R. v.
Eurocopter Canada Ltd.
Counsel:
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Trevor Shaw and Michael Bernstein, for the respondent. Paul B. Schabas, for the applicant. |
¶ 1 THEN J.:— The Applicant, Eurocopter Canada Limited seeks an order in the nature of certiorari quashing the orders made by Mr. Justice Fontana of the Ontario Court of Justice (City of Ottawa) sealing search warrant informations and related documents with respect to search warrants issued on December 8 and December 14, 1999. The applications for sealing pursuant to s. 487.3 of the Criminal Code and documents in support were also ordered sealed. On January 31, 2000 and February 14, 2000 he made rulings refusing to vary or terminate his sealing orders. The Applicant submits that Mr. Justice Fontana fell into jurisdictional error by failing to consider one of the grounds in s. 487.3(1) of the Criminal Code and by misapplying one of the criteria in the other ground in s. 487.3(1) of the Criminal Code in issuing his sealing orders.
The Facts
¶ 2 On December 8, 1999, the Honourable Mr. Justice Fontana issued a search warrant and Assistance Order permitting the search of Eurocopter Canada Limited and the seizure of documents from it, to take place on December 13 and 14, 1999. The search warrant and Assistance Order were based on an Information sworn by Inspector Allan Matthews.
¶ 3 On December 9, 1999, Justice Fontana signed an Order to Seal a Search Warrant Information, which was based on an "application in writing by Insp. A.K. Matthews." The Order to Seal makes reference to the fact that the Information was in support of five search warrants and also directs that "any copy of the search warrants as well as the within application and all documents filed thereon and the informational content therein" should be sealed and kept confidential. The order, in addition to making reference to the application, also makes reference to "the Affidavit of Insp. A.K. Matthews" and to "the subject warrant to search."
¶ 4 The order makes no reference to the grounds for the sealing order other than stating that Justice Fontana is satisfied "that overriding circumstances justify the issuance of the present order".
¶ 5 On December 13, 1999, the Search Warrant and Assistance Order were executed on Eurocopter.
¶ 6 The following day, December 14, 1999, a second search warrant was signed by Mr. Justice Fontana permitting the search of an attached storage hut and Sea Container at the Eurocopter premises, such warrant to be executed on December 14 and 15, 1999. This second search warrant was based on an Information of Sergeant André Lefebvre. It appears that at the same time an application in writing was made by Sergeant Lefebvre for an order sealing that Information and related documents in the same terms as the previous Order to Seal of December 9, 1999. Again, other than the indication in the order that it was based on "overriding circumstances", no information was provided as to the basis for the sealing order.
¶ 7 Copies of the sealing orders were obtained by Eurocopter on December 22 and 23 from the court. These orders and the search warrants are the only documents that have been provided to Eurocopter.
¶ 8 The applicant sought an order from Justice Fontana pursuant to s. 487.3(4) of the Criminal Code terminating or varying the sealing orders. The application also sought an order directing that documents seized which are not within the terms of the search warrant not be permitted to be retained by the respondents, and relied on ss. 489 and 490 of the Criminal Code for that relief.
¶ 9 On January 26, 2000, a list of materials seized from Eurocopter prepared by Insp. Matthews was faxed to counsel for Eurocopter.
¶ 10 The s. 487.3(4) application came on before Justice Fontana, initially, on January 28, 2000. Although the full merits of the application were not argued on that date, some interim relief was sought including an unsealing and release of the application (in whole or in part) relating to the sealing order itself and the documents filed in support of the order made for detention of the items seized and for an order that all the documents seized be sealed pending determination of the application. Although an order directing the return of documents which may fall outside the scope of the search warrant was sought in the notice, that issue was not fully argued on January 28. In a ruling dated January 31, 2000, Justice Fontana dismissed the applicant's request for interim relief and also dismissed, pre-emptively, the application for return of the documents.
