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Phillips v. Vancouver
Sun
January 13, 2004 (2004 BCCA 14)
This process of opening this Information to Obtain a search warrant
did not exactly set speed records. In May 1999, Cst. Phillips, was
a detective constable employed in the robbery squad of the VPD.
On May 27 that year, Detective Constable Fogarty swore the Information
to Obtain to search his desk and effects at the police station in
an investigation for breach of trust, and the search warrant was
issued the same day. The Justice of the Peace ordered that all search
warrant materials be sealed until September 1, 1999. The search
took place the next day, and various materials were seized.
On September 29, 2000, another sealing order was issued, though
there was no sealing order in effect between the expirey of the
first such order and this time.
Finally, on November 19, 2001, the Sun applied to set aside the
sealing order and seeking access to the sealed materials. Since
the investigation was over, and subject to editing concerns, the
Crown and the VPD did not oppose the Sun's application. At that
time, the Crown advised the court that no charges were going
to be laid against Cst. Phillips. The court's decision to vacate
this sealing order was released on January 11, 2002. The judge then
imposed a one-week stay of his order to permit Cst. Phillips to
apply for certiorari.
On August 7, 2002, Mr. Justice Parrett made an order quashing the
order unsealing the materials, which the Sun appealed later that
month.
Meanwhile, on October 16, 2002, the Sun applied to the J.P. for
an order varying or vacating his sealing order, while inviting him
to dismiss their application on the basis of Mr. Justice Parrett's
decision. The J.P. dismissed that application later that month.
The Sun then applied for certiorari, and on November 27, 2002, Associate
Chief Justice Dohm made the second order under appeal.
The appeals were decided by the BC Court of Appeal in this decision
on January 13, 2004.
The Court dismissed Cst. Phillips' argument that these documents
should only be made public if charges are laid. It correctly interpreted
the MacIntyre case in the Supreme Court of Canada. It found that
there should be maximum openness even in pre-trial investigative
proceedings, and even where a decision has been made not to prosecute.
It quoted from Dickson J. in MacIntyre, and added the following
emphasis:
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.
In my view, curtailment of public accessibility can only
be justified where there is present the need to protect social
values of superordinate importance. One of these is the protection
of the innocent.
and later the court added its own conclusion on how to interpret
this latter phrase in this context:
[66] Counsel for the Sun, the Crown and the VPD do not agree,
however, that the fact that Cst. Phillips is to be regarded
as an innocent person is determinative of the disclosure issue.
In their view, prejudice to the interests of an innocent person
is simply one factor the court must consider in determining
whether disclosure should be made. It is entitled to significant
weight, but it does not necessarily tip the scales against disclosure.
I agree.
Significantly, it agreed with the court in Eurocopter
that s.487.3 of the Criminal Code "substantially codified"
the MacIntyre principles. It then adopted the reasoning in the Eurocopter
case.
Finally, the facts of this case assisted the Sun:
[88] Although Cst. Phillips has been subjected to publicity
in relation to this investigation in the past, he is entitled
to take the position that "enough is enough" and to
seek to persuade the court that whatever interest the media
may have in obtaining the further information it seeks, he has
a greater interest in being left alone and not being subjected
to further public scrutiny.
[89] In approaching the balancing process, I agree with Judge
Smyth that the nature and extent of this search, and the nature
of the materials obtained as a result of the search are relevant
in assessing the prejudice to Cst. Phillips' privacy interests.
I will repeat what Judge Smyth said at para. 19 of his reasons
in that regard:
The search concerned an allegation that [Cst. Phillips] had
committed a breach of trust as an officer of the Vancouver
Police Department. It was conducted at his place of work.
I have been given a copy of the report made to a justice following
the search and the things seized consisted almost entirely
of files, notes and other information and things gathered
or used in the course of his employment. This was not a search
delving into Cst. Phillips' private affairs, but rather the
performance of his public duty, and the things seized in the
search appear to relate directly to his performance of that
duty.
[90] This was not a search of Cst. Phillips' home, which the
courts have generally regarded as highly invasive of individual
privacy. Rather, it was a search of his office and a seizure
of items, most of which could be described as "work product"
in circumstances which would not attract a high expectation
of privacy on the part of Cst. Phillips. I agree with Judge
Smyth that Cst. Phillips suffered less prejudice to his privacy
interest than if the search had been of his home, or of his
personal papers and possessions.
...
[92] In all of the circumstances, while I find that Cst. Phillips
undoubtedly has a significant privacy interest at stake in these
proceedings, and while I agree with Judge Smyth that "It
can scarcely be over-stressed that no charges have been laid
against Cst. Phillips", I find that Cst. Phillips has not
established that the prejudice to him as an innocent person
within the meaning of s. 487.3 outweighs the public interest
in having access to the edited materials.
See Phillips
v. Vancouver Sun
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