Canadian Broadcasting Corporation, Canadian Television Network, Global News, The Canadian Press, Globe v. Mail, Post Media,, 2022 NSPC 5

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

Canada (Border Services Agency) , 2022 NSPC 5 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- Her Majesty the Queen in the Right of Canada (Canada Border Services Agency) and Her Majesty the Queen in the Right of Nova Scotia (Royal Canadian Mounted Police) - Respondents MATERIAL CHANGE IN CIRCUMSTANCES Judge: The Honourable Judge Laurel J.

Halfpenny MacQuarrie Heard: November 10, 2021 Decision February 16, 2022 Counsel: Mark Covan and Scott Millar, for the Federal Crown Shauna MacDonald and Mark Heerema, for the Provincial Crown David G. Coles, QC, for the Applicants, Jessica Zita for Lisa Banfield

By the Court: I. The Initial Application [1] On April 28, 2020, the Canadian Broadcasting Corporation, through its representative Elizabeth McMillan, filed a “Notice ofApplication” in the Provincial Court seeking to lift a sealing order over Informations to Obtain and search warrants, pursuant to the opencourt principle. It suggested a general warrant, with an associated sealing order, had been issued under

Section 487.01 of the CriminalCode permitting 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, whichresulted in 22 people being killed, one of whom was pregnant, others injured, and a Province left in a state of shock. The tragedyencompassed 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 certainrecords 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 shedlight on what police knew and when. There has been considerable focus on why the RCMP didn’t send out a public alert to warn peopleabout an active shooter. We believe the public should know what information police had in this case, in the event protocol changes needto be made before the next tragedy.

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

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

II. History of Proceedings [7] On March 16, 2021, this Court released a decision in relation to the unsealing application on the first seven ITOs and associatedauthorizations (see Canadian Broadcasting Corporation v. Canada (Border Services Agency), 2021 NSPC 15, (“the Merits decision”). [8] The law in Dagenais v. C.B.C., (SCC), [1994] 3 S.C.R. 835, R. v. Mentuck, 2001 SCC 76 , [2001] 3S.C.R. 442 and Sierra Club of Canada v.

Canada (Minister of Finance), 2002 SCC 41, among others, was applied within the factual andcontextual framework of this case. [9] On June 11, 2021, the Supreme Court of Canada released Sherman Estate v. Donovan, 2021 SCC 25 (“Sherman Estate”),wherein an order sealing probate files was challenged. The Ontario Court of Appeal overturned the orders of the application Judge andlifted the sealing.

On appeal to the Supreme Court of Canada, the issues of privacy and the open court principle were given furtherconsideration, within the contextual framework of that case. [10] This Court received a letter on June 15th, 2021 from David Coles, Q.C. indicating a change in instructions from his clients andgoing forward he wished to make further submission as Sherman Estate has changed the law on privacy rights. [11] At a hearing the next day, June 16, 2021, the possibility of revisiting the Merits decision arose. [12] First however, the issue of functus officio had to be addressed as it related to the Merits decision. [13] Counsel provided written briefs, made oral submissions and the Court delivered an oral decision on September 13, 2021 finding ithad jurisdiction to hear this application.

It is reported as Canadian Broadcasting Corporation v. Canada (Border Services Agency), 2021NSPC 40 (“the Functus decision”).

[ 14 ] At the time of the Functus decision, the Supreme Court of Canada had a reserved decision on the same, and other, issues. Not knowing when it would be released, this Court rendered its decision. [ 15 ] On September 24, 2021, the Supreme Court of Canada released such - Canadian Broadcasting Corp. v. Manitoba , 2021 SCC 33 . A court, in a situation such as this one, has jurisdiction to hear a matter previously decided should a material change in circumstances exist.

Justice Kasirer set out the issue at paragraph 1: [1] The principal issue in these appeals concerns a court's jurisdiction to render, vary or vacate orders -- sealing orders, publication bans and the like -- that limit the open court principle. The question is whether a court retains jurisdiction over these ancillary matters after it has decided the merits of the case and has entered its formal judgment.

