September 5, 2019
Verrilli v HMQ 2019 NSSC 263
Daniel Verrilli was the subject of three search warrants the police used to search his residence and vehicles. The warrants alleged that Mr. Verrilli had possession of cocaine for the purpose of trafficking. The ITO in relation to all three search warrants was sealed by each issuing justice of the peace. Various items, including cellular telephones and cash were seized during the searches, but no cocaine was located by the police. No charges were laid against Mr. Verrilli. The seized items were made available for their return. Mr. Verrilli applied to Provincial Court to examine the sealed information in order to determine why he had been the subject of the searches. His application was denied by Judge David Ryan. Mr. Verrilli then applied for certiorari/judicial review of the decision refusing his access to the sealed information.
The Judge reconciled two lines of reasoning to address the issue of who has the burden of proof when an interested non-accused party seeks access to a sealed Information to Obtain.
This application relates to the right of a non-accused target to access the ITOs that led to the issuance of three search warrants. The legislative provisions governing search warrants are very different than those involving wiretaps. There is no legislative provision placing the onus on an applicant seeking to unseal an ITO similar to the statutory onus placed on an applicant seeking to unseal a wiretap. Michaud was a wiretap case. Wiretaps are subject to very specific provisions in the Criminal Code that limit access to the presumptively sealed packet of information.
The Criminal Code search warrant provisions do not mirror the wiretap provisions. However, a judicial officer may determine that an ITO should be sealed in accordance with s. 487.3 of the Criminal Code. I cannot conclude that Parliament intended these two regimes to be treated the same way.
The Supreme Court of Canada was very clear in explaining that the Dagenais/Mentuck test applies to all discretionary actions that could limit the open court principle.
The test in Dagenais/Mentuck governs when an application is made to unseal an ITO in accordance with s. 487.3(4) of the Criminal Code, and in these circumstances, places the onus on the Crown.
Mr. Verrilli’s application for certiorari/judicial review is granted. The matter will be remitted to Provincial Court for a new hearing placing the appropriate onus on the Crown to meet the test as set out in Dagenais/Mentuck.