Globe & Mail v. Alberta, 2011 ABQB 363

Court of Queen ’ s Bench of Alberta Citation: Globe & Mail v. Alberta, 2011 ABQB 363 Date: 20110623 Docket: 1001 18560 Registry: Calgary Between: Globe & Mail, a division of CTV Globemedia Publishing Inc. Applicant - and - Her Majesty the Queen Respondent - and - an Unnamed Company Respondent _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice W. A. Tilleman _______________________________________________________

Application to Vary the Order by His Honour Judge J.D. Bascom, Provincial Court Judge Heard May 27 and June 3, 2011 (Released by Order of the Court not before June 23, 2011 ) Introduction [ 1 ] “In any constitutional climate, the administration of justice thrives on exposure to light -- and withers under a cloud of secrecy.” (Justice Fish writing for the majority in Toronto Star Newspapers Ltd. v.

Ontario , 2005 SCC 41 , [2005] 2 S.C.R. 188 at para. 1 ) [ 2 ] This judgment deals with my in camera hearing where I had to face the difficult task of balancing the sometimes competing rights to freedom of expression and the press, with the administration of justice, the protection of innocent persons, and the right to a fair trial. This case involves testing the balance of those scales of landmark issues, and it flows from the Order of Judge J.D.

Bascom, who sealed the contents of an Information to Obtain (ITO). [ 3 ] The Applicant Globe and Mail, who had no notice of Judge Bascom’s Order, claims that the Court erred in sealing the file, that the Order should be quashed and that the file should be unsealed to give the public, including the Globe and Mail, access to the information. The Applicant requests unlimited access to the ITO, subject however, to the following redactions: 1. Any material over which a

section 38 Canada Evidence Act claim is asserted; 2. Any credit card, bank account, or other personal financial information; 3. Any information which could identify the Named Person referred to in para. 38 of the Crown’s Submissions; and 4.

Any information which could identify employees of corporations in the ITO who are not subject to an ongoing investigation, unless their identify is necessary to provide context to the balance of the information. [ 4 ] The Respondent, who I call an “Unnamed Company” claims that Judge Bascom properly sealed the file and that the file must remain sealed to prevent serious risk to the proper administration of justice.

It is their position that public release of the information contained in the ITO would harm the reputations of innocent people named within the ITO and it would generate intense media coverage making any future trial, unfair. [ 5 ] The Respondent Crown takes somewhat of a middle ground - requesting that the Information to Obtain remain sealed and that a redacted version be released that protects the names of innocent persons, persons in danger, or any information which could tend to identify such persons.

It is the Crown’s position that this would balance the proper administration of justice by protecting innocent persons and ensuring that any future trial will be fair, while allowing disclosure to the public in an effort to ensure the justice system is as open as can be without unduly restricting free expression. The Original Order

[6] The original Order had five grounds for restricting access to the material: 1. Disclosure would compromise the nature and extent of an ongoing investigation; 2. Disclosure would harm the reputations of those who are currently being investigated; 3. Disclosure would harm the interests of innocent share holders of the corporation under investigation as public disclosure of theextent of this investigation would likely result in a loss of investor confidence and would have a negative impact on the share price of thecorporation; 4.

Disclosure would harm the financial integrity of the corporation under investigation; and 5. And that some of the information used in this investigation may be subject to the provisions of

Section 38 of the CanadaEvidence Act and public disclosure may result in an offence contrary to the Canada Evidence Act. Law and Analysis Standard of Review [7]

Section 487.3 (4) of the Criminal Code, R.S.C. 1985, c. C-46 grants me jurisdiction to terminate or vary the Order and any ofits terms or conditions. Therefore, a determination of the nature of the questions and the authority of the judge to decide as he did, is notnecessary. Thus, without getting into jurisdictional questions on correctness vis a vis the Provincial Court Order, I can rely on theCriminal Code to vary or terminate the Order if I determine that it should not properly continue as it stands. All counsel are in agreementwith this jurisdictional assessment.

