The Canadian Broadcasting Corporation, Applicant, ) ) ) ) Jonathan Kroft, For the Applicant - v. -, 2019 MBPC 59

CITATION: 2019 MBPC 59 THE PROVINCIAL COURT OF MANITOBA BETWEEN: The Canadian Broadcasting Corporation, Applicant, ) ) ) ) Jonathan Kroft, For the Applicant - and - ) ) ) ) The Attorney General of Canada, (on behalf of the RCMP) Respondent, ) ) ) ) ) Robert Maertens, For the Respondent - and - ) ) ) The Attorney General of Manitoba, Intervener. ) ) ) Michael Desautels, for the Intervener. ) ) Reasons for Decision ) Delivered: October 17, 2019 Anne Krahn, A.C.J.

Introduction [ 1 ] The Canadian Broadcasting Corporation (“CBC”) has applied for access to sealed affidavits or informations to obtain (“ITO”) production orders. The ITOs were sealed by an order made by a Judicial Justice of the Peace (“JJP”). The Attorney General of Canada on behalf of the Royal Canadian Mounted Police (“RCMP”), the investigating agency who applied for the production orders, argued that most information should continue to be sealed.

The Attorney General of Manitoba has been granted Intervener status to address broader policy implications of the Provincial Court’s Judicial Authorization Registry. [ 2 ] The issues for me to decide are: 1.) Should the sealing orders currently in place continue and if so, on what terms? 2.) Are the Intervener and CBC’s proposals and/or amendments to the Court’s policies regarding the Judicial Authorization Registry required to comply with legal principles relating to access to court records?

Procedural History [ 3 ] It is important to know the procedural history of this application in order to place the legal issues that have to be decided in context.

[4] The Provincial Court’s Judicial Authorization Registry lists all warrants and orders that have been sought from the Court. TheRegistry became accessible to the public on April 16, 2018. [5] On August 1, 2018, an application for a production order pursuant to

section 487.014 was filed with the Court. JJP Karrgranted the production order and granted a request to seal the ITO. She deleted those portions of the draft sealing order that would havesealed the Production Order itself. The ITO was sealed until further order of the Court. The order provided that if Crown Counselrequested a copy of the sealed material, a copy could be provided to Crown Counsel for the purpose of editing. The edited copy wouldthen be provided to the Court and made available upon request. This production order was placed in the Provincial Court’s Envelope20501. [6] On August 24, 2018, the same police officer applied for another Production Order pursuant to

section 487.014. There was anerror in the spelling of the name of the person in the first production order. This time the draft sealing order submitted by the sameinvestigator did not seek to seal the Production Order itself. The ITO was sealed until further order of the Court by JJP Schnell. Thisapplication was placed in Envelope 20574. [7] On August 10, 2018, Caroline Barghout, a news reporter employed by CBC requested a copy of the materials filed inconnection with Envelope 20501. This request was one of 17 she filed that day. On September 21, 2018, Ms.

Barghout requested thematerials related to Envelope 20574, along with 20 other requests for materials related to judicial authorizations. [8] On September 24, 2018, a court staff person responded that both 20574 and 20501 were sealed until further order of the Court. [9] On March 12, 2019, Ms. Barghout filed an application to have four envelope numbers unsealed. The issue with respect to twoof the envelopes has been resolved between the parties and submissions proceeded only in relation to envelopes 20501 and 20574. [10] On April 10, 2019, Ms.

Barghout wrote to the Court asking if the sealing order and original production order were sealed, and ifnot sealed, requested a copy of these documents. A court staff person originally responded, erroneously, that she was not entitled tothese documents because a report to justice had not been filed.

When asked for clarification by Counsel for CBC who noted, as had Ms.Barghout, a report to justice was not required to be filed for production orders, the error was corrected and court staff provided a copy ofthe sealing orders and production orders for envelopes 20574 and 20501 as they had not been sealed. [11] This disclosure led to immediate communications between counsel for CBC and Counsel for the RCMP.

Counsel for theRCMP explained the production orders disclosed the name of a person of interest in an ongoing homicide investigation and containedother information that “could seriously prejudice specific investigative steps that are pending.” Based on that communication, Counselfor CBC sought and obtained instruction from CBC that the unredacted production orders would not be disclosed to CBC until a fullhearing on the matter could take place. Counsel for CBC, Mr.

Kroft, advised that it was “not CBC’s intention to take advantage of anerror on the part of the RCMP or the court administration.” [12] An emergency ex parte application was filed by Counsel for the Attorney General of Manitoba (appearing on behalf of Counselfor the RCMP), seeking to seal the production orders and the sealing order. Counsel for CBC knew of the hearing but was not able toappear. The emergency application appeared before me on April 17, 2019. I ordered that the original production orders in bothenvelopes 20501 and 20574 be sealed and that redacted copies be publicly available.

I also ordered that the original affidavit of Sgt.James Demidiuk, filed in support of the emergency application, be sealed, but that a redacted copy be made available. The redactedcopies had information that would compromise an ongoing investigation blacked out.

These orders were made on an interim basis untilthe matter could be heard with Counsel for CBC present at the hearing of CBC’s application to terminate the sealing orders. [13] On May 1, 2019, a hearing took place with all parties to determine the procedure that would be followed at the hearing of theapplication. [14] Prior to the hearing, the RCMP disclosed redacted copies of the original ITOs to Counsel for CBC. The Court was providedwith a copy of the original, unredacted ITOs and the redacted copy provided to CBC. The RCMP relied on an affidavit by Sgt.

