Case Law – Crown bore the burden of continuing sealing order
December 28, 2020 By Mike Novakowski
The party seeking to continue a sealing order on an executed search warrant’s supporting ITO (Information To Obtain), and thereby limit access by an interested non-accused person, bears the burden of justifying why the sealing order should continue under s. 487.3 of the Criminal Code, so says the Nova Scotia Court of Appeal.
In R. v. Verrilli, 2020 NSCA 64, the applicant was under investigation for allegedly possessing cocaine for the purposes of trafficking, but he was never charged. The police had obtained three search warrants under s. 11(1) of the Controlled Drugs and Substances Act to conduct searches of Verrilli’s home, business and motor vehicles. Various items, including cellular telephones and cash were seized during the searches, but no cocaine was found.
The ITOs in relation to all three search warrants were sealed under s. 487.3(1) of the Criminal Code by each issuing justice of the peace. The items that had been seized during the searches were returned to Verrilli.
“Search warrants are important investigative tools for police… Their effectiveness depends upon secrecy in the sense that the target should not be aware that a warrant has been issued. Once a warrant has been executed, the concerns over secrecy are diminished.
– Chief Justice WoodAdvertisement
In Nova Scotia Provincial Court, Verrilli – as an interested non-accused party – applied under s. 487.3(4) of the Criminal Code to examine the sealed ITOs in order to determine why he had been the subject of the searches. He wanted access to the ITOs to determine whether his Charter rights under s. 8 (unreasonable search and seizure) or s. 9 (arbitrary detention or imprisonment) had been breached. The judge denied Verrilli’s application to access the sealed ITOs. In the judge’s view, Verrilli had not satisfied the burden in justifying access by showing police wrongdoing.
Verrilli sought judicial review in Nova Scotia Supreme Court of the decision refusing his access to the sealed information. The Supreme Court judge found the Provincial Court judge applied the wiretap test for accessing the sealed ITOs, which was wrong:
This application relates to the right of a non-accused target to access the ITOs that led to the issuance of three search warrants. The legislative provisions governing search warrants are very different than those involving wiretaps. There is no legislative provision placing the onus on an applicant seeking to unseal an ITO similar to the statutory onus placed on an applicant seeking to unseal a wiretap… Wiretaps are subject to very specific provisions in the Criminal Code that limit access to the presumptively sealed packet of information.
The Criminal Code search warrant provisions do not mirror the wiretap provisions. However, a judicial officer may determine that an ITO should be sealed in accordance with s. 487.3 of the Criminal Code. I cannot conclude that Parliament intended these two regimes to be treated the same way.
Thus, the onus was not on an applicant seeking to unseal a search warrant ITO to show evidence of an unlawful authorization. Rather, the burden rested on the Crown to justify the continuation of the sealing order. This matter was sent back to Provincial Court for a further hearing with the appropriate burden of proof placed on the Crown in accordance with s. 487.3(4) to determine whether Verrilli should have access to the sealed ITOs.
The Crown then appealed to Nova Scotia’s highest court arguing that the Supreme Court judge erred in applying the wrong legal test for Verrilli to access the sealed ITOs. But the Court of Appeal disagreed.
Unlike a wiretap ITO, which is automatically confidential and placed under seal, a sealing order under s. 487.3 of the Criminal Code is discretionary. Under s. 487.3, the party requesting a search warrant may also seek an order prohibiting access to the ITO.
“Search warrants are important investigative tools for police,” said Chief Justice Wood. “Their effectiveness depends upon secrecy in the sense that the target should not be aware that a warrant has been issued. Once a warrant has been executed, the concerns over secrecy are diminished.”
After reviewing case law, the Court of Appeal stated:
[O]nce a warrant has been executed, there is a presumption that the ITO will become accessible to the public unless the party wishing to limit that access can justify the limitations being sought. This applies not just at the initial application for a search warrant where a sealing order may be requested, but also any subsequent application to vary or terminate that order under s. 487.3(4). [para. 33]
In this case, after learning that he had been the target of a criminal investigation and searches which ultimately did not result in charges, Verrilli made an application under s. 487.3(4) to access the ITOs that had been used to obtain the search warrants. An application under s. 487.3(4) placed the burden on the Crown to justify the continuation of the sealing orders.
Since the Crown opposed the application for unsealing, it bore the evidentiary burden of justifying that the sealing order continue. Verrilli did not have the burden to provide evidence the warrants were unlawfully granted before he was permitted access to the ITOs.
The Crown’s appeal was dismissed and the matter was remitted to Provincial Court for disposition. Additional details taken from R. v. Verrilli, 2019 NSSC 263.
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