¶ 11 The balance of the motion came on before Justice Fontana on Monday, February 7, 2000. In a ruling released on Monday, February 14, 2000, Justice Fontana dismissed the application in its entirety. He noted that in order to do so, Justice Fontana reviewed the documents filed in support of the sealing order - none of which was made available to the applicant for purposes of argument. Justice Fontana declined to release edited portions of the documents or judicial summaries, as had been requested by the applicant as an alternative to full disclosure.
The Issue
¶ 12 Whether Mr. Justice Fontana committed jurisdictional error in exercising his discretion in conformity to Charter values to prohibit access to and disclosure of any information relating to the warrant by ordering the documents sealed pursuant to s. 487.3 of the Criminal Code.
Section 487.3 - The Sealing Provisions
¶ 13 Section 487.3(1) of the Criminal Code provides that a judge issuing a search warrant may make an order "prohibiting access to and the disclosure of any information relating to the warrant or the authorization" if the following grounds are met:
| (a) | the ends of justice would be subverted by the disclosure for one of the reasons referred to in subsection (2) or the information might be used for improper purpose; and |
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| (b) | the ground referred to in paragraph (a) outweighs in importance the access to the information. [emphasis added] |
¶ 14 Subsection (2) of s. 487.3 delineates the circumstances in which "the ends of justice would be subverted by the disclosure" as follows:
| (a) | if disclosure of the information would |
| (i) | compromise the identity of a confidential informant, |
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| (ii) | compromise the nature and extent of an ongoing investigation |
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| (iii) | endanger a person engaged in particular intelligence - gathering techniques and thereby prejudice future investigations in which similar techniques would be used, or |
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| (iv) | prejudice the interests of an innocent person; and |
| (b) | for any other sufficient reason. |
¶ 15 Subsection (3) grants broad discretion to the judge making such an order to impose terms, including terms relating to the duration of the prohibition, partial disclosure, or deletion of any information or the occurrence of conditions. It states:
487.3(3) Where an order is made under subsection (1), all documents relating to the application shall, subject to any terms and conditions that the justice or judge considers desirable in the circumstances, including, without limiting the generality of the foregoing, any term or condition concerning the duration of the prohibition, partial disclosure of a document, deletion of any information or the occurrence of a condition, be placed in a packet and sealed by the justice or judge immediately on determination of the application, and that packet shall be kept in the custody of the court in a place to which the public has no access or in any other place that the justice or judge may authorize and shall not be dealt with except in accordance with the terms and conditions specified in the order or as varied under subsection (4). |
¶ 16 Section 487.3(4) provides for an application to be made to the judge who made the order if a person wishes to vary or terminate it.
The Availability and Scope of Certiorari
¶ 17 The leading authority where the exercise of judicial discretion in sealing the information to obtain a search warrant and the subsequent review of that discretion by a superior court through the avenue of certiorari has been considered on appeal is Regina v. Flahiff (1998), 123 C.C.C. (3rd) 79 (Que. C.A.). In general terms the discretion of the judge under s. 487.3 of the Criminal Code to either permit or prohibit access to search warrant documents must be judicially exercised in accordance with the requirements of this provision and with due regard for the right of the accused to a fair trial and the guarantee of freedom of the press.