Does the doctrine of functus officio -- the notion that once a court has performed its function, it has exhausted its authority -- preclude that court from revisiting a publication ban that it had ordered or a sealing order put in place in the course of criminal proceedings? [ 16 ] When publication bans and sealing orders have been imposed, can they be reconsidered? Justice Kasirer declared such can be done, on “narrow grounds”.

At paras. 41-42: [41] That courts retain supervisory jurisdiction over their court records is not to say that once decisions concerning court openness have been made they are open to reconsideration at any time or for any reason. Where a decision concerning court openness is formalized in an order, functus officio may apply, regardless of whether or not it is ancillary to some other proceeding. Even where, as here, a decision concerning court openness is not formalized in an order, finality remains an important value in the making of publication bans and sealing orders.

Indeed, in this case the CBC has in fact appealed an ancillary publication ban that has never been formalized in an order. The need to provide litigants with a stable basis from which to launch an appeal -- a central rationale underpinning functus officio (see Doucet-Boudreau , at para. 79) -- can apply, even where functus officio technically does not. [42] Therefore, regardless of whether a court is deprived of jurisdiction by the doctrine of functus officio , the importance of finality will mean courts will be rightly reluctant to reconsider questions of court openness.

A publication ban or sealing order is, however, susceptible to reconsideration by the issuing court, albeit on narrow grounds. This will include cases where an affected party not given notice proposes to make novel submissions that could affect the result, or on the basis of a material change in circumstances . This applies to both publication bans and sealing orders that are formalized in an order and those that are not . [my emphasis added] [ 17 ] Having accepted the Court has jurisdiction the issue then became does Sherman Estate constitute a material change in circumstances? III.

Position of the Parties Applicants [ 18 ] The Sherman Estate decision represents a material change in circumstances such that the Merits decision should be open to further argument and ultimate variation. [ 19 ] It has changed the privacy rights of individuals significantly. Though the public interest has to be safe guarded, such can only be lessened when an individual’s “human dignity” is at serious risk. [ 20 ] There is no evidence of serious risk to human dignity by the release of the redacted material before this Court.

Sherman Estate is a material change in the law which requires no further contextual analysis and should be applied to these unsealing applications. Crown [ 21 ] The precondition of a material change in circumstances necessary to reconsider the sealing orders in this matter does not exist. The applicant does not meet its very stringent test. The applicant having the burden. [ 22 ] This case is not of the same factual or legal nature as Sherman Estate, and the Merits decision should not be reconsidered.

Access to probate files is not akin to the factual underpinnings in this case, namely statute-based orders under the Criminal Code . [ 23 ] Material changes in circumstances have meaning in law, and such is not made out here as the two are not the same when contextually analyzed. Legal Principles and Analysis (

i) What constitutes a material change in circumstances? [ 24 ] At paras. 13-14, of the Crown brief: 13. A judge “has discretion to re-consider rulings made earlier in the proceedings if there is a material change of circumstances”. 7 The phrase “material change in circumstance” has been defined in various legal contexts. In R. v. Adams , the Alberta Court of Appeal

considered the meaning of “material change in circumstance” in the context of a trial judge’s decision to revoke a publication ban. The Court held that “in order to be material, the change must relate to a matter that justified the making of the order in the first place”.8 Citing an earlier decision respecting disclosure orders, the Court agreed that “the trial judge has a discretion to vary on order for disclosure on the basis of evidence which establishes that the factual foundation upon which the order was based has changed.” 9 7 R. v. R.V., 2019 SCC 41, at para.75. 8 R. v.