JamesDemidiuk which included a chart providing an explanation for each of the redactions; under seal, an unredacted copy of the affidavit withthe redacted portions highlighted was filed with the Court. After submissions by all counsel, the Court engaged in a review of theredactions, and went in camera, excluding Counsel for the Intervener and Counsel for CBC, to hear submissions on one discreet issue inthe redactions. Most of the proceeding before me occurred in open court. A process generally endorsed and recommended in R. v.Canadian Broadcasting Corporation, 2008 ONCA 397 at para. 48.

Counsel were agreed on this procedure. [15] After the redacted copies of the informations to obtain were disclosed to CBC, their position evolved. CBC learned the activeinvestigation did not relate to allegations of misconduct of those in municipal leadership positions.

CBC’s position after reviewing theredacted disclosure was that: CBC does not object to an order that the yet undisclosed portions of the Subject Materials (the “Remaining Redactions”) remained sealedfor a reasonable period of time so long as the Court reviews the unredacted versions and determines that the unsealing of the RemainingRedactions would pose a real and substantial risk to the ongoing investigation and that there are no reasonable alternative measures toprotect the investigation.” (Application Brief of the Applicant, para. 2) Issue One: Should the sealing orders currently in place continue and if so, on what terms?

Applicable Legal Principles [16] In the early eighties Lynden MacIntyre, a CBC reporter, challenged a court system which sought to keep all applications forsearch warrants secret. In 1982, the Supreme Court of Canada decided that an open court is the starting presumption for search warrants,MacIntyre v. Nova Scotia (Attorney General), (SCC), [1982] 1 S.C.R. 175: At every stage the rule should be one of public accessibility and concomitant judicial accountability, all with a view to ensuring

that there is no abuse in the issue of search warrants, that once issued they are executed according to law, and finally that any evidenceseized is dealt with according to law.

A decision by the Crown not to prosecute, notwithstanding the finding of evidence appearing toestablish the commission of a crime, may, in some circumstances raise issues of public importance. [17] The onus is on the person who would seek to deny open access to satisfy the Court that the administration of justice would becompromised by open access, MacIntyre (at para. 70). [18] MacIntyre was considered prior to the coming into force of the Charter of Rights and Freedoms.

The fundamental principle ofan open and accessible court system, even prior to charges being laid, has consistently been upheld and reinforced by the Supreme Courtafter the Charter was enacted. [19] In Toronto Star Newspapers Ltd. v. Ontario, 2005 SCC 41, the Supreme Court of Canada noted that the principles in MacIntyrewere subsequently codified in

section 487.3 of the Criminal Code (at para. 22). [20]

Section 487.3 of the Criminal Code authorizes a justice or judge to make an order prohibiting access to warrant materials whenthe ends of justice would be subverted or the disclosure of the information would be used for an improper purpose.

Section 487.3(2)identifies some of the grounds where disclosure might subvert the ends of justice: i.) the identity of a confidential informant could be compromised; ii.) the nature and extent of an ongoing investigation would be compromised; iii.) a person engaged in particular intelligence-gathering techniques could be endangered and thereby prejudice future investigations inwhich similar techniques would be used; iv.) the interests of an innocent person would be prejudiced; v.) or any other sufficient reason.

Section 487.3(3) authorizes a justice or judge to impose any terms and conditions on the sealing order, including the duration of theprohibition, partial disclosure of a document or deletion of any information. [21] In Toronto Star, the Court explained that s. 2(

b) of the Charter guarantees freedom of communication and expression, rightswhich depend on public access to information of public interest. The Supreme Court confirmed court proceedings are presumptivelyopen. The Court recognized while these freedoms are fundamental, they are not absolute.

In the case of competing claims to courtproceedings, the court must engage in a balancing exercise and only bar public access when that disclosure would subvert the ends ofjustice or unduly impair its proper administration (para. 2-4). [22] In Toronto Star, the Crown argued the “stringent” Dagenais/Mentuck test should not apply pre-charge at the investigativephase of the proceedings. The Supreme Court of Canada rejected this position. [23] The Dagenais/Mentuck test, as it has come to be known, was refined in Dagenais v. Canadian Broadcasting Corp., (SCC), [1994] 3 S.C.R. 835 (S.C.C.); R. v.

Mentuck, [2001] 3 S.C.R. 442, 2001 SCC 76 (S.C.C.) in the context of publicationbans at trial. The Dagenais/Mentuck test requires an order to limit public access only be made 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; (

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. (Toronto Star, para. 26). [24] The test requires a judge to identify the competing rights and interests at stake and the necessity of limiting public access in apresumptively open court proceeding in order to prevent a real and substantial risk to the administration of justice.

The Court mustconsider an order that is as narrowly drawn as possible in order to protect the public interest in an open court as well as protect competingrights. This has been termed the minimal impairment portion of the test.

And finally, the Court must engage in a proportionalityassessment in balancing the benefits sought to be secured by limitations on an open court against the negative impact on the right of freeexpression, an open and fair trial and the proper functioning of the administration of justice. [25] In Toronto Star (at para. 7) and Vancouver Sun, Re (2004), [2004] 2 S.C.R. 332, 2004 SCC 43 (S.C.C.) at para. 31, theSupreme Court of Canada confirmed that the Dagenais/Mentuck test applies to all discretionary decisions that limit freedom ofexpression during judicial proceedings, including those decisions made as authorized by statute.

The discretion must be exercised inaccordance with the Charter. This means

section 487.3 must be interpreted in a manner consistent with the Dagenais/Mentuck test. [26] These are the legal principles that must be borne in mind in determining the extent of a continued sealing order. [27] While CBC now concedes the interest in not compromising the effective investigation of an ongoing homicide investigation isof sufficient importance to warrant a sealing order, there are two issues that remain contentious. They are the length of the sealing orderand whether the need to protect innocent third parties would justify a sealing order.

