Canada (Attorney General) v Canadian Broadcasting Corporation, 2021 ABQB 487

Court of Queen’s Bench of Alberta Citation: Canada (Attorney General) v Canadian Broadcasting Corporation, 2021 ABQB 487 Date: 20210624 Docket: 210253415X1 & 210307773X1 Registry: Lethbridge Between: The Attorney General of Canada Applicant - and - The Canadian Broadcasting Corporation Respondent _______________________________________________________ Reasons for Decision of the Honourable Madam Justice J.C. Kubik _______________________________________________________ I. Introduction [ 1 ] On December 13, 1997 Lorraine McNab and Peter Sopow were shot and killed.

Their bodies were discovered in a horse trailer located at McNab’s residence near Pincher Creek, Alberta. Charges have never been laid, and the police investigation, now in its twenty-third year, has not been concluded. [ 2 ] Between December 18, 1997 and February 24, 1998, the RCMP obtained multiple search warrants based on 15 sworn Informations to Obtain (“ITOs”). Extensive evidence was set out in the various ITOs, including information derived from crime scene investigation, witness statements, and forensic analysis, performed on the items seized as a result of the various warrants issued.

All of the search warrants obtained pursuant to the ITOs were executed. Eight separate sealing orders, granted between December 19, 1997 and February 27, 1998, were applied to all of the ITOs. [ 3 ] In August 2017, The Canadian Broadcasting Corporation (“the CBC”) applied to Peterson J, of the Provincial Court of Alberta, to have the original sealing orders terminated. The application was resolved by consent between the CBC and the Crown, and

significant portions of the ITOs were unsealed. Certain portions remained redacted, and the redacted portions were sealed for a period of 3 years, to July 16, 2020. [ 4 ] On July 7, 2020 the Crown requested an indefinite extension of the sealing orders. Peterson J directed the request to be made on an application with notice to the CBC. The application was heard on January 8, 2020. On February 10, 2021, Peterson J denied the application and vacated all remaining sealing orders (the “Peterson Order”). Effective March 12, 2021, the entirety of all of the ITOs became publicly accessible. The CBC has obtained copies of the ITOs. [ 5 ] The Crown seeks to vary the Peterson Order pursuant to

section 487.3(4) of the Criminal Code of Canada and asks this Court to grant a sealing order with respect to each ITO in relation to certain identified “holdback information”. It also asks this Court to issue a common law publication ban with respect to the holdback information which may have been accessed by any party after March 12, 2021. [ 6 ] At the conclusion of the oral hearing in this matter, I issued an interim publication ban with respect to the information made public by the Peterson Order. The interim publication ban continues to the date of this decision. II.

Issues [ 7 ] There are two issues before me on this application: 1. Whether I have jurisdiction to vary the Peterson Order pursuant to

section 487.3(4) of the Criminal Code and, if so, whether the application for the sealing orders should be granted. 2. Whether the Court should order a common law publication ban with respect to the holdback information contained in the ITOs, which became public as a result of the Peterson Order. III. Decision [ 8 ] I am satisfied that I do not have jurisdiction to vary the Peterson Order pursuant to

section 487.3(4) of the Criminal Code . [ 9 ] I am further satisfied that a common law publication ban over the holdback information should not be granted in this case. [ 10 ] These are my reasons. IV. Reasons i. Issue One: Jurisdiction to Vary the Peterson Order [ 11 ]

Section 487.3 of the Criminal Code provides as follows: Order denying access to information 487.3

(1) On application made at the time an application is made for a warrant under this or any other Act of Parliament, an order under any of sections 487.013 to 487.018 or an authorization under

section 529 or 529.4, or at a later time, a justice, a judge of a superior court of criminal jurisdiction or a judge of the Court of Quebec may make an order prohibiting access to, and the disclosure of, any information relating to the warrant, order or authorization on the ground that (