Restricting Public Access [8] Generally, an application to restrict media or public access may be granted upon evidence that it is necessary to preventserious risk to the proper administration of justice: Dagenais v. Canadian Broadcasting Corp., (SCC), [1994] 3 SCR835. Even so, a ban is only necessary to prevent a real and substantial risk to the fairness of the trial, where there are no reasonablyavailable alternative measures that can prevent the risk, and where the salutary effects of the order outweigh its deleterious effects,including the effects on the right to free expression and an open court process.

R. v. Mentuck, 2001 SCC 76, [2001] 3 S.C.R. 442 at para.32. [9] It is without question that a properly functioning democracy depends upon the freedom of the press. One of the fundamentalfreedoms guaranteed to everyone by Canada is the freedom of expression and of the press: s. 2(

b) of the Canadian Charter of Rights andFreedoms,

Part I of the Constitution Act, 1982, being

Schedule B to the Canada Act 1982 (U.K.), 1982, c.11. Whether or not prioritiesacross the Charter involving freedom of expression and of the press have finally been cast through the grouping of a fundamentalfreedom, that freedom (of speech) would rest near the top. Democracy depends upon an informed public, who in turn depend upon a freepress to inform them.

That freedom is dovetailed in other freedoms. [10] However, society also depends upon the proper administration of justice which includes confidential police investigations.These investigations require a high level of secrecy to be effective, at least until a search warrant is executed. After a search warrant hasbeen executed, the system moves to a presumption of openness. The Court in Attorney General of Nova Scotia v. MacIntyre, (SCC), [1982] 1 S.C.R. 175 [MacIntyre] (cited with approval in Toronto Star Newspapers Ltd. v. Ontario, 2005 SCC 41,[2005] 2 S.C.R. 188 at paras. 18-22) stated at ps. 188-189:

...the force of the ‘administration of justice’ argument abates once the warrant has been executed, i.e. after entry and search. There isthereafter a “diminished interest in confidentiality” as the purposes of the policy of secrecy are largely, if not entirely, accomplished. Theneed for continued concealment virtually disappears...The curtailment of the traditionally uninhibited accessibility of the public to theworking of the courts should be undertaken with the greatest reluctance. [11] The principles of MacIntyre have been codified in s. 487.3 of the Criminal Code. Under s.487.3 the Court may grant an orderdenying access to information used to obtain a warrant or production order.

Section 487.3(2)(

a) specifically enumerates four possible“serious risks to the proper administration of justice” that justify sealing of search warrant materials, including that disclosure of theinformation would: (

i) compromise the identity of a confidential informant; (ii) compromise the nature and extent of an ongoing investigation; (iii) endanger a person engaged in particular intelligence-gathering techniques and thereby prejudice further investigations in whichsimilar techniques would be used, or (iv) prejudice the interests of an innocent person;... [12] The parties have all made submissions as to how the Court should properly balance the competing interests of openness andthe need for secrecy. The Crown maintains that the original Order should be maintained in respect to ongoing investigations.

By notdisclosing the names of those mentioned in the information to obtain, the Crown submits that innocent people will be protected and anyfuture trial that may occur will not be tainted by media scrutiny. The Globe and Mail admits that individual names should be redacted onthe basis that they are innocent persons.

However, the Globe and Mail argues that the unnamed company’s identity and otherinformation should be disclosed because inter alia much of the information has already been made public in various ways. [13] The unnamed company completely disagrees; arguing it is an innocent person and that it would suffer irreparable harmthrough disclosure, both to its economic interests and its right to a fair trial (if charges are ultimately laid).

Innocent Persons [14] For the purpose of discussing innocent “persons” I am assuming without argument (but see s. 2 of the Criminal Code) that theunnamed company falls within that classification either because of it being an organization or because of those individuals inside oroutside of the unnamed company were mentioned or named in the original ITO. [15] As the cases show, the interests of innocent persons are an important consideration that may justify redacting any identifyinginformation from public disclosure. Obviously, people are to be presumed innocent until proven guilty.

