2020 MBPC 62, 2020 MBPC 62

CITATION: 2020 MBPC 62 THE PROVINCIAL COURT OF MANITOBA IN THE MATTER OF: An Application for a General Warrant, s. 487.01 and a Sealing Order, s. 487.3, Envelope No.26306 , November 4, 2020 Decision for Rejection of Application Reasons for Decision Delivered: November 16, 2020 ANNE KRAHN, A.C.J. Introduction: [ 1 ] An application for a general warrant allowing the police to use an automated licence plate reader (an ALPR) to identify and track a suspected drug trafficker has been made to the Court.

These are my reasons for denying the application. [ 2 ] In my view, a person does not have a reasonable expectation of privacy in the use of the ALPR by law enforcement when used in the manner explained in the application. Therefore, a warrant is not required. Secondly, the purpose of the application is to identify and track a drug trafficker. There are other orders, specifically tracking warrants, which would allow for tracking of the specific vehicle.

The affidavit does not explain why the other orders available in the Criminal Code for tracking are not appropriate or sufficient in the investigation as required by

section 487.01(1) (c). Thirdly, I deny the application for a sealing order because no grounds for that order are set out in the affidavit. Automated Licence Plate Reader and Reasonable Expectation of Privacy: [ 3 ] The technique is described in the affidavit of a police officer, the applicant. The ALPR is attached to police vehicles and can read licence plates in close proximity to it.

This information can then be “run against police and government databases” such as Canadian Police Information Center (CPIC) and Motor Vehicle Branch (MVB) databases to determine if a vehicle is registered, if the registered owner of the vehicle is licenced, if the vehicle is stolen, or other police purposes such as whether there is a warrant in existence for the registered owner. The applicant explains the device can read licence plates at a higher rate of speed and more efficiently than a police officer could who must also pay attention to driving the vehicle on which the ALPR is mounted.

The applicant explains the ALPR is set up to delete all data gathered at the end of a shift, unless there has been a “hit” on a vehicle. A “hit” is the common term for where the ALPR system identifies a vehicle for which there is information available for law enforcement action. This can be an unregistered vehicle, unlicenced driver, or a person for whom there is an arrest warrant to name a few. (para. 8 of the applicant’s affidavit). The ALPR system also records the time and location, using the Global Positioning System, at the point of contact.

Where there has been a hit, the system retains the information for two years, “in accordance with the directions of the Privacy Commissioner”. [ 4 ] The affidavit refers to guidelines set out by the Privacy Commissioner. The privacy commissioner is said to have directed that all records of “hits” should be deleted after two years. These guidelines are not attached or otherwise described in the affidavit. [ 5 ] At paragraph 9, the applicant says the following: The intended use of the ALPR system, as set out by the Privacy Commissioner, is to identify an active contravention of a Provincial or Federal statute.

Because of this intended use, I believe that it is in the interests of justice to seek a judicial authorization to utilize an ALPR in a manner outside of this, such as the identification and tracking of a drug trafficker. [ 6 ] I understand from the officer’s affidavit the change from the “ordinary” use of the ALPR is their wish to input the licence plate of a vehicle associated to the target of their investigation into the ALPR system so hits might be generated if the ALPR were to record the licence plate.

Since the system provides a time and location of the “hit”, it would provide a means by which to identify the location

of the vehicle at the time of the “hit”. The applicant proposes to have the licence plate added to the ALPR system for a period of 60days. The target vehicle is properly registered to a person with the same last name as the drug trafficking suspect. The link between theregistered owner and the drug trafficking suspect or target of the investigation is not known at this time. [7] In my view the intended use of the ALPR in this investigation does not attract a reasonable expectation of privacy. I recentlyconsidered the law surrounding a reasonable expectation of privacy in R. v.