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 an improper purpose; and (

b) the reason referred to in paragraph (

a) outweighs in importance the access to the information. Reasons

(2) For the purposes of paragraph (1)(a), an order may be made under subsection (1) on the ground that the ends of justice would be subverted by the disclosure (

a) if disclosure of the information 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 future investigations in which similar techniques would be used, or (iv) prejudice the interests of an innocent person; and

(

b) for any other sufficient reason. Procedure

(3) Where an order is made under subsection (1), all documents relating to the application shall, subject to any terms and conditions thatthe justice or judge considers desirable in the circumstances, including, without limiting the generality of the foregoing, any term orcondition concerning the duration of the prohibition, partial disclosure of a document, deletion of any information or the occurrence of acondition, be placed in a packet and sealed by the justice or judge immediately on determination of the application, and that packet shallbe 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 mayauthorize and shall not be dealt with except in accordance with the terms and conditions specified in the order or as varied undersubsection (4).

Application for variance of order

(4) An application to terminate the order or vary any of its terms and conditions may be made to the justice or judge who made the orderor a judge of the court before which any proceedings arising out of the investigation in relation to which the warrant or production orderwas obtained may be held. [12] The Crown relies on subsection (4), arguing that it empowers this Court to vary the Peterson Order and impose sealing orderson the holdback information.

The Crown relies on the decision of Canada (Public Prosecutions) v Alberta (Provincial Court), 2019ABQB 484 [Canada v Alberta] as authority for the proposition that while the Court of Queen’s Bench has jurisdiction to vary aProvincial Court sealing Order either by way of certiorari or pursuant to

section 487.3(4), the preferred procedural route is variation. It isimportant to note that the Crown did not advance an alternative application for certiorari. Neither did it seek a new order pursuant tosection 487.3(1), recognizing that doing so could result in inconsistent rulings from two separate courts on the issue. [13] The CBC argues that

section 487.3(4) is not applicable in circumstances where the sealing orders have been vacated. It saysthat pursuant to R v Mentuck, 2001 SCR 76 [Mentuck], the Crown had two options: an application for certiorari, or leave to appeal thePeterson Order to the Supreme Court of Canada, pursuant to

section 40 of the Supreme Court Act. Having done neither, it is the CBC’sposition that the Peterson Order is final and there is no remedy, in the nature of a sealing order, which can be granted by this Court. [14] The modern rule of statutory

interpretation requires courts “to take a unified, textual, contextual, and purposive approach tothis task... a Court must consider not only the textual wording of the statutory provision in dispute, but also the purpose of that provisionand all relevant context. That includes the legislative scheme of which the provision forms a part.” (Ruth Sullivan, 6th Edition (Markum:LexusNexis Canada, 2014) [Sullivan] at 7-8; Alberta v ENMAX Energy Corporation, 2018 ABCA 147.) [15] The Supreme Court of Canada in Rizzo & Rizzo Shoes Ltd (Re), (SCC), [1998] 1 SCR 27, stated: ...statutory

interpretation cannot be founded on the wording of the legislation alone. The words of

an Act are to be read in their entirecontext and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention ofParliament. [16]

Section 487.3 empowers a judge to make an order denying access to and disclosure of any information relating to a warrant. [17] The exercise of that power is discretionary and must be exercised in a way that has regard to the administration of justice, thefair trial rights of an accused person, and freedom of the press: Mentuck. [18] Subsection 4 provides only for termination or variation of the terms and conditions of a sealing order. The section, by its verylanguage, contemplates an existing order, and allows specifically for its termination or variation.

