3.4 Sealing Orders and Publication Bans
Public Prosecution Service of Canada Deskbook
Guideline of the Director Issued under Section 3(3)(c) of the Director of Public Prosecutions Act
March 1, 2014
Table of Contents
- 1. Introduction
- 2. Sealing Orders for Material Filed in Support of Ex Parte Judicial Authorizations
- 3. Publication Bans
“open court principle” establishes a presumption of public access to court proceedings and court records, and has been described as a
“hallmark of a democratic society”.Footnote 1 One aspect of the open court principle, freedom of the press, is a constitutional right under s. 2(b) of the Canadian Charter of Rights and Freedoms (Charter). Any restriction on the open court principle must be based on equally sound principles and values accepted in our democracy.
Displacing the open court principle in order to prevent or restrict access to court documents and court proceedings requires a balancing against the countervailing interests. The purpose of this guideline is to identify occasions where this balancing is required and the applicable considerations.
Among the interests which may be taken into account are the need to protect an ongoing covert police investigation, the need to protect informer privilege, and the need to protect the privacy rights of persons affected by the court proceeding in question.
In some areas Parliament has already determined the balance, for example, with respect to wiretap packets, where sealing of the packet is statutorily required, or with respect to proceedings under the Youth Criminal Justice Act,Footnote 2 where publication of the accused’s identity is actually a criminal offence. In other areas the balancing must be done case by case, for example, with respect to a ban on the publication of a complainant’s or witness’s identity under s. 486.5 of the Criminal Code (Code), where the court must determine the balance by reference to enumerated criteria.
2. Sealing Orders for Material Filed in Support of Ex Parte Judicial Authorizations
In the case of court materials filed in support of ex parte judicial authorizations such as search warrants, production orders and wiretap authorizations, the presumption of public access applies. However, common law authority and statutory rules exist which may either require or permit sealing of the material in question.
As well, there is a common law rule that the material filed in support of a search warrant or similar judicial authorization should remain sealed from public view until the warrant or order is executed and the police make a
“report to justice”.Footnote 3 Where a search has been executed but nothing has been seized, the common law also establishes that only affected persons may have access to the material in question.Footnote 4
It should be understood that when a sealing order is made, or automatic sealing is required as discussed in the next section in the case of wiretap materials, this does not restrict the ability of law enforcement officials to continue to use and share as necessary the content of the information subject to sealing. The sealing order – or automatic sealing – applies to the actual documents in question and not to the information, which may exist in another form as work product.
2.1. Mandatory sealing of documents supporting a wiretap authorization
Section 187 of the Code mandates that all documents relating to an application under Part VI (which generally deals with wiretaps) must be sealed and kept by the court in a place with no public access, subject only to further order of a court. A specific sealing order is therefore not required.
However where a wiretap authorization includes judicial authority for other investigative measures (for example a general warrant or an assistance order) wiretap agents normally should draft the proposed authorization to include a sealing order covering those aspects of the material.
Opening a sealed wiretap packet for the purposes of making Stinchcombe disclosure is discussed below.
2.2. Discretionary sealing in other cases of ex parte judicial authorization
Section 487.3 of the Code gives the issuing justice authority to order the sealing of material filed in support of an ex parte application for a warrant under the Criminal Code or any other federal statute, a production order under ss. 487.012 or 487.013 of the Code, or a Feeney warrant under s. 529 of the Code. Sealing is not automatic. The application for the sealing order will usually be made by the peace officer applying for the warrant or order, at the same time, and can be granted on the grounds set out in s. 487.3 of the Code.
The peace officer applying for the warrant or production order in question is therefore expected to provide affidavit material that details how and why one or more of the grounds mentioned in s. 487.3(2) justifies a sealing order. The most common grounds will be: to protect an ongoing police investigation; and to protect informer privilege.
Where the peace officer has neglected to obtain a needed sealing order at the time the warrant was issued, or later decides that a sealing order should now be sought, s. 487.3 is still available as the section specifically says that the sealing order may be granted by the provincial court judge or justice
“on application made at the time of issuing a warrant [or other order]…or at any time thereafter”. In such a case, Crown counsel may be consulted to assist in the application.