Heppner 2019 MBPC 73 at paragraphs 38-51, a review ofsome of the relevant authorities is repeated below. [8] The Supreme Court of Canada has described three types of privacy which are helpful in identifying the nature of the privacyinterest at stake in a given set of circumstances - territorial, personal and informational, recognizing these are not static categories but canoverlap. Territorial privacy refers to a person’s privacy over a place or area, often the home and property surrounding the home,workplace or hotel room. Personal privacy is the privacy an individual expects over their bodily integrity.

The proposed use of the ALPRwill not require encroachments on territorial or personal privacy. The issue at stake in this case is informational privacy. (Spencer atpara. 35). The elements of informational privacy are understood as including overlapping concepts of secrecy, privacy as control andprivacy as anonymity. (Spencer at para. 38) As I will explain, it is privacy as anonymity which is most implicated in the circumstancesof this application. [9] In R. v.

Plant, (SCC), [1993] 3 S.C.R. 281 the Supreme Court said: …s.8 of the Charter should seek to protect a biographical core of personal information which individuals in a free and democratic societywould wish to maintain and control from dissemination to the state. This would include information which tends to reveal intimatedetails of the lifestyle and personal choices of the individual. (at para. 27) In Plant the Supreme Court held a user did not have a reasonable expectation of privacy in the electrical consumption records maintainedby the utility company and accessed by police. [10] In R. v.

Spencer 2014 SCC 43 the Supreme Court considered police retrieval, without a warrant, of subscriber data (name,address, telephone number) kept by an internet service provider in order to identify the user of an IP address that was accessing childpornography. The Court concluded a warrant was required given the scope and nature of the information it would reveal about aperson’s online activities. The Supreme Court has continued to recognize the special place and different analysis that must apply tocomputers, cell phones and online activities given the scope and breadth of personal information revealed, see R. v.

Marakah 2017 SCC59 and R. v. Vu 2013 SCC 60 for example. [11] In Spencer, the Supreme Court set out four main headings to conduct the analysis of whether a reasonable expectation ofprivacy exists: 1.) the subject matter of the alleged search; 2.) the claimant’s interest in the subject matter; 3.) the claimant’s subjective expectation of privacy in the subject matter; and 4.) whether this subjective expectation of privacy was objectively reasonable, having regard to the totality of circumstances.

And further, …while the analysis is sensitive to the factual context, it is inevitably “laden with value judgments which are made from theindependent perspective of the reasonable and informed person who is concerned about the long-term consequences of governmentaction for the protection of privacy”: Patrick at para. 14; see also R. v. Gomboc, 2010 SCC 55 , [2010] 3 S.C.R. 211, at para. 34and Ward, at paras. 81-85 (Spencer at para. 18) [12] In Spencer the Supreme Court said a court should take a broad and purposive approach to defining the subject matter of thesearch (at para. 26).

The Court is to look at not only the precise information sought but also the nature of the information revealed. Inthe application before me, the subject matter of the alleged search is the capture, with a technologically enhanced device, the licenceplate of a vehicle of interest in this investigation. Police would like to increase their ability to gather information about where thisvehicle might be by adding the licence plate into the ALPR system.

The location of the target vehicle would also be captured by theALPR. [13] The licence plate is a method specifically designed to ensure vehicles are properly registered. The licence plate is fixed to avehicle, so that law enforcement, indeed any member of the public, can easily read the plate. Because the licence plate is publicly visibleand intended to be publicly visible, privacy as secrecy is not implicated in these circumstances.

While the ALPR would also capture thelocation of a vehicle, the location of the vehicle would also be open to the police to observe and record, if they were conducting physicalsurveillance. Privacy as control is also not implicated, because a driver of a motor vehicle does not have control of the assignment of thelicence plate or who sees their licence plate when it is on a public road. [14] The claimant’s interest in the subject matter is one which is greatly reduced. The licence plate is a regulated requirement.

Itake judicial notice of the fact the licence plate is read by traffic cameras to capture infractions such as speeding and disobeying of trafficcontrol devices. Traffic cameras also capture the time and location of the infraction. [15] The highly regulated context of vehicle traffic has been recognized by the Supreme Court. Justice Cory, writing for themajority in R. v. Wise, (SCC), [1992] 1 S.C.R. 527 said the following: For the safety and well-being of society, motor vehicles and their drivers are subject to a great many statutory requirements, conditionsand regulations.

