By Dean Jobb
In the late summer of 2003 the Ontario Provincial Police, armed with six search warrants, descended on a meat-packing plant in Aylmer. The plant, police alleged, had processed dead cattle and illegally sold the meat as fit for human consumption.
That, in a nutshell, was the sensational story. Details of the allegations and the investigation were buried in documents authorizing the search. Those papers should have been in the public domain but, within days of the search, the authorities convinced a judge to seal the file.
The routine has become frustratingly familiar. Police seize evidence and apply to a justice of the peace to have the search warrant file sealed. The court official usually agrees and slips the file into an envelope, with little thought to the impact on freedom of the press and the public’s right to know.
The pattern of secrecy is being broken, though, by news organizations that have challenged sealing orders in the courts.
This is more than a battle to give journalists inside information on investigations and dirt on those suspected of breaking the law. At stake is the right of citizens and the media to monitor investigations and ensure police forces do not abuse their powers of search and seizure.
A search warrant file consists of three documents. The warrant itself identifies the place to be searched and what police hope to find. Another document, the return, is drafted after the search and offers a brief description of each item of evidence seized.
The key document is the information to obtain a warrant. It puts forward the evidence needed to justify the search and reveals the names of suspects, the offences being investigated, and the evidence already in the hands of police.
Back in 1982, the Supreme Court of Canada ruled that search warrant files are public documents as long as the search has been completed and evidence was seized. In a landmark case, the court found that Linden MacIntyre, now with CBC’s the fifth estate, had the right to see RCMP warrants used to seize political party financial records during an influence-peddling investigation. Openness is the rule, the court declared, and access can be denied only to safeguard important interests such as the privacy of innocent parties.
Journalists can be forgiven for thinking most search warrants remain off limits. Section 487.2 (1) of the Criminal Code, implemented in 1985 in response to the MacIntyre ruling, bars the media from identifying suspects or places searched unless charges have been laid.
Courts in Ontario, Manitoba and Quebec quickly struck down the ban as a violation of the Charter right of freedom of the press and, even though the section remains on the books, media law experts consider it a dead letter. If a search has been completed and evidence was seized, the file is open to public scrutiny.
But other restrictions may apply. Section 487.3 (1) of the Code enables a judge to seal the file to prevent the information from being misused, to ensure the ends of justice are not subverted, or “for any other sufficient reason.” Police usually want the file sealed to protect ongoing investigations and undercover operations, or to shield the identity of a confidential informant.
If the documents have been sealed, Section 487.3 (4) of the Code gives the media the right to ask a judge to determine whether all or part of the file can be disclosed.
Media lawyers have urged the courts to see sealing orders for what they are, a form of publication ban, and to deal with them as they do other restrictions on publication. That means the media’s right of access is as important as the need to protect investigations and reputations, and the authorities must show a sealing order is justified.
The Toronto Star, the Toronto Sun and the CBC went to court in September 2003 and won access to most documents used to search the Aylmer meat-packing plant. The Ontario Court of Appeal said sealing orders are a “significant intrusion” on freedom of the press and “must be subject to close scrutiny and meet rigorous standards.” Police concerns that publicity might taint witnesses yet to be questioned, the court ruled, were too vague and the media’s rights could not be sacrificed “to give police a leg up on an investigation.”
A couple of months later, Justice Edward Then of Ontario’s Superior Court used the same approach to reject concerns about privacy and fair-trial rights and unseal most of the search warrants used to bring fraud-related charges against Eurocopter Canada Ltd.
More victories followed in 2004. The Ottawa Citizen won access to much of the information the RCMP used to justify invading reporter Juliet O’Neill’s home in search of the source of leaked documents in the Maher Arar case. In British Columbia the Vancouver Sun and Province, the Victoria Times-Colonist and BCTV joined forces to convince a judge to release warrants used to raid a motorcycle gang’s clubhouse.
In its ruling on the Aylmer warrants, Ontario’s Court of Appeal also recognized the media’s right to intervene when motions are made to seal search warrants. The case is headed to the Supreme Court of Canada, which could set a new access precedent as significant as the MacIntyre ruling of two decades ago.
The lesson for newsrooms is clear: if search warrants have been sealed, don’t take “no” for an answer. A court challenge is likely to bring much of the information to light.
Dean Jobb, an assistant professor of journalism at the University of King’s College, is author of Media Law for Canadian Journalists, published by Emond Montgomery Publications.
An earlier version of this column appeared in Media, the magazine of the Canadian Association of Journalists.