Different courts across Canada have different procedures in place to handle sealing orders. In every case, however, the sealing order should result in the material being kept in a secure location not subject to public access.
In some jurisdictions the issuing justices grant sealing orders for a limited time, for example one year from the date of issuance. This is to be discouraged, as if the grounds for sealing are to protect informer privilege, it may never be safe to unseal the original unvetted material. Crown counsel are encouraged to advise their enforcement agencies to seek sealing orders of unlimited duration.
Procedures for unsealing warrant materials are discussed below.
2.3. Common law authority to seal in other cases of ex parte judicial authorization
Section 487.3 of the Code specifically applies to warrants and the orders mentioned in the section. There are other ex parte proceedings not specifically mentioned, and here the court’s inherent jurisdiction (in the case of the superior court) or its ability to control its own process (in the case of a statutory court such as the provincial court) can be engaged.
For example, s. 462.48 of the Code allows for an ex parte application by the Crown for an order to obtain tax information in certain cases related to proceeds of crime, money laundering, organized crime, and terrorism. This type of application is usually brought early in the stages of the criminal investigation and is therefore sensitive. A sealing order for the supporting material will invariably be desired in order to protect both the ongoing investigation and the identity of confidential informers. As this particular application is brought ex parte before a judge of the superior court, the inherent jurisdiction of the superior court can be relied upon for the issuance of a sealing order, as the Criminal Code is silent on the point. The grounds for the sealing order will no doubt parallel those set out in s. 487.3, discussed above. Again, it is important that the Crown be able to overcome the presumption of public access under the open court principle.
2.4. Unsealing for disclosure purposes: procedure and policy
In the case of wiretap packets, ss. 187(1.3) and (1.4) of the Code authorize a provincial or superior court judge to order that the packet be unsealed for the purposes of copying and examination. The section goes on to provide that the Crown has the right to edit the packet materials to protect informer privilege, ongoing investigations, sensitive police techniques, and the interests of innocent persons: ss. 187(2) – (4). The section goes on to require the original material to be resealed: s. 187(6).
With respect to informations to obtain search warrants and other orders, s. 487.3(4) of the Code contemplates that the issuing justice, or a judge of the court before which resulting criminal proceedings are underway, may vary the sealing order issued under s. 487.3 as discussed above.
Section 187(1.4) of the Code in relation to the sealed wiretap packet assumes that trial proceedings are underway and that the accused has applied to obtain a (vetted) copy of the affidavit material. Section 487.3(4) is less restrictive. Modern practice, largely in view of the Crown’s obligation to make disclosure pursuant to Stinchcombe, now usually means that Crown counsel will initiate the unsealing application at the appropriate time, i.e. when the material can safely be vetted and disclosed to the defence.
Unsealing applications can usually be made by Crown counsel ex parte, on the ground that unsealing the material for the purpose of making Stinchcombe disclosure is in the interests of the accused. Proceeding ex parte also gives Crown counsel appropriate control of the application. On the other hand, forcing the accused to bring the application puts the accused in control of the timing and manner of the proceeding and may increase the risk of disclosing sensitive information such as informer privilege or ongoing investigations. This is a particular risk in smaller jurisdictions where court staff may not be familiar with the requirements that the Crown be notified of an application to unseal and be given an opportunity to vet the copied material before it is disclosed, or that the original unvetted material must be resealed.
As a matter of policy, therefore, Crown counsel in an individual case has the discretion to determine when to bring an application to unseal the material filed in support of a wiretap Authorization, search warrant, or other order. In exercising this discretion, and determining whether and when to bring an unsealing application, Crown counsel should consider:
- the interests and views of the investigating authority, particularly in respect of the sensitivity of information that may tend to identify a confidential informer or compromise an ongoing investigation;
- the timing of the application: there may be a tension between the need to make Stinchcombe disclosure and the sensitivity of information, which sensitivity may attenuate as time passes; and
- the stage of the proceedings: for example, on the eve of trial, the accused may force an adjournment if he or she has not received disclosure of sealed material filed in support of a judicial authorization (a wiretap Affidavit, or information to obtain); equally, the accused may decline to make election or plea until sealed material is unsealed, vetted, and disclosed.
