Canadian Broadcasting Corporation v. Canada (Border Services Agency), 2023 NSPC 6

IN THE PROVINCIAL COURT OF NOVA SCOTIA Citation: Canadian Broadcasting Corporation v.

Canada (Border Services Agency) , 2023 NSPC 6 In the Matter of an Application to Vary a Sealing Order, Criminal Code s. 487.3 BETWEEN: Canadian Broadcasting Corporation, Canadian Television Network, Global News, The Canadian Press, Globe and Mail, Post Media, Halifax Examiner and Saltwire (CBC Law Department, Bell Canada, Global News, Halifax Examiner Inc., SaltWire Network, The Globe and Mail, Toronto Star Newspapers Limited) - Applicants - and- His Majesty the King in the Right of Canada (Canada Border Services Agency) and His Majesty the King in the Right of Nova Scotia (Royal Canadian Mounted Police) - Respondents MERITS DECISION #2 Judge: The Honourable Judge Laurel J.

Halfpenny MacQuarrie Heard: June 30, 2022 at Truro, Nova Scotia October 13, 2022 at Port Hawkesbury, Nova Scotia Decision March 9, 2023, Halifax, Nova Scotia

Counsel: Mark Covan and Scott Millar, for the Federal Crown Shauna MacDonald, KC, and Mark Heerema, for the Provincial Crown David G. Coles, KC, for the Applicants By the Court: I. The Initial Application [ 1 ] On April 28, 2020, the Canadian Broadcasting Corporation, through its representative Elizabeth McMillan, filed a “Notice of Application” in the Provincial Court seeking to lift a sealing order over Informations to Obtain (ITO’

s) and search warrants. The Applicants suggested a general warrant, with an associated sealing order, had been issued under

Section 487.01 of the Criminal Code , authorizing the search of property belonging to Gabriel Wortman. [ 2 ] This application was precipitated by the mass shooting by Gabriel Wortman on April 18 and 19, 2020 in rural Nova Scotia which resulted in 22 people being killed, one of whom was pregnant, others injured, and a Province left in a state of shock. The tragedy encompassed 17 crime scenes and covered a large geographical area. Gabriel Wortman died on April 19, 2020. [ 3 ] In her correspondence, Ms. McMillan wrote: I am a journalist with the Canadian Broadcasting Corporation.

I am applying to lift a sealing order that has been imposed over certain records relating to these proceedings… We believe this matter is urgent because it is possible that the information outlined in the search warrant/affidavits/ITO’s could shed light on what police knew and when. There has been considerable focus on why the RCMP didn’t send out a public alert to warn people about an active shooter. We believe the public should know what information police had in this case, in the event protocol changes need to be made before the next tragedy .

If we wait months for this information, an opportunity to take steps to prevent a similar situation could be delayed. There is tremendous public interest in understanding the facts regarding the attacks that killed 22 people.

This was the largest mass shooting in Canadian history, and we believe the public should know why police searched properties belonging to the shooter Gabriel Wortman . [my emphasis added] [ 4 ] The Royal Canadian Mounted Police (RCMP) became the Respondents, represented by the Public Prosecution Service of Nova Scotia (PPS) as Her Majesty the Queen in the Right of Nova Scotia (now His Majesty the King in the Right of Canada). [ 5 ] Subsequently, the Canada Border Services Agency (CBSA) became a Respondent represented by the Public Prosecution Service of Canada (PPSC), as representing Her Majesty the Queen in the Right of Canada (now His Majesty the King in the Right of Canada). [ 6 ] Over the past, almost three years, the application has expanded to include 28 judicial authorizations issued between April 20 th and December 21 st , 2020.

II. Legislation and History of Proceedings

Criminal Code [ 7 ] The Criminal Code provides the authority for sealing judicial authorizations: 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 . ( 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.

(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). [ 8 ] An application to “unseal” such orders is set out in

Section 487.3(4): ( 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 order or a judge of the court before which any proceedings arising out of the investigation in relation to which the warrant or production order was obtained may be held. History of Proceedings [ 9 ] On July 16, 2020, this Court released the first of several decisions in this matter - Canadian Broadcasting Corporation v.

Canada (Border Services Agency) , 2020 NSPC 29 detailing the “process/procedure” the Court would follow in these Applications. [ 10 ] On March 16, 2021, Canadian Broadcasting Corporation v. Canada (Border Services Agency) , 2021 NSPC 15 , was released, ( Merits #1”) . It covered the first seven ITO’s and associated judicial authorizations issued between April 20-24, 2020. This merits decision covers the balance of such, being 21 in number. [ 11 ] On June 30, 2022, counsel made their final submissions on these 21 ITO’s and associated judicial authorizations which were

issued between May 2, 2020 and December 21, 2020. [ 12 ] In his submissions, counsel for the Applicants, stated: The first category, “White,” as you know my clients have conceded they’re not looking to publish this stuff. My friends, the Crown, has argued that, Well, it shouldn’t by released because there…that may lead to some sort of identity theft.

My clients have said, ‘We’re not interested in it unless it is part of the evidence of a crime.’ My submission to you remains the same, that the limited inclusion of this kind of stuff in the ITOs where it is integral to a crime that on the balance of going through the Dagenais/Mentuck test…I say when you go through the stages, you’re going to have to say that it favours release of that information because it is so germane to the crime itself.

As to the rest of it and other people, we agree with the Crown, we’re not seeking it… (see transcript June 30,2022 pg.86) [ 13 ] I believe it is extremely important at this point to put some historic context into these comments of Mr.

Coles, as they have, in part, shaped a great deal of these proceedings since. [ 14 ] In Merits #1 , the history of the proceedings was chronicled to March 10, 2021, and the decision released on March 16, 2021. [ 15 ] Going back to December 9, 2020 - the Crown advised Lisa Banfield, James Banfield and Brian Brewster had been charged, individually, under the Criminal Code as a result of the investigation in this matter.

The Crown believed notice should be given to each of this proceeding as their “fair trial rights” may be implicated by this unsealing Application. [ 16 ] In February 2021, Applicants’ counsel received additional ITO’s and judicial authorizations. Many redactions being categorized as “identifiers”, such as email addresses, banking information and financial information, VIN’s, passwords, and telephone numbers, and the like, but not names of individuals or businesses . [ 17 ] March 1, 2021 hearing - Mr.

Coles undertook to seek instructions and advise what was being sought from these “identifiers”. [ 18 ] Fair trial rights submissions were made on March 1, 2021 by Jessica Zita, on behalf of Lisa Banfield and Michelle James on behalf of James Banfield. The Applicants were not seeking redactions that counsel for Mr. Brewster had identified. [ 19 ] March 5, 2021 - Mr.

Coles wrote: I have been asked to specify the “identifiers” which the Applicants are not applying to be released: SIN Number Date of Birth License Plate Numbers Telephone Numbers Addresses Banking Records Credit Card Numbers Email Addresses Twitter “handles” However, if any of the foregoing are allegedly involved in the offence, and not merely potential information (e.g. the address of a property burned down by Mr.

Wortman) then the Applicants seek that class of information. [ 20 ] March 10, 2021 - briefs having been filed, submissions on the applicability of the Canadian Victims Bill of Rights to this proceeding were heard.

[ 21 ] March 16, 2021 - M erits #1 released. [ 22 ] April 23, 2021 - the Court wanting to streamline the remaining redactions, prepared and provided counsel, 13 Lists, particularizing 13 categories of redactions which remained for determination in Merits #2 . [ 23 ] Lists 9 and 10 are important at this juncture. “List 9” described as “account numbers/VIN’s/email addresses” and List 10, “Wortman Identifiers”. All were identified by ITO number, page and paragraph number with a description of redaction each by category. [ 24 ] M r. Coles was asked to delineate the specific ITO’s and corresponding paragraph(

s) as to their status going forward, that is, was he seeking to lift the sealing order or consenting to redaction for each, on these two lists. Expediency being the goal of the Court given the volume of material. [ 25 ] April 29, 2021 - Mr. Coles outlined in a general way, the information being sought on List 9 and List 10. [ 26 ] Court reconvened May 5, 2021, with the Court seeking more specifically, what was being sought by the Applicants. Mr. Coles responded, and the Crown sought further clarification. A meeting was then held between the Crown and Mr.

