File:Verrilli v HMQ 2019 NSSC 263.pdf


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supreme court nova scotia citation verrilli her majesty the queen nssc date docket hfx registry halifax between: daniel applicant respondent judge honourable justice joshua arnold heard may counsel paul niefer behalf suhanya edwards (canlii) page court: overview was subject three search warrants police used his residence and vehicles alleged that had possession cocaine for purpose trafficking information obtain (“ito” relation all sealed each issuing peace various items including cellular telephones cash were seized during searches but located charges laid against made available their return. applied provincial examine order determine why been application denied david ryan now applies certiorari/judicial review decision refusing access information. facts background relevant this succinctly summarized written dismissing verrilli’s request unseal itos: interested non-accused party seeking informations itos relative authorized separate justices between march 16th 17th exhibits allege following: birth … aka ferris sic did have substance included schedule controlled drugs substances act s.c thereby commit offence contrary 5(2 said act. section substanaces 19, states: person shall possess iii under virtue 5(3 every who contravenes guilty indictable liable imprisonment life. case-at-bar issued pursuant sworn detective constable gena elizabeth graham upon 487.3(1) criminal code warrant granted prohibiting disclosure filed support obtaining respective warrants. arrested without when they executed initial lusso car detailing sales sackville drive lower also any vehicle property however subsequent result are found exhibit other two there related arrests charges. gain “access documentation inspecting both sealing orders with redactions necessary protect privilege” dated august states 2-3 does not stand accused expected return face threat respect issue. evidenced affidavit know reason would reasonably believe possessed swears nor traffic such only reasonable conclusion obtained basis unreliable insufficient investigation. therefore asking allow him inspect warrants, privileged can determined breached charter rights. rights referenced right secure unreasonable seizure arbitrarily detained imprisoned bringing 487.3(4 added apparent dispute parties dismissed december 14, january review. jurisdiction agree has hear accordance phillips vancouver sun bcca british columbia director civil forfeiture hells angels motorcycle corp dagenais canadian broadcasting [1994 scr awashish scc where rowe stated: [11 availability extraordinary remedies constrained similar concerns use certiorari tightly limited common law ensure “end-run” around rule interlocutory appeals example preliminary inquiries, jurisdictional error must shown includes inquiry commits trial absence evidence essential element acts rules natural [12 third wider range circumstances than given appeal addition having errors seek challenge record publication ban unjustifiably limits protected freedoms ruling lawyer’s withdraw elaborate what constituted “final conclusive” cited primeau [1995 s.c.r referring majority stated paragraph “an deciding issue final order.” standard r.e.w nsca beveridge j.a held paragraphs 29-33 deference required issues fact “where balance competing interests…” determination “not involve attack findings rather correct legal principles except otherwise mentioned will reviewed correctness.” case whether correctness. 487.3(1 time parliament sections authorization later superior quebec make relating ground ends subverted one reasons referred subsection might improper outweighs importance purposes compromise identity confidential informant, (ii nature extent ongoing investigation, (iii endanger engaged particular intelligence-gathering techniques prejudice future investigations which (iv interests innocent sufficient reason. procedure documents terms conditions considers desirable limiting generality foregoing term condition concerning duration prohibition partial document deletion occurrence placed packet immediately kept custody place public authorize dealt specified varied variance terminate vary its before proceedings arising out investigation production held. sought “with information” (unreasonable arbitrary detention breached. [10 respecting confidentiality originating a.g (nova macintyre [1982] gerol c.c.c (2d [1982 o.j no. ont prov (crim div canada’s michaud attorney general national post ontario ccc carswellont sup based submissions crown onus test outlined concerned wiretaps holding same reasoning governed dickson addressed supporting materials follows 181-182 question distinction drawn, accessibility those persons termed ‘interested parties’ members unable show special interest proceedings. nothing protection from unnecessary harm overrides most cases found. yield something considerations come bear. “other considerations” explored court. suggest resulted party’ provided contact investigating officer retrieve detailed logs brief para scullion p.c.j citing mcintyre (at that: power grant and/or records purpose. (emphasis original) decisions followed considered respectively sup. leave canada april 22, company societé radio-canada 2(b 24(1 course denying unedited mackinnon the: (attorney applying identified [emphasis original note appear applicable crown’s paras defence application/brief disputes applicant’s interpretation relates purported balancing exercising judicial discretion open packets. brings next stage analysis namely foundational underlying exercise para. provides blueprint determining packets unsealed party. previous indicate seeks demonstrate more mere