Adams, (SCC), [1995] 4 SCR 707, at para.31. 9 R. v. Adams, (SCC), [1995] 4 SCR 707, at para.31. [25] In establishing a material change in circumstances the burden is on the applicant. In Ostrowski supra, the Court defined such atpara.55: [55] In deciding whether this rule from Adams applies, I do agree that a first question for the court will be whether there has been amaterial change in circumstances since the making of the initial order (para.30).

The burden of establishing this change falls to theparty seeking a variation in the order…That party must establish both that a change of circumstances has occurred and that the change, ifknown at the time of the initial order, would likely have resulted in an order on different terms…The correctness of the initial order ispresumed and is not relevant to the existence of a material change in circumstances. [26] In his brief, Mr. Coles writes:

(1) Does the Supreme Court of Canada Decision in Sherman Estate, represent a material change is circumstances such that the “MeritsDecision” should be revisited by Your Honour?... In the “Merits Decisions” Your Honour limited the open Court principle based upon broad privacy concerns. Many of these concernswere based upon speculation rather than established in fact.

Had Your Honour had the benefit of the Decision in Sherman Estate, whichlimited/narrowed the circumstances under which an appeal to “privacy” can limit the open Court principle, it is submitted Your Decisionwould necessarily reject the privacy concerns identified as providing a proper legal basis for compromising the open Court principle. The answer to Issue (1) is yes. [27] In R. v. Noftall, 2018 NLCA 63, a change that was material to the original decision of the court was considered. [28] The trial judge heard a

section 11(

b) Charter breach application and dismissed it. The accused was convicted. Prior to beingsentenced however, the Supreme Court of Canada decision in R. v. Cody, 2017 SCC 31, was rendered. It changed how defence delaywas calculated. The judge in the first instance concluded he had jurisdiction to hear a reconsideration of the

section 11(

b) because ofCody. He did, and once again, denied the application. [29] The trial judge revisited the original ruling as the foundation for it was contextually the same as the Cody decision. (ii) Sherman Estate: Open Court v.

Privacy interests [30] In Sherman Estate, the issues before it were set out at paras. 4 and 6: [4] This appeal turns on whether concerns advanced by persons seeking an exception to the ordinarily open court file in probateproceedings – the concerns for privacy of the affected individuals and their physical safety – amount to important public interests that areat such serious risk that the files should be sealed.

The parties to this appeal agree that physical safety is an important public interest thatcould justify a sealing order but disagree as to whether that interest would be at serious risk, in the circumstances of this case, should thefiles be unsealed. They further disagree whether privacy is in itself an important interest that could justify a sealing order. Theappellants say that privacy is a public interest of sufficient import that can justify limits on openness, especially in light of the threatsindividuals face as technology facilitates widespread dissemination of personally sensitive information.

They argue that the Court ofAppeal was mistaken to say that personal concerns for privacy, without more, lack the public interest component that is properly thesubject-matter of a sealing order… [6] This appeal offers, then, an occasion to decide whether privacy can amount to a public interest in the open court jurisprudence and, ifso, whether openness puts privacy at serious risk here so as to justify the kind of orders sought by the appellants. [31] Justice Kasirer, on the issue of privacy and the open court principle stated at para. 7: [7] For the reasons that follow, I propose to recognize an aspect of privacy as an important public interest for the purposes of the relevanttest from Sierra Club of Canada v.

Canada (Minister of Finance), 2002 SCC 41, [2002] 2 S.C.R. 522. Proceedings in open court canlead to the dissemination of highly sensitive personal information that would result not just in discomfort or embarrassment, but in anaffront to the affected person’s 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. [my emphasis added] [32] He continued at paragraphs 30-34: [30] Court openness is protected by the constitutional guarantee of freedom of expression and is essential to the proper functioning ofour democracy (Canadian Broadcasting Corp. v. New Brunswick (Attorney General), (SCC), [1996] 3 S.C.R. 480, atpara. 23; Vancouver Sun (Re), 2004 SCC 43, [2004] 2 S.C.R. 332, at paras. 23-26).