Coles. [ 27 ] May 17, 2021 - the Crown distributed a new “table of concordance” including the “final five” ITO’s and authorizations as redacted, with reasons, and color coded. This encompassed all 21 ITO’s and authorizations, consisting of Production Orders, search warrants, general warrants. [ 28 ] The Crown advised counsel for Brian Banfield, Lisa Banfield and Brian Brewster, of the new five ITO’s. By Order dated May 19, 2021, they were given those paragraphs of the documents which pertained to “fair trial rights”.

They then identified specifically, those redactions they felt attracted “fair trial rights” protection. [ 29 ] May 21, 2021 - correspondence from Mr. Coles indicated a meeting with the Crown had taken place and his clients instructed, he was “ not to engage in a contested argument respecting unredacting of these passages” – that was all of List 9 (account numbers, VIN numbers, email addresses) but continued to seek List 10 (Wortman identifiers). [ my emphasis added] [ 30 ] By correspondence just 10 days later, May 31, 2021, Mr.

Coles advised that the Applicant was not now contesting the continued redaction of List 10. The Court confirmed the same with Mr. Coles on the record, on June 1, 2021 . [ my emphasis added] [ 31 ] On June 11, 2021, the Supreme Court of Canada released Sherman Estate v.

Donovan 2021 SCC 25 (“ Sherman Estate” ) wherein an unsealing application, privacy rights and the open court principle were considered. [ 32 ] Over the next months, several issues arose. [ 33 ] The Applicants applied for a reconsideration of Merits #1 as a result of Sherman Estate . [ 34 ] Prior to it being considered, the Court heard argument on whether it was “ functus officio ” along with a secondary argument by the Applicants for an adjournment of the functus determination, as there was a pending decision from the Supreme Court of Canada on the issue. [ 35 ] Oral decisions on the “ functus officio ” and “request for adjournment” were given on September 13, 2021, with written reasons on

September 29, 2021, reported as Canadian Broadcasting Corporation v. Canada (Border Services Agency), 2021 NSPC 40 finding an adjournment would not be granted, and the Court was not functus officio. [ 36 ] November 10, 2021 - the Court having determined these two issues, heard submissions on whether Sherman Estate constituted a “material change in circumstances” such that Merits #1 should be reconsidered. [ 37 ] November 25, 2021 - Canadian Broadcasting Corporation v. Canada (Border Services Agency) , 2021 NSPC 48 , was released.

This Court finding individuals identified by the Crown as “victims” have measurable and active rights within the meaning of the Canadian Victims Bill of Rights, S.C. 2015, c 13, s.2 , including the right to convey their views in applications such as before this Court. [ 38 ] November 30, 2021 - Mr. Coles was provided with an updated table of concordance for Lists 9 and 10 based on his client’s instructions to seek neither, as per letter of May 31.

The concordance covered all ITO’s after Merits #1, up to and including the final five, save and except some paragraphs in the “final five” the Crown had yet to categorize. [ 39 ] December 2, 2021 - correspondence from Mr.

Coles confirmed he was not seeking List 9 but was once again seeking List 10, because of the ‘very recent determination of the very limited circumstance under which any ‘privacy concern may prevail over the open court principle ( Sherman Estate )’ and that all remaining redacted material in the ITO’s and related documents should be unredacted. [ 40 ] The Court sought specifics for each redaction and provided a response sheet for Mr. Coles. [ 41 ] December 6, 2021 - Mr.

Coles confirmed all of List 10 was being sought varying his position of December 2, 2021, that certain paragraphs in List 9 should be unredacted as they may relate to “offences/names of individuals” and some email addresses may relate to “ relevant individuals ”. [my emphasis added] [ 42 ] This was a significant shift in what the Applicants were once again seeking. [ 43 ] During the Fall, the issue of “solicitor-client privilege” arose within the context of the ITO’s, as a result of Lisa Banfield having been charged with Criminal Code offences.

Counsel provided briefs and made oral submissions. [ 44 ] December 7, 2021 - this Court released the solicitor-client privilege decision, Canadian Broadcasting Corporation v. Canadian Border Services Agency 2021 NSPC 52 releasing some redactions and maintaining others. [ 45 ] After the release of the Court’s decision on the Canadian Victims Bill of Rights being applicable to these proceedings, counsel were asked if they could agree on a procedure for victims to convey their views, should they wish to do so.

By letter dated December 13, 2021, counsel advised they had no consensus on a procedure. [ 46 ] After correspondence of December 13 th , and a brief court appearance on December 14 th , the Applicants received “the balance of List 9 and 10” as categorized by the Crown. Mr. Coles was asked once again to review the concorded “Lists” in minute detail and provide his client’s position. [ 47 ] Expediency in these proceedings being the continued goal. [ 48 ] December 16, 2021 – correspondence from Mr.

Coles indicated the Applicants sought to have the balance of List 10 redactions lifted and were unsure regarding the same on List 9 as he is unable to determine if same are “ names ” and is “unable to determine whether inclusion in List 9 is appropriate”. [my emphasis added]

[ 49 ] With the consent of all counsel, the Court assumed the “revisions” of the ITO’s and judicial authorizations with 3 recent Orders requiring updating and production of a new table of concordance. [ 50 ] Trials for James Banfield, Lisa Banfield and Brian Brewster were set for January, March, and July 2022 respectively. [ 51 ] February 11, 2022 - the Court issued an Order reflecting the recent changes. [ 52 ] February 25, 2022 - the Court went through the redactions on List 9, confirming to Mr.

Coles none of them ever included a “ name ” since April 23, 2021, the 13 Lists have never changed and regarding “names” they have appeared only in Lists 6, 7, 8 and 13, and labelled: List 6 - Same Name/New Paragraph/Name Only List 7 - Same Name/New Information List 8 - New Name with Information List 13 – New Name(s)/Name Only [my emphasis added] [ 53 ] The Court set dates for filing victim’s statements with a hearing set for May 27, 2022, and dates for filing supplementary briefs on Merits #2 , with a hearing date of June 30, 2022. [ 54 ] Concurrent with these ongoing Court appearances on the “Lists”, the Court rendered its “material change in circumstances” decision on February 16, 2022, reported as Canadian Broadcasting Corporation v.

Canada (Border Services Agency) 2022 NSPC 5 . The Applicants did not meet the burden as the context of the Sherman Estate decision was fundamentally different in law from the s.487.3 applications before this Court. [ 55 ] March 2, 2022 - the Court forwarded to Mr.

Coles, a document with the outstanding redactions in List 9, for review and to advise his client’s position on each redaction by means of a √ or an x after each line , on each page . [my emphasis added] [ 56 ] March 3, 2022 – by reply, the Applicants indicated a return to their prior position that List 9 redactions were NOT being sought with no exceptions or caveats.

This position was confirmed in a hearing on March 7, 2022. [ 57 ] March 21, 2022 - counsel were provided with a complete table of concordance providing everyone with a clear understanding of what redactions remained outstanding in all 21 ITO’s and authorizations. It concorded the first seven as well.

This was important as it formed the basis for Merits #2 and what remained for decision. [ 58 ] A great deal of court time and discussions over the next several months was dedicated to “fair trial and victim’s rights”. [ 59 ] During March, April and May, 2022, the Joint Public Inquiry into the Nova Scotia April 2020 Tragedy (“Mass Casualty Commission”) , released materials which necessitated Crown counsel determining their position on redactions that were released through the Commission’s foundational documents.

This had a significant impact on the ability of the Court and counsel to continue as scheduled, and specifically as it related to some identified victims.

