R. v. Toronto Star Newspapers Ltd. et al., (2005) 335 N.R. 201 (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), 335 N.R. 201 (SCC);2005 SCC 41;[2005] SCJ No 41 (QL);[2005] ACS no 41;29 CR (6th) 251;[2005] 2 SCR 188;AZ-50320845;JE 2005-1234;132 CRR (2d) 178;253 DLR (4th) 577;65 WCB (2d) 621;197 CCC (3d) 1;200 OAC 348;335 NR 201;[2005] CarswellOnt 2613;EYB 2005-92055;76 OR (3d) 320

R. v. Toronto Star (2005), 335 N.R. 201 (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] N.R. TBEd. JN.036

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.