



COURT OF APPEAL
        FOR BRITISH COLUMBIA




Citation:



Phillips
                v. Vancouver Sun,









2004 BCCA
            14




Date: 20040113





Docket: CA030083; CA030361

Docket: CA030083

Between:

Murray
      Phillips

Respondent

(Applicant)

And

The Vancouver
      Sun

Appellant

(Respondent)

And

The Attorney
        General for British Columbia,

Vancouver
        City Police Department and

The Honourable Judge David Smyth

Respondents

(Respondents)

- and -

Docket: CA030361

Between:

The Vancouver
      Sun

Appellant

(
Applicant
)

And

Murray
        Phillips,

The Attorney
        General for British Columbia,

Vancouver
        City Police Department and

Justice of the Peace Richard Yee

Respondents

(
Respondents
)










Before:



The Honourable
            Madam Justice Rowles





The Honourable
            Madam Justice Prowse





The Honourable
            Madam Justice Saunders









R.S. Anderson and
C.J. Doucet



Counsel for the Appellant





D.G. Butcher



Counsel for the Respondent,
Murray Phillips





R.W. Gourlay, Q.C. and
K. Wedel



Counsel for the Respondent,
the Attorney General





No one appearing



for the Respondent,
Vancouver City Police Department





Place and
            Date of Hearing:



Vancouver, British Columbia





November 21, 2003





Place and
            Date of Judgment:



Vancouver, British Columbia





January 13, 2004














Written
              Reasons by
:





The Honourable
            Madam Justice Prowse





Concurred
              in by:





The Honourable
            Madam Justice Rowles

The Honourable
            Madam Justice Saunders





Reasons for Judgment of the Honourable Madam Justice
        Prowse:

INTRODUCTION

[1]

There
        are two appeals before the Court involving, firstly, the interpretation
        of s. 487.3(4) of the
Criminal Code
,
R.S.C. 1985,
        c. C-46 (the "Code") and, secondly, an application by the Vancouver
        Sun (the "Sun") pursuant to s. 487.3 for access to and disclosure
        of edited copies of a search warrant, Information to Obtain a Search Warrant
        (the "Information") and related materials in circumstances where
      no charges have been laid against the target of the search.

[2]

The
        first appeal is from the decision of Mr. Justice Parrett, made August 7,
        2002, granting
certiorari
and quashing the order of the Honourable
        Judge Smyth, pronounced January 11, 2002, which granted disclosure of
        an edited version of the warrant, Information and related materials to
        the
        Sun.  Mr. Justice Parrett's order restored the prior sealing order made
        by Justice of the Peace Yee ("J.P. Yee"), on September 29, 2000
        with respect to these materials.  Mr. Justice Parrett's reasons for judgment
      may be found at 2002 BCSC 1169.

[3]

The
        second appeal is from the decision of Associate Chief Justice Dohm, made
        November 27, 2002, dismissing the Sun's application for an order of
certiorari
quashing
        the first sealing order of J.P. Yee, made September 29, 2000 and the
        subsequent order of J.P. Yee, made October 28, 2002, both of which denied
        access to
      the warrant, Information and related materials.

[4]

In
        upholding the sealing order, Associate Chief Justice Dohm was invited by
      counsel to follow the decision of Mr. Justice Parrett, and he did so.

[5]

Madam
        Justice Saunders made an order on April 29, 2003 that the two appeals be
      heard together.

[6]

The
        Vancouver Police Department (the "VPD") did not appear on the
        appeals, but the Court was advised that the VPD adopted the submissions
      of the Attorney General for British Columbia.

THE ISSUES

[7]

The
      Sun submits that Mr. Justice Parrett erred:

(1)   in misinterpreting
        s. 487.3(4) of the Code by finding that Judge Smyth had no jurisdiction
      to terminate and/or vary the sealing order of J.P. Yee;

(2)   in finding that
certiorari
would
        lie to quash Judge Smyth's order on the basis of error of law on the face
      of the record;

(3)   in finding on the merits that disclosure of the sealed materials
      should be denied.

[8]

Since
        Associate Chief Justice Dohm's order turned on the correctness of Mr. Justice
        Parrett's order, the parties agree that this Court's resolution of these
        three issues will be determinative of the principal issues raised on both
      appeals.

BACKGROUND

[9]

In
        May 1999, the respondent, Cst. Phillips, was a detective constable employed
        in the robbery squad of the respondent, the VPD, working out of the police
      station at 312 Main Street, Vancouver, B.C.