[ 60 ] Counsel made submissions on April 25, 2022, as to a procedure to convey victim’s views to the Court. This “procedural decision” was released on May 10, 222 and is reported at Canadian Broadcasting Corporation v.

Canada (Border Services Agency) , 2022 NSPC 22 . [ 61 ] In May, prior to the court’s rendering a “fair trial rights” decision, counsel for Lisa Banfield and James Banfield advised their clients were referred to the Restorative Justice program, and the redactions in issue could be released upon its successful completion. [ 62 ] By Court Order dated June 9, 2022, a significant number of redactions, which had yet to be judicially determined in this matter, were released upon application of the Crown, as such were included in the Mass Casualty Commission’s public foundational documents. [ 63 ] June 30, 2022 - counsel presented oral submissions on Merits #2 , during which Mr.

Coles stated he was not looking for release of information the Crown said could result in identity theft “… unless it’s part of the evidence of a crime ”. (see transcript June 30, p.94). This was not the understanding of the Court given Mr.

Coles’ letter of March 3 and the court appearance on March 7, as previously reviewed herein. [ 64 ] Such necessitated the Court going back and re-classifying those redactions it provided in the table of concordance on March 21, its importance having been set out in paragraph 58 above. [ 65 ] This proved to be very time consuming and on October 13, 2022, the court convened, and displayed a color-coded overview of the specific redactions that were in conflict based on Mr.

Coles’ June 30 th submissions, i.e., a telephone number was sought in one paragraph, while the identical telephone number was not in another. [ 66 ] It was agreed that Mr. Coles and the Crown would review the concorded and new key indicated chart, prepared by the Court, for Lists 9 & 10 to determine the specifics of what redactions are outstanding and identified conflicts in the Applicants’ position on List 9. [ 67 ] October 26, 2022 – Court received a

summary of the specific redactions the Applicants were seeking, which in essence was List 10, but not List 9. [ 68 ] The Court also sought further clarification from the Applicants, of the phrase “related to a crime”. By correspondence dated November 8, 2022, Mr.

Coles wrote: The identifiers “related to a crime” means bank/financial information, vehicle VIN number, locations, incidental to/part of, his crimes. [ 69 ] Since March 16, 2021 and the first Merits decision in this matter, the Court has issued numerous Orders releasing previously redacted materials on the Application of the Crowns because of the “fluid” nature of the investigation, the ongoing court proceedings, and the release of documents by the “Mass Casualty Commission”. [ 70 ] A Court Order dated July 26, 2022, released all redactions involving Lisa Banfield and James Banfield “fair trial rights” as a result of the completion of the respective restorative justice programs. [ 71 ] For completeness of the record, these Orders are dated: April 20, 2020 September 21, 2020 May 19, 2021 April 30, 2020 November 16, 2020 May 19, 2021 May 4, 2020 November 24, 2020 May 19, 2021 May 11, 2020 December 9, 2020 November 19, 2021 May 19, 2020 December 16, 2020 November 22, 2021 May 25, 2020 January 11, 2021 December 7, 2021 May 25, 2020 January 26, 2021 December 14, 2021 June 1, 2020 February 11, 2021 February 11, 2022

June 30, 2020 February 19, 2021 April 28, 2022 July 17, 2020 February 19, 2021 May 5, 2022 July 17, 2020 March 8, 2021 June 9, 2022 July 27, 2020 March 17, 2021 July 26, 2022 August 12, 2020 April 12, 2021 March 1, 2023 August 12, 2020 April 28, 2021 III. Position of the Parties Crown: (

A) Privacy (

i) Innocent Third Parties – names and identifying information (ii) Victims (

B) Privacy – Personal identifying information (identity theft/fraud) (

i) Innocent Third Parties [ 72 ] Crown counsel maintain their position on the release of personal identifying and private information, such encompassing two separate and distinct interests. It is set out in Merits #1 at: [48] The Crown, acknowledging their burden, have identified several individuals/businesses in the ITOs/authorizations as having “innocent third-party interests”. The identities, known to the court in an unredacted form, must be protected. Relying upon the

Dagenais/Mentuck analysis, such is necessary to prevent a serious risk to the proper administration of justice, there being no alternativemeasures available, and such an order outweighs the deleterious effects on the rights and interests of the parties and the public, includingthe right to freedom of expression. (See Dagenais v. C.B.C., (SCC), [1994] 3 S.C.R. 835 and R. v.

Mentuck, 2001 SCC76 , [2001] 3 S.C.R. 442). [49] The open court principle is vital in Canadian society but is not absolute. [50] Privacy is a core value requiring proper consideration given the digital world we live in coupled with the unprecedentedglobal media coverage of the tragic events from April 2020.

Privacy is a legitimate and necessary consideration by the court. [51] In applying the Dagenais/Mentuck test, a contextual and flexible approach is necessary, (Sierra Club of Canada v.Canada (Minister of Finance) 2002 SCC 41)… (emphasis added) [52] In Sierra, Justice Iacobucci stated at para.48: 48 Mentuck is illustrative of the flexibility of the Dagenais approach… In order to adapt the test to the context of this case, it is firstnecessary to determine the particular rights and interests engaged by this application. [my emphasis added]. (see Merits#1, paras. 48-52) [73]

Section 487.3 sealing orders are specifically designed to protect any prejudice to the interests of innocent persons and is logicallyconsidered in an unsealing application. (ii) Victims [74] The rights of the three individuals identified as “victims”, one of which has filed a “statement of victims views” (SVV) are actualand legitimate. This Court’s decision in Canadian Broadcasting Corporation v. Canada Border Services Agency 2022 NSPC 5 is goodlaw. Alternatively, the redacted material falls squarely within the concept of dignity as outlined in Sherman Estate should the Courtdetermine such applies. Sherman in no way diminishes or changes the rights of victims. (

B) Privacy - Personal Identifying Information (Identity theft/fraud) [75] Linked to privacy as a core value is the need to protect individuals from fraud in the form of identity theft. [76] In Alberta v. Hutterian Brethren of Wilson Colony 2009 SCC No. 37, the Court found the requirement by the Province of Albertaof personal photos for drivers’ licenses, to be a reasonable limit on religious freedom under s.1 of the Charter.

The Court determined theneed to protect against identity theft outweighed the religious rights and freedoms being asserted. [77] At paragraph 104: …The goal of minimizing the risk of fraud associated with driver’s licenses is pressing and substantial. The limit is rationally connectedto the goal….

[ 78 ] The Tax Court of Canada Practise No. 16, September 3, 2020, has recognized the public nature of court filings and the need to limit release of personal information: Documents filed with the Tax Court of Canada and all evidence received by the Court are generally public records open to inspection by the public. When the parties prepare pleadings and other documents that are intended to be part of the Court’s file, they are responsible for limiting the disclosure of personal and confidential information to what is necessary for the disposition of the case.

Parties shall refrain from including the following information from all pleadings and documents filed with the Court, except as otherwise directed by the Court: 1. Social Insurance Number and employee identification number; 2. Business number, GST/HST account number; 3. Medical information not relevant to the disposition of the proceeding; 4. Date of birth (unless it must be provided, in which case only the year must appears); 5. Names of minor children (unless they need to be identified, in which case only the child’s initials must appear); and 6.

Bank number (unless it needs to be provided, in which case only the last four digits must appear). The Court may on its own initiative redact from pleadings personal and confidential information. The Court may also order that certain documents be treated as confidential and, in these cases, those documents would be sealed and not available to the public. [ 79 ] Financial and personal information can lead to fraud and identity theft and the courts have a responsibility to safeguard against such. [ 80 ] In their brief, the Crown submits: 69.

Personal identifying information includes information such as motor vehicle information, dates of birth, email addresses, civil addresses and phone numbers. This information is both private in nature 68 and is vulnerable to misuse by perpetrators of identity theft. 69 As noted by Nordheimer J., ‘[N]one of that type of information is necessary to evaluate what lead to the granting of the search warrants. Public access to the material filed is given so that the public can understand what has gone on in the court proceeding, not for the possible purpose of tracking people down .’ 70 [emphasis added] 70.