Almost every aspect of the use of a motor vehicle is controlled. The side of the road on which a car may be driven; the

speed at which it may proceed; when it may overtake and where it may overtake another vehicle; where and when it must stop; the mechanical condition of the vehicle; the installation of certain accessories, be they required or prohibited; the places where a vehicle may park: all these and many more are circumscribed by various Acts and regulations. For the safety of all, it is essential that drivers be tested before receiving their licence; that RIDE programs be instituted to discourage the drinking driver; that the speed of vehicles be supervised and that the mechanical fitness of vehicles be inspected.

These inspections and tests and this supervision do not constitute unreasonable breaches of basic civil liberties. Rather, they are common sense rules that exist for the protection of society as a whole. Reasonable surveillance and supervision of vehicles and their drivers are essential. Without them, motor vehicles inevitably become instruments of crippling injury, death and destruction. Society then requires and expects protection from drunken drivers, speeding drivers and dangerous drivers.

A reasonable level of surveillance of each and every motor vehicle is readily accepted, indeed demanded, by society to obtain this protection. All this is set out to emphasize that, although there remains an expectation of privacy in automobile travel, it is markedly decreased relative to the expectation of privacy in one's home or office. (Emphasis added) [ 16 ] It is helpful to consider a number of other situations where identifying information and whether police gathering of that information triggered a reasonable expectation of privacy. [ 17 ] In R. v.

Telfer and Crossman , 2019 MBQB 12 Martin J. found the retrieval of information identifying the renter of a vehicle used in a shooting was not highly personal information and did not reveal intimate details of lifestyle or personal choices. During the course of the Court’s analysis, the highly regulated nature of driving on public roads and the requirement to provide licence information when a driver is in an accident, helped persuade the Court no reasonable expectation of privacy attached to the identifying information provided to police, without a warrant, by a rental agency (at para. 49). [ 18 ] In R. v.

Baldovi et al. 2016 MBQB 221 , Joyal C.J. concluded the provision of identifying information to the police by third parties such as airport authorities, airlines, a hotel and Passport Canada did not attract a reasonable expectation of privacy. [ 19 ] In R. v. Chehil 2009 NSCA 111 , the Court determined WestJet information such as a flight number, the accused’s name, the purchase of a one-way ticket with cash and one bag being checked was not seen to attract a reasonable expectation of privacy. [ 20 ] In R. v.

Law 2017 BCSC 1241 the Court considered whether a reasonable expectation of privacy attached to key fob records, CCTV footage, residency documents obtained from building management, a floor plan and a response to a noise complaint authored by the accused. The Court concluded, relying on R. v. Saciragic 2017 ONCA 91 , application for leave to appeal dismissed [2017] S.C.C.A. No. 106 and R. v. Webster , 2015 BCCA 286 , leave to appeal refused, [2015] S.C.C.A. No. 376 and R. v. Drakes 2009 ONCA 560 , leave to appeal refused, 2010 [2009] S.C.C.A.

No. 381, a reasonable expectation of privacy did not attach to these types of records. In Webster , it did not breach s. 8 for police to gather tenancy information from a multi-unit building without a warrant. In Drakes police entry and gathering information from a parking garage used by 440 units in a multi-unit building was not information over which one could have a reasonable expectation of privacy.

In Saciragic , information about two key fobs used to enter a multi-unit parking garage and information a person matching the accused’s description had accessed the 11 th floor of the building was not protected by s. 8. [ 21 ] In R. v. Voong 2018 ONCJ 352 , Libman J. dealt with driver’s licence information including a person’s name, address, date of birth, sex and digitized photo of the person’s face, held by the Ministry of Transport.

