Current & Curious: An important, but apparently hot potato

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GA lives in Toronto and along with his wife owns his own home. GA is a Canadian citizen and has a job. He has a license to possess restricted firearms, though he does not actually own any firearms.

On July 27, 2012 a Justice of the Peace [JP] in Toronto, on the strength of police information obtained largely from a confidential informant, issued a warrant authorizing police to search GA's residence for illegal handguns. Upon issuing the warrant the JP further ordered the warrant package sealed, on the basis that public disclosure of the information would reveal the identity of a confidential informant.

Police executed the warrant and found nothing. GA was cooperative throughout the search. No criminal charges were ever laid in connection with that search.

Finding the entire experience to be most humiliating GA sought an order unsealing the warrant on the basis that there could be “no possible basis for the police to reasonably believe” that he was in possession of illegal handguns. Nordheimer J issued the unsealing order, on consent, requiring that the warrant package be unsealed, edited for the purpose of protecting the identity of the confidential informant, and that the redacted materials provided to GA.

Thereafter, a dispute arose between the Crown and police as to who is responsible for the editing of the unsealed package: 2013 ONSC 1312

The Crown contented the police bears the burden of redacting the warrant package so as to protect the identity of the confidential informant. The Crown, however, conceded that had criminal charged been laid, the Crown would’ve assumed responsibility for the vetting and disclosure of the warrant. Where no charges were laid the Crown argued that to hold that police were not responsible for the vetting would unnecessarily expand the circle of knowledge about the identity of the confidential informant and ignore the independence of each state actor.

Toronto Police Services, on the other hand, argued that the Crown bears the onus of protecting the identity of the confidential informant and that although the Police have a role in such protection it is the Crown who must assume the ultimate responsibility.

GA took no position. 

Campbell J offered the following:

…as a matter of law, it is the responsibility of the Attorney General to edit the sealed search warrant materials in this case so as to comply with the disclosure order of Nordheimer J., while at the same time properly and fully preserving the confidential informant privilege which protects the identity of the confidential informer.

The police must do their part to helpfully assist the Crown in this editing process. The police may be invaluable in ensuring that the individual Crown assigned to undertake this responsibility fully understands any and all of the subtle nuances of the factual matrix so as to ensure that no detail is disclosed that would compromise the secrecy of the identity of the confidential informant. It is important to recall that the smallest details may be sufficient to reveal the identity of a confidential informant. Accordingly, it would be wise for the Crown to consult closely with the police to ensure that the edited search warrant materials do not contain factual details that reveal the identity of a confidential informant. But ultimately, it is the responsibility of the Crown to make the final decisions in relation to this editing process [paras 16-17].

Campbell J grounded this finding on the following factors.

First, that the Supreme Court has held that informant privilege belongs to the Crown and the informant; it is a joint ownership.

Second, the Ministry of the Attorney General Act stipulates that the Attorney General “shall superintend all matters connected with the administration of justice in Ontario.”

Third, the practical realities of meeting the vetting obligations means that the “crown is in the best position to properly and efficiently meet the obligation of performing” the vetting task  [para 47].

Campbell J ultimately concluded:

Given their unique dual role in the administration of justice, and their historical de facto responsibility for this work in cases where criminal charges are commenced, it is difficult to imagine a group of professionals better able to properly and efficiently carry out the important responsibility of editing sealed search warrant packages than agents of the Attorney General. Indeed, practically speaking, Crown counsel are ideally situated to perform this important role in the justice system with great care, fairness, expertise, and diligent efficiency. In discharging this function, they will have the helpful and timely assistance of the investigating police agency. I am confident that the agents of the Attorney General and the investigating police force will be able to work together as cooperatively in cases where no criminal charges have been commenced as in cases where prosecutions are undertaken. Mutual respect for their individual roles and responsibilities will ensure that, while their respective independence is maintained, the results of the vetting process will yield the disclosure of as much information as possible while not compromising the secrecy of the identity of any individual confidential informant [para 63].

DGM