It is not apparent how any of the personal identifying information that has been redacted in this case, specifically civic addresses, dates of birth, motor vehicle information, VIN numbers, email addresses or personal telephone numbers, would assist the public in understanding why the search warrant was issued.

Revisiting the balancing process that must occur – weighing the highly private nature of this type of information, coupled with its potential for grave mischief in the commission of criminal offences – against the complete absence of a need for the information to explain the process of issuing the warrant is resolved in favour of its sealing. (see Respondents’ PPS Brief, Merits #1, paras. 69-70) [ 81 ] The Parliament of Canada has recognized the need to protect personal information by the enactment of the Personal Information Protection and Electronic Documents Act , S.C. 2000, c.5 –

short title “Protection of Personal Information and the Private Sector”: Purpose 3 The purpose of this

Part is to establish, in an era in which technology increasingly facilitates the circulation and exchange of information, rules to govern the collection, use and disclosure of personal information in a manner that recognizes the right of privacy of individuals with respect to their personal information and the need of organizations to collect, use or disclose personal information for purposes that a reasonable person would consider appropriate in the circumstances. [my emphasis added] (see Respondents’ PPSC Brief, Merits #1, para. 37)

[ 82 ] The Crown summarizes their position as: 14.This is not to suggest that a blanket prohibition on access to personal information is appropriate. However, in instances where the personal information is not necessary to satisfy the purpose (as opposed to the fact ) of openness, a Court should be hesitant to release it. This is so regardless of the status (living or deceased, charged or not) of the individual to whom the material pertains.

The mischief of identify theft and fraud is not dependent upon the original holder of the information but the use to which their information is put. (see Respondents’ PPS Supplementary Brief, page 5) [ 83 ] In the alternative, they argue that should the position of the Applicant be accepted: …the redacted information falls squarely within the concept of dignity as thoroughly explained in Sherman Estate .

It consists of “intimate or personal details about an individual” 10 , and is information which “reveals something intimate and personal about the individual, their lifestyle or their experiences” (paras. 75 & 77, Sherman Estate ) (see Respondents’ PPS Brief, Merits #2, para.18) [ 84 ] All remaining redactions must continue to protect the privacy rights of victims and innocent third parties. The very real possibility exists by those looking for an opportunity to steal identities and perpetrate theft and fraud, should banking, credit and associated information, be released. The person’s name, i.e.

Wortman is not the issue, rather the identifying information associated with it is. [ 85 ] The Crown asserts that, its’ submissions, and the information contained in the ITO’s, constitutes “evidence” before this court. There is no requirement as suggested by the Applicants’ counsel it be viva voce in nature. Applicants: (

A) Privacy (

i) Innocent Third Parties – names and identifying information (ii) Victims (

B) Privacy – Personal identifying information (identity theft/fraud)

(

i) Innocent Third Parties [86] The Applicants maintain their position as argued in Merits #1: [54] … the Crown must provide a convincing evidentiary basis for its position. The Applicants cite as authority, Her Majesty theQueen v. Justin Christien Bourque, 2014 NBQB 263. At paragraph 10, the decision of Gower J. in R. v. Larue, 2012 YKSC 15 isreferenced: [my emphasis added] [32] In Mentuck, Iacobucci J. referred to Canadian Broadcasting Corp. v.

New Brunswick (Attorney General) (SCC), [1996] 3 S.C.R. 480, where La Forest J. wrote for a unanimous Supreme Court of Canada and stressed the importance of placingthe evidentiary burden on the applicant for a publication ban: [26] La Forest J. also noted that the burden of displacing the presumption of openness rested on the party applying for the exclusion ofthe media and public.

Furthermore, he found that there must be a sufficient evidentiary basis on the record from which a trial judgecould properly assess the application (which may be presented in a voir dire), and which would allow a higher court to review theexercise of discretion: New Brunswick, at para.69. In considering the various factors, La Forest J. found that the order granted to protectthe complainants was improperly granted.

The evidence of potential undue hardship to the complainants, which primarily rested on theCrown’s submission that the evidence to be brought was of a ‘delicate’ nature, did not displace the presumption in favour of an opencourt… [my emphasis] [56] An integral consideration by the Court is that of the “constitutional stakes” involved. In M.E.H. v. Williams 2012 ONCA 35Justice Doherty’s comments at paras. 33-34 are instructive: 33 In approaching the necessity branch of the inquiry, the high constitutional stakes must be placed at the forefront of the analysis.

Freedom of expression, including freedom of the press and other media communications, is a constitutionally protected fundamentalfreedom. The constitutional right to freedom of expression protects the media’s access to and ability to report on court proceedings.

Theexercise of this fundamental freedom in the context of media coverage of court proceedings is essential to the promotion of the opencourt principle, a central feature of not only Canadian justice, but Canadian democracy… 34 Limits on freedom of expression, including limits that restrict media access to and publication of court proceedings, can bejustified.

However, the centrality of freedom of expression and the open court principle to both Canadian democracy and individualfreedoms in Canada demands that a party seeking to limit freedom of expression and the openness of the courts carry a significant legaland evidentiary burden.

Evidence said to justify non-publication and sealing orders must be ‘convincing’ and ‘subject to close scrutinyand meet rigorous standards…. [my emphasis] [57] Relying on Mentuck, and the two-part inquiry set out therein, the Applicants argue under the first branch of “necessity” that there isno public interest at stake requiring protection. In M.E.H. v.

Williams at para. 25: 25 …A serious risk to public interests other than those that fall under the broad rubric of the ‘proper administration of justice’ canalso meet the necessity requirement under the first branch of the Dagenais/Mentuck test… The interest jeopardized must, however, havea public component. Purely personal interests cannot justify non-publication or sealing orders.

Thus, the personal concerns of alitigant, including concerns about the very real emotional distress and embarrassment that can be occasioned to litigants whenjustice is done in public, will not, standing alone, satisfy the necessity branch of the test: MacIntyre v. Nova Scotia (AttorneyGeneral) (SCC), [1982] 1 S.C.R. 175, at p.185; Sierra Club of Canada, at para.55; A.B.(Litigation Guardian of) v.Bragg Communications Inc., 2011 NSCA 26, 301 N.S.R. (2d) 34, (N.S.C.A.), at paras. 73-75 [my emphasis] (see Canadian Broadcasting Corporation v.

Canada (Border Services Agency) 2021 NSPC 15 at paragraphs 54-57-Merits #1) (ii) Victims [87] This evidentiary basis is equally necessary for the Crown to maintain the victim’s names and private information relating thereto. The “SVV” as filed on behalf of one victim, is not evidence based and should not be considered by the Court. [88] The law on privacy has changed significantly since Merits #1 as a result of Sherman Estate. [89] The Supreme Court “has made new law”.

An assertion of ‘privacy’ as a basis for an exception to the open court principle,requires establishing that an individual’s ‘human dignity is, on the facts, at serious risk.”

In Sherman Estate , the Supreme Court of Canada was afforded the opportunity to decide when an asserted ‘privacy interest’ is an important ‘public interest’ sufficient to merit an exception to the open Court principle . In Sherman Estate , Kasirer J states: ( 5) This Court has, in different settings, consistently championed privacy as a fundamental consideration in a free society. Pointing to cases decided in other contexts, the appellants contend that privacy should be recognized here as a public interest that, on the facts of this case, substantiates their plea for orders sealing the probate files.

The respondents resist, recalling that privacy has generally been seen as a poor justification for an exception to openness. Afterall, they say, virtually every court proceeding entails some disquiet for the lives of those concerned and these intrusions on privacy must be tolerated because open courts are essential to a healthy democracy.

(6) This appeal offers, then, an occasion to decide whether privacy can amount to a public interest in the open court jurisprudence and, if so, whether openness puts privacy at serious risk here so as to justify the kind of orders sought by the appellants . [7] For the reasons that follow, I propose to recognize an aspect of privacy as an important public interest for the purpose of the relevant test from Sierra Club .

