Monday, November 25, 2013

"To seal or not to seal that is the question?"

All you ever wanted to know about ITOs (but were afraid to ask)

Don Butler
Thursday, Nobember 21, 2013

If they were flesh-and-blood, police “information to obtain” (ITO) documents might be the political personality of the year in Canada.

Emails, surveillance reports and other material gleaned from ITOs has fuelled coverage of the current Senate scandal, Toronto Mayor Rob Ford’s erratic behaviour and Election Canada’s ongoing investigation into misleading robocalls during the 2011 federal election.

Coverage of those and other cases has pushed ITOs, which are poorly understood by most members of the public, into the public spotlight. It has also raised concerns about the appropriateness of printing material from ITOs “willy-nilly,” says Ottawa defence lawyer Norm Boxall, who represents Michael Sona, charged in the robocalls case.

What is an ITO?

An ITO is an affidavit sworn by a police officer to obtain authorization from a justice of the peace or a judge for a search warrant or a production order, which requires people who aren’t the subject of an investigation to turn over documents or data. It typically details the information police have gathered in an investigation in support of the police request.

Who drafts an ITO?

They are prepared by an investigating police officer, without legal help. As a result, they are not held to the “specificity and legal precision” expected of pleadings at trial.

How reliable is the information in them?

The information has been gathered from witnesses, informants and documents such as emails and other electronic records. None of it has been proven in court, but it must be more than mere possibility or suspicion. To satisfy a judicial officer, “it has to rise to a certain standard,” Boxall says — a credibility-based standard of reasonable probability.

Based on the ITO, a judge or justice of the peace has to be convinced there are reasonable grounds to believe an offence has occurred and that the persons named in the warrant or production order have relevant evidence. “Reasonable grounds is not a high standard,” Boxall notes. “It’s an investigative standard. It’s certainly not proof.”

An ITO cannot be based on information obtained through a warrantless search. And when information comes from a confidential informer, whose credibility cannot be assessed, the level of verification required is greater.

Why didn’t I hear more about ITOs in the past?

For a lot of reasons. Though legally, they’re public documents, they were often sealed on the request of police. That has become less common since a Supreme Court of Canada decision in 2005 admonished public officials that the law did not require ITOs to be automatically sealed.

As well, in the pre-Charter era, ITOs were often “threadbare,” says Alan Young, a professor at Osgoode Hall Law School, containing little information. Thanks to decades of Charter jurisprudence, that has changed. Police are now obliged to make “full, frank and forthright disclosure” of their case when applying for warrants.

So what has changed?

The creation of production orders, which were added to the Criminal Code in 2004, has had the biggest impact, according to Boxall.

Search warrants are often executed early in an investigation, when police have relatively little hard information. But production orders are usually sought at a much later stage of the investigation, when much more is known.

Consequently, ITOs for production orders — like those that generated this week’s revelations about Nigel Wright and Mike Duffy — may effectively contain a police department’s entire case. If it’s a high-profile case, that can trigger a media feeding frenzy.

What are the tests for sealing an ITO?

Police need to be able to show that the ends of justice would be subverted by the disclosure of ITO information, and that outweighs access to the information in importance.

They must convince a judge or JP that disclosure of the information would compromise an ongoing investigation or the identity of a confidential informant, endanger someone “engaged in particular intelligence-gathering techniques,” prejudice the interests of an innocent person or “any other sufficient reason.”

Why should information in ITOs be made public?

The open court principle is fundamental to the justice system, and making ITOs public is a form of accountability for the police. It allows the public to see the sources of information used by police, and assess whether they’re acting reasonably.

“It’s absolutely important that persons in authority and elected leaders are held accountable, that we know what the police are doing,” Boxall says.

Ron Melchers, a criminologist at the University of Ottawa, says police have learned that standards of transparency must be higher when their investigations touch on politics and politicians.

“The closer you get to politics, the more transparent police need to and want to be, to avoid any impugning of bias,” Melchers says. That may be why the RCMP has not asked for sealing orders on its ITOs for the Senate investigation.

Then there’s the Charter guarantee of freedom of expression, which includes freedom of the press. Media lawyers used legal tests developed through Charter cases to convince judges to lift sealing orders on ITOs in the cases of Rob Ford and Michael Sona.

What’s the downside of disclosure?

ITO material often involves a great deal of personal information about people who may not have committed any crime. “A lot of harm can be done to innocent persons,” Boxall says. They can end up with what he calls a “Google record,” which could cost them jobs and other opportunities.

“A Google record, to me, may be more serious than a criminal record,” he says. “You’re out in cyberspace, and you can never get off.”

Disclosure could also compromise a police investigation, though officers should be able to get a sealing order if they can demonstrate that. (Conversely, police may opt for disclosure if they think it will generate new leads.)

There’s also a risk that reportage of ITO information in high-profile cases could compromise an accused’s right to a fair trial by making it difficult to assemble an unbiased jury.

Have we gone too far in making ITO material public?

Boxall, for one, thinks so. He points out that those charged with crimes are entitled to a ban on the publication of evidence at bail hearings, and proceedings in preliminary hearings can’t be reported until a trial has ended.

“I think those orders are becoming almost academic,” he says. “In almost any serious case, there will now be ITOs for some type of production order.” Unless there’s a sealing order, “it’s going to contain way more information than any bail hearing, and it’s going to be printed (by the media).”

Young says the process of obtaining warrants “is much better than it used to be because of the more detailed ITOs. It would be a bad development to go back to the pre-Charter era, where ITOs basically said, ‘we need a warrant because we think we have a case.’”

However, Young agrees the privacy concerns are real. The solution, he says, is for the police and the judiciary to be “very alert and vigorous when it comes to releasing material to ensure that people aren’t being exposed in this manner.”"


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