Length of the Sealing Order [28] I accept the position of CBC that the minimum impairment requirement of the Dagenais/Mentuck test requires that a sealingorder remain in place only so long as necessary. I note that s. 487.3(3) also requires a court to consider the length of the sealing order.

[ 29 ] The RCMP argued there are grounds to seal the materials for an indefinite period because of the inability to determine at this stage how long the investigation will continue, given the nature, context and scope of the investigation. In the alternative, the RCMP said if the Court was persuaded that a time-limited sealing order was warranted, that a period of at least 12 months would be reasonable. [ 30 ] The affidavit of Sgt. James Demidiuk explained this is an ongoing homicide investigation.

The disclosure of the production order and the information to obtain the production order would compromise that ongoing investigation because it would identify a person of interest or suspect in that investigation. The person of interest was identified in the production order itself and the ITO. There are specific grounds identified by Sgt. Demidiuk which satisfy me the person of interest might alter their activity in a way which would compromise the ongoing investigation. [ 31 ] The ITOs contain forensic information and identify specific information that is “holdback” evidence.

Holdback evidence is evidence that would only be known by persons who have intimate knowledge of the homicide, such as the perpetrator. Disclosure of “holdback” evidence could and would have a negative impact on the ability of police to pursue confessions and statements and evaluate such confessions or statements based on information that would only be known by a perpetrator.

I am satisfied, based on particularized grounds the continued non-disclosure of the original informations to obtain is needed. [ 32 ] CBC takes the position the circumstances where an indefinite sealing order could be imposed by a court are extremely rare, if they could ever occur at all. [ 33 ] CBC points to another decision of this court by Pollack J. declining to impose an indefinite sealing order because it would leave “no party with an onus to seek an end to, variation of or (at least) review of a limit on a fundamental freedom” the right of access to information, Winnipeg Police Service (Re) , 2007 MBPC 21 at para. 6 . [ 34 ] I agree with CBC that the need for an indefinite sealing order would be rare.

Counsel for the Intervener identified sealing orders made to protect confidential informants require indefinite sealing orders. I point out the sealing orders at issue provided for the editing of the ITO material by Crown Counsel and public access to the material after editing. The sealing orders contemplated that not all material in the affidavits would be indefinitely sealed. [ 35 ] I am satisfied the unredacted affidavit of Sgt. Demidiuk identifies particularized investigative steps that are planned in this ongoing homicide investigation.

I conclude from the length of time the investigation has taken to date and from the potential length of time the planned investigative steps will take, there is an ongoing need to protect the unredacted information so as not to compromise the ongoing investigation and not to compromise future investigative plans. The public interest in effective law enforcement outweighs the right to access the information at this stage.

The release of a redacted affidavit and the time limited sealing order are a reasonable alternative and the least intrusive method to protect the legitimate interest in effective police investigation and the public’s interest in open access to court proceedings. I make a further order sealing the original ITOs in Envelopes 20501 and 20574 until November 17, 2020 based on the grounds established in the affidavit of Sgt. Demidiuk. [ 36 ] I reviewed all of the proposed redactions and find support for all of them in the affidavit of Sgt. Demidiuk for the reasons outlined above except for two minor redactions.

Counsel for the RCMP asked that I be circumspect in any decision and make the decision effective after 30 days to allow them an opportunity to consider a review to another court of my decision. [ 37 ] I am not persuaded the redactions in paragraph 12a of the August 1, 2018 affidavit in Envelope 20501 are necessary or required to protect the ongoing investigation. The information refers to a police database. In my view, a routine part of any investigation would be to access police databases. In the second affidavit dated, August 23, 2018 in Envelope 20574, there is another reference to this police database.

I cannot conclude that it is necessary to redact the name of the police database and the second full sentence in paragraph 7. In my view, the ongoing investigation will not be compromised by the information in these two paragraphs. I would not maintain those two redactions. [ 38 ] I order the release of the additional words identified in the immediate preceding paragraph. This order will take effect in 30 days. The RCMP will prepare another version of the redacted affidavit, with the above portions not redacted.

This redacted affidavit will be attached to the outside of the sealed envelope and will be available to any person seeking access to it. Is a sealing order needed to protect an innocent third party? [ 39 ] The RCMP argues that if the person of interest is cleared from suspicion because of the investigation then disclosure of the information identifying him as a suspect could prejudice him as an innocent third party and cause reputational harm to that person. [ 40 ] The CBC argues this is not a sufficient basis for a sealing order.

CBC points to MacIntyre where the Supreme Court of Canada said the “sensibilities of individuals” is not enough to override the public interest in an open court system: . . . 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 and understanding of the administration of justice are thereby fostered.

As a general rule the sensibilities of individuals involved are no basis for exclusion of the public from judicial proceedings. . . (at para. 59) [ 41 ] In Phillips v. Vancouver Sun 2004 BCCA 14 , Phillips, a police officer, was the subject of an investigation in which charges were ultimately not laid. Phillips sought to prevent disclosure of the Information to Obtain a search warrant on the basis that it would compromise his privacy interests and could potentially damage his reputation. He argued, as an innocent person, his rights outweighed those of the public to access the sealed materials.

The Court of Appeal recognized Phillips’ status as an innocent person was a factor to be considered in the balancing of the competing interests. The Court of Appeal referred to MacIntyre where the Court pointed out, “A decision by the Crown not to prosecute, notwithstanding the finding of evidence appearing to establish the commission of a crime may, in some circumstances, raise issues of public importance.” ( Phillips v. Vancouver Sun at para. 83 ). After balancing the competing interests, the Court concluded that Cst. Phillips’ privacy rights did not outweigh the public’s right to access the information.

