Phillips v. Vancouver Sun
From Ad IDEM / CMLA
January 13, 2004 (2004 BCCA 14)
This process of opening this Information to Obtain a search warrant did not exactly set speed records. In May 1999, Cst. Phillips, was a detective constable employed in the robbery squad of the VPD. On May 27 that year, Detective Constable Fogarty swore the Information to Obtain to search his desk and effects at the police station in an investigation for breach of trust, and the search warrant was issued the same day. The Justice of the Peace ordered that all search warrant materials be sealed until September 1, 1999. The search took place the next day, and various materials were seized.
On September 29, 2000, another sealing order was issued, though there was no sealing order in effect between the expirey of the first such order and this time.
Finally, on November 19, 2001, the Sun applied to set aside the sealing order and seeking access to the sealed materials. Since the investigation was over, and subject to editing concerns, the Crown and the VPD did not oppose the Sun's application. At that time, the Crown advised the court that no charges were going to be laid against Cst. Phillips. The court's decision to vacate this sealing order was released on January 11, 2002. The judge then imposed a one-week stay of his order to permit Cst. Phillips to apply for certiorari.
On August 7, 2002, Mr. Justice Parrett made an order quashing the order unsealing the materials, which the Sun appealed later that month.
Meanwhile, on October 16, 2002, the Sun applied to the J.P. for an order varying or vacating his sealing order, while inviting him to dismiss their application on the basis of Mr. Justice Parrett's decision. The J.P. dismissed that application later that month. The Sun then applied for certiorari, and on November 27, 2002, Associate Chief Justice Dohm made the second order under appeal.
The appeals were decided by the BC Court of Appeal in this decision on January 13, 2004.
The Court dismissed Cst. Phillips' argument that these documents should only be made public if charges are laid. It correctly interpreted the MacIntyre case in the Supreme Court of Canada. It found that there should be maximum openness even in pre-trial investigative proceedings, and even where a decision has been made not to prosecute. It quoted from Dickson J. in MacIntyre, and added the following emphasis:
At every stage the rule should be one of public accessibility and concomitant judicial accountability; all with a view to ensuring there is no abuse in the issue of search warrants, that once issued they are executed according to law, and finally that any evidence seized is dealt with according to law. A decision by the Crown not to prosecute, notwithstanding the finding of evidence appearing to establish the commission of a crime may, in some circumstances, raise issues of public importance.
In my view, curtailment of public accessibility can only be justified where there is present the need to protect social values of superordinate importance. One of these is the protection of the innocent.
and later the court added its own conclusion on how to interpret this latter phrase in this context:
 Counsel for the Sun, the Crown and the VPD do not agree, however, that the fact that Cst. Phillips is to be regarded as an innocent person is determinative of the disclosure issue. In their view, prejudice to the interests of an innocent person is simply one factor the court must consider in determining whether disclosure should be made. It is entitled to significant weight, but it does not necessarily tip the scales against disclosure. I agree.
Significantly, it agreed with the court in Eurocopter that s.487.3 of the Criminal Code "substantially codified" the MacIntyre principles. It then adopted the reasoning in the Eurocopter case.
Finally, the facts of this case assisted the Sun:
 Although Cst. Phillips has been subjected to publicity in relation to this investigation in the past, he is entitled to take the position that "enough is enough" and to seek to persuade the court that whatever interest the media may have in obtaining the further information it seeks, he has a greater interest in being left alone and not being subjected to further public scrutiny.
 In approaching the balancing process, I agree with Judge Smyth that the nature and extent of this search, and the nature of the materials obtained as a result of the search are relevant in assessing the prejudice to Cst. Phillips' privacy interests. I will repeat what Judge Smyth said at para. 19 of his reasons in that regard:
The search concerned an allegation that [Cst. Phillips] had committed a breach of trust as an officer of the Vancouver Police Department. It was conducted at his place of work. I have been given a copy of the report made to a justice following the search and the things seized consisted almost entirely of files, notes and other information and things gathered or used in the course of his employment. This was not a search delving into Cst. Phillips' private affairs, but rather the performance of his public duty, and the things seized in the search appear to relate directly to his performance of that duty.
 This was not a search of Cst. Phillips' home, which the courts have generally regarded as highly invasive of individual privacy. Rather, it was a search of his office and a seizure of items, most of which could be described as "work product" in circumstances which would not attract a high expectation of privacy on the part of Cst. Phillips. I agree with Judge Smyth that Cst. Phillips suffered less prejudice to his privacy interest than if the search had been of his home, or of his personal papers and possessions.
 In all of the circumstances, while I find that Cst. Phillips undoubtedly has a significant privacy interest at stake in these proceedings, and while I agree with Judge Smyth that "It can scarcely be over-stressed that no charges have been laid against Cst. Phillips", I find that Cst. Phillips has not established that the prejudice to him as an innocent person within the meaning of s. 487.3 outweighs the public interest in having access to the edited materials.