Part of the presumption ofinnocence is not to have an innocent person subject to intense media scrutiny that may irreparably tarnish that person’s reputation. [16] In MacIntyre the Court held that innocent persons were third parties whose premises have been searched and where nothingwas found. Justice Dickson also said that where a search takes place and something is found that “other considerations come to bear”: atp. 187. It has been unsuccessfully argued that this creates a dichotomy wherein when materials are seized pursuant to a search that thesepersons are not ‘innocent persons’: R. v.

Ottawa Citizen Group Inc. (2005), (ON CA), 75 OR (3d) 607, 255 DLR(4th) 149 (C.A.) at para. 34. As the Court in Ottawa Citizen Group clarified, Justice Dickson did not intend to create this dichotomy andthat no one seriously believes that persons subject to a search warrant are no longer ‘innocent persons,’ whether material was seized or not: see also Phillips v. Vancouver Sun, 2004 BCCA 14, 19 C.R. (6th) 55 [Phillips].

[17] In R. v. Henry, 2009 BCCA 86, the British Columbia Court of Appeal withheld release of the identity of a man subject to apolice investigation into a series of sexual assaults. I agree with the statement of that Court when it said (at para. 17): ... He has not been charged, and unless and until he is convicted, he is presumed to be innocent of the unsolved offences which were thesubject of the Smallman investigation. The publication of his name is not necessary in any way to Mr. Henry’s appeal.

The publicinterest in the openness of trials and the administration of justice is not, in my view, diminished by the withholding of his name. Allproceedings have been, and will continue to be, carried out in the open. On the other hand, the reporting of Mr. X’s personalcircumstances, combined with inflammatory demands by the media that his parole be revoked and statements that he is a “prime suspect”and a “dangerous sexual predator” being allowed to “live anonymously among us”, mean that Mr.

X’s privacy and even security interestswill be at risk if his name is published — more so than in the usual case of persons suspected but uncharged. If our society takesseriously the proposition that a person in Mr. X’s position is presumed innocent until proven guilty, it seems to me that the deleteriouseffects, both on his privacy interests and on the administration of justice, of the publication of his name do outweigh the public interest inknowing that fact.

While the investigation in the present case involves allegations of completely different offences, the content of the ITO and particularlythe interest that those named within it have in privacy are, very strong. [18] All of the persons named in the ITO are assumed to be innocent persons. The nature of the allegations in the ITO are such thatdisclosure of identifying information about these persons would be extremely harmful to their reputations. Furthermore, I believe that thepublic interest in disclosure is not furthered by release of identifying their personal information. It will not be released.

Commercial Interests [19] The Unnamed Company cites the Sierra Club of Canada v. Canada (Minister of Finance), 2002 SCC 41, [2002] 2 SCR 522case in support of the argument that the Court may deny access to the ITO on the basis of a need to protect the Unnamed Company’scommercial interests. While it is true that the Court in Sierra Club held that the commercial interests in that case were such thatconfidentiality was warranted, with respect, the facts of this case are different in important ways.

In Sierra Club the AECL (AtomicEnergy of Canada Limited) was able to point to considerable evidence that there was a real and substantial risk to its commercial interestsand that this commercial interest could be expressed in terms of a public interest in confidentiality.

Particularly, the AECL was able toshow that disclosure would force it into contractual breaches which would directly harm its competitive position and that if disclosurewas ordered that it would be forced to compromise its own ability to defend itself in order to protect its commercial interests. [20] In the present case the Unnamed Company has only raised concerns that disclosure could harm share value or impact innocentshareholders in a commercial way. Even if disclosure would harm share value this is not the same type of commercial interest that theCourt in Sierra Club sought to protect.

The public interest in disclosure in my view outweighs any claim by a company to secrecy forpurposes relative to share value. Apart from share value itself, and speculating without premise that the unnamed company is identifiedelsewhere, I believe there would be a group of shareholders in any company that would want to be kept apprised of current events, ingeneral. Right to a Fair Trial [21] On different facts, releasing considerable information in ongoing investigations can be highly prejudicial to a person’s right toa fair trial. For instance, in Flahiff v.

