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[42] The judge who granted the production order made a sealing order under s. 487.3(1) in respect of all material related to the application for the production order, including the affidavit filed by the police officer in support of the application. Before the application judge, the Crown conceded that parts of the affidavit could be made public, but argued that other parts of the affidavit should be redacted before the affidavit was made available to the public. The Crown justified some of the redactions on grounds of national security. The appellants did not challenge the redactions made on that ground.
[43] The Crown attempted to justify other redactions under the terms of ss. 487.3(2)(a)(ii) and (iv). Section 487.3(2)(a)(ii) allows for a sealing order if disclosure of the information would subvert the ends of justice by compromising the nature and extent of an ongoing investigation. Section 487.3(2)(a)(iv) provides for a sealing order if disclosure of information would subvert the ends of justice by prejudicing the interests of an innocent person.
[44] The application judge correctly identified the applicable legal principles. To obtain a sealing order, a party must satisfy the two-part Dagenais-Mentuck test. First, the party must show that the sealing order is necessary to prevent a serious risk to the proper administration of justice because alternative, less intrusive, measures cannot prevent that risk. Second, the party must demonstrate that the benefits of the sealing order outweigh its negative impact on the rights and interests of the parties and the public, including the effects on the right to free expression, the right of the accused to a fair and public trial, and the efficacy of the administration of justice: see Toronto Star Newspapers Ltd. v. Ontario, 2005 SCC 41 (CanLII), [2005] 2 S.C.R. 188, at para. 26.
[45] In addition to national security redactions, the application judge concluded that the Crown could justify only two relatively minor redactions. One, a partial redaction of para. 34 of the affidavit, was warranted to preserve the anonymity of an individual who had provided information to the affiant. The other, a redaction of paras. 63(b) and 63(c), was justified on the ground that disclosing future investigative steps would compromise the police investigation.
[46] In my view, the application judge’s reasons, at para. 74, for redacting the identity of the person referred to in para. 34 of the affidavit provide a reasonable basis upon which the application judge could determine that, on an application of the legal principles he identified, the redaction was appropriate. There is no basis upon which this court can interfere with that assessment.
[47] I reach a different conclusion in relation to paras. 63(b) and (c), under the heading “Investigative Plan”. They set out the steps which the affiant indicates the police may take to follow up on any information generated by the production order sought.
[48] The steps described in paras. 63(b) and (c) are obvious. They come down to the assertion that the police will follow up on any leads generated by the information they obtain through the production order. For example, the affiant indicates that the police will interview individuals who are identified in that material.
[49] I would think that anyone aware of the execution of the production order, a public fact, would assume that the police would follow up on any pertinent information revealed to them using normal investigative tools such as interviews with identified persons. It cannot be said that public exposure of a self-evident planned course of investigation presents a serious risk to the proper administration of justice necessitating the redaction of that information from the affidavit.
[50] There was no basis in the evidence before the application judge for the redaction of paras. 63(b) and (c). The contents of those paragraphs should be available for public perusal.
B: The Non-Publication Order
[51] After holding that only very limited redactions from the affidavit should be made, the application judge turned to whether he should make a non-publication order in respect of any of the unredacted portions of the material. The application judge recognized that any non-publication order must be justified under the two-part Dagenais-Mentuck test, summarized above at para. 44, referred to in Toronto Star Newspapers Ltd. v. Ontario. He accepted that a non-publication order could, in some circumstances, provide a less intrusive alternative to a sealing order, while still preventing the potential risk to the proper administration of justice posed by dissemination of the material in issue. In short, the application judge understood that a non-publication order was a viable alternative, in some circumstances, to a full sealing order or an order closing a courtroom to the public (at paras. 99-120): see Ottawa Citizen Group Inc. v. R. (2005), 2005 CanLII 38578 (ON CA), 75 O.R. (3d) 590 (C.A.), addendum (2005), 2005 CanLII 18835 (ON CA), 75 O.R. (3d) 607 (C.A.); and R. v. Flahiff (1998), 1998 CanLII 13149 (QC CA), 123 C.C.C. (3d) 79 (Que. C.A.).