The Court concluded a person could not have a subjective or objectively reasonable expectation of privacy in this information, given the highly regulated nature of driving and licencing. [ 22 ] I adopt and follow Libman J.’s conclusion (at para. 30), the information at issue in this case can be distinguished from the context before the Supreme Court in Spencer : Information that may be lacking in biographical core value, though, may be accorded a higher degree of privacy depending upon the use to which it may be put and the details it reveals.

Hence, the subscriber information matching a publicly available IP address (name, address and telephone number) was held by the Supreme Court in R. v. Spencer 2014 SCC 43 (S.C.C.) at para.51 to engage a “high level of informational privacy” since the disclosure of such information would “often amount to the identification of a user with intimate or sensitive activities being carried online, usually on the understanding that these activities would be anonymous.” (para. 66) [ 23 ] In R. v.

Roudiani 2018 BCSC 1101 a trial judge found a reasonable expectation of privacy existed in scanned driver’s licence identification records collected by a nightclub when patrons entered the premises. The police retrieved these records without a warrant. This information was used to identify and link the accused to an aggravated assault which occurred on a public street, captured on surveillance cameras. In Roudiani (at para. 50), the trial judge quoted from Justice Binnie’s decision in R. v.

Tessling 2004 SCC 67 at para. 26 where he noted, “not all information an individual may wish to keep confidential necessarily enjoys s. 8 protection.” The trial judge in Roudiani noted the highly fact-specific nature of the inquiry, that the case before him was “very close to the reasonableness line” referred to by Justice Binnie, but found there was a reasonable expectation of privacy such that the police should have obtained a warrant before gathering the information. I note in Roudiani , the driver’s licence identification was linked to the perpetrator of an aggravated assault.

Ultimately, the trial judge in Roudiani did not exclude the evidence, 2018 BCSC 2466 . [ 24 ] A fact-specific inquiry is required on whether a reasonable expectation of privacy attaches to the manner in which police intend to use the ALPR in this investigation. The ALPR will provide a snapshot in time, as to a location of the target or suspected drug trafficker’s vehicle when and if it encounters the ALPR. It will not identify who is driving the vehicle. It is not even clear to me if the ALPR system will be able to identify the direction of travel of the vehicle.

The authorities cited above did not find a reasonable expectation of privacy in similar types of inquiries and records. This is persuasive. Unlike the facts in Spencer , the location of the vehicle will reveal nothing about what is in the vehicle, who is driving the vehicle, the ultimate destination of the vehicle. It will reveal nothing about the personal or lifestyle choices of the registered owner of the vehicle. This is similar to the analysis in R. v.

Tessling 2004 SCC 67 where the heat emanations from a residence, as captured by a Forward Looking Infra-Red imaging technique, did not reveal the precise activities going on inside the house and therefore did not attract a reasonable expectation of privacy.

[25] In some ways the ALPR provides less information than a police officer would using plain, unassisted observations.

An officerin certain circumstances in addition to the licence plate may be able to record things like direction of travel, speed or manner of driving,the identity of the driver and passengers (if it’s someone known to them), and the contents of the vehicle (such as large items in the boxof a pick up truck or garbage bags in a hatchback). [26] The information captured by the ALPR is information that would otherwise be easily gathered by the police using theireyesight, if they happened to come across it using public roadways or even if the vehicle was parked in a private driveway but the licenceplate was otherwise visible from a public location. [27] I am mindful R. v.

Wise (SCC) “provides an example of privacy in a public place” as explained by JusticeCromwell in R. v. Spencer at para. 43. In Wise the Crown conceded an unreasonable search when police surreptitiously installed in theaccused’s car an unsophisticated tracking device which provided general information as to the location of the accused’s vehicle, withouta warrant.

Cromwell J. explains: The mere fact that someone leaves the privacy of their home and enters a public space does not mean that the person abandons all of hisor her privacy rights, despite the fact that as a practical matter, such a person may not be able to control who observes him or her inpublic.

