R. v. Paugh, 2018 BCPC 149

Citation: R. v. Paugh 2018 BCPC 149 Date: 20180618 Registry: Penticton IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. JUSTIN PAUGH RULING ON APPLICATION TO VARY A SEALING ORDER OF THE HONOURABLE JUDGE G. KOTURBASH Counsel for the Attorney General of Canada: Ashleigh Wilson Counsel for the Applicant: Stanley J. Tessmer Place of Hearing: Penticton , B.C. Date of Hearing: June 8, 2018 Date of Judgment: June 18, 2018 Introduction

[1] On February 27, 2017, Judicial Justice Campbell authorized a search warrant to search a residence in Rock Creek, and a sealingorder prohibiting access to, and disclosure of, any information relating to the search warrant. [2] On March 1, 2017 the search warrant was executed and a large sophisticated clandestine laboratory was located on theproperty. The applicant, Mr. Justin Paugh, and his brother were both present and arrested. The applicant was released from custody thesame day. [3] Neither the applicant, nor his brother, has been charged in relation to the seizure.

The applicant applies pursuant to section487.3(4) of the Criminal Code to vary the sealing order, asking that the order be terminated, or in the alternative that he be given accessto a vetted and redacted copy of the information used in support of the warrant. The Crown opposes the Application. Issues 1. What is the test and who bears the onus in an application to terminate or vary a sealing order? 2. Has the onus been discharged? Analysis 1.

What is the test and who bears the onus in the application to terminate or vary a sealing order? [4] There are two competing interests raised by the parties: the first is the preservation of the “open court” principle as raised bythe applicant, and second, protecting the integrity of an ongoing investigation, and police informants as raised by the Crown. [5] The applicant argues that flowing from the open court principle is a presumption that once a warrant has been executed theinformation to obtain ought to be unsealed unless the Crown can establish why the sealing order should be preserved. [6] In support of this position he relies on Nova Scotia (AG) v.

MacIntyre, (SCC), [1982] 1 SCR 175. In that case,the Supreme Court of Canada held that a member of the public (journalist) was entitled to inspect a search warrant and the informationupon which it was issued. Mr. Justice Dickson, speaking for the majority, observed the importance of maintaining the right ofindividuals “directly interested” to inspect the information to obtain because of their right to quash a warrant based on defectiveinformation. He then went on to allow the application of a person not directly interested on the basis of the open court principle.

According to Dickson J., public accessibility and judicial accountability must prevail and only where the ends of justice could besubverted by disclosure or the documents used for an improper purpose can access be denied. [7] The Crown on the other hand, argues that because the applicant is not charged with an offence, there is a presumption thedocuments will remain sealed, unless the applicant establishes why they should be unsealed. [8] In Michaud v.

Quebec (AG), (SCC), [1996] 3 SCR 3, the Supreme Court of Canada held that in the context ofan information to obtain upon which a private communication is intercepted, an accused person is entitled to access but a non-accusedperson is not. The court observed that unlike an accused person who has the right to make full answer and defence, and is entitled to atleast an edited copy of the information to obtain, a non-accused person has no such right, and must adduce some evidence that the initialauthorization was obtained in an unlawful manner before gaining access to it.

This requires the applicant to lead some evidence of fraud,willful non-disclosure or some pattern of abusive conduct. [9] The question arises whether the same principles enunciated in Michaud apply to search warrants, and they do. [10] In R. v. Schmidt and Snow, [1996] BCJ No 2341 (SC), the court dealt with circumstances similar to the case at hand. InSchmidt, the police obtained and executed search warrants for various residences. Following the searches, the owners were charged butthe charges were later stayed.

