Case Report – OCA outlines procedure on an application to quash a sealing order

22 May

In a decision issued yesterday, the Ontario Court of Appeal declined to quash sealing orders issued in respect of search warrant materials, in part because the court record was not suitable for appellate review. The outcome is largely fact-driven, but the Court did explain in general terms how procedure on application to quash a sealing order should be managed to ensure a full and fair hearing and a court record that supports appellate review. It said that, in general:

  • the Crown should prepare a redacted version of the materials
  • the Crown should prepare a page-by-page index of the materials redacted in tabular form, with a general description of each portion that has been redacted and the grounds for its redaction
  • the Crown should provide the redacted materials and the index to applicants and deal with any conditions or restrictions on this disclosure by way of preliminary motion if necessary
  • the Crown should provide a highlighted (rather than redacted) version of the materials to the court to facilitate review
  • the judge should consider each claim separately and use the index to provide an organized set of reasons
  • if it is clear the judge’s reasons will reveal information to be sealed, he or she should consider preparing and releasing a redacted version of the reasons and consider who will receive the unredacted version on what terms

The Court said this process, and in particular the requirement on the Crown to produce a index with its grounds, “reflects the presumption that once a search warrant has been executed, the warrant and the information upon which it is based must be available to the public unless it is demonstrated that the ends of justice would be subverted by the disclosure of the information.”

R. v. Canadian Broadcasting Corporation, 2008 ONCA 397.

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