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The Federal Prosecution Service DESKBOOK

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Part VII
POLICY ON CERTAIN EVIDENTIARY ISSUES
Chapter 39

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39 SEALING ORDERS

39.1 Introduction

It is a basic rule that criminal proceedings in Canada be conducted openly, so all may see that justice is done. However, this rule occasionally conflicts with other competing values: respect for individual privacy, the need for effective criminal law enforcement and the need to protect persons involved in the administration of justice. These values in turn must be reconciled with the right of each accused to make full answer and defence.

Several principles which reflect an attempt to reconcile these competing interests have emerged from cases. These principles govern access to material located in court files, such as documentation supporting the issuance of search warrants.

This chapter describes the general principles governing access to search warrant and other investigative material¹ and the policy of the Attorney General of Canada regarding sealing orders.

39.2 General Principle: Open Access

The general public and “interested persons”² have a right of access to search warrant documents kept in court files, except in the following circumstances:

1. if the search warrant has not yet been executed; no one has a right of access³;
2. if the search warrant has been executed but nothing seized; only “interested persons”, but not the general public, have a right of access; and,
3. if a court order has been obtained denying access to the search warrant information⁴ (commonly called a “sealing” or “non-access” order), or if an application⁵ has been brought for such an order; generally no one, not even an “interested person”, has a right of access until the order expires or is set aside⁶.

39.3 Statutory Provisions

Prior to 1997, applications for sealing orders were dealt with pursuant to common law authority⁷. On May 2, 1997, s. 487.3 was added to the Criminal Code⁸, which sets out a procedure for applying for sealing orders for search warrants issued under any Act of Parliament and authorizations to enter dwelling-houses to effect arrests⁹. A judge considering applications under s. 487.3 must pay due regard to the fair trial rights of the accused, and the Charter guarantee (s. 2(b)) of the freedom of expression¹⁰.

39.3.1 Timing

Sealing orders may be obtained at the time of issuing the warrant or authorization, or at any time thereafter: s. 487.3(1).

39.3.2 Grounds

Sealing orders may be issued where the ends of justice would be subverted by disclosure, or the information used for an improper purpose, and the factors supporting non-disclosure outweigh those favouring access: s. 487.3(i)(a) and (b).

The “ends of justice” would be subverted if disclosure would:

1. compromise an informant's identity (s. 487.3(2)(a)(i));
2. compromise an ongoing investigation (s. 487.3(2)(a)(ii));
3. compromise the use of, or a person using, particular investigative techniques (s. 487.3(2)(a)(iii));
4. prejudice the interests of an innocent person (s. 487.3(2)(a)(iv));

“Any other sufficient reason” (s. 487.3(2)(b)) will also justify non-disclosure.

39.3.3 Review

The order for review of the non-disclosure order may be made by the issuing justice or judge, or by the court holding proceedings in relation to that investigation.

39.4 Statement of Policy

The investigative agency responsible for the search warrant or authorization should ordinarily make the application for a sealing order. This policy is intended to cover those situations where the investigative agency seeks the advice of Crown counsel prior to making an application, or requests that counsel make the application.

Applications should be reserved for cases where Crown counsel is satisfied that disclosing the information sought to be sealed would be contrary to the public interest. To minimize the need for sealing orders, search warrant informations and other requests for court authorization should, where possible, be drafted so that sealing orders are not necessary. Such drafting however, must not compromise the legal sufficiency of the material filed or the obligation to disclose relevant facts to the justice. Where it is not possible to draft the information in this way, it should be drafted so that the judge hearing an application for access to the information can easily edit out any “prejudicial information”¹¹ without making the information legally insufficient¹².

39.5 Guidelines for Application of Policy

This policy applies to informations to obtain search warrants or other investigative material under the Criminal Code and other federal statutes. Any regime in legislation regulating access to the information takes precedence over this policy. Most cases will involve the application of the provisions of s. 487.3 of the Criminal Code.

Ideally, an application for a sealing order should be brought when the information is sworn and the warrant obtained, or before the warrant is executed. This makes it possible to decline to execute the warrant if the justice refuses to make the sealing order. As noted above, investigative agencies should be encouraged to make such applications themselves.

Crown counsel sometimes learn informally from a court official that an accused has asked to see a search warrant information which has not been sealed. Courts have criticized a practice similar to this latter one¹³.

39.6 Procedure

An application for a sealing order must be accompanied by appropriate supporting documents, namely, in most cases:

• a notice of application (ex parte);
• an affidavit in support, disclosing sufficient reasons why the order should be made and the conditions sought in the order; and
• a draft order.

(Sample documents are attached to this chapter as Appendices A, B, and C).

A copy of the material sought to be sealed may be attached as an exhibit to the affidavit.

In addition to the usual terms, the sealing order should specify the period during which access is prohibited. In certain circumstances, such as cases involving the identity of an informer, the sealing order may involve an indefinite prohibition on access. In other circumstances, such as cases involving an on-going investigation, the sealing order may specify termination of the order at a time certain or at the commencement of the trial¹⁴.

39.7 Appendix “A”

IN THE PROVINCIAL / TERRITORIAL COURT

OF [PROVINCE/TERRITORY]

In the matter of a criminal investigation pursuant to the Controlled Drugs and Substances Act

And in the matter of an application pursuant to section 11 of the Controlled Drugs and Substances Act

And in the matter of an application pursuant to section 487.3 of the Criminal Code to prohibit disclosure of information filed in support of the application for search warrant.

__________________________________

NOTICE OF EX PARTE APPLICATION

__________________________________

An ex parte application will be made on behalf of the Attorney General of Canada to a Justice/Judge of the Provincial/Territorial Court of __________ in Chambers, for an order to prohibit disclosure of information filed in support of an application for a search warrant issued pursuant to the Controlled Drugs and Substances Act.

