Access to Public Information, Content Regulation / Censorship, Digital Rights, Internet Shutdowns, National Security
SERAP v. Federal Republic of Nigeria
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The Supreme Court of Canada upheld that the Dagenais/Mentuck test applies to all discretionary court orders that limit freedom of expression and freedom of the press including orders to seal search warrant materials. Six search warrants were issued for various locations of the Aylmer Meat Packers business due to alleged violations of provincial legislation regulating the slaughter of cattle. The Crown brought an ex parte application for an order sealing the search warrants and related documents on the grounds that disclosing the material could interfere with the ongoing criminal investigation. However, a few media outlets brought a motion for certiorari and mandamus, causing the overturn of the sealing order, to which the Crown appealed. The Court reasoned that the Crown’s generalized assertion of possible disadvantage to an ongoing investigation was insufficient to seal the order, and that a serious and specific risk to the integrity of a criminal investigation must be alleged to seal a warrant.
A justice of the peace issued six search warrants for various locations linked to the business of Aylmer Meat Packers Inc. (“Aylmer”) on August 20, 2003. The warrants were obtained under the Provincial Offences Act, R.S.O. 1990, c. P.33 and related to alleged violations of provincial legislation regulating the slaughter of cattle. The identical informations were sworn to by Roger Weber, an agricultural investigator with the Ministry of Natural Resources.
On approximately August 26, 2003, the investigation by the Ministry of Natural Resources into the operation of Aylmer was discussed on various media reports. The suitability for human consumption of meat slaughtered and processed by Aylmer became a public discussion.
On around August 27, 2003, the Ontario Provincial Police began a fraud investigation into the business affairs of Aylmer. The officers involved in that investigation were advised that Inspector Weber had applied for and obtained the search warrants that were executed on August 21, 2003 and August 22, 2003.
The Crown brought an ex parte application for an order sealing the search warrants, the informations used to obtain the warrants, and related documents in the Ontario Court of Justice. The Crown claimed that disclosing the material to the public could identify a confidential informant and could interfere with the ongoing criminal investigation.
Justice Livingstone made an order directing that the warrants and informations were to be sealed (the sealing order would expire December 2, 2003) along with the affidavit of Detective Sergeant Andre Clelland and a letter, dated September 2, 2003, from Roger Weber. The affidavit was filed in support of the application for a sealing order. Weber’s letter indicated that the Ministry of Natural Resources took no objection to the application. On the consent of the Crown, the Clelland affidavit and Inspector Weber’s letter were subsequently made part of the public record.
Toronto Star Newspapers Limited and other media outlets brought a motion for certiorari and mandamus in the Ontario Superior Court of Justice. On September 24, 2003, the Superior Court overturned the sealing order and directed that the documents should be made public (except to the extent that the contents of the informations could disclose the identity of a confidential informant). The court also edited one of the informations to delete references to material that could identify the confidential informant and told counsel that the edited version would be made available to the public unless the Crown appealed within two days. The Court of Appeal for Ontario held that the judge granting the order to seal had exceeded her jurisdiction by refusing to grant a brief adjournment to allow counsel for the media to attend and make submissions on the application for a sealing order.
Fish, J., delivered the opinion of the Court. The Supreme Court of Canada held that the Crown’s appeal should be dismissed. The Court stated that the Dagenais/Mentuck test applies to all discretionary court orders that limit freedom of expression and freedom of the press regarding legal proceedings (including orders to seal search warrant materials made requested by the Crown).
The Court also stated that court proceedings are presumptively “open” in Canada. The Dagenais/Mentuck test mandates that public access will be barred only when the appropriate court, exercising its, concludes that disclosure would subvert the ends of justice or unduly impair its proper administration. The Court found that the Dagenais/Mentuck test must be applied in a flexible and contextual manner, and the circumstances in which a sealing order is sought by the Crown must be considered by the court, or by others with a real and demonstrated interest in delaying public disclosure.
The Court concluded that the Crown had not demonstrated that the flexible Dagenais/Mentuck test was unworkable in practice when applied to search warrant materials, or that the Court of Appeal failed to adopt a “contextual” approach. The Crown’s evidence in support of its application to seal amounted to a generalized assertion of possible disadvantage to an ongoing investigation. A party seeking to limit public access to legal proceedings “must rely on more than a generalized assertion that publicity could compromise investigative efficacy.” At the very least, a party must allege a serious and specific risk to the integrity of the criminal investigation. The Court found that the Crown did not discharge its burden in this case to seal the warrant documents. Therefore, the information was ordered to be made public.
 paras. 4-5.
 para. 9.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
This decision expanded expression because it stated in para. 9 that “[a] party seeking to limit public access to legal proceedings must rely on more than a generalized assertion that publicity could compromise investigative efficacy. The party must, at the very least, allege a serious and specific risk to the integrity of the criminal investigation.” This restatement of the law, along with the Court’s application of this standard in the case, established positive precedent for open justice in Canada.
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Decisions from the Supreme Court of Canada are binding precedent on all lower courts in Canada.
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