It does not contemplate the grant of anew order, or revival of a vacated sealing order. In this case, the Peterson Order vacated all of the sealing orders, and while it extendedthe effective date of the order to reflect a 30-day appeal period, there remain no sealing orders, the terms of which might be varied. [19] Therefore, Canada v Alberta is distinguishable on its facts. In that case, a Provincial Court judge granted a sealing order,albeit time limited. The Crown sought an order for certiorari and in the alternative sought a variation pursuant to

section 487.3(4),seeking an indefinite extension of the order over the informant information. The Court, based on the additional information put before it,granted the variation of the existing order, and in doing so commented that variation was the proper procedural mechanism for review ofthe terms of a provincial court sealing order. Similarly, in Globe & Mail v Alberta, 2011 ABQB 363, and Search Warrant SealingOrder (Identifier Numbers 2010-4460, 2010-4723) (Re), 2011 ABQB 276, there were existing sealing orders for review and variation. [20] I am therefore satisfied that in the absence of an existing sealing order, the variation provisions of

section 487.3(4) do notafford me jurisdiction to vary the Peterson Order. [21] Analysis of the appropriate procedure for reviewing sealing and publication ban orders was considered by the Supreme Courtof Canada in Dagenais v CBC, (SCC), [1994] 3 SCR 835[Dagenais]; R v Adams, (SCC), [1995] 4 SCR707 [Adams]; and Mentuck. [22] In Dagenais, the Supreme Court of Canada considered whether it had jurisdiction to hear an appeal by the CBC in relation toa publication ban issued by a superior court, in circumstances where there was no statutory right of appeal to a provincial appellate court.Lamer J discussed the available avenues of review, depending on the level of court in which the order in question originated.Specifically, he held that with respect to decisions of a provincial court, the avenue for review was an application to a superior courtjudge for certiorari; whereas, with respect to the decision of a superior court, the avenue for review was an appeal to the Supreme Court

of Canada pursuant to

section 40 of the Supreme Court Act . [ 23 ] Lamer J. also discussed the expanded remedial powers of a superior court considering an application for certiorari in relation to an order directing a publication ban, stating the following: (iv) Extraordinary Remedies Provincial superior courts have jurisdiction to hear applications for the extraordinary remedy of certiorari against provincial court judges for excesses of jurisdiction and for errors of law on the face of the record. As I will explain in

Part C of these reasons, the common law rule governing the issuance of orders banning publication must be consistent with the principles of the Charter . Since the common law rule does not authorize publication bans that limit Charter rights in an unjustifiable manner, an order implementing such a publication ban is an error of law on the face of the record. Therefore, if a publication ban order is made by a provincial court judge, the media can apply to the superior court for certiorari and argue that the ban is not authorized by the common law rule.

If this is the case, the ban will then constitute an error of law on the face of the record. By virtue of s. 784(1) of the Criminal Code , an appeal lies to the Court of Appeal from a decision granting or refusing the relief sought in proceedings by way of certiorari . This avenue uses established procedures and is not inconsistent with previous Supreme Court of Canada case law. In addition, the certiorari avenue provides for appeals (through s. 784(1) of the Criminal Code ). It therefore avoids the undesirable situations of: (

a) important rights being left without the protection of review and appeal; and (

b) an increased number of leave applications being made to this Court and cases needing to be heard by this Court. The most important problem with this avenue is that, at common law, certiorari does not lie against a decision of a superior court judge. In Kourtessis, supra , at p. 90, the possibility that certiorari might lie against a superior court judge was left open by some members of this Court. However, I am not willing to adopt an avenue that requires that one superior court judge review the decision of another superior court judge.

Therefore, this avenue is available against a provincial court judge but not against a superior court judge. The following odd situation thus results: essentially the same order made for the same purposes affecting the same rights (of the defendant, the Crown, and the media) will be subject to different avenues of review and appeal depending upon whether the order is made by a superior court judge or a provincial court judge. Another problem with this avenue comes from the apparently limited remedial powers of certiorari . Traditionally, certiorari has been limited remedially.

That is it could only be used to quash an order. Thus, if the media were seeking an additional or alternative remedy, the desired remedy would appear to be unavailable through certiorari . 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 .