¶ 18 At page 85 of Flahiff, supra, Rothman J.A. posited the limited nature of the review by means of certiorari available to a superior court:
It is, of course, well-established law that, in general, the jurisdiction of the Superior Court to review errors of an inferior court by way of certiorari is limited to errors relating to jurisdiction and errors of law on the face of the record. (Patterson v. R., [1970] S.C.R. 409, 2 C.C.C. (2d) 227; Quebec (Attorney General) v. Cohen, [1979] 2 S.C.R. 305, 46 C.C.C. (2d) 473; R. v. Forsythe, [1980] 2 S.C.R. 268, 53 C.C.C. (2d) 225; R. v. Skogman, [1984] 2 S.C.R. 93, 13 C.C.C. (3d) 161; R. v. Dubois, [1986] 1 S.C.R. 366, 25 C.C.C. (3d) 221; Dagenais v. Canadian Broadcasting Corp., supra, at p. 866). Certiorari is not available to attack non-jurisdictional errors in a decision, particularly an interlocutory decision which is not ordinarily appealable except within the framework of an appeal from conviction. |
¶ 19 Before me it is common ground that the discretion must be nevertheless exercised in accordance with Charter principles. For example, in Flahiff, supra, the court held the justice of the peace had lost jurisdiction by not considering the affidavit material in support of the warrant to have established (under s. 487.3(2) - "for any other sufficient reason") that access to the affidavit would have compromised a fair trial, which is of course a preeminent Charter value, in the absence of a non-publication order.
¶ 20 In dealing with the interplay between the exercise of discretion in accordance with Charter values and the availability of certiorari. Rothman J.A. stated the following at p. 88:
In the case of search warrants, unlike preliminary hearings or bail hearings, an accused does not have an absolute right to a publication ban in every case. There are good public policy reasons why this is so. That, undoubtedly, is why s. 487.3 permits a judge to exercise his or her discretion to permit access to and publication of search warrant documents. But that discretion is not unlimited. It must be judicially exercised in accordance with the requirements of s. 487.3, and with due regard for the Charter right of the accused to a fair trial and the Charter guarantee of freedom of the press. Both of these Charter guarantees must be balanced and respected. |
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But is certiorari a proper remedy to ensure that these Charter rights are properly respected and balanced? |
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In Dagenais v. C.B.C. (supra), the Supreme Court recognized the power of a Superior Court to exercise remedial jurisdiction, by way of certiorari, with respect to decisions of provincial courts ordering publication bans where these decisions violated Charter rights. The remedial powers of the Superior Court, for third party challenges to publication bans, were enlarged to include the remedies available under s. 24(1) of the Charter (p. 866). |
¶ 21 At p. 866 of Dagenais v. Canadian Broadcasting Corp., [1994] 3 S.C.R. 835, Lamer C.J.C. stated the following:
However, it is open to this court to enlarge the remedial powers of certiorari and I do so now for limited circumstances. Given that the common law rule authorizing publication bans must be consistent with Charter principles, I am of the view that the remedies available where a judge errs in applying this rule should be consistent with the remedial powers under the Charter. Therefore, the remedial powers of certiorari should be expanded to include the remedies that are available through s. 24(1) of the Charter. It should be emphatically noted that it is not necessary in this case for this court to decide whether or not the Charter applies directly to court orders. I am simply saying that when a judge exceeds his authority under the common law rule governing publication bans, then the remedies available through a certiorari challenge to the judge's action should be the same as the remedies that would be available under the Charter. |
¶ 22 It is in accordance with the principles developed in Flahiff, supra, and Dagenais, supra, that I approach my task in reviewing whether Mr. Justice Fontana has exercised his discretion judicially in accordance with Charter principles and values by prohibiting access to search warrant materials under s. 487.3 of the Criminal Code.
Errors Alleged Leading to Loss of Jurisdiction
¶ 23 Initially in his able argument, Mr. Schabas submits that in his ruling on February 14, 2000, Mr. Justice Fontana dismissed the Applicant's motion under s. 487.3(4) for the following reasons:
| 1. | To prevent prejudice to the interests of innocent or neutral parties; |
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| 2. | To prevent possible damaging speculation or publicity; |
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| 3. | Disclosure, at this time, might result in compromise or frustration of the ongoing investigation; |
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| 4. | The overall breadth and scope of the investigation. The investigation involves inquiry into complex corporate and commercial transactions calling for the scrutiny of experts and time-consuming analysis. (my emphasis) |
¶ 24 Mr. Schabas submits that to the extent Mr. Justice Fontana purported to apply the ground outlined in s. 487.3(1)(a) as informed by the criteria outlined in s. 487.3(2) he has erred in stating that unsealing "might" compromise the ongoing investigation. It is submitted that this misstatement of the criteria gives rise to a reasonable inference that he erred in law in exercising his discretion under s. 487.3(2) which required him to be satisfied that the ends of justice "would" be subverted by the disclosure, if the disclosure "would" compromise the nature and extent of the ongoing investigation. Accordingly, Mr. Schabas submits that Mr. Justice Fontana lost jurisdiction by misapprehending and thereby misapplying the relevant criteria so that it cannot be said he exercised his discretion judicially.