As to the last item, the stage of the proceedings, once a matter is set down for preliminary inquiry or trial, Crown counsel should promptly initiate unsealing in order to avert last-minute adjournments.
3. Publication Bans
As discussed above, the open court principle presumes public access to all court proceedings, and freedom of the press – i.e., the media’s right to publish details of court proceedings – is also engaged. However countervailing interests may justify restrictions on the publication of court proceedings in their entirety or in part.
As with sealing orders, publication bans require a balancing of the open court principle against the countervailing interests. In some cases Parliament has already established the balance – for example statutorily requiring a ban on publication of evidence taken at a judicial interim release hearing, or making it a criminal offence to publish the name of the accused in proceedings under the YCJA – while in other cases the presiding judge must make a case-by-case analysis – for example a ban on publishing the identity of a juror in certain circumstances.
3.2. Requirement to notify the media
Unless the publication ban is mandatory, as discussed below, Crown counsel must advise the court if necessary of the common law rule that the media must be notified before any publication ban is ordered: Dagenais v C.B.C.,  3 SCR 835. This is because any publication ban interferes with the constitutionally protected right to freedom of expression under s. 2(b) of the Charter.
In some jurisdictions the courts and/or media have arranged for a procedure where notice of application for a publication ban may be given to a central clearing house.Footnote 5
3.3. Mandatory publication bans
The Criminal Code and the YCJA provide for mandatory publication bans in several areas:
- Criminal Code:
- s. 276.3(1) – ban on publication of proceedings on application by accused to cross-examine regarding complainant’s sexual activity under s. 276.1 – automatic;
- s. 486.4(2) – ban on publication of the identity of complainant or child witness in sexual offence cases, upon application of the prosecutor, complainant or witness – mandatory;
- s. 486.4(3) – ban on publication of the identity of a witness under 18 years of age or of any person who is the subject of child pornography, in offences relating to child pornography under s. 163.1, upon application of the prosecutor, complainant or witness – mandatory;
- s. 517 – ban on publication of evidence, information, submissions and judicial reasons at judicial interim release hearing – mandatory if the accused requests a ban, and discretionary if the prosecutor requests it;
- s. 539(1)(b) – ban on publication of evidence taken at preliminary inquiry – mandatory if the accused requests a ban, and discretionary if the prosecutor requests it;
- s. 542(2) – ban on publication of the fact of or details of any confession tendered at a preliminary inquiry – automatic;
- s. 648 – ban on publication of any proceedings in the absence of the jury – automatic.
- Youth Criminal Justice Act:
The YCJA automatically imposes a ban on the publication of, for example, the identity of a young person (s. 110)(1)), so neither the court nor Crown counsel need to do anything for the publication ban to be in place. There are provisions allowing for the youth court to lift such statutory publication bans. See, for example, s. 110(4) which deals with a peace officer’s application to allow publication of the identity of a young person who is accused of an indictable offence and who poses a danger to others, where publication of the young person’s identity is necessary to assist in his or her apprehension. Section 110(6) allows a young person to apply for relief from the statutory ban on publication of his or her identity, if the youth court is satisfied publication would not be contrary to the interests of the young person or the public interest.
Section 75(2) requires a youth court, upon imposing a sentence on a young person for a violent offence, to consider lifting the ban on publication of the young person’s identity, where this is necessary to protect the public from further violent offences by the young person.