Despite the difficulties with this avenue, I find that it is the least unsatisfactory avenue and I therefore adopt it for third party challenges to publication ban orders made by provincial court judges under their discretionary authority in the context of criminal proceedings. [page 864-867] [emphasis in original] [ 24 ] As a result, a superior court judge has the authority to both hear an application for certiorari arising from the sealing or publication ban order of a provincial court, and give remedial relief which is appropriate and just in the circumstances, consistent with

section 24 of the Charter . [ 25 ] In Adams , the Supreme Court of Canada took jurisdiction in an appeal of a superior court decision rescinding a publication ban ordered pursuant to sections 486(3) and (4) of the Criminal Code , following the accused’s acquittal at trial. As there was no right of appeal arising under

section 676 of the Criminal Code , the trial judge was the court of last resort and therefore leave to appeal, pursuant to

section 40 of the Supreme Court Act , was the only avenue for review. [ 26 ] Finally, in Mentuck , the Supreme Court of Canada again addressed the issue of jurisdiction. In that case, the parties to the application were the Crown and the accused. Following Dagenais and Adams , Iacobucci J held that in circumstances where there is no statutory right of appeal, the parties should proceed pursuant to

section 40 of the Supreme Court Act . It was reiterated in Mentuck that where the publication ban was issued by a provincial court judge the correct avenue for review was by way of certiorari , to a court of superior jurisdiction. [ 27 ] Reading Dagenais , Adams , and Mentuck together leads me to the conclusion that the proper route for the Crown in this Case was an application for certiorari , as there was no statutory right of appeal from the Peterson Order and no existing order for variation, utilizing

section 487.3(4) . [ 28 ] Given that the Crown has not sought certiorari , and there is no jurisdiction for variation pursuant to

section 487.3(4) , on the application presently before me, I cannot entertain any remedies which would result in sealing of the ITOs with respect to the holdback information. ii. Issue Two: Common Law Publication Ban Over Holdback Information

[29] It is a fundamental principle in a free and democratic society that the administration of justice is open and transparent.

Thepresumption of openness, applies not only to the activities of courts when matters proceed to trial, but also during the investigative stageof criminal proceedings, including in relation to search warrants: Toronto Star Newspapers Ltd. v Ontario, 2005 SCC 41 [Toronto Star]. [30] Indeed, in the case of search warrants, it is presumed that upon execution the evidence relied upon to obtain the warrant willbe disclosed to the public: Attorney General of Nova Scotia v MacIntyre, (SCC), [1982] 1 SCR 175.

This recognizesthat orders sought ex parte and in camera, before charges are laid, should be subject to public scrutiny once executed. This is subjectonly to the sealing powers set out in

section 487.3 of the Criminal Code, and the common law authority of the court to ban publication. [31] In order to obtain a publication ban, the party seeking the ban, in this case the Crown, must rebut the presumption ofopenness. The test to be met is as articulated in Dagenais/Mentuck: 1. The order must be necessary to prevent a serious risk to the proper administration of justice, because reasonable alternativemeasures will not prevent the risk; and 2.

The salutary effects of the order must outweigh the deleterious effects on the rights and interests of the parties and the public,including the right of free expression, the right of the accused to a fair and public trial and the efficacy of the administration of justice. [32] This test must be applied in a flexible and contextual manner, having regard to the circumstances in which the order is sought:Toronto Star. [33] The Crown must present a sufficient evidentiary foundation to establish the risk posed by publication of the information:Mentuck. [34] The evidence must be more than a general assertion of risk; it must allege a “serious and specific risk to the integrity of thecriminal investigation”: Toronto Star. [35] The Crown seeks a common law publication ban to protect “holdback information”, arguing that publication of thisinformation would compromise the RCMP investigation, primarily by depriving it of the ability to use this information to verify aconfession or other witness information.

They ask that this ban be implemented until the earlier of the conclusion of trial or, alternatively3 years. [36] The CBC argues that the Crown has not provided sufficient evidence to justify a publication ban. It says that the evidence isinsufficient to demonstrate a real and substantial risk, posing a serious threat to the proper administration of justice. According to theCBC, this matter involves a cold case, which may never result in a prosecution.