suspicion wrongdoing she normally compelled produce some suggests procured through fraud wilful non-disclosure well justified beyond potential repeatedly stressed statutory ultimately remains matter should exercised careful individual enforcement accordingly, inappropriate delimit full conceivable situations warranted original] obliged adopt court’s position reached adopting provision inform enjoys constitutional purposive contextual examination charter. concluded follows: persuaded settled 187(1 ought altered light dersch, notwithstanding existing predecessor wiretap target faces prosecution systematically favour give effect accused's answer admission potentially unlawfully intercepted 24(2 dersch clearly indicated different considerations" apply these persuade constitutionally entitled contents while important vital governmental effectuate substantive belief compel absolute state jeopardy process too current “non-accused granted.” [13 shifting evidentiary burden “the disclosure” “or purpose” supra explaining chief lamer wrongdoing…” emphasis “blueprint” evidence, particularly cross-examination then justice’s statement meet standard: [23 fails less candid business operational status businesses about decrease continuing negative impact withdrew allegation cross-examination… testified “it’s defamation character sales”… maintained relationship neighbouring baby store strained offered way proof. [24 conduct involving friend felt amounted harassment… reference ‘sneak peak’ operation speculation friend’s lack association him… [25 falls short advancing contentions further keeping direction opinion put forth little speculation. [26 demonstrated elaborated requested applicant. dismissed. proof 487.3(4) code? divergent lines authority none appellate directly point courts ruled unsealing set places dagenais/mentuck discretionary crown. [14 hearing says variation termination developed mentuck toronto star newspapers ltd fish reaffirmed somewhat reformulated mentuck, names identities undercover officers investigative action limit freedom expression encompasses broad variety ordered when: prevent serious risk proper administration because alternative measures salutary effects outweigh deleterious free fair efficacy [para 32] iacobucci writing noted “risk” first prong real substantial grounded “it danger avoided benefit advantage obtained” [15 went confirm scope star: since known press settings recently actions effect: context bans equally arises statute 486(1 allows exclusion certain (vancouver 31) finally expressly endorsed emphasized presumption openness extends pre-trial principle”, “is inextricably linked advances core values therein” 23-27 argues principle embodied seal argument doomed failure decades unwavering consistently [16 rejected submission reiterated actions. [17 indicates “[s]ince unjustifiable manner implementing record” challenged intervenor present notably intervener argue take account argument. consideration unrepresented taken lightly especially charter-protected stake just true forest t]he displacing lies making new brunswick dagenais, likewise again quote 72-73 assess judicially permits reviewing capable decision. comes forward consider demands fundamental opposed granting mitigating test. precisely reporting uncensored strong highly valued our society convincing effective gathering own regarded weakening presumptive unargued frequently number applications increases transparent system generally unrestricted speech matters justice. [18 submits order: standards depending consistent applicant: automatic defence; media like decided once bears “a showing unlawful manner.” conceded time. [19 mandatory revenue agency wood (as was) discussed variations regarding [21 rescind maintain always justify restriction see esseghaier, onsc canlii 52-56 postmedia network inc 8-9 [20 opportunity satisfy continued redaction part successful ito appropriate editing prior being disclosed. described represented p.180: often work conflicting liberties interference enjoyment clear social value avoidance seizures. detection crime prompt apprehension conviction offenders protection, afforded efficient enhanced policy choice crimes permitted dominate reach introduced aid provisions code. [22 “interested party” following remarks 186-187: concomitant accountability view ensuring abuse according prosecute finding appearing establish commission raise importance. curtailment need superordinate innocent. many served giving protecting whose premises searched endure stigmatization name reputation follow valid detail considerations.” instant suggested “whether party’.” comments macintyre: unless subvert “[w]hat sought” maximum harming impairing efficiency weapon society’s never- ending fight crime” speaking majority, acknowledged “alert subsumed charter’s guarantee press.” continued: parte camera contended presumptively shrouded secrecy preserve integrity instead effectively rebutted until — thereafter words force ‘administration justice’ abates i.e after entry “diminished confidentiality” largely entirely accomplished concealment virtually disappears traditionally uninhibited working undertaken greatest reluctance [pp 188-89] favoured deny bound prove discuss 487.3: subsequently adopted codified govern concern here offences nonetheless useful encapsulates form governs legislation contrary, throughout canada. 