¶ 25 With respect to this branch of the argument, Mr. Shaw submits that it is inconceivable that a judge with the extraordinary experience of Mr. Justice Fontana in search and seizure matters (acknowledged by the applicant during the course of the January 28, 2000 hearing with respect to the s. 487.3(4) application) would misapprehend the relevant criteria. It is submitted that the use of the word "might" can fairly be viewed in terms of Justice Fontana referring to a future prospect. Mr. Shaw also submitted that an error in the interpretation of the provisions of the Criminal Code does not result in a loss of jurisdiction (See: R. v. Tremblay [1988] 2 S.C.R. 254, (1988), 47 C.C.C. (3d) 88).
¶ 26 In my view, had Justice Fontana correctly parroted the criteria outlined in s. 487.3(2) he would not have been immune to review by certiorari if there was no evidentiary basis to support those criteria. On the other hand, even if it can be said he erred in outlining one of the criteria in s. 487.3(2), this would not automatically lead to jurisdictional error if there were an ample evidentiary basis to support the application of the correct criteria. I agree with Mr. Shaw that notwithstanding the reference to "might" in terms of a future prospect, it is difficult to accept that a judge with the experience of Justice Fontana would misapprehend the criteria articulated in s. 487.3(2). (See: R. v. Morrissey (1995), 97 C.C.C. (3d) 193 (Ont. C.A.) at p. 204).
¶ 27 Moreover, I have carefully assessed the three sealing affidavits as well as the information to obtain and I am satisfied that there is an ample evidentiary basis to support the application of the criteria referred to by Justice Fontana under s. 487.3(2) which satisfy the test under s. 487.3(1) namely a) that the ends of justice would be subverted by the disclosure for one of the reasons referred to in subsection (2) or the information may be used for an improper purpose and, b) that the ground referred to in paragraph (a) outweighs in importance the access to the information.
¶ 28 Secondly, Mr. Schabas submits that because Mr. Justice Fontana has not specifically adverted to the second part of the test in s. 487.3(1)(b), it is a reasonable inference that in prohibiting access under the section he lost jurisdiction because he did not appreciate that the judicial exercise of discretion must be informed by Charter values as required by Flahiff, supra.
¶ 29 Mr. Schabas submits that unlike the justice of the peace in Flahiff, there is no specific reference to Nova Scotia (Attorney General) v. MacIntyre (1982), 132 D.L.R. (3d) 385 and the Charter principles espoused therein and in particular the presumption in favour of accessibility. In MacIntyre, Dickson J. stated at p. 403:
At every stage the rule should be one of public accessibility and concomitant judicial accountability; all with a view to ensuring there is no abuse in the issue of search warrants, that once issued they are executed according to law, and finally that any evidence seized is dealt with according to law. A decision by the Crown not to prosecute, notwithstanding the finding of evidence appearing to establish the commission of a crime, may, in some circumstances, raise issues of public importance. |
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In my view, curtailment of public accessibility can only be justified where there is present the need to protect social values of superordinate importance ... |
And again at p. 405 Dickson J. stated:
Undoubtedly every court has a supervisory and protecting power over its own records. Access can be denied when the ends of justice would be subverted by disclosure or the judicial documents might be used for an improper purpose. The presumption, however, is in favour of public access and the burden of contrary proof lies upon the person who would deny the exercise of the right. |
¶ 30 Mr. Schabas also submits that unlike the situation in Flahiff, supra, there is no specific reference to the principle of openness with respect to court documents which has now been recognized as an important constitutional value protected by s. 2(b) of the Charter. (C.B.C. v. New Brunswick, [1996] 3 S.C.R. 480; Dagenais v. C.B.C. (1994), 94 C.C.C. (3d) 289 (S.C.C.)). Mr. Schabas submits that in omitting to specifically refer to the ground articulated in s. 487.3(1)(b) it is reasonable to infer that Mr. Justice Fontana in exercising his discretion to seal the documents did not appreciate that the considerations set out in s. 487.3(2) must outweigh in importance the applicant's access to the information which are supported by the Charter values articulated by the Supreme Court of Canada in MacIntyre, supra, and Dagenais, supra. Accordingly, Mr. Schabas submits that Mr. Justice Fontana lost jurisdiction to issue the orders sealing the search warrant documents.