Cour Du Québec, (QC CA), [1998] RJQ 327, 157 DLR (4th) 485, the QuebecCourt of Appeal held (at p. 19 - 20) leave to appeal to S.C.C. refused, 26502 (October 8, 1998): It is true that appellants did not lead any specific evidence at the hearing before Judge Bonin to establish that the search warrantdocuments would prejudice their trial. But the judge did have before him the affidavit of Daniel Chartrand, an R.C.M.P. officer, outlining in detail the information that hadbeen related to him by Paul Larue... It is perfectly plain that Larue’s evidence, if accepted, would be highly prejudicial.

And at this stage,of course, appellants have no way of challenging it or cross-examining him.

... Why should appellants have to face their trial preceded by a cloud of highly prejudicial pre-trial publicity based on the hearsay allegations of an accomplice which they cannot, at this stage, contradict or challenge. They would not have to face this kind of prejudice if the evidence were given at a preliminary inquiry or a bail hearing. Surely the same reasons exist in this case for a publication ban of these allegations in a search warrant information which have not yet been admitted into evidence.

What is to be gained, at this stage, in subjecting the appellants to the prejudice of publishing the hearsay evidence of an accomplice? [ 22 ] Closer to the facts before me, in Toronto Star v. The Queen and Certain Unnamed Persons , 2006 ONCJ 544 [ Toronto Star ], the Court dealt with a case where there was an original sealing order, and then a subsequent variation of the order allowing the targets of the warrant to be provided to counsel for the targets. At the time of the hearing no charges had been laid. [ 23 ] The Court reviewed the law including Phillips v.

Vancouver Sun , 2004 BCCA 14 , another case where no charges had been laid. The Court noted that a material difference in the Phillips and Toronto Star cases was that in Phillips there had been a determination that no charges would be laid. In that respect, the present case is more similar to Toronto Star because charges may still be laid. [ 24 ] In Toronto Star the Court applied s. 487.3 and the common law and determined that a redacted version that redacted all identifying information was a reasonable alternative to a sealing order or full publication ban. I agree.

The Court stated at paras. 19 and 20: In my view, there exists in this case a reasonable alternative to a sealing order or a full publication ban. That alternative recognizes the value of the press having access to the information concerning a police investigation so that the public can be informed about an issue of public importance. It also would recognize the value of innocent persons not being subject to prejudice, which would arise if any of their names were published as targets of the search warrant, having never been charged with any offence.

A partial publication ban would allow the press access to the sealed information but would prohibit publication of the names of the targets or any information that would serve to identify them would have the salutary effect of allowing public scrutiny of the investigation while minimizing the deleterious effect upon innocent persons including any future right to a fair trial. [ 25 ] The public interest in disclosure in this case is similar to the Phillips case. However, as I said above, the Crown has not yet decided that the target or associated parties will be charged.

On that basis, I find the balancing of interests in Toronto Star , through a redacted version, are appropriate for the present case. [ 26 ] The information in the ITO contains material related to a police investigation about an issue of no small public importance. Canadian society, I believe, is strong enough to handle such information regarding police investigations. On the other hand, there are names of persons who remain innocent named in the ITO who may yet be charged.

As the Court held in MacIntyre at ps. 186 -187: 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...Protection of the innocent from unnecessary harm is a valid and important policy consideration. [ 27 ] By releasing the redacted version of the ITO, but with names and identifying information redacted , the innocent persons can be protected, trial fairness can be protected, and the public can be prudently informed of the police investigation in an area I believe Canadians view of great relevance to the health of their society.

[ 28 ] Out of an abundance of caution, however, I am not releasing the (first) redacted version, or even the (second) amended redacted version. I go farther than that. To fully protect and give value to the rights of the innocent, the fairness of the trial, and reputational matters, it is only the (third) amended amended redacted version that will be released, subject to my own edits of that version. I have looked at all versions and now with my edits I am satisfied the final version hits the alternative and strikes the correct balance.

Conclusion [ 29 ] It is appropriate that the unnamed company rely on fairness of the trial process in support of a continued ban, but it is hard for me to accept as the company suggests, a continued and complete ban is necessary to protect that process. At the end of the day I would have to accept without knowing exactly what information would impact the impartiality of a prospective juror. That information I do not know and without a crystal ball I will never know it. [ 30 ] I have great confidence in those 12 people, i.e., in the jury’s ability to function unbiased.