Reporting on court proceedings by a free press isoften said to be inseparable from the principle of open justice…Limits on openness in service of other public interests have beenrecognized, but sparingly and always with an eye to preserving a strong presumption that justice should proceed in public view(Dagenais v. Canadian Broadcasting Corp., (SCC), [1994] 3 S.C.R. 835, at p. 878; R. v. Mentuck, 2001 SCC 76, [2001]3 S.C.R. 442, at paras. 32-39; Sierra Club, at para. 56).

The test for discretionary limits on court openness is directed at maintaining thispresumption while offering sufficient flexibility for courts to protect these other public interests where they arise (Mentuck, at para. 33). The parties agree that this is the appropriate framework of analysis for resolving this appeal. [31] The parties and the courts below disagree, however, about how this test applies to the facts of this case and this calls forclarification of certain points of the Sierra Club analysis.

Most centrally, there is disagreement about how an important interest in theprotection of privacy could be recognized such that it would justify limits on openness, and in particular when privacy can be a matter ofpublic concern. The parties bring two settled principles of this Court’s jurisprudence to bear in support of their respective positions.

First, this Court has often observed that privacy is fundamental value necessary to the preservation of a free and democratic society…Courts have invoked privacy, in some instances, as the basis for an exception to openness under the Sierra Club test…At the same time,the jurisprudence acknowledges that some degree of privacy loss – resulting in inconvenience, even in upset or embarrassment – isinherent in any court proceeding open to the public (New Brunswick, at para. 40).

Accordingly upholding the presumption of opennesshas meant recognizing that neither individual sensibilities nor mere personal discomfort associated with participating in judicialproceedings are likely to justify the exclusion of the public from court (Attorney General of Nova Scotia v. MacIntyre, (SCC), [1982] 1 S.C.R. 175, at p. 185; New Brunswick, at para. 41). Determining the role of privacy in the Sierra Club analysis requiresreconciling these two ideas, which is the nub of the disagreement between the parties.

The right of privacy is not absolute; the opencourt 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’sdignity. 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 otherimportant 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 ontheir dignity is at serious risk by reason of the dissemination of sufficiently sensitive information.

The question is not whether theinformation is “personal” to the individual concerned, but whether, because of its highly sensitive character, its dissemination wouldoccasion 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 personalinformation, rather than the mere fact of this dissemination, which is frequently risked in court proceedings and is necessary in a systemthat privileges court openness.

It is high bar – higher and more precise than the sweeping privacy interest relied upon here by theTrustees. This public interest will only be seriously at risk where the information in question strikes at what is sometimes said to be thecore identity of the individual concerned: information so sensitive that its dissemination could be an affront to dignity that the publicwould not tolerate, even in service of open proceedings. [my emphasis added]. (iii) The Sherman Estate Test [33] Sherman Estate confirmed the core test for discretionary limits on openness.

Justice Kasirer stated at para. 38: [38] The test for discretionary limits on presumptive court openness has been expressed as a two-step inquiry involving the necessityand proportionality of the proposed order (Sierra Club, at para.53). Upon examination, however, this test rests upon three coreprerequisites that a person seeking such a limit must show. Recasting the test around these three prerequisites, without altering itsessence, helps to clarify the burden on an applicant seeking an exception to the open court principle.

In order to succeed, the personasking 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 or 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, apublication ban, an order excluding the public from a hearing, or a redaction order – properly be ordered…. [34] Confirming the open court principle as a constitutional right he stated at para. 39: [39] The discretion is structured and controlled in this way to protect the open court principle, which is understood to beconstitutionalized under the right to freedom of expression at s. 2(

b) of the Charter, (New Brunswick, at para.23).

Sustained by freedomof expression, the open court principle is one of the foundations of a free press given that access to courts is fundamental tonewsgathering…The centrality of this principle to the court system underlies the strong presumption – albeit one that is rebuttable – infavour of court openness (para. 40; Mentuck, at para. 39). [35] Acknowledging this principle is rebuttable, that is it is not absolute and exceptions have developed, he continued at paras. 41 and42: [41] The recognized scope of what interests might justify a discretionary exception to open courts has broadened over time.