¶ 31 I am satisfied, as was the Superior Court judge in Flahiff, that although there is no specific mention of s. 487.3(1)(b) in his ruling, this provision, the Charter principles and the authorities which posit those principles including MacIntyre and Dagenais, were fully and thoroughly invoked before the learned judge by counsel for both the Crown and the Applicants as the transcript dated January 28, 2000 conclusively illustrates. I am further satisfied that not only was Justice Fontana, whom as I have stated acknowledged by the Applicant to be particularly experienced in search and seizure matters, aware of the test but that he correctly applied s. 487.3(1)(b) in the circumstances of this case based on the information to obtain and the three sealing affidavits. (R. v. McMaster, [1996] 1 S.C.R. 740 at p. 751; R. v. Barrett, [1995] 1 S.C.R. 752; R. v. Burns, [1994] 1 S.C.R. 656; R. v. Flahiff, supra, 85-86).
¶ 32 Moreover, in the sealing orders of December 9, 1999 and December 14, 1999 contained at pp. 50-52 of the Application Record, Mr. Justice Fontana expressed himself satisfied that "overriding circumstances" justified the order under s. 487.3. The phrase "overriding circumstances" is indicative of the application of the test found in s. 487.3(1)(b). Finally, in his ruling of February 14, 2000 he further referred to the arguments advanced by counsel as to the application of s. 487.3 as being extremely compelling. This is significant because both counsel in their submissions to him adverted to the significance of the various criteria conferring the exercise of discretion under s. 487.3, the Charter principles engaged and the authorities expounding the various relevant Charter values and principles including the freedom of the press, the openness of courts and the need to tailor any sealing order in as restrictive a fashion vis-à-vis the state as possible. Mr. Justice Fontana commented that:
The positions advanced bring into sharp focus the competing interests of the corporate citizen and the state. The arguments have been varied and persuasive. |
¶ 33 Also later in his reasons Mr. Justice Fontana stated that the Applicants had a legal interest notwithstanding no charges had been filed. In my view, Mr. Justice Fontana was alive to the requirement that he would need to determine as s. 487.3(1)(b) specifies, if the interests of the state as articulated in s. 487.3(1)(a) and as informed by s. 487.3(2) outweighed the interest of the corporate citizen as defined in s. 487.3(1)(b).