I combine that of course with the skills of cautious trial judges, and I point out several cases where that worked, as did counsel. Those were also high profile cases: Twitchell , [1] and numerous others.

I realize the heightened concern over the instant nature of our electronic press being subject to the uncertainty of the global internet but I also think the threats to fairness are corrigible by the rampart of the judiciary including not only their sua sponte decisions across the full spectrum of criminal process applications but also defence counsel motions, and prospects of civil defamation or contempt against the press, if they get it wrong. [ 31 ] To be sure, the press does not have an absolute right to all information and this case proves that point. [ 32 ] I close by reiterating: releasing the information in the form that it will go out, is important.

I also conclude that I do not believe the rights of a fair trial and freedoms of the press are mutually exclusive; just the opposite. The press is scrutinized just like their scrutiny is needed for the public regarding the trial and the justice system itself. As for postponing the edited release and continuing the sealing, I considered extending the Order until September 2011, as counsel for the Unnamed Company suggested at one point. Yet, I do not believe it should continue for much longer or even that long.

I say this because extending the protection of a triple amended and now edited redacted ITO in my view will paradoxically result in increasing the sensationalism, and that may, for predictable but unknown reasons, result in delaying the trial if charges are laid. That delay to a potential accused, is unfair and that is another factor I have weighed. Order [ 33 ] I exercise my jurisdiction under s. 487.3 of the Criminal Code to vary the Order of Judge Bascom and release the amended amended redacted version of the ITO identified below, to the public.

The version to be released has significant redactions: 8 of the s (11%) are entirely blacked out; 12 of the pages (17%) are one-half blacked out; 51 of the pages (>70%) are partially blacked out; and only one page is unaffected by the edits. As to content of what information I require to be further redacted, it is: -delete the country referred to in para. 44; -the first letter of some of the words in para. 46(

d) need to be completely blacked out; -the bank account name in para. 59(

a) should also be blacked out; -the name attached to an email quote in para. 67 should be blacked out; -delete the solicitor’s name in para. 99(d); -delete the credit card number in para. 113(d); and -delete the full date in the first line of para. 68. [ 34 ] Given the delicate nature of the original ITO, I will stay my judgment including the release of these reasons and the amended amended edited redacted version, until 4:00 p.m. M.D.T. June 23, 2011.

[ 35 ] Further, having discussed the disposition of the sealed materials with counsel, I will order that the following materials be marked as Exhibits in these proceedings: 1. ITO - Exhibit A 2. ITO - redacted - Exhibit B 3. ITO - amended redacted - Exhibit C 4. ITO - amended amended redacted - Exhibit D (revised with my edits) [ 36 ] Exhibits A, B and C are sealed and cannot be opened except by me or any Justice of the Court of Appeal. Exhibit D and these Reasons are to be released as stated above, from this Court, (subject to any decision of the Court of Appeal) on June 23, 2011.

Counsel for the unnamed company have asked for briefs and other written materials which are to be sealed, and I agree. They are placed in the sealed category of Exhibits A, B and C. [ 37 ] Regarding sealing, the Clerk of the Court is further directed that: 1. The FTR is sealed; 2. A transcript not be prepared of any of my proceedings; 3. No other information is to be released to anybody or any organization without my Order or the Order of the Court of Appeal; and 4. This file itself is sealed and any information in it is not to be released without my Order or the Order of the Court of Appeal.

Heard on the 27 th day of May, 2011. Dated at the City of Calgary, Alberta this 8 th day of June, 2011. W. A. Tilleman J.C.Q.B.A. Appearances:

Matthew Woodley Reynolds, Mirth, Richards, & Farmer LLP for the Applicant Alexander D. Pringle, Q.C. Pringle MacDonald & Bottos and Kristine Robidoux Q.C. Gowling Lafleur Henderson LLP for the Respondent - an Unnamed Company Steven Johnston Alberta Justice Specialized Prosecutions Branch for the Respondent - Her Majesty the Queen [1] I do note the ban in Twitchell 2010 ABQB 692 but also note the difference in the facts between these cases.