InDagenais, Lamer C.J. spoke of a requisite risk to the “fairness of the trial” (p.878). In Mentuck, Iacobucci J. extended this to a riskaffecting the “proper administration of justice” (para. 32). Finally, in Sierra Club, Iacobucci J., again writing for a unanimous Court,restated the test to capture any serious risk to an “important interest, including a commercial interest, in the context of litigation”(para.53).

He simultaneously clarified that the important interest must be expressed as a public interest…. [42] While there is no closed list of important public interests for the purposes of this test, I share Iacobucci J.’s sense, explained inSierra Club, that courts must be “cautious” and “alive to the fundamental importance of the open court rule” even at the earliest stagewhen they are identifying important public interests (para. 56)…whether that interest is at “serious risk” is a fact-based finding that, forthe judge considering the appropriateness of an order, is necessarily made in context.

In this sense, the identification of, on the one hand,an important interest and, on the other, the seriousness of the risk to that interest are, theoretically at least, separate and qualitativelydistinct operations.

An order may therefore be refused simply because a valid important public interest is not at serious risk on the factsof a given case or, conversely, that the identified interests, regardless of whether they are at serious risk, do not have the requisiteimportant public character as a matter of general principle. [36] Justice Kasirer confirmed the analysis courts have used in Dagenais, Mentuck and Sierra Club, continues in its essence fordiscretionary sealing orders and publication bans.

At para. 43: [43] The test laid out in Sierra Club continues to be an appropriate guide for judicial discretion in cases like this one. The breadth ofthe category of ‘important interest’ transcends the interests of the parties to the dispute and provides significant flexibility to addressharm to fundamental values in our society that unqualified openness could cause… At the same time, however, the requirement that aserious risk to an important interest be demonstrated imposes a meaningful threshold necessary to maintain the presumption of openness.

Were it merely a matter of weighing the benefits of the limit on court openness against its negative effects, decision-makers confrontedwith concrete impacts on the individuals appearing before them may struggle to put adequate weight on the less immediate negativeeffects on the open court principle. Such balancing could be evasive of effective appellate review. To my mind, the structure providedby Dagenasi, Mentuck, and Sierra Club remains appropriate and should be affirmed. [37] Referencing Justice Dickson in MacIntyre v.

Nova Scotia (Attorney General) (SCC), [1982] 1 S.C.R. 175, that‘covertness is the exception and openness the rule’, Justice Kasirer stated at paras. 58-60: [58] Though writing before Dagenais, and therefore not commenting on the specific steps of the analysis as we now understand them,to my mind, Dickson J. was right to recognize that the open court principle brings necessary limits to the right to privacy… I share theview that the open court principle presumes that this limit on the right to privacy is justified. [59] Saying that any impact on individual privacy is sufficient to establish a serious risk to an important public interest for thepurposes of the test for discretionary limits on court openness could render this initial requirement moot… [60] Further, recognizing an important interest in privacy generally could prove to be too open-ended and difficult to apply.

Privacy isa complex and contextual concept…Indeed, this Court has described the nature of limits of privacy as being in a state of ‘theoreticaldisarray’ (R. v. Spencer, 2014 SCC 43, [2014] 2 S.C.R. 212, at para. 35). Much turns on the context in which privacy is invoked. Iagree with the Toronto Star that bald recognition of privacy as an important interest in the context of the test for discretionary limits oncourt openness, as the Trustees advance here, would invite considerable confusion.

