Search Warrant Sealing Order (Identifier Numbers, 2011 ABQB 276

Court of Queen’s Bench of Alberta Citation: Search Warrant Sealing Order (Identifier Numbers 2010-4460, 2010-4723) (Re), 2011 ABQB 276 Date: 20110420 Docket: 110264173X1, 110264033ZX1 Registry: Calgary IN THE MATTER OF a refusal by the Honourable Provincial Court Judge T.C. Semenuk on October 7, 2010 at Calgary, Alberta toindeterminately grant an order prohibiting access to an information to obtain a search warrant (Identifier Number 2010-4460) pursuant tosection 487.3 of the Criminal Code IN THE MATTER OF an Application by the Applicant pursuant to

Section 487.3 on the Criminal Code before a justice of the peace ofthe Provincial Court of Alberta AND IN THE MATTER OF an Application for an Order in the nature of Certiorari and Judicial Review pursuant to the Alberta Rules ofCourt and the Criminal Code ______________________________________________________ Reasons for Decision of the Honourable Mr. Justice Gerald A.

Verville _______________________________________________________ Introduction [1] The Crown applies for review of a time limited sealing order for two affidavits and informations to obtain search warrantscontaining information which would tend to disclose the identity of an informant. [2] Counsel initially appeared before the Court on March 10, 2011. In addition to counsel for the Crown applicant, counselappeared on behalf of the Provincial Court as it was perceived that the application was with regard to a policy or directive of theProvincial Court.

There was discussion as to the standing of such counsel to make submissions on behalf of the court. Subsequently,Crown counsel clarified by letter that he would not be arguing that the Provincial Court judge was fettered by any directive or policy. Asa result, counsel for the Court advised she no longer intended to argue standing to appear on the continuation of this matter. [3] The jurisdiction of this Court was also the subject of some discussion on the initial appearance date.

This Court may reviewthe sealing order under s. 487.3 of the Criminal Code as a superior court having supervisory jurisdiction over lower courts and tribunals.The Court has jurisdiction to review a decision to grant or refuse such a sealing order: R. c. Flahiff (1998), (QCCA), 123 C.C.C. (3d) 79 at para. 19 (Que.C.A.), leave denied [1998] S.C.C.A. No. 87; R. v. Eurocopter Canada Ltd., [2001] O.T.C.310, [2001] O.J. No. 1591 (Sup.Ct.Just.).

The jurisdiction to review errors of an inferior court by way of certiorari is of course limited toerrors relating to jurisdiction and errors of law on the face of the record: Dagenais v. Canadian Broadcasting Corp., (SCC), [1994] 3 S.C.R. 835 at para. 38.

[4] In addition, s. 487.3(4) of the Criminal Code contemplates that an application to vary any terms or conditions of a sealingorder regarding information used to obtain a warrant may be made to a judge of the court before which any proceedings arising out of theinvestigation in relation to which the warrant was obtained may be held: Canada (Attorney General) v. O'Neill (2004), (ON SC), 192 C.C.C. (3d) 255, [2004] O.J. No. 4649 at para. 26 (Sup.Ct.Just.).

Background [5] In this matter, Justices of the Peace and subsequently Semenuk Prov.Ct.J. declined to protect on an indeterminate basisinformation which would tend to disclose the identity of an informant. Semenuk Prov.Ct.J., without written reasons, apparently advisedorally that he was of the view that the public has a right of access to the material and there is a continuing onus on the Crown to establishpublic interest in sealing. [6] The principles regarding informer privilege are well established. Bastarache J. in Named Person v.

Vancouver Sun, 2007SCC 43, [2007] 3 S.C.R. 253 stated: 16 Police work, and the criminal justice system as a whole, depend to some degree on the work of confidential informers. The lawhas therefore long recognized that those who choose to act as confidential informers must be protected from the possibility of retribution.The law's protection has been provided in the form of the informer privilege rule, which protects from revelation in public or in court theidentity of those who give information related to criminal matters in confidence.

This protection in turn encourages cooperation with thecriminal justice system for future potential informers. ... 18 ...Not only does the ban on revealing the informer's identity protect that informer from possible retribution, it also sends a signalto potential informers that their identity, too, will be protected... 19 This general protection is so important that it renders informer privilege a matter beyond the discretion of a trial judge. ...oncefound, courts are not entitled to balance the benefit enuring from the privilege against countervailing considerations ... 20 ...the application of the rule "does not depend on the judge's discretion, as it is a legal rule of public order by which the judge isbound". 21 Thus a court does not have any discretion with regard to the privilege; a court is under a duty to protect the informer's identity.Indeed, the duty of a court not to breach the privilege is of the same nature as the duty of the police or the Crown. 22 It deserves emphasizing here that the rationale for the privilege's existence is not something that allows for weighing on acase-by-case basis the maintenance or scope of the privilege depending on what risks the informer might face.

Informer privilege is aclass privilege that always applies when it has been established that a confidential informer is present. 23 Once it has been established that the privilege exists, the court is bound to apply the rule. It is the non-discretionary nature of theinformer privilege rule which explains that the rule is referred to as "absolute"...

The Crown has a similar obligation: the privilege is"owned" by both the Crown and the informer himself, so the Crown has no right to disclose the informer's identity... ... 30 In conclusion, the general rationale for the informer privilege rule requires a privilege which is extremely broad and powerful.Once a ... judge is satisfied that the privilege exists, a complete and total bar on any disclosure of the informer's identity applies. Outsidethe innocence at stake exception, the rule's protection is absolute. No case-by-case weighing of the justification for the privilege ispermitted.

All information which might tend to identify the informer is protected by the privilege, and neither the Crown nor the court

has any discretion to disclose this information in any proceeding, at any time. [ 7 ] The Supreme Court could not be clearer. Where an affidavit contains information which might tend to identify an informer, all participants in the justice system are obliged to protect it. The only exception is innocence at stake. There is no suggestion that this exception was relied on to justify the time limits on the sealing orders in question. [ 8 ] Where informer privilege has been established, the participants in the administration of justice have no discretion but to apply the rule.

In effect, the court has the same onus as the Crown and that is to uphold the privilege. Therefore, the court has no jurisdiction to limit the duration of a sealing order regarding information tending to identify an informant.

Conclusion [ 9 ] The sealing orders in question are varied to provide that access to and disclosure of the following material is prohibited until further order: The unedited information to obtain a search warrant and the affidavit of Constable Derek Coffyne sworn November 1, 2010 in the matter of Identifier Number 2010-4723 ; shall be sealed in a separate packet and stored in a secure place in the Provincial Court Registry and The unedited information to obtain a search warrant and the affidavit of Constable Jodi Jensen sworn October 7, 2010 in the matter of Identifier Number 2010-4460 shall be sealed in a separate packet and stored in a secure place in the Provincial Court Registry.

Heard on the 20 th day of April, 2011. Dated at the City of Calgary, Alberta this 20 th day of April, 2011. Gerald A. Verville J.C.Q.B.A. Appearance: Robert A. Sigurdson General Counsel Public Prosecution Service of Canada for the Applicant