R. v. Toronto Star Newspapers Ltd. et al., (2005) 200 O.A.C. 348 (SCC)

• Judge: McLachlin, C.J.C., Major, Bastarache, Binnie, LeBel, Deschamps, Fish, Abella and Charron, JJ.
• Court: Supreme Court (Canada)
• Case Date: February 09, 2005
• Jurisdiction: Canada (Federal)
• Citations: (2005), 200 O.A.C. 348 (SCC);2005 SCC 41;AZ-50320845;[2005] SCJ No 41 (QL);EYB 2005-92055;29 CR (6th) 251;197 CCC (3d) 1;253 DLR (4th) 577;335 NR 201;[2005] CarswellOnt 2613;200 OAC 348;65 WCB (2d) 621;132 CRR (2d) 178;[2005] 2 SCR 188;[2005] ACS no 41;JE 2005-1234;76 OR (3d) 320

R. v. Toronto Star Newspapers (2005), 200 O.A.C. 348 (SCC)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2005] O.A.C. TBEd. JN.110

Her Majesty The Queen (appellant) v. Toronto Star Newspapers Limited, Canadian Broadcasting Corporation and Sun Media Corporation (respondents) and Canadian Association of Journalists (intervener)

(30113; 2005 SCC 41; 2005 CSC 41)

Indexed As: R. v. Toronto Star Newspapers Ltd. et al.

Supreme Court of Canada

McLachlin, C.J.C., Major, Bastarache, Binnie, LeBel, Deschamps, Fish, Abella and Charron, JJ.

June 29, 2005.

Summary:

Six search warrants were issued under the Ontario Provincial Offences Act in relation to alleged violations by Aylmer Meat Packers Inc. of provincial legislation regulating the slaughter of cattle. The police subsequently commenced a fraud investigation into Aylmer's business affairs. The Crown applied ex parte for an order sealing the search warrants, the informations used to obtain the warrants, and related documents. The Crown claimed that public disclosure of the material could identify a confidential informant and could interfere with the ongoing criminal investigation. A court order directed that the warrants and informations be sealed. Toronto Star Newspapers Ltd. and other media outlets brought a motion for certiorari and mandamus with respect to the sealing order.

The Ontario Superior Court quashed the sealing order and directed that the documents be made public except to the extent that the contents of the informations could disclose the identity of a confidential informant. The Crown appealed.

The Ontario Court of Appeal, in a decision reported at 178 O.A.C. 60, affirmed the decision to quash the sealing order, but edited further information from the materials to protect the identity of a confidential informant. The Crown appealed.

The Supreme Court of Canada dismissed the appeal.

Civil Rights - Topic 1859.1

Freedom of speech or expression - Limitations on - Access to court documents - The Supreme Court of Canada stated that it was now well established that court proceedings were presumptively open in Canada and that public access would be barred only when the appropriate court, in the exercise of its discretion, concluded that disclosure would subvert the ends of justice or unduly impair its proper administration (the "Dagenais/Mentuck" test) - The court held that the Dagenais/Mentuck test applied to all discretionary court orders that limited freedom of expression and freedom of the press in relation to legal proceedings - The court also stated that the Dagenais/Mentuck test, though applicable at every stage of the judicial process, was from the outset meant to be applied in a flexible and contextual manner - See paragraphs 4 to 8.

Civil Rights - Topic 1859.2

Freedom of speech or expression - Limitations on - Publication bans - [See Civil Rights - Topic 1859.1 ].

Civil Rights - Topic 2486

Freedom of the press - Limitations - Court proceedings (incl. televising) - [See Civil Rights - Topic 1859.1 ].

Courts - Topic 1404

Administration - Public access to judicial proceedings (incl. court records) - [See Civil Rights - Topic 1859.1 ].

Courts - Topic 1408

Administration - Sealing of documents - The Crown applied ex parte for an order sealing six search warrants issued under the Ontario Provincial Offences Act, the informations used to obtain the warrants, and related documents - The Crown claimed that public disclosure of the material could identify a confidential informant and could interfere with an ongoing criminal investigation - A sealing order was granted - The Ontario Court of Appeal affirmed a decision to quash the sealing order, with the exception of editing information from the materials to protect the identity of a confidential informant - The Crown appealed - The Crown contended that the Court of Appeal erred in applying the "stringent" "Dagenais/Mentuck" test without taking into account the particular characteristics and circumstances of the pre-charge, investigative phase of the proceedings - The Supreme Court of Canada dismissed the appeal - The Crown did not demonstrate that the flexible Dagenais/ Mentuck test was unworkable as applied to search warrant materials - Nor had it satisfied the court that the Court of Appeal failed to adopt a "contextual" approach to the order sought - The Crown's evidence in support of its application to delay access to the materials amounted to a generalized assertion of possible disadvantage to an ongoing investigation - The Crown had not discharged its burden - See paragraphs 34 to 42.

Criminal Law - Topic 3099

Special powers - Issue of search warrants - Confidentiality of supporting material - [See Courts - Topic 1408 ].

Cases Noticed:

Canadian Broadcasting Corp. v. Dagenais et al., [1994] 3 S.C.R. 835; 175 N.R. 1; 76 O.A.C. 81; 94 C.C.C.(3d) 289; 120 D.L.R.(4th) 12; 25 C.R.R.(2d) 1, appld. [para. 13].

R. v. Mentuck (C.G.), [2001] 3 S.C.R. 442; 277 N.R. 160; 163 Man.R.(2d) 1; 269 W.A.C. 1; 2001 SCC 76, appld. [para. 14].

MacIntyre v. Nova Scotia (Attorney General) and Grainger and Canada (Attorney General) et al., [1982] 1 S.C.R. 175; 40 N.R. 181; 49 N.S.R.(2d) 609; 96 A.P.R. 609; 65 C.C.C.(2d) 129, refd to. [para. 18].

Application Under Section 83.28 of the Criminal Code, Re, [2004] 2 S.C.R. 332; 322 N.R. 161; 199 B.C.A.C. 1; 326 W.A.C. 1; 2004 SCC 43, refd to. [para. 28].

Vancouver Sun, Re - see Application Under Section 83.28 of the Criminal Code, Re.

National Post Co. et al. v. Ontario (Attorney General), [2003] O.T.C. 495; 176 C.C.C.(3d) 432 (Sup. Ct.), refd to. [para. 34].

R. v. Eurocopter Canada Ltd., [2001] O.J. No. 1591 (Sup. Ct.), refd to. [para. 34].

R. v. Flahiff (1998), 157 D.L.R.(4th) 485 (Que. C.A.), refd to. [para. 34].

Toronto Star Newspapers Ltd. v. Ontario et al., [2003] O.T.C. 474 (Sup. Ct.), refd to. [para. 34].

Counsel:

Scott C. Hutchison and Melissa Ragsdale, for the appellant;

Paul B. Schabas and Ryder Gilliland, for the respondents;

Written submissions only by John Norris, for the intervener.

Solicitors of Record:

Ministry of the Attorney General, Toronto, Ontario, for the appellant;

Blake, Cassels & Graydon, Toronto, Ontario, for the respondents;

Ruby & Edwardh, Toronto, Ontario, for the intervener.

This appeal was heard on February 9, 2005, before McLachlin, C.J.C., Major, Bastarache, Binnie, Lebel, Deschamps, Fish, Abella and Charron, JJ., of the Supreme Court of Canada. The following judgment of the Supreme Court was delivered by Fish, J., in both official languages, on June 29, 2005.