[ 42 ] In Canadian Broadcasting Corporation and Others v. HMQ 2013 ONSC 6983 the Crown sought to withhold information provided in police interviews by persons connected to the Mayor of Toronto in an investigation looking into allegations surrounding the Mayor. The Crown argued these witnesses were innocent persons and their privacy should be protected. The Court found generalized assertions of harm were not persuasive in the absence of evidence that detailed actual and specific harm. Justice Nordheimer held: . . .

I appreciate that some information provided to the police might prove to be of some embarrassment to other people given that frank opinions were offered on relationships and motivations, and other matters but that type of embarrassment is not of a level of significance that it would normally be sufficient to trump the principle of openness. (at para. 27). [ 43 ] In The Globe and Mail Inc. v. R ., 2017 ONSC 2407 , Vice Admiral Mark Norman had a search warrant executed at his residence in Ottawa. The media sought release of the underlying ITOs of the warrant and other related judicial authorizations.

Vice Admiral Norman, who had not yet been charged, agreed to the release of most of the ITO but sought a publication ban to protect his right to a fair trial before an impartial tribunal. The court declined to order the publication ban after weighing the competing interests. [ 44 ] I agree with CBC there is no specific evidence in this case that the person of interest is any different than any other person of interest in any other investigation. The case law does not support a position that people involved in an investigation who are not charged are entitled to anonymity.

The public’s right to have access to this information outweighs the privacy interests of a citizen, even one who was a suspect but is ultimately absolved of any criminal activity. In my view, the public interest is served by knowing the police pursued persons of interest who were ultimately not charged, perhaps even exonerated. I would not seal the informations to obtain on the basis of protecting an innocent person in this case.

Issue Two: Are the Intervener and CBC’s proposals and/or amendments to the Court’s policies regarding the Judicial Authorization Registry required to comply with legal principles relating to access to court records? [ 45 ] Let me move on to consider the broader arguments directed at the Court’s Judicial Authorization Registry and the policy governing the Registry. Intervener [ 46 ] There are two separate but over-lapping concepts that apply to whether the Court should entertain submissions on the broader implications of the Court’s policy on access to judicial authorizations.

The two concepts are the test to be applied to a party requesting intervener status and the doctrine of mootness. [ 47 ] The Attorney General of Manitoba sought Intervener status in order to address the Court on broader issues raised by the Court’s Judicial Authorization Registry and the policies surrounding it. [ 48 ] The Provincial Court does not have rules that govern when to grant Intervener status. The issue does not arise often in a busy, first instance trial court. In Pedersen v.

Alberta 2008 ABCA 192 , the Court posited the following factors in granting leave to intervene: 1.) Will the intervener be directly affected by the appeal; 2.) Is the presence of the intervener necessary for the court to properly decide the matter; 3.) Might the intervener’s interest in the proceedings not be fully protected by the parties; 4.) Will the intervener’s submission be useful and different or bring particular expertise to the subject matter of the appeal; 5.).

Will the intervention unduly delay the proceedings; 6.) Will there possibly be prejudice to the parties if intervention is granted; 7.) Will intervention widen the lis between the parties; and 8.) Will the intervention transform the court into a political arena. [ 49 ] CBC welcomed the granting of Intervener status to the Attorney General of Manitoba. In fact, CBC also welcomed the opportunity to address the Court on the broader policy implications of the Registry.

CBC hoped that an open process for clarification of some of their concerns as well as those raised by the Attorney General of Manitoba would reduce the need for future litigation and the attendant costs for CBC of such litigation. CBC pointed out that in the era of dwindling resources the need for a clear, understandable process was required. [ 50 ] I granted the Attorney General of Manitoba Intervener status.

While the Attorney General of Manitoba was not directly impacted by the specific application by CBC, as prosecutor and advisor to the police on ongoing investigations, they are affected by the Court’s policies around access to applications for judicial authorizations.

It is fair to say that most applications for judicial orders filed in the Provincial Court relate to Criminal Code investigations and, where charges are laid, will be prosecuted by the Attorney General of Manitoba. [ 51 ] Counsel for the RCMP did not oppose the Attorney General of Manitoba being granted Intervener status but said the RCMP was not prepared to address broader policy considerations. The RCMP said the Court should be restricted to the application in relation to the two specific judicial authorizations at issue. I granted the Attorney General of Manitoba Intervener status on May 1, 2019.

The Intervener’s legal brief was filed on May 9, 2019. Oral submissions were heard on July 4, 2019. The RCMP did not offer any further reasons for their reluctance to address the issues raised by the Intervener. [ 52 ] The CBC recognized and I accept that the role of the Attorney General of Manitoba would assist the Court in bringing forward concerns regarding the Registry. The Intervener’s position was not necessary for the specific application as it related to an RCMP

investigation where charges have not yet been laid. However, the Intervener did want to advance positions that were not beingintroduced or argued by the RCMP so the Intervener’s interests would not otherwise have been raised in this proceeding. [53] The RCMP did not raise or identify any prejudice to their position should the Attorney General of Manitoba be grantedIntervener status. [54] The presence of the Attorney General of Manitoba did not unduly lengthen proceedings. They filed a written brief andadditional case law.

Oral submissions were completed in the allotted court time, one day. [55] The intervention of the Attorney General of Manitoba did not widen the “lis” between the parties and did not transform thehearing into a political arena. Quite the opposite, the submissions of the Attorney General of Manitoba and CBC related to the Court’spolicy on access to court records related to judicial authorizations. Applications for judicial authorizations and sealing orders are madeex parte, in Chambers.