They argue that publication serves the public interest, byassisting people to understand and assess the administration of justice, and in particular, the process of police investigation. [37] In this case, the Crown relies on the Affidavit evidence of Staff Sergeant Jason Zazulak (“Zazulak”), who is responsible forthe current comprehensive file review in this matter. Zazulak was cross-examined on his Affidavit.

His evidence is summarized asfollows: • All of the warrants in question were executed and various items were seized as a result. • Execution of the warrants did not result in any further forensic evidence linking a suspect to the crimes. • The investigation into these deaths, while not active, is subject to regular comprehensive file reviews, the most recent of whichbegan in 2018. • Since the last file review in 2012 there have been advances in forensic science, particularly in relation to DNA profiling, whichvarious of the seized items could be subjected to. • Various tips have also been received and investigated.

Some of the tip-related investigations are ongoing, while others havedisclosed no new information. The most recent tip was received on April 9, 2021, subsequent to this application being filed. This tipcame through another police service by way of a confidential informant. The tip identifies individuals who may be in possession ofevidence or information about what happened to Sopow and McNab, but is not directly tied to a person who may be responsible for thecrimes, and is not a confession.

Rather, it relates to evidence which the RCMP might be able to recover, which could lead to theidentification of suspects. • Generally speaking, holdback information consists of specific investigative details, known only to certain investigating officersand the perpetrator of the crime. It is used to reliably verify true confessions or identify false confessions, and to assess other witnessinformation. Verification of holdback details by a suspect, can also serve to bolster DNA evidence. • In this case, holdback information has previously been used to identify a false confession, allegedly made to a third party.

Theholdback information which identified the false confession included details about the number and location of wounds to the victims, thelocation where forensic evidence suggests the wounds were sustained, and details about how the victims’ bodies were found in the horsetrailer on the property. • In preparation of the ITOs in this case, the RCMP included the totality of the relevant information to obtain the warrants. Therewas no holdback information that Zazulak was aware of that was not included in the ITOs. • In addition, the entirety of the ITOs were sequestered in the holdback file.

There was no identification, within the holdback file, ofthe specific information in the ITOs which was considered holdback information. • In 2018, Zazulak, in consultation with the Crown and another RCMP member, identified the holdback information and redacted it.

It is Zazulak’s evidence, that based on his training and experience as a homicide investigator, he can identify the categories of holdback information. • Zazulak could not recall whether the holdback file contained any other information aside from the entirety of the ITOs. [ 38 ] The Crown has also tendered the Affidavit of Rosanna White, which provides historic context with respect to the granting of the search warrants and original sealing orders, as well as the subsequent applications brought by both the CBC and Crown in this matter.

Subsequent to the hearing, I also received unredacted copies of the ITOs and copies of the ITOs in which the holdback information is red-lined. [ 39 ] Holdback information has its place in criminal proceedings. The Crown provided a number of cases which discuss the use of holdback information as a verification tool in assessing a confession, whether in relation to voluntariness ( R v MR , 2019 ABQB 588 ), or as a measure of reliability in the context of a “Mr. Big” operation ( R v Hart , 2014 SCC 52 ; R v Ledesma , 2020 ABQB 117 ).

Those cases also disclose, however, that holdback information is but one form of confirmatory evidence and that there are other checks and balances surrounding the admissibility of confessions, including the presumption of inadmissibility, the burden of proof, and the contextual analysis of multiple factors related to the circumstances in which the confession is made and its reliability. [ 40 ] The fact that this evidence could assist police, when used as an investigative tool or technique, does not automatically give rise to a presumption that public disclosure will pose a serious threat to the administration of justice.

For example, in Mentuck , the Court acknowledged that publication of operational methods could compromise a police investigation, but determined that this was insufficient to establish a serious risk to the administration of justice.