It would be difficult for courts to measure a seriousrisk to such an interest because of its multi-faceted nature. [my emphasis added] [38] He stressed the importance of not attempting a broad definition/concept of privacy in all situations which present themselves tothe courts. At para. 61: [61] While I acknowledge these concerns have merit, I disagree that they require that privacy never be considered in determining

whether there is a serious risk to an important public interest. I reach this conclusion for two reasons. First, the problem of privacy’s complexity can be attenuated by focusing on the purpose underlying the public protection of privacy as it is relevant to the judicial process, in order to fix precisely on that aspect which transcends the interests of the parties in this context. That narrower dimension of privacy is the protection of dignity, an important public interest that can be threatened by open courts.

Indeed, rather than attempting to apply a single unwieldy concept of privacy in all contexts, this Court has generally fixed on more specific privacy interests tailored to the particular situation . ( Spencer , at para.35; Edmonton Journal , at p. 1362, per Wilson J.).

That is what must be done here, with a view to identifying the public aspect of privacy that openness might inappropriately undermine. [my emphasis added] [ 39 ] Justice Kasirer then asked the question at para. 64: [64] How should the privacy interest at issue be understood as raising an important public interest relevant to the test for discretionary limits on court openness in this context? .... [my emphasis added] [ 40 ] At paras. 84-85, he confirmed such are to be analysed within the context within which they arise: [84] Finally, and as discussed above, individual sensitivities alone, even if they can be notionally associated with ‘privacy’, are generally insufficient to justify a restriction on court openness where they do not rise above those inconveniences and discomforts that are inherent to court openness ( MacIntyre , at p185).

An applicant will only be able to establish that the risk is sufficient to justify a limit on openness in exceptional cases, where the threatened loss of control over information about oneself is so fundamental that it strikes meaningfully at individual dignity.

These circumstances engage ‘social values of superordinate importance’ beyond the more ordinary intrusions inherent to participating in the judicial process that Dickson J. acknowledged could justify curtailing public openness (pp. 186- 87). [85] To summarize, the important public interest in privacy, as understood in the context of the limits on court openness, is aimed at allowing individuals to preserve control over their core identity in the public sphere to the extent necessary to preserve their dignity.

The public has a stake in openness, to be sure, but it also has an interest in the preservation of dignity: the administration of justice requires that where dignity is threatened in this way, measures be taken to accommodate this privacy concern. Although measured by reference to the facts of each case, the risk to this interest will be serious only where the information that would be disseminated as a result of court openness is sufficiently sensitive such that openness can be shown to meaningfully strike at the individual’s biographical core in a manner that threatens their integrity .

Recognizing this interest is consistent with this Court’s emphasis on the importance of privacy and the underlying value of individual dignity, but is also tailored to preserve the strong presumption of openness. [my emphasis added] (iv) Does Sherman Estate create a material change in circumstances in this case? [ 41 ] As early as R. v. Wholesale Travel Group Inc . [1991] S.C.R. 154, the Court recognized there are often competing interests and courts must analyse the right or freedom at issue, and the context in which it is to be applied.

At page 226: It is now clear that the Charter is to be interpreted in light of the context in which the claim arises.

Context is relevant both with respect to the delineation of the meaning and scope of Charter rights, as well as to the determination of the balance to be struck between individual rights and the interests of society. [ 42 ] Sherman Estate reiterated that application judges are to continue to analyse applications for sealing orders and publication bans with the open court principle as the rule, and any limitation to it, the exception. [ 43 ] The legal nature of the sealing order in the Sherman Estate is key to understanding the analysis undertaken by the Court.

It was a probate case and was decided in that context. [ 44 ] It centered around the death of a very wealthy couple in Toronto. The person or persons responsible for the same remains a homicide investigation. The Estate Trustees sought sealing of the probate files for fear of intrusions into the private lives of, and safety for, the trustees and beneficiaries as the investigation was ongoing. [ 45 ] The Sherman Estate sealing order was granted pursuant to the common law, and was not statute-based. [ 46 ] In this application, the sealing orders in question were granted pursuant to the statutory regime under

section 487.3 of the Criminal Code . [ 47 ] The Criminal Code provides the authority for sealing of Judicial authorizations as follows: 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 besubverted 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 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). [48] An application to “unseal” such 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 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. [49] These provisions are the starting point to determine whether the Sherman Estate decision amounts to a material change incircumstances such that the Merits decision should be revisited. [50] The analysis and determinations made in Sherman Estate were not in the context of a statutorily based sealing order, a significantfactor this court must consider.