The ability to debate the Court’s policies in an adversarial arena helps to ensure that a variety of interests andperspectives are fully considered. It is for these reasons, that I granted the Attorney General of Manitoba Intervener status. Doctrine of Mootness [56] The Intervener argued the tests for mootness should be applied to allow for the arguments to the Court on the widerimplications of the Court’s policy on access to judicial authorizations. [57] In Borowski v.

Canada (Attorney General) (SCC), 7 W.C.B. (2d) 61 at paragraph 15 the Court explained, “thedoctrine of mootness is an aspect of a general policy or practice that a court may decline to decide a case which raises merely ahypothetical or abstract question.” In Borowski, the Supreme Court of Canada then went on to identify situations when the Court mightexercise its discretion to proceed with the case and hear submissions, even when the issue might be moot.

The criteria a court canconsider in exercising its discretion include: 1.) the necessity for an adversarial relationship; 2.) a concern for judicial economy and the need to “ration scarce judicial resources”, and; 3.) the need to maintain an awareness of the court’s traditional role and proper law-making function and not intrude into the legislativebranch. [58] In Borowski (at para. 33), the Court noted the presence of an Intervener who had a stake in the outcome supplied the necessaryadversarial context to enable the Court to hear submissions on the broader issue.

In this case, the RCMP raised a concern that some ofthe Intervener’s suggestions regarding conditions on production orders were not within the scope of this hearing. The RCMP alsopointed out there might be other affected or interested parties, such as other law enforcement agencies that might want to be involved. While there was not complete agreement on this Court’s ability to entertain and consider the issues, there was no loss of an adversarialrelationship in this case. [59] The Provincial Court considers thousands of applications for judicial authorizations every year.

As noted by the Intervener,issues relating to the process for access to court records are common in the Provincial Court. Ms. Barghout explains in her affidavit shefiles many requests for access to court records. In Borowski, the Supreme Court recognized that in some cases the fact that an issue isrecurring but brief in duration and where it will have a practical effect on the parties can warrant a consideration of the issues (at para.34-35). In R. v.

C.(W.J.) 2008 MBCA 11, 2008 CarswellMan 36 the Court of Appeal held the recurring nature of the specific issuewarranted the court’s consideration of the issue even though the issue was moot. [60] The number of requests for judicial authorizations and related materials occurs frequently. They are brief in nature. Thereforethe need to assess the Court’s policy against legal principles is one that will continue to have an impact on all of the parties to thishearing.

CBC and the Intervener join in their submissions that there is a need for clarity on the procedures to access court records filedto obtain warrants and productions orders. These issues are helpfully considered and dealt with in an open, adversarial court proceeding. Consideration of these issues does further the public interest in having access to court records, balanced with the other legitimate privacyinterests that might be advanced. [61] I agree with the Intervener the Court’s policy on judicial authorizations is not conducive to appellate review.

I also agree withthe submission that since it is the Court’s own policy on access to court records, that it is most fairly dealt with before this Court whichis aware of the reasons for the policy. [62] I have considered the RCMP’s submission the issues might impact other law enforcement or regulatory agencies and ought notto be considered as part of this proceeding. It is fair to say that stakeholders, including law enforcement, were consulted prior to theimplementation of the Court’s Judicial Authorization Registry.

Ultimately, it is up to the Court to analyze the legal principles, apply thelegal test and make final determinations on access to its own court records. [63] While courts must be circumspect in making decisions with broader policy implications that might tread into the political orlegislative realm that issue does not arise in this case. It is well accepted that a court has a supervisory role over its own records, seeMacIntyre at para. 70. [64] The decisions and process surrounding requests for access to court records will continue to arise.

While the issues raised by theIntervener do not squarely arise in this proceeding, I have concluded that the repetitive, frequent nature of these requests does warrant theuse of judicial resources. The need for clarity and transparency in the Court’s procedures, including the reasoning behind them, furtherthe public’s interest in an open and accessible court system. Notice to the Crown of a Request for Unsealed Judicial Authorizations

[ 65 ] The Court’s policy says that when a written request is received for unsealed judicial authorization packets, a notice will be sent to the Attorney General and they have seven days to respond. The Intervener asks the policy be amended so that notice goes to the investigating enforcement officer when a charge has not yet been laid. It is important to place this issue in context. [ 66 ] On April 11, 2018, the Provincial Court released an addition to its “Policy: Access to Court Records in Manitoba”. The original policy reflected the policy of all three levels of Court in Manitoba.

In the additional policy, entitled “Judicial Authorization Registry in the Provincial Court of Manitoba”, the Court announced that effective April 16, 2018, there would be a registry, which simply put is a listing of all applications for judicial authorizations applied for in Manitoba since November 1, 2017. Prior to this additional policy, information about applications for warrants or orders was not publicly accessible unless the requester had learned of the existence of the warrant or order from some other source.

The Court’s Judicial Authorization Registry has lead to many requests for documents, from CBC in particular, for both sealed and unsealed documents. [ 67 ] While some provinces, British Columbia and Nova Scotia, have a registry for search warrants where the warrant has been executed, something has been seized and a report to justice is filed, no other similar registry, which lists all authorizations, exists in other jurisdictions. The information listed on the registry varies depending on whether certain information is sealed or whether a report to justice has been filed.

Once a report to justice is filed, additional identifying information is added to the registry – such as, the address or name of the person associated to the search warrant. If there is a sealing order, it identifies the type of warrant or order granted, that it is sealed and provides information about how long it is sealed. [ 68 ] The law is well established since MacIntyre in relation to search warrants.