[52] I agree with the application judge’s analysis and, in particular, his rejection of Canadian Broadcasting Corp. v. Canada, 2013 ONSC 7309 (CanLII), at paras. 58-65. To the extent that Canadian Broadcasting Corp. v. Canada holds that a properly tailored non-publication order cannot provide a reasonable alternative measure to a sealing order, the case is wrongly decided. An order that limits publication of certain information for a fixed time period, while permitting full access to the material or the relevant proceeding, has a less deleterious effect on the open court principle, and associated individual rights, than does an order that effectively locks the courtroom door to the media and the public. The application judge explained the significant difference, at para. 126:
Second, what is contemplated is not an absolute ban on the publication of the search warrant materials. The media can still publish the identity of the target of the investigation, the nature of the materials sought by the production order, the date on which the application was made and the order was issued, the nature of the materials sought, and some portions of the ITO.
I would add that the media are also free to comment on and, if deemed appropriate, criticize the nature and scope of any non-publication order made.
[53] In accepting that a non-publication order can provide an effective and constitutional alternative to a sealing order or an order excluding the public from a courtroom, I do not mean to suggest that a non-publication order should merely be available for the asking. A non-publication order involves a significant intrusion upon the open court principle and must be justified by the party seeking it. The application judge indicated, at para. 120:
That is not to say that it [a non-publication order] will be a reasonable alternative in every case – whether it will be so will be a case-specific determination that will require consideration of the second branch of the Dagenais/Mentuck test.
[54] Applying the Dagenais/Mentuck test, the application judge concluded that the fair trial rights of Shirdon outweighed the negative impact on the open court principle and the media’s right to access court proceedings occasioned by a temporary publication ban on some of the contents of the affidavit. The application judge listed, by way of a schedule to his reasons, the various parts of the affidavit which were subject to the non-publication ban. He directed that the ban would remain in place until the proceedings against Shirdon were terminated. He further ordered that if Shirdon had not been arrested within two years, the continued need for the ban should be reassessed.
[55] I accept the application judge’s description of Shirdon’s fair trial rights and the negative impact that publishing some of the information in the affidavit, before trial, could have on those rights (at paras. 75-98). However, the application judge did not specifically indicate how publication of each part of the affidavit subject to the non-publication order would negatively impact on Shirdon’s fair trial rights.
[56] Some parts of the affidavit that are subject to the non-publication ban refer to potential evidence, or what the affiant alleges is evidence, against Shirdon on the charges outstanding against him. Other parts of the affidavit contain the affiant’s opinion as to what inferences or conclusions could be drawn from certain evidence. The potential negative impact of these parts of the affidavit on Shirdon’s fair trial rights is clear without further articulation. There are, however, parts of the affidavit subject to the non-publication order that do not fit into these categories.
[57] On my review of the affidavit, several of the sections subject to the non-publication order appear to refer to background information that is readily available to and known to the public, or to information that is revealed in parts of the affidavit that are not subject to a non-publication order. For example, see the Investigator’s Comments after paras. 27(k), 28(c), 30(e), 32(k), 35, 35(e), 35(i)(iv), 35(i)(vi), 60(k) of the affidavit.[3]
[58] Other parts of the affidavit refer to the contents of Mr. Makuch’s articles, published on June 23, October 1, and October 7, and a Skype interview with Shirdon on September 23 (at paras. 44-52 of the affidavit). It is not clear to me why the affiant’s summary of those articles found in paras. 60(i) and (j) is subject to a non-publication order.
[59] The parties did not make submissions directed at specific parts of the affidavit subject to the non-publication order. The submissions were put on the broad basis that there should or should not have been a non-publication order made. I would not vary the application judge’s order without submissions addressing the specific parts of the affidavit which may, on the principles as enunciated by the application judge, not be properly the subject of a non-publication order.
[60] I see two possibilities. It may be that the respondent and the appellants can agree on what parts of the affidavit should no longer be subject to a non-publication order. If so, the parties could prepare a proposed order for this court reflecting that agreement. Alternatively, if the parties cannot reach a consensus, the appellants could bring an application under s. 487.3(4) in the Superior Court to vary the non-publication order made by the application judge.