Such is expressly commented upon in its reasoning, at para. 38: [38] The test for discretionary limits on presumptive court openness has been expressed as a two-step inquiry involving the necessityand proportionality of the proposed order…This test applies to all discretionary limits on court openness, subject only to valid legislativeenactments (Toronto Star Newspapers Ltd. v. Ontario, 2005 SCC 41, [2005] 2 S.C.R. 188, at paras. 7 and 22). [my emphasis added] [51] The Sherman Estate Trustees were seeking to limit the open court principle and had to allege a privacy interest.

However, undersection 487.3 of the Code, the court is required in making its determination, to consider ‘the prejudice of the interest of an innocentperson’. Such is mandated within the section. [52] The Criminal Code sealing order provisions are reflective of the context in which they are made. Namely, the breadth and depthof information contained in affidavits in support of judicial authorizations.

There is a significant societal interest in fulsome policeinvestigations and protections such as s. 487.3 sealing orders, foster the same. [53] The granting of a judicial authorization is an important investigative tool used by law enforcement. To apply the Sherman Estatedecision to such without a contextual analysis of the provisions in s. 487.3 is both wrong in law and dangerous. [54] Search warrants, productions orders and general warrants are issued only where certain statutory criteria are met. Informations toObtain are sworn/affirmed documents setting out the grounds upon which such are to be considered.

In law, ITOs are required to be full,frank and fair so the issuing authority knows the basis upon which to grant or deny such. In R. v. Morelli 2010 SCC 8 , [2010] 1S.C.R. 253 at para. 58: [58] In failing to provide these details, the informant failed to respect his obligation as a police officer to make full and frank disclosureto the justice. When seeking an ex parte authorization such as a search warrant, a police officer -- indeed, any informant -- must beparticularly careful not to ‘pick and choose’ among the relevant facts in order to achieve the desired outcome.

The informant's obligationis to present all material facts, favourable or not. Concision, a laudable objective, may be achieved by omitting irrelevant or insignificant

details, but not by material non-disclosure. This means that an attesting officer must avoid incomplete recitations of known facts, taking care not to invite an inference that would not be drawn or a conclusion that would not be reached if the omitted facts were disclosed. [ 55 ] The considerations under

section 487.3 for the granting of a sealing order are outlined in it. Information relating to a warrant, order or authorization, is not to be accessible nor disclosed if such would see the ends of justice subverted or the information used for an improper purpose.

Such outweighs the importance of access to the same. ( see 487.3(1)) [ 56 ] The ends of justice, referred to in s.487.3(1), would be subverted if the disclosure of information would compromise the identity of a confidential informant, compromise the nature and extent of an ongoing investigation, endanger individuals involved in intelligence gathering or prejudice the interests of an innocent person. ( see 487.3(2)) [ 57 ] The basis upon which a judicial authorization was granted is open for public view and scrutiny pursuant to s. 487.3(4) in the form of an unsealing order. [ 58 ] In Sherman Estate , privacy concerns of the nature that exist in this matter were not, and are not, the same when contextually dissected. [ 59 ] The Merits decision related to individuals who had spoken with the police as part of its investigation into the multiple deaths of April 18 and 19, 2020.

Their privacy rights, as innocent persons was at issue, and whether such should be afforded protection, given the open court principle. [ 60 ] The information these persons provided to law enforcement, and used in obtaining the judicial authorizations, had been released through court orders in this matter over several months, amounting to almost a full year.