In CBC v R and Laan (4 December 2017), Bracebridge (ONCJ) [ Laan ], the Court, in the context of a 20 year old cold case investigation, and in specific reference to holdback information, noted that “while there may be a tactical advantage to have the police retain the balance of the information to test the credibility and reliability of future witnesses coming forward, ‘access to court documents cannot be denied solely for the purpose of giving law enforcement officers an investigative advantage’”.

In Laan , the Court declined to grant a publication ban over the holdback information. [ 41 ] Publication of holdback information might present a more substantial risk of harm during an ongoing investigation: CBC v The Attorney General of Canada , 2019 BCSC 105 . In the present case, however, the police investigation has been open for 23 years and is the subject of periodic file reviews, not active investigation. Suspects have been identified. The physical evidence sought by way of the search warrants has been seized and analyzed and will continue to be subjected to forensic testing.

Valuable leads have been few and far between and, with the exception of the April 9, 2021 tip, have largely been investigated with no new evidence being generated.

The April 9, 2021 tip, currently under investigation, does not relate to a confession, and there is no evidence to suggest that publication of the holdback information will compromise the investigation of that tip. [ 42 ] While the entirety of the ITOs were originally sequestered in the holdback file and characterized as such, it is clear that much of the information contained in the ITOs has become publicly available, either by way of RCMP disclosure to the public, investigative reporting, and in 2018 by agreement between the Crown and the CBC.

The information which has been in the public domain since 2018 goes so far as to name certain suspects, provide some details as to the manner and cause of death, and identify some of the results of forensic analysis on items seized as a consequence of the search warrants. In the case of the 2018 disclosures, that information formed the basis of a CBC podcast entitled “Ambushed”, which spawned thousands of tips regarding the crime. [ 43 ] The specific holdback information, sought to be protected in this application, was only identified as such in 2018.

This information was included in the ITOs, with full knowledge of the presumption of openness which would arise following execution of the warrants. The current value of this holdback information rests on there being a confession or valuable witness information requiring verification. [ 44 ] The evidence as to the risk posed by publication of the holdback information is both general in nature and speculative, and relates only to the ability of police to verify the reliability of a future confession.

That the publication of the holdback information would cause a serious risk to the proper administration of justice, and in particular to this police investigation has not been proven.

At this time, having regard to the current status of the RCMP investigation, which discloses no new suspects, the long history of the investigation, and the passage of time which has elapsed since the killings of Sopow and McNab, I am not satisfied that public disclosure of the holdback information would compromise further forensic testing, identification of suspects, or be the sole measure of reliability of any confessions which might be received. [ 45 ] Further, imposing a publication ban, even for a period of 3 years, to protect a singular circumstance which may or may not arise during the course of a police investigation, does not outweigh the public interest in understanding and assessing this police investigation, now ongoing for nearly a quarter of a century, in the broader context of the administration of justice. [ 46 ] Accordingly, the application for a continuing publication ban over the holdback information is dismissed.

V. Conclusion [ 47 ] Both the application for variation of the Peterson Order and the application for a publication ban over the holdback information are dismissed. The interim publication ban order is hereby terminated. The effect of this order terminating the interim publication ban will be stayed to and including July 24, 2021, to provide any party time to appeal this decision. VI. Costs [ 48 ] The CBC indicated its intention to seek costs of the application, if successful.

Accordingly, the parties may provide costs submissions in writing pursuant to the procedure set out in the With Notice Desk Application Process – Civil Justice Chambers released by the Court on May 25, 2020.

Heard on the 7 th day of May, 2021. Dated at the City of Lethbridge, Alberta this 24 th day of June, 2021. J.C. Kubik J.C.Q.B.A. Appearances: Cameron G. Regehr Department of Justice – Prairie Region for the Applicant Erin J. Runnalls Gowling WLG (Canada) LLP for the Respondent