Proceedings in open court can lead to the dissemination of highly sensitive personal information that would result not just in discomfort or embarrassment, but in an affront to the affected persons dignity.

Where this narrower dimension of privacy rooted in what I see as the public interest in protecting human dignity, is shown to be at serious risk, an exception to the open court principle may be justified. [Emphasis added] (see Applicants’ Material Change in Circumstances Brief, pp.2-3). [ 90 ] The Supreme Court of Canada decided that when confronted with a clash between privacy rights, and the open court principle, the privacy interest claimed will only prevail to the extent it is a public interest – the protection of human dignity.

Kasirer J. continued at paras 31-35: [31] The parties and the Courts below disagree, however, about how this test [ Sierra Club ] applies to the facts of this case and this calls for clarification of certain points of the Sierra Club analysis . Most centrally, there is a disagreement about how an important interest in the protection of privacy could be recognized such that it would justify limits on openness, and in particular when privacy can be a matter of public concern. ...

Determining the role of privacy in Sierra Club analysis requires reconciling these two ideas, which is the nub of the disagreement between the parties. The right of privacy is not absolute; the open court principle is not without exceptions. [33] Personal information disseminated in open court can be more than a source of discomfort and may result in an affront to a person's dignity. Insofar as privacy serves to protect individuals from this affront, it is an important public interest relevant under Sierra Club .

Dignity in this sense is a related but narrower concern than privacy generally; it transcends the interests of the individual and, like other important public interests, is a matter that concerns the society at large . A court can make an exception to the open court principle, notwithstanding the strong presumption in its favour, if the interest in protecting core aspects of individuals' personal lives that bear on their dignity is at serious risk by reason of the dissemination of sufficiently sensitive information.

The question is not whether the information is "personal" to the individual concerned, but whether, because of its highly sensitive character, its dissemination would occasion an affront to their dignity that society as a whole has a stake in protecting. [34] This public interest in privacy appropriately focuses the analysis on the impact of the dissemination of sensitive personal information, rather than the mere fact of this dissemination, which is frequently risked in court proceedings and is necessary in a system that privileges court openness .

It is a high bar - higher and more precise than the sweeping privacy interest relied upon here by the Trustees. This public interest will only be seriously at risk where the information in question strikes at what is sometimes said to be the core identity of the individual concerned: information so sensitive that its dissemination could be an affront to dignity that the public would not tolerate, even in service of open proceedings. [35] ...

Under Sierra Club , the applicant must show on the facts of that case that, an important interest, this dignity dimension of their privacy is at "serious risk"..., this requires the applicant to show that the information in the court file is sufficiently sensitive such that it can be said to strike at the biological core of the individual and, in the broader circumstances, that there is a serious risk that, without an exceptional order, the affected individual will suffer an affront to their dignity … [Emphasis added] (see Applicants’ Material Change in Circumstances Brief, pp.3-4). [ 91 ] The Supreme Court also expanded the test for the exercise of discretion to limit presumptive court openness: [38] The test for discretionary limits on presumptive court openness has been expressed as a two-step inquiry involving the necessity and proportionality of the proposed order ( Sierra Club , at para. 53).

Upon examination, however, this test rests upon three core prerequisites that a person seeking such a limit must show. Recasting the test around these three prerequisites, without altering its essence, helps to clarify the burden on an applicant seeking an exception to the open court principle.

In order to succeed, the person asking a court to exercise discretion in a way that limits the open court presumption must establish that: (1) court openness poses a serious risk to an important public interest; (2) the order sought is necessary to prevent this serious risk to the identified interest because reasonably alternative measures will not prevent this risk; and,

(3) as a matter of proportionality, the benefits of the order outweigh its negative effects. Only where all three of these prerequisites have been met can a discretionary limit on openness - for example, a sealing order, a publication ban, an order excluding the public from a hearing, or a redaction order - properly be ordered. This test applies to all discretionary limits on court openness, subject only to valid legislative enactments ( Toronto Star Newspapers Ltd v. Ontario , 2005 SCC 41 , [2005] 2 S.C.R. 188 , at paras. 7 and 22 ). [Emphasis added] … [42] ...

Determining what is an important public interest can be done in the abstract at the level of general principles that extend beyond the parties to the particular dispute. By contrast, whether that interest is at "serious risk" is a fact-based finding that, for the judge considering the appropriateness of an order, is necessarily made in context . [Emphasis added] (see Applicants’ Material Change in Circumstances Brief, pp. 4-5). [ 92 ] The irrelevancy or inadmissibility of a record is still subject to the open court principle and any suggestion otherwise is refuted in Canadian Broadcasting Corp. v.

Manitoba , 2021 SCC 33 , and is further commented on in Canadian Broadcasting Corporation and others v. HMQ 2013 ONSC 6983 as follows: [Headnote] It was not open to the Crown to attempt to maintain secrecy over the edited portions of the ITO on the basis that they were unnecessary to the issuance of the search warrant and represented non-essential narrative. Presumably, the police officer who swore the ITO considered that the material was essential or it would not have been included.

In addition, even if the material may not have been “essential” the material was presumed to have informed the authorizing judge’s decision to grant the search warrant. Moreover, the Crown has not filed any evidence that direct harm would be caused to any person if the edits were revealed, or specified the nature of that harm.

There was no serious risk posed to the administration of justice arising from giving public access to the material in question, and the negative impact on the public’s right to know and on freedom of expression would greatly exceed any beneficial effects of maintaining the sealing order. (see Applicants’ Brief, June 20, 2022, p.5 – Merits #2) [ 93 ] The “statement giver” on behalf of a victim and their family is seeking redaction because the ITO information is vague, untested and irrelevant. This is not the Sherman test of “dignity”.

Nor does the personal grief and heartache of the “statement giver’s” family satisfy the Degenais/ Mentuck t est. [ 94 ] The Crown has not presented any evidentiary basis such that the open court principle should be trumped in relation to the third party privacy interests including those identified to be victims and the constitutionally protected Charter rights of the Applicant media organizations. (

B) Privacy - Personal Identifying Information (Identity theft/fraud) [ 95 ] The Applicant seeks personal identifying information only “where the specific information is germane to an offence/possible offence. In such instances, the open court principle should prevail as against speculative possible harms occasioned by release of the information”. (see Applicants’ Brief, June 20, 2022 – Merits #2) [ 96 ] On June 30 th , Mr. Coles, in oral submissions added to this by stating: “Again, unless it’s …involved in an offence, all those identifier paragraphs and certainly account numbers, VIN numbers, so forth… we’re not interested in …”

[97] And further: And the rest…somehow fall into other categories. I’m not sure it’s definitive as to where they go, but what I say should be the end resultof this is you’re going to decide on lists nine and ten, what survives sealed. And our view is certainly nothing in ten. A lot of nineshould be unsealed. (see June 30, 2022 Transcript, p. 94) [98] For clarity, as of October 13, 2022, the Applicants are not seeking any of List 9 and only List 10, and then only if such relates toevidence of a crime. IV.

Legal Analysis and Principles: [99] The principle of openness in court proceedings and the repudiation of covertness was established in the Nova Scotia (AttorneyGeneral) v. MacIntyre (SCC), [1982] 1 S.C.R. 175. [100] In MacIntyre, Justice Lamer, as he then was, stated at paras. 53-55: 53 By reason of the relatively few judicial decisions it is difficult, and probably unwise, to attempt any comprehensive definition of theright of access to judicial records or delineation of the factors to be taken into account in determining whether access is to be permitted.

The question before us is limited to search warrants and informations. The response to that question, it seems to me, should be guided byseveral broad policy considerations, namely, respect for the privacy of the individual, protection of the administration of justice,implementation of the will of Parliament that such a search warrant be an effective aid in the investigation of crime, and finally, a strongpublic policy in favour of ‘openness’ and respect of judicial acts… 54 The concern for accountability is not diminished by the fact that the search warrants might be issued by a justice in camera.