Thus, in order to uphold the protection of privacy rights in some contexts, we must recognize anonymity as one conception ofprivacy: (citations omitted) Spencer at para. 44. [28] While I am mindful privacy in public has been found in some contexts, I distinguish the circumstances before the court in Wisefrom those before me. As described by LaForest (in his dissenting opinion) quoting from Professor Melvin Gutterman in his

article “AFormulation of the Value and Means Models of the Fourth Amendment in the Age of Technologically Enhanced Surveillance” (1988),39 Syracuse L. Rec. 647 at p. 706: “In a variety of public contexts, we may expect to be casually observed but may justifiably beoutraged by intensive scrutiny. In these public acts we do not expect to be personally identified and subject to extensive surveillance butseek to merge into the “situational landscape””. (Emphasis added).

Justice LaForest then concluded: I must confess to finding it absolutely outrageous that in a free society the police or other agents of the state should have it within theirpower, at their sole discretion and on the basis of mere suspicion, to attach a beeper on a person’s car that permits them to follow his orher movements night and day for extended periods. (Emphasis added) [29] What is at issue before me is not that type of intensive scrutiny or extensive surveillance. In my view, it is much more akin tothe use of binoculars to see a licence plate.

In order to capture the licence plate of the suspect, the police vehicle with the ALPR attachedto it, will have to be in close proximity to the suspect’s vehicle. If the ALPR and the target are in close proximity, the ALPR will be ableto capture the licence plate and its location at a finite point in time. [30] I do wish to make one cautionary point. The Supreme Court and the provisions in the Criminal Code which allow for trackingof a vehicle or person have recognized a reasonable expectation of privacy attaches to the constant tracking of a vehicle or person.

Theapplicant has said the ALPR technique will be used to identify the suspected drug trafficker’s travel patterns. If the ALPR were to beused in a manner so as to conduct extensive, constant surveillance of a vehicle travelling from Point A to Point B, than a reasonableexpectation of privacy would attach, given the manner in which the ALPR was being used.

Using the ALPR to track the vehicle in apersistent way, establishing close to unbroken patterns of travel, would likely attract a reasonable expectation of privacy. [31] I have concluded from the information in the affidavit, police are at an early stage in the investigation. An informant hasprovided information that a person is trafficking in a controlled substance, moving between two communities. The source of theInformant’s knowledge is not identified in the affidavit.

The proposed use of the ALPR could offer corroboration of the informant’sinformation, if a “hit” in each of the communities identified, in close proximity in time, were recorded. The information provided by theALPR, used in this manner is much less intrusive and provides only skeletal information of the location of a vehicle, again only when inclose proximity to the ALPR. The target of the investigation is not the registered owner of the vehicle, (although there has been at leastone police interaction with the suspect in this vehicle as noted at paragraph 15 of the affidavit).

The information from the ALPR willhave to be supplemented with significant further investigation to take the applicant to the objectives of the investigation outlined inparagraph 19 of his affidavit. [32] I have already indicated I was not provided with any guidelines by the Privacy Commissioner although these are referred to inthe affidavit submitted. I have considered the analysis related to an ALPR by a Privacy Commissioner in Prince Edward Island inCharlottetown (City) (Re), (PE IPC). A citizen had received a ticket for having an expired vehicle registration. Thisinfraction had been identified by an ALPR.

The complainant made a complaint expressing concerns about the methods used to identifythe infraction. The Commissioner considered the complaint in the context of privacy legislation. I note the Commissioner had evidencebefore her that the ALPR cameras could be mounted on police vehicles or set up in stationary locations. The commissioner concludedthe license plate was an identifying number assigned to an individual vehicle and thus was “personal information” as defined in theFreedom of Information and Protection of Privacy Act (FOIPP).

The Commissioner further concluded the identification of the locationof the vehicle as collected was also “personal information”. [33] The Commissioner further found the FOIPP authorized the police to collect this personal information for the purpose of lawenforcement. The law enforcement examples referred to in that decision include: monitoring vehicles associated with organized crime(para. 18), a BOLO (Be-on-the-lookout for an individual wanted by police (para. 30) and license plates associated to criminality (para.30).

