The OBA has published its privacy law section newsletter – Eye on Privacy. I wrote a short article called “Recent Cases Illustrate the Polarity of Privacy Rules for Litigants.” It questions whether the policy of absolute openness regarding filed discovery transcripts conflicts with the policy underlying the deemed or implied undertaking rule by juxtaposing the recent Juman v. Doucette and Moore v. Bertuzzi cases. Here’s a link, but it might not be live for long because the OBA password protects archived editions of its newsletters. Check it out now, and please consider becoming a member!
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.”
In a judgment released October 11th, the Supreme Court of Canada weighed the interest protected by the informer privilege against the interest in open courts. An 8 – 1 majority held that informer privilege is an absolute bar on the disclosure of an informer’s identity subject only to the innocence at stake exception.
The majority strongly affirmed the mandatory character of the informer privilege. Writing for the majority, Bastarache J. said:
The informer privilege rule is mandatory (subject only to the “innocence at stake” exception). To permit trial judges wide discretion in determining whether to protect informer privilege would undermine the purposes of the rule. Part of the rationale for a mandatory informer privilege rule is that it encourages would-be informers to come forward and report on crimes, safe in the knowledge that their identity will be protected. A rule that gave trial judges the power to decide on an ad hoc basis whether to protect informer privilege would create a significant disincentive for would-be informers to come forward, thereby eviscerating the usefulness of informer privilege and dealing a great blow to police investigations.
Despite this forceful position, the majority did leave open the possibility that the rule might be the subject of a Charter challenge. It was disinclined, however, to embark on a constitutional analysis in the circumstances because the appeal was of a discretionary order.
The core of the majority judgement is directed at how the judiciary should operationalize the privilege, for even though the privilege must always be respected it is clear that a judge also has a duty to apply it in a manner that minimally impairs the open court principle. The majority recognized that meeting this duty can be challenging for judges because the parties will frequently consent to an in camera process.
In recommending a model process to assist judges in meeting this challenge, the majority held that:
- a judge can appoint an amicus curiae for the limited purpose of addressing whether the evidence supports the conclusion that a person is a confidential informer
- the media does not have standing to address this question
- the media may have standing after the privilege has been established in a second hearing to address the issue of minimal intrusion
- members of the media should be provided with notice rather than be hand picked
- whether notice to the media is given is a matter of the judge’s discretion
- the media should not be provided with identifying information and, more generally, should only be provided with information essential to making an argument
LeBel J. was the lone dissenter. Unlike the majority he framed the contest as between a constitutionally-protected principle (open courts) and a judge made rule that promotes the administration of justice (the informer privilege). He held that an absolute rule was not warranted because the privilege is not an end in and of itself. He also suggested that the majority should have embarked upon a constitutional analysis even though a Charter challenge to the common law rule was not formally made. Given the qualifier made by the majority, LeBel J. may some day get another chance to make his point.