DATED at the City of ______, in the Province of ______, this _____ day of       20__ .

_____________________________

Counsel for and on behalf of

the Attorney General of Canada

39.8 Appendix “B”

IN THE PROVINCIAL / TERRITORIAL COURT

OF [PROVINCE / TERRITORY]

In the matter of a criminal investigation pursuant to the Controlled Drugs and Substances Act

And in the matter of an application pursuant to section 11 of the Controlled Drugs and Substances Act

And in the matter of an application pursuant to section 487.3 of the Criminal Code to prohibit disclosure of information filed in support of the application for search warrant

IN THE PROVINCIAL / TERRITORIAL COURT

OF [PROVINCE / TERRITORY]

In the matter of a criminal investigation pursuant to the Controlled Drugs and Substances Act

And in the matter of an application pursuant to section 11 of the Controlled Drugs and Substances Act

And in the matter of an application pursuant to section 487.3 of the Criminal Code to prohibit disclosure of information filed in support of the application for search warrant

AFFIDAVIT

I, ______ of the Royal Canadian Mounted Police, of _______ Detachment in the Province / Territory of ______, MAKE OATH AND SAY AS FOLLOWS:

1. THAT I am a member of the Royal Canadian Mounted Police, having the rank of Constable, now attached to the ______ Detachment and as such have personal knowledge of the facts hereinafter set forth which are true, except where such facts are stated to be based upon information and belief, in which case I verily believe those facts to be true.
2. THAT during the months of ______ and ______ 20__ , members of the R.C.M. Police force conducted an investigation into the illegal drug trafficking activities of ______.
3. THAT during the course of that investigation, I received information from a confidential and reliable informer. The information was to the effect that ______ was trafficking in cocaine at ______ residence located in City, Province/Territory.
4. THAT as a result of the initial information received, further investigation was conducted and further information was obtained relating to the background of and confirming that was in fact trafficking in cocaine. As a result of the above information, I attended before Magistrate ________ on the day of , 20 and, based on my sworn Information to Obtain a Search Warrant, obtained a warrant to search the residence of at City, Province/Territory. The search warrant was obtained pursuant to the Controlled Drugs and Substances Act. A copy of the said Information to Obtain a Search Warrant is attached hereto and marked as Exhibit “A” to this my Affidavit.
5. THAT on , 20 , members of the R.C.M. Police executed the search warrant which is Exhibit “B”. Police seized approximately ______ kilograms of cocaine and two scales which appeared to be contaminated with cocaine. has been charged with offences under subsection 5(2) of the Controlled Drugs and Substances Act.
6. THAT is known to me and I know to associate with people who are criminally oriented and have criminal records for offences of violence.
7. THAT upon subsequent detailed review of Exhibit “A” I verily believe that there exists a substantial and real likelihood that access to the information contained in Exhibit “A”, in particular the following, “ ” would by its context reveal the existence and identity of the confidential informer in this case and the informer, once identified, would be in grave danger for safety or otherwise compromised.
8. THAT I do verily believe that the confidential informer who supplied information to me is one of a very limited number of people to be in possession of the information.
9. THAT the confidential informer is currently associated with a number of persons within City, Province/Territory who are involved in criminal activities. The confidential informant has provided and continues to provide information to me respecting the activities of a number of individuals who are involved in the trafficking of cocaine.
10. THAT due to the nature and size of the group of persons the confidential informer is associated with, their counter-surveillance activities, and the nature of offences committed or possibly committed by these persons, the ability of the police to investigate the activities of these persons without the continued assistance and information of the confidential informer would be seriously hampered. I verily believe that if the identity of the informant was revealed through access to Exhibit “A”, the success of future investigations regarding the activities of this criminal element would be seriously jeopardized and compromised.
11. THAT I verily believe that the ends of justice would be subverted by disclosure of the information contained in Exhibit “A” for the aforementioned reasons.
12. THAT I make this Affidavit bona fide in support of an application to prohibit the disclosure of information contained within Exhibit “A” filed in support of the application for the search warrant in this case.

 

39.9 Appendix “C”

IN THE PROVINCIAL / TERRITORIAL COURT

OF [PROVINCE / TERRITORY]

In the matter of a criminal investigation pursuant to the Controlled Drugs and Substances Act

And in the matter of an application pursuant to section 11 of the Controlled Drugs and Substances Act

And in the matter of an application pursuant to section 487.3 of the Criminal Code to prohibit disclosure of information filed in support of the application for search warrant

ORDER

UPON the ex parte application in writing made this day by Counsel for the Attorney General of Canada, for an order to prohibit the disclosure of all information filed in support of an application for a search warrant issued pursuant to section 11 of the Controlled Drugs and Act, said search warrant attached and marked as Appendix “A” to this Order;

AND UPON reading the Affidavit of a member of the Royal Canadian Mounted Police in support of the application to prohibit disclosure;

AND UPON being satisfied that it would serve the ends of justice that disclosure of the information filed in support of the application for the search warrant referred to above should be prohibited;

IT IS ORDERED THAT:

ALL INFORMATION filed in support of the search warrant attached and marked as Appendix “A” to this Order and issued on the _____ day of , 20__ in respect of the premises located at address, City, Province / Territory, not be disclosed to:

1. persons named in the search warrant or their agents;
2. persons claiming an interest, legal or beneficial, in any articles which have been seized pursuant to the search warrant or otherwise lawfully seized; and,
3. members of the public.

AND THE MATERIAL filed in support of the application for the search warrant and the application for this Order be placed in a separate packet and stored in a secure place in the Court Registry.

DATED at the City of____ , in the Province / Territory of______ , this ____ day of , 20____ .

______________________________

Justice/Judge

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Date Modified:

2008-12-24