On thecontrary, this fact increases a policy argument in favour of accessibility. Initial secrecy surrounding the issue of warrants may lead toabuse, and, publicity is a strong deterrent to potential malversation. 55 In short, what should be sought is maximum accountability and accessibility but not to the extent of harming the innocent or ofimpairing the efficiency of the search warrant as a weapon in society’s never-ending fight against crime. [101] Any limitation on the open court principle, for individual privacy concerns, is found at paras. 59-63: 59 Let me deal first with the ‘privacy’ argument.

This is not the first occasion in which such an argument has been tested in the courts. Many times it has been urged that the ‘privacy’ of litigants requires that the public be excluded from court proceedings. It is now well-established, however, that covertness is the exception and openness the rule. Public confidence in the integrity of the court system andunderstanding of the administration of justice are thereby fostered.

As a general rule the sensibilities of the individuals involved are nobasis for exclusion of the public from judicial proceedings… 63 In my view, curtailment of public accessibility can only be justified where there is present the need to protect social values ofsuperordinate importance.

One of these is the protection of the innocent. [102] The Applicants seek to have all remaining redactions lifted in keeping with the legal principles and spirit of MacIntyre,Degenais/Mentuck and Sherman Estate and the open court principle. [103] At the commencement of this Application, there were 20,000 plus redactions, currently 1020 remain.

[104] This Courts’ Merits #1 decision is adopted, and the reasoning therein, forms part of this decision. [105] The open court principle is set out in Merits #1 at paras: 64-67: [64] In Canadian Broadcasting Corp. v. New Brunswick (Attorney General) (SCC), [1996] S.C.J. No. 38, Justice LaForest stated at paras. 22-24: 22 The importance of ensuring that justice be done openly has not only survived: it has now become ‘one of the hallmarks of ademocratic society’… 23 The principle of open courts is inextricably tied to the rights guaranteed by s.2(b).

Openness permits public access to informationabout the courts, which in turn permits the public to discuss and put forward opinions and criticisms of court practices and proceedings…Cory. J. in Edmonton Journal described the equally important aspect of freedom of expression that protects listeners as well as speakersand ensures that this right to information about the courts is real and not illusory. At pages 1339-40, he states: that is to say as listeners and readers, members of the public have a right to information pertaining to public institutionsand particularly the courts.

Here the press plays a fundamentally important role. It is exceedingly difficult for many, if not most, peopleto attend a court trial. Neither working couples nor mothers or fathers house-bound with young children, would find it possible to attendcourt.

Those who cannot attend rely in large measure upon the press to inform them about court proceedings – the nature of theevidence that was called, the arguments presented, the comments made by the trial judge – in order to know not only what rights theyhave, but how their problems might be dealt with in court… 24 Essential to the freedom of the press to provide information to the public is the ability of the press to have access to thisinformation… [65] Most recently in this province, R. v. Verrilli 2020 NSCA 64 was decided.

The test to be applied on an application to vary asealing order under s. 487.3(4) of the Criminal Code was considered. Chief Justice Wood, at paras. 23-24: [23] In Canada, the open court principle is essential for public confidence in the courts and the administration of justice. Judicialproceedings are presumed to be open to the public and the media and should only be restricted where the party seeking to do so canprovide sufficient justification.

This principle was described by the Supreme Court of Canada in Toronto Star Newspapers Ltd. v.Ontario, 2005 SCC 41 as follows: 1 In any constitutional climate, the administration of justice thrives on exposure to light─and withers under a cloud of secrecy. 2 That lesson of history is enshrined in the Canadian Charter of Rights and Freedoms.

Section 2(

b) of the Charter guarantees, inmore comprehensive terms, freedom of communication and freedom of expression. These fundamental and closely related freedomsboth depend for their vitality on public access to information of public interest. What goes on in the courts ought therefore to be, andmanifestly is, of central concern to Canadians. 3 The freedoms I have mentioned, though fundamental, are by no means absolute. Under certain conditions, public access toconfidential or sensitive information related to court proceedings will endanger and not protect the integrity of our system of justice.

Atemporary shield will in some cases suffice; in others, permanent protection is warranted. 4 Competing claims related to court proceedings necessarily involve an exercise in judicial discretion. It is now well establishedthat court proceedings are presumptively “open” in Canada. Public access will be barred only when the appropriate court, in the exerciseof its discretion, concludes that disclosure would “subvert the ends of justice” or “unduly impair its proper administration”. [66] Chief Justice Wood then goes on to discuss these principles as they relate to search warrants.

At para. 29: [29] In Toronto Star, the Supreme Court reaffirmed the principles from MacIntyre and emphasised the burden on the partyseeking to prevent public access to search warrant information: 21 After a search warrant has been executed, ‘openness was to be presumptively favoured.

The party seeking to deny public accessthereafter was bound to prove that disclosure would subvert the ends of justice’. 22 These principles, as they apply in the criminal investigative context, were subsequently adopted by Parliament and codified in s.487.3 of the Criminal Code… [106] The Court examined privacy and the test to limit the open court principle at paras. 69-73:

[69] What is privacy? What role, if any, does it have in this Application? There are a myriad of cases in Canada opining what privacy is, what is a reasonable expectation of privacy and how courts should balance the varying interests, often as between the state and an accused, but also in relation to witnesses, victims and complainants.

Courts have been clear the principle of openness is the goal, but it is not absolute… [71] The particulars of the Application and the position of the parties, involves a consideration of the privacy rights of individuals who have spoken to the police as part of an investigation into the mass shooting by Gabriel Wortman. The Crown asserts that such privacy should be protected. The Applicants urge the Court to uphold the open court principle and the public’s right to know the basis for the judicial authorizations as being paramount to the s.2(

b) Charter guarantee. [72] Once an individual has spoken to the police or provides law enforcement with a formal statement, does that preclude those individuals from asserting a right to privacy or have it asserted through the Crown, as in this Application? How does a Court determine such interests? [73] In Sierra , Justice Iacobucci outlined the history of the Dagenais/Mentuck framework and the need for flexibility: 37 A discussion of the general approach to be taken in the exercise of judicial discretion to grant a confidentiality order should begin with the principles set out by this Court in Dagenais v.

Canadian Broadcasting Corp . , …there are strong similarities between publication bans and confidentiality orders in the context of judicial proceedings.

In both cases a restriction on freedom of expression is sought in order to preserve or promote an interest engaged in those proceedings… 38 Although in each case freedom of expression will be engaged in a different context, the Dagenais framework utilizes overarching Canadian Charter of Rights and Freedoms principles in order to balance freedom of expression with other rights and interests, and thus can be adapted to various circumstances…. 40 … At p.878 of Dagenais , Lamer C.J. set out his reformulated test: A publication ban should only be ordered when: (

a) Such a ban is necessary in order to prevent a real and substantial risk to the fairness of the trial, because reasonably available alternative measures will not prevent the risk; and (

b) The salutary effects of the publication ban outweigh the deleterious effects to the free expression of those affected by the ban. 41 In New Brunswick, supra , this Court modified the Dagenais test in the context of the related issue of how the discretionary power under s.486(1) of the Criminal Code to exclude the public from a trial should be exercised… 43 This Court has recently revisited the granting of a publication ban under the court’s common law jurisdiction in R. v.

Mentuck , 2001 SCC 76 …The Crown moved for a publication ban to protect the identity of undercover police officers and operational methods employed by the officers in their investigation of the accused.

The accused opposed the motion as an infringement of his right to a fair and public hearing… The order was also opposed by two intervening newspapers as an infringement of their right to freedom of expression… 45 …The Court noted that underlying the approach taken in both Dagenais and New Brunswick , was the goal of ensuring that the judicial discretion to order publication bans is subject to no lower a standard of compliance with the Charter than legislative enactment.