As a matter of policy, when there is an automatic, mandatory publication ban (for example publication of proceedings in the absence of the jury, as in s. 648 of the Code, or publication of the identity of a young person as in s. 110 of the YCJA), Crown counsel need not take any steps since it is the operation of statute that automatically mandates the ban on publication. Where a publication ban only results from a positive order of the court, however, Crown counsel should be aware of those instances. Where a mandatory publication ban is triggered upon application of the defence (for example ban on publication of proceedings at show cause hearing or preliminary inquiry), Crown counsel need not take any steps if the accused is represented by counsel. In the case of a self-represented accused, however, it is appropriate for Crown counsel to remind the court that there is such a provision so that the court can discharge its duty to assist the self-represented accused in this regard. As well, Crown counsel should ensure in a prosecution for an offence listed in s. 486(1)(a) or (b) of the Code – basically, most sexual offences – that the court is aware of its obligation to inform any witness under the age of 18 years and any complainant of his or her right to apply for a publication ban, which ban is automatic upon application by the young witness or complainant, or by the prosecutor.
3.4. Discretionary publication bans
There are also provisions for discretionary publication bans in many instances under the Criminal Code:
- s. 486.5(1) – ban on publication of the identity of any victim or witness, not already covered by the mandatory publication ban in s. 486.4, upon application of the prosecutor, victim or witness, if the ban is
“necessary for the proper administration of justice”– discretionary;
- s. 486.5(2) – ban on publication of the identity of any
“justice system participant”as defined in s. 2, in any prosecution for an offence listed in s. 486.2(5), i.e. intimidation of a justice system participant, offences related to criminal organizations, terrorism offences, and offences related to the Security of Information Act,Footnote 6 upon application of the prosecutor or a justice system participant, if the ban is
“necessary for the proper administration of justice”– discretionary;
- s. 631(6) – ban on publication of the identity of a juror, upon application of the prosecutor or on the court’s own motion, if the ban is
“necessary for the proper administration of justice”– discretionary.
As a matter of policy, when a discretionary publication ban is in issue, Crown counsel should ensure that persons affected by the proposed ban have been given proper notice of the application. Concerning the media, see the discussion above about the need to ensure the media is notified as per Dagenais. Crown counsel also has an obligation to ensure that victims and witnesses are properly notified and advised of their right to make application for a publication ban, usually by informing the presiding judge of this right. If affected persons have been given proper notice, Crown counsel’s position on whether a discretionary publication ban should be imposed is governed by Crown counsel’s general duty to protect the public interest. Crown counsel will normally be initiating or supporting the application for a discretionary ban on publication, and should be able to address the public interest considerations in his or her submissions to the court.
3.5. Common law publication bans
The superior courts have inherent jurisdiction to impose publication bans, and arguably the provincial courts have the same jurisdiction when exercising the authority to control their own process.Footnote 7 Such publication bans are discretionary. In Mentuck, the Supreme Court of Canada propounded the test for a common law publication ban as follows:
A publication ban should only be ordered when:
- such an order is necessary in order to prevent a serious risk to the proper administration of justice because reasonably alternative measures will not prevent the risk; and
- the salutary effects of the publication ban outweigh the deleterious effects 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.Footnote 8
With respect to the first branch of the test, the
“serious risk” must be real, substantial, and well grounded in the evidence. As Iacobucci J put it:
“it is a serious danger sought to be avoided that is required, not a substantial benefit or advantage to the administration of justice sought to be obtained”.Footnote 9 The second branch of the test requires a balancing of interests, including constitutional protections for the accused and the press.
As a matter of policy, Crown counsel should ensure that affected parties (including the media) are notified of the proposed discretionary ban on publication, and be prepared to speak to the public interest considerations which are engaged. These include:
- the right of an accused to a fair and public hearing – s. 11(d) of the Charter;
- freedom of expression – s. 2(b) of the Charter;
- the privacy interests of witnesses and other third parties; and
- the integrity of the administration of justice, including the ability of the police to conduct an investigation without being compromised by publicity, with particular reference to the
“serious risk”sought to be avoided by the proposed publication ban.
3.6. Appeal from a publication ban
There is no statutory right to appeal from a publication ban. Any such appeal must therefore fall within s. 40(1) of the Supreme Court Act,Footnote 10 i.e., pursuant to an application for leave to appeal from the order directing a publication ban.Footnote 11
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