October 15, 2020
R v Verrilli 2020 NSCA 64

The respondent was the target of a police investigation related to drug trafficking. Police obtained search warrants and orders sealing the ITOs under s. 487.3 of the Criminal Code. The warrants were executed and items seized but no charges laid. The respondent applied for access to the search warrant ITOs.

Provincial Court judge applied the test in Michaud v. Quebec and placed the burden on the respondent to show some evidence that the authorization was unlawful before access would be given and dismissed the application.

On judicial review the NSSC set the PC decision aside and concluded that Dagenais/Mentuck applied which placed the burden on the Crown to justify continuation of the sealing orders.

The issue before the NSCA:

What is the test to be applied on an application to vary sealing order under s. 487.3(4) of the Criminal Code?

[33]… once a warrant has been executed, there is a presumption that the ITO will become accessible to the public unless the party wishing to limit that access can justify the limitations being sought. This applies not just at the initial application for a search warrant where a sealing order may be requested, but also any subsequent application to vary or terminate that order under s. 487.3(4).