This goal is furthered by incorporating the essence of s.1 of the Charter and the Oakes test into the publication ban test. … The Court adopted a similar approach to that taken in Dagenais , but broadened the Dagenais test…such that it could guide the exercise of judicial discretion where a publication ban is requested in order to preserve any important aspect of the proper administration of justice. At para. 32, the Court reformulated the test as follows: ‘A publication ban should only be ordered when:

(

a) such an order is necessary in order to prevent a serious risk to the proper administration of justice because reasonably alternativemeasures will not prevent the risk; and (

b) the salutary effects of the publication ban outweigh the deleterious effects on the rights and interests of the parties and the public,including the effects on the right to free expression, the right of the accused to a fair and public trial, and the efficacy of theadministration of justice.’ 46 The Court emphasized that under the first branch of the test, three important elements were subsumed under the ‘necessity’ branch. First, the risk in question must be a serious risk well-grounded in the evidence.

Second, the phrase ‘proper administration of justice’must be carefully interpreted so as not to allow the concealment of an excessive amount of information. Third, the test requires a judgeordering the ban to consider not only whether reasonable alternatives are available, but also to restrict the ban as far as possible withoutsacrificing the prevention of the risk… [107] The relationship between Degenais/Mentuck and privacy interests, are examined at paras. 76-86: [76] Similarly in Canadian Broadcasting Corp. v.

New Brunswick (Attorney General),at paras. 38-42: 38 Related to a court’s power to control its own process is the power to regulate the publicity associated with its proceedings… 39 The court’s power to regulate the publicity of its proceedings serves, among other things, to protect privacy interests, especially thoseof witnesses and victims.

In MacIntyre, supra, Dickson J., as he then was, noted that ‘many times it has been urged that the ‘privacy’ oflitigants requires that the public be excluded from court proceedings’ (p.185) and in the course of weighing this interest against theinterest of the public access to court proceedings held that the protection of the innocent from unnecessary harm ‘is a valid and importantpolicy consideration’ (p.187).

Stating that the ‘curtailment of public accessibility can only be justified when there is present the need toprotect social values of superordinate importance’ (pp.186-87), he identified the protection of the innocent as among these values. 40 While the social interest in protecting privacy is long standing, its importance has only recently been recognized by Canadian courts. Privacy does not appear to have been a significant factor in the earlier cases which established the strong presumption in favour of opencourts.

That approach has generally continued to this day, and this appears inherent to the nature of a criminal trial. It must beremembered that a criminal trial often involves the production of highly offensive evidence, whether salacious, violent or grotesque. Itsaim is to uncover the truth, not to provide a sanitized account of facts that will be palatable to even the most sensitive of human spirits.

The criminal court is an innately tough arena. 41 Bearing this in mind, mere offence or embarrassment will not likely suffice for the exclusion of the public from the court room…‘proceedings cannot be closed only because the subject of the charges relates to purportedly morality-tinged topics such as sex”. In thecourse of the balancing exercise under s.1 the exigencies and realities of criminal proceedings must be weighed in the analysis. 42 Nonetheless, the right to privacy is beginning to be seen as more significant.

Thus, Cory J. in Edmonton Journal, supra, consideredthat the protection accorded the privacy of individuals in a legislative enactment related to a pressing and substantial concern andunderlined its importance in Canadian law. In this area of law, however, privacy interests are more likely to be protected where it affectssome other social interest or where failure to protect it will cause significant harm to the victim or to witnesses. …. [77] The balancing has to be directed at what core values are to be protected, such as privacy of innocent persons, in light of what thecore values s.2(

b) of the Charter are intended to enshrine, openness in our democratic institutions, including the courts… [78] The Court must consider the core values identified in this matter, and the same must be viewed in light of the specific factualcircumstances of this Application, thereby providing for the flexibility of approach as described in Mentuck and Sierra. [79] In Edmonton Journal v. Alberta (Attorney General) (SCC), [1989] 2 SCR 1326, the right to privacy wasexamined.

At paras. 96-97: 96 …Our society has cherished and given protection to privacy… 97 … the objectives, that of securing a fair trial and that of protecting the right to privacy with regard to pre-trial documents,constitute pressing and substantial objective sufficient to permit the overriding of the right to freedom of expression. [80] In R. v. Spencer 2014 SCC 43, the Court had before it a

section 8 Charter search and seizure case that involved seriousconsideration of what is a reasonable expectation of privacy in the internet era. This case arose out of a computer search containing childpornography but its reasoning on modern privacy expectations is applicable. At paragraph 40:

Privacy also includes the related but wider notion of control over, access to and use of information, that is, ‘the claim of individuals, groups, or institutions to determine for themselves when, how and to what extent information about them is communicated to others’… La Forest J. made this point in Dyment .

That understanding of informational privacy as control “derives from the assumption that all information about a person is in a fundamental way his own, for him to communicate or retain for himself as he sees fit.’ … Even though the information will be communicated and cannot be thought of as secret or confidential, ‘situations abound where the reasonable expectations of the individual that the information shall remain confidential to the persons to whom, and restricted to the purposes for which it is divulged, must by protected. [81] In R. v.

Ahmad 2020 SCC 1 , the Court also dealt with a search and seizure case, involving a dial-a-dope operation and the law of entrapment in Canada. One of the authors cited in the decision was former Chief Justice Beverley McLachlin and her

article published in 2003, in Australia, 8 Deakin Law Review 1, “Courts, Transparency and Public Confidence ─ To the Better Administration of Justice”. [82] Chief Justice McLachlin’s comments bear repeating as instructive on how such core values can be reconciled, they are not mutually exclusive: … The open court principle is thus a fundamental element of the law of many countries including Canada…openness is a principle of constitutional significance…under the open courts principle the public and the press may freely discuss and publish accounts of court proceedings, hearings, examinations and decisions. … The technological advances of recent decades have put new pressures on the open court principle and have created new dilemmas for the courts, the media and the public… How, in the face of mass dissemination, can we preserve the right to privacy of litigants and witnesses?

How, in the face of immediate dissemination of police information, can we preserve the right to a fair trial by an impartial jury? And how, in the face of the attraction of sensationalisation, can we ensure that the public obtains a balanced and accurate impression of how the justice system functions? … The first cost of the open court principle is to privacy. …Openness comes therefore, at a cost to privacy.

That cost is not negligible…In Canada, as in other countries, we have come to recognize that the right to privacy has constitutional dimensions… … In the era of 21st century technology, it can mean an enormous loss of privacy. More and more, parties and witnesses protest that their legitimate expectations of privacy are being trampled on and their lives and reputations damaged by the open court principle. Recognizing the potentially embarrassing and sometimes damaging nature of the publicity that may attend judicial proceedings, they are increasingly seeking to limit the application of the open court principle.

Courts are consequently seeing an ever-increasing number of applications for publication bans, in camera hearings and orders sealing the court files to protect the privacy and reputations of those who appear as litigants and witnesses. The values that ultimately underlie the open court principle are of fundamental importance. So are the competing interests of their right of privacy, fair and impartial trials and accurate public information equally significant. The question is how the tension between these values is to be resolved. [83] In Phillips v.

Vancouver Sun , 2004 BCCA 14 , the Vancouver Sun sought access to redacted copies of a search warrant, an ITO, and related materials pursuant to s.487.3(4) . A Vancouver City police officer was the subject of the warrant. No charges were ever laid. [84] For the Application before this court, the comments at paragraph 68 are helpful: 68 It is apparent from the language of this

section that it was drafted to accord with Dickson J.’s judgment in MacIntyre . In my view, it also reflects the Charter principles in issue here; namely, the principles of freedom of expression and freedom of the press encompassed under s. 2(

b) of the Charter , and the public interest in protecting individual privacy encompassed under ss.7 and 8 of the Charter . This

section does so by starting from the presumption of openness referred to in MacIntyre , taking into account the well-recognized concerns for the proper administration of justice including the protection of informants and the need to preserve the integrity of ongoing investigations, and considering the protection of the privacy interests of innocent persons.