If the application is not otherwise sealed, it becomes a publicly accessible court record when the search warrant has been executed and something has been seized as confirmed by a report to justice (see s. 489.1 or 487.1(10) for required reports to justice). In MacIntyre (at para. 65 ) the Supreme Court said until a warrant is executed, the public is not entitled access to the application. The Court recognized that “surprise and secrecy” are needed for effective law enforcement to avoid “the probable consequence of destruction or removal of evidence” and nullifying the usefulness of the search warrant.

Justice Dickson in MacIntyre said that if nothing is seized, the privacy interests of the innocent outweigh the public interest in an open court proceeding. [ 69 ] The report to justice is a mechanism that notifies the court when a warrant has been executed. How do these principles apply to production orders and other warrants and orders that do not require a report to justice to be filed? The case law is not clear on this question.

Without a report to justice being filed, the Court does not know if the order has been executed or if something has been seized. [ 70 ] In its Judicial Authorization policy, the mechanism the Provincial Court used to address the gap was to require a written request in those cases where unsealed applications for judicial authorizations that do not require a report to justice are being requested and notice of the request to the Crown. The notice to the Crown was also a precaution.

The Judicial Authorization Registry made it much easier to find out about a large number of applications the existence of which would previously not have been known. A notice alerted the Crown and through the Crown, law enforcement, that there had been a request for the documents. [ 71 ] The Request for Documents asks the requester to provide the following information: “Description of intended use including reason for believing the Judicial Authorization has been executed.” It was hoped that an answer to this question would give the Court information about whether the production order had been executed.

Since the Judicial Authorization Registry came into place, it is CBC who has generally requested access to the documents related to judicial authorizations. There is a standard answer on the request, “open court principle, journalistic purposes.” This answer has not helped the Court determine whether the order, a production order in the vast majority of cases, has been executed. [ 72 ] The second mechanism to address the gap was when the Court received a written request for unsealed documents, notice would be provided to the Crown (Attorney General of Manitoba or Canada).

The Court’s policy noted the Crown bears the onus of justifying any restriction on access, see CBC and others v. HMQ 2013 ONSC 6983 . The policy provided the Crown would have seven days to respond. After seven days, any Crown response to the request for documents would be considered in Chambers by a Judge, applying the Dagenais/ Mentuck test. The policy does advise the public and any requester for such records that a hearing in open court might be required to consider the request. [ 73 ] Such a proceeding occurred on January 9, 2019, Canadian Broadcasting Corporation Judicial Authorization Registry , unreported.

Ms. Barghout on behalf of CBC had requested copies of a number of unsealed production orders and their ITOs. The Attorney General of Manitoba responded to those requests opposing disclosure on a number of different bases: 1.) witnesses were identified in the informations to obtain so the court needed to protect innocent persons; 2.) no one had yet been charged so the ongoing investigation needed to be protected; 3.) personal information such as bank account numbers, social insurance numbers, personal health information of a charged person were discussed in the information to obtain.

On one application, once the Crown was provided with notice, the police sought to seal the information to obtain with an in chambers application. Ultimately, the Court made decisions after submissions in an open court proceeding, disclosing the informations to obtain, but ordering the Crown to redact bank account numbers and social insurance numbers to minimize identity theft.

CBC suggested that an order banning publication but not disclosure of the Information to Obtain that contained personal health information would be the appropriate balancing of the open courts principal and individual privacy interests over medical information. [ 74 ] At that hearing, both CBC and the Attorney General of Manitoba said they wanted to avoid continuous hearings on similar applications. A similar hearing had been held by the Court on October 31, 2018. [ 75 ] Since the January hearing, many requests for copies of unsealed production orders and the underlying ITOs have been received by the Court.

Since January, the Attorney General of Manitoba has not responded to any further notices from the Court to these requests.

[ 76 ] The Attorney General of Manitoba at that hearing and before me, as Intervener, argued that the investigating law enforcement officer/agency should receive the notice when charges have not been laid . They explained that many of the requests for unsealed production orders relate to ongoing investigations and so the Crown does not yet have any information about the matter. The Court’s policy required the Crown to contact the police officer, find out their position on the request for documents and then convey that to the Court.

The Intervener argued they were being drawn into the process at a stage where they were not yet a party to the matter. The Intervener pointed out the Crown and police are separate and distinct actors in the justice system. The Intervener argued the agency seeking the order is factually in the best position to respond as a basic element of procedural fairness. [ 77 ] CBC and the RCMP did not oppose the Intervener’s position that when a charge has not been laid notice should go to the investigating agency or officer, rather than the Crown as required by the policy.

CBC submitted the procedure should be clear and not create barriers for those seeking their right to access the information. [ 78 ] The difficulty with the Intervener’s proposal on notice is that the Court does not know when a charge has been laid, and therefore does not know whether the notice should go to the person who applied for the order (usually a production order) or the Crown. [ 79 ] It raises a further question of whether any notice is required to either the investigating agency or the Attorney General when a request for presumptively open court records has been received.

The Supreme Court of Canada has repeatedly said, all court records are presumptively open and the party who would restrict access has the onus of satisfying the Court, based on particularized and specific grounds, access should be limited or denied.

Toronto Star at para. 2-4. [ 80 ] Since the Court does not know if the warrant or order has been executed, how do we balance the open court principle with the common law principle that the interest in effective law enforcement outweighs the public interest in open court proceedings at the pre- execution stage when judicial authorizations are sought? [ 81 ] The Intervener suggested that since the issues surrounding those Court orders without a report to justice are complex, those orders could all be removed from the Court’s public registry.

The Intervener was not able to point to legal authority to support such an approach. I cannot accept this proposal because the effect would be to seal all applications for production orders from public view, unless the media or citizen happened to be aware of their issuance from a different source. This is contrary to the legal principles from the Supreme Court of Canada already referred to in this decision. [ 82 ] The Intervener submitted the Court is authorized to impose any appropriate terms and conditions to a production order, see s. 487.019(1) for example.

