Subpoena, Search Warrant and Production Order

Canadian Broadcasting Corporation and Others v HMQ 2013 ONSC 6983

This judgment arose from another application by several media organizations to have access to additional information found in the Information to Obtain (ITO) used in the Project Traveller investigation.

Project Traveller was an on-going investigation into alleged gang-related activity concentrated in the northwest of the city of Toronto, which also implicated Mayor Rob Ford and several of his acquaintances.

The Crown had provided an edited version of the ITO to the media, with four categories of edits; those made to protect information relating to innocent third parties; those relating to any references to the non-consensual intercepted private communications (wire-taps); those relating to (police) investigative techniques and; those relating to confidential informants.

Nordheimer J. and all parties agreed that the Dagenais/Mentuck test be applied in examining whether the edits could continue to be justified.

Nordheimer J. ruled that personal identifiers need not be made public. He also ruled that the references in the ITO to events involving the Mayor’s wife would continue to be sealed. And, in order to protect the fair trial rights of Alexander Lisi, certain other portions would remain redacted. With those exceptions, Nordheimer J. concluded:

In the end result, the Crown has failed to meet either prong of the Dagenais/Mentuck test in relation to the red boxed edits. There is no serious risk posed to the administration of justice arising from giving public access to this material. Further, the negative impact on the public’s right to know and the impact on the Charter protected right of expression would greatly exceed any beneficial effects of maintaining the sealing order.