FACTS

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 warrant.

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.

ISSUE

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 disclosure.

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.”

COMMENT

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 informant’s identity.

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.