The Court could impose a term or condition requiring police to report when the production order has been executed. I have reservations of imposing a report to justice requirement that Parliament has chosen to deliberately exclude from a variety of production orders. Reports to justice are linked to detention orders pursuant to s. 490(9). As noted in R. v. Garcia-Machado 2015 ONCA 569 (at paras. 16 and 45 ) reports to justice are a mechanism which allows judicial oversight over property seized from a person.

It is incidental that reports to justice have been a convenient tool to alert the Court that a search warrant has been executed is now publicly accessible. [ 83 ] There are significant differences between production orders and search warrants. Production orders generally require information or documents to be produced by a third party. Production orders cannot be aimed at a suspect or person under investigation, see s. 487.014(4), 487.015(5), 487.016(4), 487.017(4), 487.018(5). Production orders cannot be used to require a suspect to produce information in the investigation, unlike search warrants.

Search warrants are generally aimed at seizing things related to the offence, often from a place where the suspect has a reasonable expectation of privacy. Production orders then do not attract the same interests in judicial oversight of property, as search warrants do. Since a third party holds the information, the risk of destruction of evidence is not the same for production orders as it is for search warrants. [ 84 ] A number of production orders can be issued on a reasonable suspicion standard unlike a search warrant, which can only be issued on a reasonable grounds to believe standard.

Reasonable suspicion is a lower standard reflecting the reduced expectation of privacy in what is often business records kept in the hands of a third party. The nature of production orders and the reduced standard for their issuance also make them a tool that is used much earlier in an investigation than a search warrant. Search warrants are frequently issued much closer to the charging end of an investigation. [ 85 ] The production orders that are authorized by this Court usually require the information to be produced by a certain date.

One could assume that once that date has passed, the production order has been executed, and is therefore disclosable. On occasion the Court has seen a second application for a search warrant when police resources could not be mustered to execute the warrant prior to an expiry date. Such is not the experience with production orders, presumably because they generally involve sending the order to a third party who is required to produce records so the same physical resource implications do not arise.

I note, parenthetically, to date the Court has not been advised by the Crown that a production order had not yet been executed, when a request for documents was made. [ 86 ] The Court’s Judicial Authorization Registry has now been in place since April 16, 2018. The police and law enforcement are deemed to know the law. The police should be seeking a sealing order if grounds exist. Sufficient time has passed so that those applying for judicial authorizations in Manitoba should know that unsealed applications are generally open to the public.

There may no longer be a need to provide any notice to the Crown or law enforcement of a request to access presumptively, open court records. I will refer the notice requirement, for unsealed judicial authorizations, to a committee of the Court to consider whether the Court’s policy should be amended. [ 87 ] What is the Court’s duty to review unsealed ITOs with no report to justice to determine whether on their face, there are significant interests apparent that might need to be balanced with the open court principle?

Production orders can contain private information such as social insurance numbers, bank account numbers, the identity of alleged child sexual assault victims, child abuse investigations where there are other statutory protections prohibiting disclosure such as in the Child and Family Services Act , s. 76(3). [ 88 ] CBC responds that it is up to the person who seeks the order to request a restriction on access. It is not up to the Court to take on the responsibility of being its own censor. CBC says this would be contrary to all of the concepts that come from the case law.

CBC says it is not a responsibility the Court owns. CBC says it is not the Court’s job to catch mistakes made by the police and/or counsel.

And yet, the Court’s overriding responsibility over its own records makes it difficult to accept the bright line advocated by CBC: if it isunsealed, it is fully disclosable. [89] In Canadian Broadcasting Corp. v. Manitoba (Attorney General) et al., 2008 MBCA 94 the Court of Appeal rejected theposition of the media which was once child and family service records were filed as an exhibit in a court proceeding, they were in thepublic realm and should be disclosed to the media.

Justice Steele on behalf of the court said, “It is overly simplistic, and wrong to saythat the mere fact that a CFS record is filed as an exhibit at an inquest means that it is in the public realm.” (at para. 36). In a similarvein, I cannot accept the position of CBC that the Court has no role or responsibility over court records which contain privateinformation. [90] I agree with CBC there is no case law on this point. It must be remembered Manitoba’s Judicial Authorization Registrydiscloses to the public information of all applications sought from the Court.

Similar registries that list all judicial applications do notexist in other provinces. The case law that exists generally takes place at a much later stage in the proceedings where parties arerepresented and hearings are taking place in an adversarial context or the media has otherwise learned of an ongoing investigation, (seeThe Globe and Mail Inc. v. R., 2017 ONSC 2407; Savard v. LaPresse Ltee, 2017 QCCA 1340, leave to appeal dismissed October 25,2018, ). [91] There are other scenarios where the Court itself is cloaked with a duty to protect privileged information.

The “near absolute”privilege afforded to confidential informants is one example. The duty to protect a confidential informant falls to the police, the Crownand the Courts, see R. v. Leipert (SCC); R. v. Barros 2011 SCC 51 at para. 37. [92] It is for these reasons the Court’s policy requires a judge to review, in Chambers, all requests for access to court records,applying the Dagenais/Mentuck test. If the Court cannot easily make a determination given the lack of an adversarial context, a hearingwill have to take place so that the competing interests can be litigated in an open court proceeding.

Sealing Orders [93] CBC argued the Provincial Court should be more disciplined in the granting of sealing orders. CBC points out that a failure toconsider alternative measures short of a full, indefinite sealing order is an error of law, R. v. Canadian Broadcasting Corp. 2008 ONCA397 at paras. 26 & 27. I have already reviewed above CBC’s position on indefinite sealing orders. CBC points out every time they filean application to have a sealing order varied or terminated, the Crown immediately releases an edited copy of the ITO.

