access to information at the early stages of a criminal prosecution is before the courts in two high-profile Ontario cases. Rulings in the alleged Via Rail terror plot in southern Ontario and the Project Traveller raids in Toronto both focused on the right of the public to access informations to obtain after police have executed search warrants. In a ruling made public on Sept. 30, Superior Court Justice Bruce Durno unsealed much of the more than 700 pages that made up the informations to obtain in the Via Rail prosecution with some exceptions. Yet he imposed a sweeping publication ban on the information until after the trial of Chiheb Esseghaier and Raed Jaser. In contrast, Ontario Court Justice Philip Downes concluded the Crown could redact more than 80 per cent of the content from one of the more than three dozen search warrants sealed in Project Traveller because the details stemmed from information obtained from wiretaps. Downes also imposed a publication ban on the unredacted information in a ruling issued Sept. 16. The two judges came to different conclusions on whether s. 193 of the Criminal Code prohibits them from making wiretap-related information contained in an information to obtain public. Durno ruled it could be disclosed while Downes found the section is a bar to public access because the swearing of an information to obtain for a search warrant wasn't a criminal proceeding. The two cases highlight the obstacles to viewing these types of documents, say lawyers who act for the media in Ontario, even though it was more than 30 years ago that the Supreme Court of Canada ruled in A.G. (Nova Scotia) v. MacIntyre that there's "a general rule of public access" once police execute a search warrant. "The case law that exists talks about the general principles. It does not get into the specific details," says Iain MacKinnon, a partner at Chitiz Pathak LLP who acted for Sun Media Corp. in the Via Rail media application. "There are practical problems," he notes. While it's appropriate to obtain an ex parte sealing order initially so as not to tip off any suspects, "the question is how long it lasts," says MacKinnon. He suggests judges should impose a time limit on sealing orders until after the warrant is executed in order to comply with Supreme Court rulings in this area. It would then be up to the Crown to bring an application to extend any sealing order. In the Via Rail case, there were two days of arguments in July with lawyers representing several media outlets, the Public Prosecution Service of Canada, and Jaser. Durno rejected the argument by John Norris, who represents Jaser, that the onus to unseal was on the media. Once police execute a warrant, "to put the onus on the media would be to reverse the presumption [of access] in Dagenais-Mentuck," wrote Durno. Neither defendant has sought bail, yet both the federal Crown neW edITIOn Consolidated ontario insuranCe statutes and regulations 2013 CONSulTING EDITOR: AlAN l. RAChlIN Get convenient access to the most current insurance law – all in one practical resource. WhaT's neW In ThIs edITIOn order # 985270-65203 $99 Softcover approx. 1730 pages September 2013 978-0-7798-5270-3 Annual volumes supplied on standing order subscription Multiple copy discounts available Shipping and handling are extra. Price subject to change without notice and subject to applicable taxes. This edition includes updates to the latest legislation and regulations, and additional forms such as: • Response to an Application for Mediation • Consent to Extend Time for Mediation/Request for a Failed Report of Mediator Form • Treatment and Assessment Plan (OCF-18) • Auto Insurance Standard Invoice (OCF-21) • Treatment Confirmation Form (OCF-23) • Settlement Disclosure Notice – Final Settlement of a Statutory Accident Benefits Claim – Effective January 1, 2013 • Motor Vehicle Accident Claims Fund – Notice of Default • Motor Vehicle Accident Claims Fund – Application for Payment under Section 7 - Form 1 • Motor Vehicle Accident Claims Fund – Application for Statutory Accident Benefits - Form 3 under Section 6 of the Motor Vehicle Accident Claims Act • Motor Vehicle Accident Claims Fund – Application for Payment out of the Fund of Court Ordered Costs - Form 4 Statutory Authority Sections 26, 27 and 28 of the Motor Vehicle Accident Claims Act • Affidavit in Support of Application for Settlement It also includes a Table of Concordance for insurance law across Canada. AvAilAble Risk-FRee FoR 30 DAys Order online: www.carswell.com Call Toll-Free: 1-800-387-5164 In Toronto: 416-609-3800 www.lawtimesnews.com and Norris argued the statutory ban against publishing evidence from a bail hearing should also apply to the information to obtain. Durno observed his ruling might be the first time a court has been asked to determine if the statutory ban for a bail hearing applies to similar information obtained from another source, such as an information to obtain. "I find that it does not," wrote Durno, who suggested such an approach would cause "significant uncertainty" as to what the media can publish before a trial. "For example, if police conducted a press conference at the time of arrest and outlined the allegations, the nature of some of the evidence, and the same evidence was given at a bail hearing, would the media be precluded from reporting what had been said at the press conference?" asked Durno. While finding there was no statutory ban, Durno imposed a publication ban on the evidence in the information to obtain. He concluded it was appropriate to preserve fair-trial rights after applying the analysis in Dagenais v. Canadian Broadcasting Corp. and R. v. Mentuck. Another obstacle in Ontario is the Ministry of the Attorney General's policy when someone is seeking access to a warrant. "Based on what the Supreme Court of Canada has said, you might think that once a warrant is executed, you can go to a court and get a copy of the ITO. That is clearly not the case," says Ryder Gilliland, a partner at Blake Cassels & Graydon LLP who acted for the Toronto Star in the Project Traveller application. The province requires an individual to know the execution date of a warrant and the address of the search before it will disclose if the document exists. "This is often very difficult to know," says Gilliland. He echoes the views of MacKinnon that those involved in the process for the information to obtain should be "required to turn their minds to what will happen once the warrant is executed" in order to reduce the obstacles to access. The Project Traveller raids attracted media scrutiny because two of the people arrested in June appeared in a photo with Toronto Mayor Rob Ford taken outside a house in northwest Toronto that has been linked to the use of illegal drugs. In addition to approving the redactions in the information to obtain before the court, Downes ruled the Crown wouldn't have to make public edited copies of the other warrants until 30 days after it has fulfilled its disclosure obligations to the more than 40 people arrested in Project Traveller. LT

• Cover