487.3(2 relevance contemplates argued doubtless either asserted abstract supported particularized grounds imperilled [27 objections center judge’s michaud, into great procedures involved impose unlike provide: whom subsections opening (1.3 defined opened removed copying examining contained packet. (1.4 province consulting prepare trial. [28 extended damage claims minority per sopinka took motion automatically extension c.j.c conclusion: instance profoundly disagree target's legislative authorities strongly intended remain preserving informers. already affidavits probable interception subject's private communications additional safeguard vested designated selectively distribute former surveillance state's pressing represent dominant properly state; good cause unlawfully. thus (or 187(1.3 presentation officials securing recording proceeding. ii) apply. process. [29 content framework reflects approach underscored pre-existing continues operate 1517: still conformity affect member amendment alteration regretfully faithful court's earlier colleagues subsume distinct questions independent perhaps seriously single-barrelled gives shrift parliament's intent appreciation [30 terms: non- enforcement. accordingly exhausting breadth seem larger pattern abusive occurred contemporaneously acquisition inference thought aside task elaborating left courts. [31 violated s.187(1 individual’s state’s appellant cannot rely claim imminent reception inadmissible indeed packet] reflection similarly enjoy history authorizing outside wiretapping domain stinchcombe crown's obligation disclose progeny irrelevant control recognized privilege durette defining non-accused's individual's contest invasion privacy weighed legitimate greater weight attached meaning guarantees interpreted flexibly threaten reasonableness assessing constitutionality onerously regulatory concurring 347-49 rigid formal classification offences. established find offend received notification subjected lawfulness threatened balanced high pillars heavily depend convicted mclachlin seaboyer "extremely cautious restricting call tenet stigma conviction, justification strict diminished. contrast methods informers compelling reality modern cloak counteract activities sophisticated enterprises endeavour electronic represents arrows quiver techniques, drug effectiveness dramatically undermined routinely target. provide crucial insight modus operandi regular permit organizations adjust importantly premised exclusively delivered procedural editing, garofoli reiterate recent amendments specifically chose scheme coupled 187(1.4 187(5 doing accepted qualitative difference regime edited informer blacklined significant clues able identify leak release diligently unintentionally reveal fatal consequences risks parliament, relying experience vast institutional resources reasoned judgment preferable enact non-disclosure. strikes contesting validity public's receives notice 196(1 examined existence protections within adequately concluding prevailing satisfies [32 “without analyzing principles” incorrectly assumed lawful test.” execution change critical. michaud-type [33 whereas involves over [34 schmidt [1996 b.c.j carswellbc petitioners’ home charged petitioners stayed application, submitting “entitled citizens came homes disrupted lives them photographed fingerprinted them.” infringed .” relied issued.” [35 analogy equivalent responded even humphries circumstances: weighing recognizing invested judges parameters although foreclosing accessed requirements above require manner. authorizations mean investigat[ive tool determines performs function dictates package exactly michaud. satisfied requiring adduce distinguish adduces sealed. [36 [37 (3d references wiretaps. mckinnon “acknowledged conferred enunciated dagenais.” michaud: confidential. strictly controlled. control. suddenly transforms sustained decide swear forthcoming pertinent [38 primarily material dagenais/mentuck. [39 o'neill quash leading issuance applicants erred carefully tailored “so minimize regardless executed.” appeared treated “as step springing naturally close scrutiny much possible.” (para neither minimal impairment quashed orders: failings simply defective canada's democracy criticism excluded exists secretly security intimidating very flexible directed towards maintaining allowing exceptional alternatives unauthorized way. rcmp restricted comply signed committing law. [40 o’neill makes schmidt. [41 corporation hmq derived nordheimer said: accessible [2005 18: [citation omitted] applied… [42 cbc refer applied. [43 duru-obisi oncj brought discussing borenstein i.t.o dickson’s draws finds public. problems capacity occupiers opposition conflates second avoiding embarrassment occupier’s searched. [44 noting become forceful concluded: rationale evaporates prescribed apart restrictions certainly occupier moreover principled seized. i.t.o.s entirety satisfying regard ito’s justice… [45 [46 post-schmidt standing proposition extend nur [2016 s.c.c.a. violation position: intention confer considering unlimited “[a]n non‑accused non‑disclosure police.” highlighted seals 487.3, order, 487.3(3 goes context. [47 labrosse distinguished “relied open‑court homeowner seizure”, presented decline applicants.” commented procedure: conclude varying terminating hampered further, likely evaluate (see redacting documentation. [48 paugh bcpc koturbash remarked “sealing robust wire-tap pass scrutiny.” principles: summary exceptions exception done camera. flows absolute. displaces establishing improperly issued. [49 foundation adduced unchallenged “that informant investigation.” “[e]ven accept rebutting met onus.” [50 hand wiseman [2018 declined due governing wiretaps: conducted quoting s.c.r. quote, "diminished "after order. substantiated how agree. [51 joint privilege. [52 led placing specific mirror provisions. regimes [53 could principle. [54 practically created so. [55 obligated willful [56 wrong [57 correctness incorrect [58 remitted

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