This, they argue,demonstrates that the initial order was too broad, and the order was not one made in compliance with the Dagenais/Mentuck test, anorder that minimally impaired the right to open access. CBC argues that the Provincial Court should “tweak” its process so that theediting of the information occurs at first instance when the sealing order is sought. [94] CBC has not sought a review of the sealing order made by JJP Karr or JJP Schnell. Therefore, I am not sitting in review of theirorders.

I do not have jurisdiction to review the sealing orders imposed, only to vary or terminate the orders pursuant to s. 487.3(4). Ioffer the following comments in relation to CBC’s arguments. [95] As pointed out by the RCMP, the Supreme Court of Canada has said the Dagenais/Mentuck test is intended to be appliedflexibly and contextually, Toronto Star Newspapers Ltd. v. Ontario, 2005 SCC 42 at para.8. The Supreme Court recognized at theinvestigation stage a serious risk to the administration of justice “will often involve considerations that have become irrelevant by thetime of trial.” Toronto Star, para. 8.

While the sealing order imposed by JJP Karr was for an indefinite period, it also anticipated theCrown reviewing the Information to Obtain, editing the ITO in compliance with s. 487.3 and release of an edited copy. I note that this isa procedure that is statutorily endorsed in the wiretap context, see s. 187 of the Criminal Code. This recognizes the great degree ofvariation that occurs between the investigation stage and the information that must be disclosed once a charge has been laid.

It must beremembered that in MacIntyre and at common law, the effective investigation by law enforcement necessitated secrecy in the ex parteapplications filed by law enforcement for judicial authorizations. [96] The idea that a line by line redacting at first instance is not practical was recognized by the Ontario Court of Appeal.

In R. v.Canadian Broadcasting Corp. 2008 ONCA 397 at para. 50 the Court said: “I recognize that it may not be feasible for the issuing justiceto parse the materials paragraph by paragraph before fashioning the terms of a sealing order at the time the warrant is issued.” TheCourt set out a procedure that should be followed once the search warrant was executed. As noted in that case, the first step is to requirethe Crown to edit the information to obtain.

The Court recognized the editing task on the Crown is “burdensome” but it makes sense theCrown bears that responsibility since they are the party with all of the information (at para. 53). I point out the obligation is not put onthe Crown at the time of requesting the search warrant. [97] The expansion of the number of production orders available in the Criminal Code and the requirement that police seek judicialauthorizations for more types of information (for example, subscriber information in R. v.

Spencer 2014 SCC 43, [2014] 2 S.C.R. 212)results in applications for judicial authorizations being made much earlier in an investigation than was the case in MacIntyre. Early onin the investigation, it is not easy to know with precision what information will compromise the investigation given the limitedinformation yet known. This is an important contextual factor that makes CBC’s proposal that a sealing order that already requiresrelease of redacted information at first instance impractical, in many of the hundreds of applications the Court considers. [98] In R. v.

Canadian Broadcasting Corp. 2008 ONCA 397 the Court pointed out the error committed by court staff when theytreated the sealing order itself as sealed. The sealing order itself should not be sealed. There were some mistakes made by court staff inthe case before me as well but when the request was received specifically for those documents that were not sealed, those documentswere disclosed. Now that this has been clarified, I would not expect such mistakes to be repeated.

Indeed, the Court now receives morespecific requests from CBC for the sealing order and any documents not covered by the sealing order. [99] The CBC argues all media outlets these days have limited resources, so there is a need to avoid similar types of litigation in thefuture. I point out, the original application related to four sealed envelopes. The Crown conceded quickly that one of the orders should

be terminated and full disclosure of the contents of that envelope were provided as described in the Intervener’s brief. While I recognize the party seeking to withhold information from the public always carries the onus to demonstrate the necessity of withholding public access, this was a speedy resolution to litigation. [ 100 ] In

summary, the Court’s policy on the Judicial Authorization Registry will be referred to a Committee of the Court to consider whether there should be an amendment to the notice requirement when a request is received for unsealed documents that do not have a report to justice requirement.

The requests for these documents will be considered in Chambers and if required, the Court will direct a hearing to consider additional submissions on public access, applying the Dagenais/ Mentuck test. [ 101 ] I have made some comments on CBC’s and Intervener’s arguments regarding attaching conditions to production orders and sealing orders. However, these arguments do not require an amendment to the Court’s policies.

Whether to grant a sealing order, the terms and conditions that should be attached to a sealing order or a production order are matters of individual judicial discretion and decision-making based on the specific facts in the application. If a judicial officer has made a decision and granted a sealing order, than a proceeding in an open court as occurred in this case is the appropriate method to vary or terminate the order.

Conclusion [ 102 ] In conclusion, I am satisfied that there remain particularized and substantial concerns the redacted information in the ITOs in Envelopes 20501 and 20574 will compromise an ongoing homicide investigation, except for the reference to a police database in paragraph 12a of the August 1, 2018 affidavit and the reference to the same police database and the second full sentence in para. 7 in the August 23, 2018 affidavit. The RCMP will prepare another version of the redacted affidavit, with the above portions not redacted.

This redacted affidavit will be attached to the outside of the sealed envelope and will be available to any person seeking access to it. This order will become effective on November 17, 2019. This will allow the parties to consider whether any further review of this decision will be made. The original copies of the Informations to Obtain Production Orders 20501 and 20574 will remain sealed until November 17, 2020 or further order of a court of competent jurisdiction. “Original signed by” Anne Krahn, Associate Chief Judge