On July 27, 2012, a Justice of the Peace in Toronto issued a
warrant authorizing the police to search Mr. Atout's
residential premises for illegal handguns. The warrant was issued
based on information provided by a Toronto police officer.
At the time it was authorized, the warrant was ordered sealed on
the basis that public disclosure of the information would reveal
the identity of a confidential informant.
The search warrant was executed later that day, but no firearms
or contraband of any kind were found. No criminal charges were laid
against anyone in connection with the search.
Mr. Atout then brought an application to unseal the search
warrant package, including the information to obtain the search
On October 22, 2012, an order was issued on consent, requiring
that the search warrant package be unsealed for the purpose of
editing the materials contained therein to protect the identity of
the confidential informant, and then providing the edited package
to Mr. Atout.
The Crown and the police could not agree as to who would be
primarily responsible for editing the materials in the search
warrant package. Accordingly, the Superior Court of Justice was
asked to determine which public institution was the proper party to
perform this crucial vetting process.
IT IS THE CROWN'S RESPONSIBILITY TO PROTECT THE
CONFIDENTIAL INFORMANT PRIVILEGE
The Court determined that the police must assist the Crown in
the editing process, but it is ultimately the Crown's
responsibility to edit the sealed search warrant materials and
protect the identity of the confidential informant. As the
"caretaker" of confidential informant privilege, the
Crown "must be responsible for its preservation in the
redaction of the search warrant materials." Because of the
Crown's responsibility, it makes sense for the Crown to redact
search warrant materials and protect the identity of an informant,
even where no criminal charges are laid following a search.
The conclusion that the Crown has the responsibility of editing
sealed search warrant materials to protect a confidential
informant's identity is also generally supported by
legislation. Under the Ministry of Attorney General Act, R.S.O.
1990, chap. M.17, the Crown is seized with the management of
matters "connected to the administration of justice" and
conducting and regulating "all litigation for and against the
Crown." Applications to vary or terminate a sealing order
protecting the identity of a confidential informant would be
considered litigation against the Crown.
As a corollary to the statutory responsibility to execute search
warrants and perform related duties, the police are obliged to
assist the Crown in vetting sealed warrant materials.
Lastly, the Court cited practical realities as a basis for
finding that the Crown is responsible for editing search warrant
materials. For example, the Crown already performs this very task
in cases where search warrants have led to criminal charges and
redacted materials are provided to the accused as part of criminal
The Court concluded: "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."
This case provides an excellent overview of the law and
principles applicable to confidential informant privilege. The
decision clarifies the Crown's duty to edit sealed search
warrant materials containing information that could identify a
confidential informant, particularly where an executed search does
not result in criminal charges. Consequently, the duty of the
police in these types of cases is limited to assisting the Crown in
its editing process as needed to effectively protect a confidential
The practical effect of the decision is sensible. In some
jurisdictions, police services may have lawyers easily available to
assist them in dealing with the sensitive issues related to
confidential informant privilege. However, in other jurisdictions
where police services may have limited access to counsel, the
availability of the Crown to perform the vetting process with the
assistance of involved officers is critical.
It's not often that our little blog intersects with such titanic struggles as the U.S. presidential race – and by using the term "titanic" I certainly don't mean to suggest that anything disastrous is in the future.
J.J. v. C.C., is an interesting case in which the court held that an automotive garage owes a duty to minor children to secure the vehicles on the premises by locking the cars and safely storing the car keys...
In Irwin v. Alberta Veterinary Medical Association, 2015 ABCA 396, the Alberta Court of Appeal found that the "ABVMA" failed to afford procedural fairness to a veterinarian undergoing an incapacity assessment.
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