When sealing orders are sealed ..... a legal catch-22!

Toronto Star reporters filled out 1,400 pages of request forms to locate Project Traveller warrants

Project Traveller: Court documents "not publicly accessible," Crown says

The Star has written to the Chief Justice of Ontario for help solving a bureaucratic nightmare that prevents the public from obtaining crucial court documents.

By Laura Kane News Reporter
Saturday, July 13, 2013

The Star has asked the chief justice of Ontario to help resolve a “bureaucratic nightmare” that keeps crucial public information secret.

However, both the chief justice’s office and the Attorney General’s ministry have refused to help the Star obtain documents related to a Toronto police gang sweep, which may reveal links to Mayor Rob Ford.

Following the sweep, dubbed Project Traveller, the Star exposed a court policy requiring members of the public to have both the address and date of execution in order to request a copy of a search warrant.

In a five-page letter sent to Chief Justice Annemarie Bonkalo on Thursday, Star editor Michael Cooke called the process to obtain search warrants a “Catch-22 situation.”

“The problem is that the procedure in place to search for warrants is impossible for someone other than the subject of the warrant,” he wrote.

Although the Star knows a great deal about Project Traveller, it does not know the dates and addresses of all 40 related search warrants. The Star has obtained one order sealing a warrant and has launched an application to unseal it.

As a result, two reporters spent five hours on July 5 filling out more than 1,400 forms requesting search warrants, using addresses and dates the paper believes may yield documents related to the year-long investigation.

The Star asked the chief justice to intervene and direct court staff to produce any unsealed materials relating to search warrants executed under Project Traveller, which should at least include sealing orders.

However, Lori Newton, executive legal officer with the Office of the Chief Justice, replied to the letter late Friday on behalf of Bonkalo, who is out of the country.

“I am advised that all Project Traveller warrants have been sealed by judicial order,” she wrote, adding that any applications dealing with the matter should be directed to the Office of the Regional Senior Justice in Toronto.

The Star has known for some time that all Project Traveller warrants are sealed, but it cannot file applications to unseal them without the information on the affixed sealing orders.

Further, after appealing to the Ministry of the Attorney General for help, the Star was told last week that the remaining documents are not publicly accessible.

In an email, ministry spokesman Brendan Crawley said search warrant documents are publicly accessible if “the search warrant has been executed; a seizure has been made AND a Report to Justice has been received and filed with the court by the relevant police service pursuant to s. 489.1 of the Criminal Code; and the warrant has not been sealed by court order.

“As the Supreme Court has noted, if these conditions have not been met, search warrants are not publicly accessible,” he wrote.

Asked twice for a clear explanation, Crawley replied that the ministry would not be commenting further.

The Star’s lawyer, Ryder Gilliland, said it’s possible the sealing orders are themselves sealed. He added that the ministry should explain why its response is so vague.

“Crawley seems to be pointing us in a particular direction, but is not speaking clearly,” he said. “I don’t know what the reason would be.”

Search warrants — and all other court documents — are supposed to be publicly available because citizens must be able to scrutinize a system that gives judges and police extraordinary powers, said Osgoode Hall law professor Alan Young.

“It’s very important to have accountability when the government’s given the right to break down your door, detain you and rummage through your belongings,” he said.

“That should always be something that is not hidden from public view.”

The Supreme Court of Canada has upheld a 1982 ruling that made search warrants public documents. In the 2005 case launched by the Star, Justice Morris Fish ruled that a search warrant can’t be sealed without specific evidence that its release would compromise an investigation.

“In any constitutional climate, the administration of justice thrives on exposure to light — and withers under a cloud of secrecy,” Fish wrote on behalf of the nine-member panel.

Vancouver-based media lawyer Daniel Burnett agreed that most members of the public would not have both the address and the execution date of a search warrant, unless they were the subject of it.

“That thwarts openness, pure and simple,” he said. “It’s unimaginable to me that they can’t find (the warrants) in any other way.”

In British Columbia, courts have an open registry of search warrants that members of the public can look through and request documents from.

Paul Renwick, the Crown attorney arguing the Project Traveller cases, earlier refused to provide information that would help the Star locate the remaining orders sealing search warrants.

“It doesn’t help me in my prosecution of the accused to be distracted by applications to unseal warrants that I’m going to eventually get to and unseal . . . as part of the normal disclosure process,” said Renwick. “So I don’t want to assist with making it easier for you to go get other orders.”

Renwick has said in court that it would take six months to review the documents and redact information that could compromise fair trials for the accused or reveal the identities of confidential informants.

“My greatest concern is for the defendants,” he said, adding that at least two of the documents are 1,100 pages long.

In a July 2 ruling on the application made by the Star and other media outlets to have the one known warrant unsealed, Justice Philip Downes said he was sympathetic to the difficulty faced by the media and public in obtaining court documents not subject to orders restricting access.

“Where there is no such order, and where a warrant has been executed and material seized, I do not understand why there should be any resistance to providing the material sought by the media,” he wrote.

With files from Jennifer Pagliaro