All that remained for determination in the Merits decision was their names. [ 61 ] Such is not the framework within which privacy was analysed in Sherman Estate . [ 62 ] This Merits decision was rooted in the s. 487.3 considerations and the very real need to provide protection to individuals brought into the public domain by the actions of a mass killer. At paras. 122-125, I stated: There is a serious risk to innocent third parties/persons should their names be released.

This is not an imaginary risk given the local, national and international interest of what is referred to as the worst mass murder in modern Canadian history. This is, relying on A.B. v. Bragg , ‘objectively discernible harm’. No other evidentiary basis is needed given such, and all the information from these 16 people has been released in its entirety. These people should not be subject to public scrutiny. These names are but a ‘sliver of information’ (Binnie J., supra, para. 87).

Their information is what is in the public interest, not their names… Those individuals, who have, out of necessity and not by choice, become part of the RCMP investigation into Gabriel Wortman’s actions, deserve to have their privacy protected. Should they choose to reveal it, such will be a personal decision. Given the contextual circumstances of this case, the Court must protect it. [ 63 ] Whether a material change in circumstances exists is a factual and contextual exercise undertaken by this Court. [ 64 ] In this matter, the unsealing application is in relation to a statutorily-based order.

Sherman Estate was grounded in the common law. It is such that distinguishes these two cases. The Court cannot apply the analysis and reasoning in an unsealing application under the Criminal Code holus-bolus to a probate matter without regard to the contextual framework within which each exists. [ 65 ] Justice Kasirer made reference to

section 8 Charter cases.

He noted such had a limited purpose for the analysis before the Court, in that the aspects of expectation of privacy are notionally different ( see para. 78). [ 66 ] There is a clear distinction in Sherman Estate that leads to a difference in the application before this Court, namely the caveat that the test is subject to ‘ valid legislative enactments’ ( see para. 38). [ 67 ] The Crown in its written submissions at paragraph 34, referenced a very important exchange between counsel for the Attorney General of Ontario as an Intervener, in Sherman Estate and Justice Moldaver. [ 68 ] Though it does not form part of the reasoning in the decision proper, it stands to confirm the very different considerations required between the issues in Sherman and issues in this matter which involves a police investigation and a statutory order.

Justice Moldaver stated: In the context of a police investigation, I don’t know whether this has ever arisen, but in the context of a police investigation, we don’t want to make – we don’t want to create a situation that is antithetical to the furtherance of the administration of justice, by having people who are being interviewed by the police in the context of an investigation, and disclosing – the police want them to disclose their most private information – and then go around ‘ha! We got you’.

You know, ‘all your private information will go public’ , Why don’t we wait until we get a case like that? (emphasis added) https://www.scc-csc.ca/case-dossier/info/webcastniew-webdiffusionvue-eng.aspx?cas=38695&id=2020/2020-10-06--38695&date=2020- 10-06 ( see para. 34 Crown brief)

[ 69 ] The genesis of the Sherman Estate order and the sealing orders in this matter are not the same. Sherman Estate and Ostrowski, supra, both require privacy to be considered within their respective frameworks. [ 70 ] A legal or factual change does not by necessity create a material change in circumstances without regard to the contextual underpinnings. [ 71 ] The Merits decision focused on the privacy of individual names within the context of the Wortman mass murders.

The judicial authorizations that were issued, sealing of the same, and the documentation upon which they were granted, were made pursuant to a statutory regime. This Court cannot, in law, apply the Sherman Estate reasoning on privacy to that circumstance as a material change in circumstances. The two are not legally, factually or contextually the same. [ 72 ] Ostrowski, supra made it clear there is a stringent burden on the applicant to establish a material change in circumstances. It is a high bar and there is a need for finality of court decisions.

Only in limited circumstances will reconsideration be permitted, and that has not been met in this case. [ 73 ] The application for reconsideration of the Merits decision is dismissed. __________________________________ Laurel Halfpenny MacQuarrie J.P.C.