April 21, 2017
The Globe and Mail Inc v R 2017 ONSC 2407

This was an application under s. 487.3(4) of the Criminal Code for an order lifting the sealing orders made in January 2017, in respect of various judicial authorizations, including a search warrant executed at the private residence of Vice-Admiral Mark Norman in Ottawa.

The Globe and Mail Inc. argued that the open court principle should result in the documents, including any Information to Obtain (ITO) sworn in support of any judicial authorization, be released into the public domain now that the warrants have been executed.

The Globe and Mail did not contest the appropriateness of redactions related to cabinet confidentiality, it argued that any restriction on publication in respect of any remainder would be an unwarranted infringement of freedom of expression as set out in section 2(b) of the Charter.

Vice-Admiral Norman did not propose that the various sealing orders be maintained, except as considered necessary by the Attorney General of Canada to protect personal information of third parties or cabinet confidences. He argued, however, that a publication ban should be made over various parts of the remainder of the ITO, a result he asserted was necessary to preserve his right to be tried by an impartial tribunal as guaranteed by section 11(d) of the Charter. Vice-Admiral Norman argued that it is fundamentally unfair for him to be subjected to a trial by news media, especially to the extent that such a “trial” will involve inadmissible and inadequately tested evidence and allegations.

The Crown supported the position taken by Vice-Admiral Norman.

Chantier Davie Canada Inc. and Federal Fleet Services Inc. were granted standing as interveners. They largely joined with Vice-Admiral Norman and further argued for a sealing order to remain in respect of several documents. Their argument was that they are innocent third parties who have a commercial confidentiality interest in what are essentially incidental details about the shipbuilding contract in question.

Justice Phillips states:

The parties seeking a sealing order or publication ban bear the onus of satisfying the court that any sort of restriction to the open court principle is warranted. They must rebut, on a balance of probabilities, the presumption that once a search warrant has been executed the material filed in support of obtaining it is to be made accessible to the public.

He goes on to say:

…the Dagenais/ Mentuck test must be applied in a way sensitive to the unique circumstances of each given case. As Fish J. put it in Toronto Star Newspapers Ltd. v. Ontario, 2005 SCC 41 at para 31: “Regard must always be had to the circumstances in which a sealing order is sought by the Crown, or by others with a real and demonstrated interest in delaying public disclosure. The test, though applicable at all stages, is a flexible and contextual one”.

…in the final analysis, I cannot agree that the prospect of publication of the sections of the ITO in question passes the first prong of the Dagenais/ Mentuck test. I am not persuaded that a publication ban is necessary in order to prevent a serious risk to the proper administration of justice. While I do not deny the negatives inherent in being the focus of the news media, and indeed in enduring a trial of sorts in the press, I am not persuaded that the content and nature of the publicity constitutes infringement into the legal rights guaranteed by the Charter. I am confident that measures like the challenge for cause process, as well as the presumption that jurors can disabuse themselves of information and follow judicial instructions,will adequately mitigate any consequences from the extensive publicity to be expected in this matter.

Even if I assume some degree of necessity with respect to the first prong of the test, say with respect to the general unfairness of having to experience a torrent of media coverage while not under any actual charge, I cannot say that the salutary effects of the publication ban would outweigh the deleterious effects.

The salutary effects of the sealing order in respect of the Chantier Davie pricing data outweigh any deleterious effects. While I am aware that the affiant saw fit to include the information in his affidavit, the pricing information would surely not have been key to any of his opinions or the ultimate judicial authorization. As such, the pricing information is immaterial to the public’s ability to assess the appropriateness of the police conduct and the issuance of the warrant. As mentioned, I see that sort of accountability as being the basis for the open court principle in the first place. The fact that the accountability can occur without the information in question makes its absence unimportant.

I agree with the position taken by the interveners and I decline to disturb the existing sealing order as it relates to any of the numbers on page 61 of 97 of the Edited ITO, as well as portions of page 78 of 97 of the Edited ITO. I wish to make clear, however, that I am speaking specifically about numbers, not words. All of the other redactions sought by the interveners fail the Dagenais/ Mentuck test. Those redactions are not required to prevent a serious risk to the administration of justice. The informed public can be expected to understand that the communications in question are only one side of a coin and weight them accordingly. As importantly, the communications in question are all part of what the public will require to assess the appropriateness of the state conduct throughout. In my view, in these circumstances, even if the Chantier Davie communications involve third parties who were drawn into the limelight through no wrongdoing with a consequential risk of some reputational harm, their interests should give way to the open court principle.

With the exception of the uncontested portions redacted by the Attorney General of Canada due to cabinet confidentiality and to protect the personal information of third parties, as well as the pricing information in the Chantier Davie communications outlined above, I order the documents forming the basis of this Application to be unsealed and available to the public. Furthermore, I decline to make any sort of publication ban.