Humphries J. followed the reasoning in Michaud and held that since the charges were stayed, theapplicants were no longer accused, and they bore the onus of establishing that warrants were obtained unlawfully before the informationto obtain could be unsealed. [11] Madam Justice Humphries decision was recently followed in R. v. Nur, 2015 ONSC 7777, leave to appeal dismissed [2016]SCCA No 54. In that case, Mr. Nur applied for the unsealing of an information to obtain that was used to support a warrant for thesearch of his residence. The information to obtain the search warrant was sealed pursuant to

section 487.3 of the Criminal Code. At thetime of the application, Mr. Nur had not been charged with any criminal offence, and all the items seized were returned. [12] Mr. Nur’s counsel argued that his non-accused client had a presumptive right to access the information to obtain once thewarrant had been executed, subject to the Crown having the onus to establish why post-execution, the information should not be madeavailable. [13] The Crown opposed Mr.

Nur’s application and argued that because he was not charged, he bore the initial burden to show somebasis upon which it could be found that the warrants were improperly issued. [14] The court dismissed the application, and like Madam Justice Humphries, Labrosse J. found the sealing of a warrantindistinguishable from the automatic sealing of a wire-tap packet. Although in the case of a wire-tap authorization, the Criminal Codeprovides for the automatic sealing of the information to obtain, in the case of a warrant being sealed pursuant to

section 487.3, a justicehas determined, after examining the information to obtain that it should remain sealed for the reasons set out in the sealing order. Oncesealed there is nothing to distinguish a sealed warrant from a sealed wire-tap packet. [15] A sealing order pursuant to

section 487.3 is more robust than the sealing of a wire-tap packet because the former must passjudicially scrutiny.

[ 16 ] Labrosse J. agreed that the applicant bore the initial burden of providing some evidentiary basis to suggest that authorization was obtained unlawfully. Although the burden was low there was no evidentiary foundation to support Mr. Nur’s claim, nor was it apparent on the face of the warrant. [ 17 ] The fact that police returned the items seized from Mr. Nur, unlike Mr Paugh, has no bearing on the outcome of this application. Instead, there is a process available to Mr. Paugh, if he is the rightful owner of the property seized, to apply pursuant to

section 490 of the Criminal Code for its return. [ 18 ] In

summary, the following principles apply when the an non-accused applicant applies to either terminate or vary a sealing order: 1. The open court principle is an important principle that applies to all judicial acts. However, the principle is not absolute and there are exceptions. The issuance of a warrant is an exception because they are done exparte and in camera. 2. The presumption that the information to obtain be accessible to the public flows from the open court principle. However, it is only a presumption and not absolute. 3. An exception to the presumption is

section 487.3 which allows a sealing order to be made. Where the sealing order extends beyond the execution of the warrant, the order displaces the presumption of access by the public. In these circumstances, the non-accused applicant bears the onus under

section 487.3(4) of establishing some basis upon which the court can conclude that the warrant may have been improperly issued. 2. Has the onus been discharged? [ 19 ] In the case at hand, Mr. Paugh argues that the sealing order should be set aside and he and his lawyer should be allowed access, so that his lawyer can advise him “as to the police actions and the basis for the warrant.” In an affidavit filed by his lawyer’s assistant, he asserts that as more time goes by memories fade, witnesses disappear, and his ability to challenge the actions of the police are prejudiced. Mr.

Paugh does not provide an evidentiary foundation that supports a finding that the warrant might have been improperly issued. [ 20 ] The Crown on the other hand filed the affidavit of Corporal Harnett, who was the affiant for information to obtain that was sealed. In that affidavit, Corporal Harnett attests to the fact that the same considerations that applied in support of the sealing order continue to apply, namely, that disclosure would compromise the identity of a confidential informant, reveal the identities of persons of interest, and subvert the ongoing investigation.

Corporal Harnett was not cross-examined, nor was his affidavit challenged. [ 21 ] Mr. Paugh has not discharged the onus. Even if I were to accept that the Crown bears the onus of rebutting the presumption of access, which I do not, the Crown has met that onus. Conclusion [ 22 ] The application is dismissed. _________________________ The Honourable G. Koturbash Provincial Court Judge