Law Times

Page 10 December 9, 2013 • Law Times FOCUS Media emboldened by slew of rulings on ITO disclosures BY GLENN KAUTH Law Times A mong the many issues the courts have dealt with this year, the question of the release and publication of search warrant materials has been particularly prominent. "I think it's part of a broader trend towards the public interest," says Toronto criminal defence lawyer Edward Prutschi in reaction to the flurry of media stories stemming from informations to obtain judicial production orders. Throughout the fall, Canadians have had a good look at the Royal Canadian Mounted Police investigation related to the Senate scandal. Last month, for example, there were a slew of news stories about how RCMP Cpl. Greg Horton had sworn before a judge that the force had reasonable grounds to believe Nigel Wright, Prime Minister Stephen Harper's former chief of staff, and suspended Sen. Mike Duffy had participated in a bribery scheme in relation to the senator's living expenses. Wright has been under a cloud of controversy following revelations he gave Duffy $90,000 of his own money to help the senator reimburse housing expenses he had billed to the government. At the time, Duffy was facing an audit and a looming report on his expenses by a Senate committee. Recent media reports have hinted at a potential deal to have Duffy pay the money back in exchange for more favourable treatment. While the political focus has largely been on the role of officials in the prime comes to the release and minister's office in the publication of search affair as well as what warrant materials. Harper knew or didn't The materials relate know about the discusin part to Ford's relasions, the revelations tionship with Sandro that police are invesLisi, a friend of his factigating Wright and ing drug as well as exDuffy for bribery and tortion charges. In that fraud on the governcase, authorities had ment were noteworthy. sealed the materials, but After all, they've yet to the media went before charge the pair. Nordheimer to have In that case, the them unsealed sooner RCMP decided not to than would normally seal the information be the case. But with to obtain a production order, something 'The same arguments are open to defence fair-trial rights as well that surprised Prutschi. counsel that have always been open to as other considerations at stake, how do defence "The decision not to seal them,' says Ryder Gilliland. lawyers feel about what's the Senate ITO is a bit of an odd one," he says, noting the usual been happening this fall? "It's very probapproach is to get an initial sealing order lematic as a defence lawyer," says Prutschi, with the possibility of unsealing the ma- noting the "overarching concern" for a terials later once police have laid charges. fair trial as well as the rights of people not But in the Senate matter, routine concerns charged of any crimes whose names are about issues such as disclosing confiden- surfacing in the warrant materials. "They'll never be able to put the cat tial informants and police techniques back in the bag," says Prutschi in reference weren't as pertinent, Prutschi points out. Of course, the other big file dealing with to third parties linked to activities such as the release of search warrant materials was drugs and prostitution. In addition, the the investigation surrounding Toronto revelations basically remove Lisi's right to Mayor Rob Ford and Project Traveller. opt for a trial by jury given the scope of Since October, Canadian media have been the publicity so far. Prutschi, then, hopes the Lisi scenario feasting on a slew of revelations about Ford's alleged connections to the drug will be a rare one. "We certainly hope . . . world and his strange behaviours both on that this is going to be the exception rathand off the job. A key figure in the reports er than the rule," he says. Nordheimer, however, has been fairly has been Ontario Superior Court Justice Ian Nordheimer, who has generally been clear in ruling in favour of unsealing. In coming down on the media's side when it Canadian Broadcasting Corp. v. HMQ, he considered what to do with redactions made by the Crown in the information to obtain in relation to the Ford investigation. In that specific case, Nordheimer dealt with edits aimed a protecting about 70 innocent third parties named in the documents. In doing so, Nordheimer noted the onus falls on the Crown to demonstrate that the court should maintain the sealing order. "The presumption is that, once a search warrant is executed, the material filed in support of obtaining the search warrant is to be made accessible to the public," he wrote on Nov. 13. When it came to whether there was justification for a publication ban due to potential harm to the third parties, Nordheimer took issue with the Crown's submission that the information about them wasn't essential to the basis for obtaining the search warrant. "What a proper ITO requires are the 'material' facts necessary to satisfy the test for the issuance of a search warrant informed by the requirement to make 'full, fair, and frank disclosure,'" he wrote. "It must therefore be assumed that if material was included in the ITO, the police officer who swore the ITO considered that the included material was necessary to achieve either or both of those purposes." Nordheimer also questioned the Crown's arguments about harm to third parties. 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