This is the type of law enforcement action proposed in the application before me. [34] The context of the Re: City of Charlottetown case is different from that which I am considering in the application before me. “Personal information” does not necessarily mean the information attracts a reasonable expectation of privacy requiring police to rely onjudicial authorization to retrieve that information. As can be seen by the cases cited above, not all identifying information is necessarilyprotected by a reasonable expectation of privacy.

It is also noteworthy that in the Commissioner’s view, law enforcement was entitled tocollect information regarding the licence plate and its location for law enforcement action. [35] I have also considered decisions which found a reasonable expectation of privacy attached to a new device being used by law

enforcement. In X(Re) 2017 FC 1047 and R. v. Jennings, 2018 ABQB 296, the Courts considered the police use of a mobiledevice identifier. This device was described as follows: The MDI simulates a cell site. In doing so it captures a cell phone’s International Mobile Equipment Identity (IMEI), a 15 digit numberunique to the specific phone, and its International Mobile Subscriber Identity (IMSI), a unique number associated with the subscriberaccount for the SIM card in the phone.

The police deploy the MDI where they know the target is located and capture IMEI and IMSInumbers of all persons within the range of the device, including non-targeted third parties. The device is deployed in a number oflocations where the target is known to be, and then the numbers are narrowed down to identify the target’s cell phone’s IMSI and IMEInumbers. [6] Once the MDI operator acquires the target’s identifiers, the numbers are provided to the applicable service provider who canpair them with the associated phone number.

The MDI does not intercept any private communications from the cell phone, nor does itacquire any web-browsing activity from the phone. (R v Jennings, 2018 ABQB 225 at paras. 5 & 6) [36] In both decisions, it was important that most members of the public would not know the police could surreptitiously andwithout a warrant, intercept and capture information which was travelling from their cell phone to a cell tower. The implications forinnocent third parties in the vicinity of the deployed device were also significant. This is information the user of a cell phone does nothave control over.

It was important to each court the information gathered could begin to build a profile of personal information like thepattern of phone calls. It is these features which distinguish the facts before those courts from the facts before me. As I have alreadyexplained, the gathering of the licence plate and the location of the licence plate when it is captured by ALPR relates to a highlyregulated context and one that is well-known to members of the public. [37] The facts before me are much more comparable to the facts before the Court in R. v. Bykovets 2020 ABQB 70.

In Bykovets,the Court considered whether an individual has a reasonable expectation of privacy in an IP address. The police had identified an IPaddress from which a person was fraudulently purchasing gift cards. They had obtained judicial authorization to identify the subscriberof the IP address but it was the identification of the IP address prior to the judicial authorization that was at issue. The Court in Bykovetsdistinguished the “significant personal information” that could be gleaned about a person from the technique at issue in Re X andJennings.

The Court concluded there was not an expectation of privacy in the police acquiring of the IP address given the limited nature,quantity and quality of personal information gleaned from an IP address.

Much of the analysis from Bykovets is applicable to theapplication before me. [38] In conclusion, applying the analytical structure from Spencer, I find: 1.) The subject matter of the alleged search is the utilization of the ALPR to enhance law enforcement’s ability to capture the licenceplate of a motor vehicle and the vehicle’s location to further a criminal investigation; 2.) A person’s interest in the subject matter is greatly reduced given the highly regulated context of driving motor vehicles on publicroadways.

The very purpose of licence plates is to facilitate vehicle identification and checks for regulatory compliance accessible to lawenforcement; 3.) I do recognize a person would have a subjective expectation of privacy that their licence plate would not be intensively “tracked” bylaw enforcement for a criminal investigation as they go about their lives. However, as I have explained in this decision, the manner inwhich the ALPR is expected to be used does not lead to intensive supervision and surveillance.

It is a preliminary first step in thisinvestigation. 4.) And finally, there cannot be a subjective expectation of privacy that is objectively reasonable, having regard to the totality ofcircumstances, in the application before me. The ALPR device and technique seeks to enhance that which law enforcement would beable to do without a warrant, without the enhancement of the ALPR. It does not reveal a biographical core of information. It does notreveal intimate details or lifestyle choices of the occupants or a registered owner of the vehicle.