¶ 34 There is a high onus on the state to justify sealing as MacIntyre, supra and Dagenais, supra, make clear. To act judicially, the judge pursuant to s. 487.3 must balance the Charter values expounded by those authorities with consideration of the public interest and must find that the public interest outweighs the values permitting access. However, the rights of access are not absolute as pointed out in Michaud v. Quebec (A.G.), [1996] 3 S.C.R. 3 where Lamer C.J.C. in the context of discussing the right of a non-accused surveillance target to disclosure of the wiretap packet stated the following at pp. 44-46:
Upon reflection, the relevant "considerations" persuade me that a non-accused surveillance target does not similarly enjoy automatic access to the sealed packet under s. 8 of the Charter. There is nothing in the history or purpose of s. 8 to suggest that the subject of a search and seizure enjoys an absolute right to examine confidential authorizing materials held by the state upon mere suspicion of wrongdoing by law enforcement authorities. Indeed, outside the wiretapping domain, this Court has repeatedly held that a criminal accused does not enjoy an absolute right to disclosure of confidential investigative information held by the state under the right to full answer and defence. As this Court held in R. v. Stinchcombe, [1991] 3 S.C.R. 326, at p. 339, the Crown's obligation to disclose all relevant information prior to trial "is not absolute". Under Stinchcombe and its progeny, the Crown is not obliged to disclose information which is clearly irrelevant, beyond the control of the prosecution, or protected by a recognized form of privilege. See R. v. Egger, [1993] 2 S.C.R. 451, at pp. 465-67; R. v. Chaplin, [1995] 1 S.C.R. 727, at pp. 739-40; R. v. O'Connor, [1995] 4 S.C.R. 411, at pp. 428-29. As Sopinka J. elaborated in Durette, supra, at p. 495, the Crown may justify non-disclosure in circumstances where "the public interest in non-disclosure outweighs the accused's interest in disclosure". |
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... An individual who has received notification that he or she has been subjected to a wiretap does indeed have an important privacy interest in securing the necessary documents to contest the lawfulness of such a search. But where that individual is not threatened by criminal prosecution and imprisonment, this important interest must be balanced against the state's pressing interest in preserving the secrecy of the packet. |
¶ 35 While it would have been preferable for Mr. Justice Fontana to have specifically referred to the test articulated in s. 487.3(1)(b) of the Criminal Code, I am satisfied on the record before me and in particular the transcript of proceedings of January 28, 2000, that he was alive to this aspect of the test as well as to the Charter principles and authorities which confirm the test. I am persuaded that he exercised his discretion judicially in light of the test and the Charter principles which inform the test in the context of the evidentiary basis provided in the information to obtain and the three sealing affidavits. In my view, Mr. Justice Fontana did not lose jurisdiction under s. 487.3(1) of the Criminal Code.
¶ 36 Nor does my examination of the information to obtain the search warrants and the sealing affidavits persuade me that he erred in discharging his function under s. 487.3(3) by not providing partial disclosure through summaries or by editing the relevant documents or by making an order as to the duration of the prohibition given the nature and complexity of the investigation. Further, the sealing of the documents in support of the sealing orders are justified because those documents are necessarily similar to the documents in support of the sealing of the informations to obtain the respective search warrants and the three sealing affidavits.
¶ 37 However, in his ruling of February 14, 2000, Mr. Justice Fontana specifically noted that despite the magnitude and complexity of the investigation the sealing order should not be viewed as open ended, but, admonished the Crown to proceed with dispatch in the circumstances. In my view, while a sealing order of specific duration may not have been desirable, it would have been more in keeping with the authorities which require as restrictive an order as possible, for Justice Fontana to have required a periodic monitoring of the sealing order every four months. On those occasions, the Crown would be required to confirm to the satisfaction of the judge that the conditions requiring sealing were still extant.
¶ 38 Subject to the condition which I have elaborated, the application for an order in the nature of certiorari to quash the sealing orders is dismissed.
¶ 39 Prior to the release of these reasons I have been advised by counsel that the companion application for an order in the nature of certiorari on the issue of overseizure has been abandoned. Accordingly, that application is dismissed as abandoned without prejudice to bring a further application on the basis of other and further grounds.
¶ 40 I cannot leave this application without commending all counsel for the quality of their presentation and of their materials. In particular, I appreciate the strong argument by Mr. Schabas on behalf of his client notwithstanding his understandable frustration in not having access to the material in issue which of course was available only to the Crown and to the Court.
THEN J.
QL Update: 20010523
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