The privacy interests are protected by taking into account any prejudice that may be occasioned to innocent persons in the event disclosure is granted, as well as whether the disclosure of the information could be used for an improper purpose. [85] In R. v Quesnelle , 2014 SCC 46 , the Court considered whether police occurrence reports were records within the definition of s. 278.1 of the Code. [86] At paras 38-43: 38 … Whether a person is entitled to expect that their information will be kept private is a contextual inquiry . 39 Where an individual voluntarily discloses sensitive information to police, or where police uncover such information in the course of an investigation, it is reasonable to expect that the information will be used for the purpose for which it was obtained: the investigation and prosecution of a particular crime .

Similarly, it is reasonable to expect individual police officers to share lawfully gathered information with other law enforcement officials, provided the use is consistent with the purposes for which it was gathered. 41 That is not to say that all disclosures of personal information by the police unreasonably intrude upon privacy. Where private information becomes part of a criminal case, the disclosure of that information to the court, the accused, and to the public is reasonable and unavoidable.

For example, police occurrence reports made in the course of the investigation of the offence being prosecuted must be disclosed under Stinchcombe…

43 People provide information to police in order to protect themselves and others. They are entitled to do so with confidence thatthe police will only disclose it for good reason. The fact that the information is in the hands of the police should not nullify their interestin keeping that information private from other individuals. [my emphasis added] [108] The Court then examined the particulars of this application and counsel’s submissions at paras. 87-104: [87] Relying on A.B. (Litigation Guardian of) v.

Bragg Communications Inc. 2012 SCC 46, the open court principle is not offendedwhen the information serves no useful purpose…The additional disclosure of the “innocent persons” who provided the same will in noway further the core values of s.2(

b) of the Charter. At paras. 11-15: 11 The open court principle requires that court proceedings presumptively be open and accessible to the public and to the media. This principle has been described as a ‘hallmark of a democratic society’ … and is inextricably tied to freedom of expression. A.B.requested two restrictions on the open court principle: the right to proceed anonymously and a publication ban on the content of the FakeFacebook profile. The inquiry is into whether each of these measures is necessary to protect an important legal interest and impairs freeexpression as little as possible.

If alternative measures can just as effectively protect the interests engaged, the restriction is unjustified. If no such alternatives exist, the inquiry turns to whether the proper balance was struck between the open court principle and the privacyrights of the girl: Dagenais… Mentuck… 15 the amicus curiae pointed to the absence of evidence of harm from the girl about her own emotional vulnerability.

But, whileevidence of a direct, harmful consequence to an individual applicant is relevant, courts may also conclude that there is objectivelydiscernable harm… [my emphasis added] [89] The Crown argues that the information disclosed to date has presented a full understanding for the public as to why policesought and obtained warrants to enter various locations and sought various documents. It will in no way be broadened, or furtherexplained by the release of the names of individuals who provided it, names of companies Gabriel Wortman did business with orbusiness associates.

There is no legitimate purpose, or furtherance of the

section 2(

b) Charter right, by so doing. [90] R. v. Blackmore, 2018 BCSC 1225 holds that requiring innocent parties to establish the negative impact the disclosure of theiridentity would have is an abdication of the Court’s function.

At para. 108: To require these identified vulnerable and innocent third parties to provide affidavits or attend court to testify about their fears ofreprisal, lack of awareness they could be published if they spoke to the probation officer and/or the effects an infringement on theirreasonable expectations of privacy if published, in the circumstances of this case would only further aggravate their personal fears andconcerns and would only further deepen the chilling effect on those upon whom courts rely to provide valuable information in thefuture. These concerns and interests go well beyond mere embarrassment.

To require their attendance at court or the provision ofaffidavits in the circumstances of this case would be to abdicate the court’s function to protect its process and to prevent avoidable harmsto innocent third parties whose interests are negatively affected by that process. [91] In Bragg Communications, at para.18: 18 …Privacy is recognized in Canadian constitutional jurisprudence as implicating liberty and security interests.

In Dyment, the courtstated that privacy is worthy of constitutional protection because it is ‘grounded in man’s physical and moral autonomy’, is ‘essential forthe well-being of the individual’ and is ‘at the heart of liberty in a modern state’. These considerations apply equally if not morestrongly in the case of young persons… [93] In R. v. British Columbia Civil Liberties Association, 2012 BCPC 406 at para.34: 34 Barring access to the names or other identifying features would not affect the ability of any member of the public tounderstand the ITO or the investigation that the police are pursuing.

Access to information about their names or other information thatwould identify would significantly prejudice their privacy interests. That prejudice far outweighs the importance of access to it by thepublic. [97] Canadian Broadcast Corporation and Sun Media (Toronto) Corporation v. Her Majesty the Queen in Right of Canada andRobert Kelly, [2007] O.J. No.5436, a decision of Justice Nordheimer, involved allegations against members of the Toronto PoliceService. An application was made to vary sealed search warrants.

There was grave concern regarding allegations of corruption vis-à-vishigh-ranking members of the Toronto Police Service and the role of the press was vital in ensuring the public’s understanding of theprocess. [98] Relying on R. v. Eurocopter Canada Ltd. (2003), (ON SC), 67 O.R.(3d) 763 and Phillips v.Vancouver Sun,supra, wherein the balance required between prejudice to an innocent person and the open court principle, Justice Nordheimer reliedupon the reasoning of Justice Duff in Gazette Printing Co. v.

Shallow (1909), 41 S.C.R. 399 at para. 28 and 32: 28 …Though the publication of such proceedings may be to the disadvantage of the particular individual concerned, yet it is ofvast importance to the public that the proceedings of courts of justice should be universally known. The general advantage to the

country in having these proceedings made public more than counterbalances the inconveniences to the private persons whose conductmay be the subject of such proceedings. 32 At the same time, however, the assertion has been made that there may have been a failure at senior levels of one of Canada’slargest police services to fully investigate serious allegations involving some of their own officers. The possibility that there has beensuch inaction is also unquestionably of significant public interest. The applicants have the right to pursue whether that suggestion, ismere conjecture or something more.

Indeed, it can be argued that that is one of the most important roles that a free press fulfills in afully democratic society. [99] It is clear from reading Justice Nordheimer’s reasons in full that the investigation of police officers, in a situation where reportsof their wrong doing may have not been properly investigated by superiors, held such public interest that the repute and administrationof justice required the same. [100] In Ottawa Citizen Group Inc. v.

Canada (Attorney General), (ON CA), [2005] OJ No. 2209, the OntarioCourt of Appeal held that a failure to consider reasonably alternative measures was an error in the lower court and the names of “targets”were unsealed, subject to a publication ban by the media. [101] In Saint John Police Force v. Canadian Broadcasting Corp. 2012 NBPC 17, Chief Judge Jackson, as he then was, received anapplication by the media to unseal several warrants in relation to the homicide investigation into the death of Richard Oland. The policeredacted the names and statements of all third-party witnesses.

They were neither suspects nor persons of interest in the investigationand claimed privacy rights. They had been the subject of speculation regarding the alleged crime and release of their names would onlyincrease such and be the source of continued unwanted intrusions into their private lives (see para. 8). [102] After reviewing the legislative provisions under

section 487.3 and using the Degenais/Mentuck analytical framework, Judge Jackson released the names citing “vague and general assertions of risk” (see para. 21).

He ordered that the names of all persons, other than those subject of a searchwarrant be made available to the public. [103] The Crown respectfully suggests that the Chief Judge provided an inaccurate statement of law at para. 16: While I can also sympathize with witnesses who have told the Police certain things in the course of their investigation, notsuspecting that their names may be included in applications for search warrants, the law, as I understand it, does not permit the redactionof their names as long as uniquely private information is not disclosed. [104] I agree with the Crown’s assertion in that regard.

There appears not to have been any balancing undertaken but rather aconclusionary comment, the basis of which I am unsure. The law is clear that privacy interests must be examined, in context and in aflexible manner. [109] Limitations on the open court principle are addressed at paras. 105-109: [105] The open court principle and i

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