Because of the highly regulated nature ofdriving a motor vehicle in our society, one which is well-known to all drivers of motor vehicles, there is not the same concern about thecreep of police surveillance there is in some of the other cases (Re X and Jennings) I have considered. [39] I do not find a subjective or an objectively reasonable expectation of privacy in the proposed use of the ALPR. No Other Provision requirement of General Warrant: [40] A general warrant pursuant to

section 487.01 can be issued when : 1.) reasonable grounds establish an offence has been committed and information concerning the offence will be obtained through theuse of the technique; 2.) The judge is satisfied it is in the best interests of justice to issue the warrant; 3.) There is no other provision that would allow for the technique, procedure or device to be used. [41] The affidavit of the police officer explains the technique they are requesting is for the purpose of tracking a vehicle associatedto the suspect. A tracking warrant is provided for in

section 492.1 of the Criminal Code. A production order for tracking data isprovided for in

section 487.017. There is no information in the affidavit as to why these provisions would not allow for the tracking ofthe vehicle the police wish to investigate. While I appreciate the manner in which the ALPR would be used is different than a typicaltracking device, in order for a general warrant to be authorized, the affidavit must explain why no other provision in the Criminal Codewould allow for the technique police are seeking.

[ 42 ] It is paradoxical the general warrant police are seeking would be less intrusive than the tracking warrant and production order for tracking data already provided for in the Criminal Code . The ALPR provides information of the location of a registered owner’s licence plate at a moment in time, while the tracking warrant and production order would provide much more detailed information of the vehicle’s travels over an extended period of time.

The tracking warrant for a vehicle and production order can be sought on a standard of reasonable suspicion, rather than the reasonable belief standard which applies to a general warrant. [ 43 ] I am not required to make a finding of whether the grounds amount to reasonable grounds to believe, given the above reasons for denying this application. However I would like to comment on one aspect of the grounds set out. I am satisfied the informant has been qualified as having previously provided reliable information.

I am satisfied the information from the informant about the drug trafficking has some detail and was provided over a period of time indicating more than a passing knowledge of the subject matter about which the informant is giving information. I am also satisfied information in paragraphs 15 and 16 could be seen as corroborating the informant’s information. I do have a concern that there is no information about the source of the informant’s information. How does the Informant know the things s/he purports to know? This should be addressed if any further applications are made to the Court.

No Grounds for Sealing Order: [ 44 ] The affiant has requested a sealing order because it is in the “interests of the administration of justice”. No further grounds are set out in the affidavit. A request for a sealing order must be supported by grounds that speak to the requirements of

section 487.3 of the Criminal Code . [ 45 ] The publicly posted policy of the Provincial Court is applications which are denied are not publicly accessible. An exception to this sometimes occurs when a second application is made and a warrant or order is subsequently granted. If a further sealing order is sought, the applicant should ensure the reasons for requesting such an order as provided for in

section 487.3 are set out in the affidavit. [ 46 ] The draft sealing order is included with the draft general warrant. I have already explained why I am denying the general warrant and sealing order. In the future, a draft sealing order should be included as a separate document from the draft warrant or order being sought. Usually the sealing order will not contain any information that identifies the target of an ongoing investigation, informant information or the types of specific information contained in the affidavit that potentially justify a sealing order.

Generally, the sealing order and the terms of the sealing order should not be sealed so that the public is aware of the terms of the decision sealing certain documents. This helps to appropriately balance the open court principle when that principle is outweighed by the need to seal certain information to protect the ends of justice. [ 47 ] I have not referred to names or locations in this decision so that the decision might be made public.

However, I will wait seven days after the date the decision is released, to allow the applicant to consider whether any portion of this decision should be edited or sealed for the reasons set out in

section 487.3 . An application to have that information sealed would have to be made in seven days. “Original Signed by” ______________________________ ANNE KRAHN, A.C.J.