[10]

On
        May 27, 1999, Detective Constable Patrick Fogarty of the VPD swore an
      Information to Obtain a Search Warrant in relation to a search at the police
      station
        in furtherance of an investigation of Cst. Phillips for the offence of
      breach of trust by a public officer, contrary to s. 122 of the Code.

[11]

On
        May 27, 1999, Justice of the Peace Cyr issued a search warrant pursuant
        to s. 487.3 of the Code and, on that same date, ordered that all search
      warrant materials be sealed until September 1, 1999.

[12]

The
        search of the police station was conducted on May 28, 1999, and various
      documents and other materials were seized.

[13]

On
        September 29, 2000, J.P. Yee issued a sealing order of the search warrant
        materials (the "sealing order") until "further order of
        the court".  (Between September 1, 1999 and September 29, 2000,
      no sealing order was in effect.)

[14]

On
        November 19, 2001, the Sun applied before Judge Smyth for an order "setting
        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.

[15]

In
        reasons dated January 11, 2002, Judge Smyth vacated the sealing order
      and further ordered that an edited version of the warrant and Information
      be
        disclosed to the Sun.  He then imposed a one-week stay of his order to
      permit Cst. Phillips to apply for
certiorari
.

[16]

Upon
        hearing Cst. Phillips' application for
certiorari
, Mr. Justice
        Parrett made the order of August 7, 2002 which is the subject of the
        first appeal.  The
      Sun filed an appeal from that order on August 30, 2002.

[17]

On
        October 16, 2002, based on Mr. Justice Parrett's interpretation of s.
      487.3(4) of the Code, the Sun applied to J.P. Yee for an order varying
      or vacating
        his sealing order, and simultaneously invited him to dismiss the application
        on the basis of Mr. Justice Parrett's decision.  J.P. Yee gave reasons
      dismissing the application on October 28, 2002.

[18]

The
        Sun applied for
certiorari,
and on November 27, 2002, Associate
      Chief Justice Dohm made the second order under appeal.

[19]

The
        investigation of Cst. Phillips, and the subsequent decisions not to lay
        criminal charges or to proceed with proposed disciplinary proceedings against
        him attracted considerable media attention, as evidenced by numerous newspaper
      articles contained in the Appeal Books.

DISCUSSION OF THE ISSUES


(1)
Interpretation of s. 487.3(4)
          of the Code

[20]

Section
        487.3 of the Code provides for the making, varying, and termination of
        sealing orders in relation to search warrants and related materials.  It
      provides, in part:

487.3 (1)
A judge
          or justice may
, on application made at the time of issuing a warrant
          under this or any other Act of Parliament . . . or at any time thereafter,
make
          an order prohibiting access to and the disclosure of any information
        relating to the warrant . . . on the ground that

(a)
the ends of justice would be subverted by the
          disclosure for one of the reasons referred to in subsection (2) or the
        information might be used for an improper purpose; and

(b)
the ground referred to in paragraph (a) outweighs
        in importance the access to the information.

(2)   For the purposes
        of paragraph (1)(a),
an order may be made under subsection (1) on the
      ground that the ends of justice would be subverted by the disclosure


(a)
if disclosure of the information would

(i)     compromise the identity of a confidential
      informant,

(ii)    compromise the nature and extent
      of an ongoing investigation,

(iii)   endanger a person engaged in particular
        intelligence-gathering techniques and thereby prejudice future investigations
      in which similar techniques would be used, or

(iv)
prejudice the interests of an
        innocent person;
and

(b)   for any other sufficient reason.

(3)
Where an
          order is made under subsection (1), all documents relating to the application
          shall
, subject to any terms and conditions that the justice or judge
          considers desirable in the circumstances, including, without limiting
          the generality of the foregoing, any term or condition concerning the
          duration of the prohibition, partial disclosure of a document, deletion
          of any information or the occurrence of a condition,
be placed in
          a packet and sealed by the justice or judge immediately on determination
          of the application, and that packet shall be kept in the custody of the
          court in a place to which the public has no access
or in any other
          place that the justice or judge may authorize
and shall not be dealt
          with except in accordance with the terms and conditions specified in
        the order or as varied under subsection (4).

(4)
An application
          to terminate the order or vary any of its terms and conditions may be
          made to the justice or judge who made the order or a judge of the court
          before which any proceedings arising out of the investigation in relation
        to which the warrant was obtained may be held.


[Emphasis added.]

[21]

A "justice" is
        defined in s. 2 of the Code to mean "a justice of the peace or a
      provincial court judge."

[22]

Mr.
        Justice Parrett concluded that Judge Smyth did not have jurisdiction
      to vary the sealing order pursuant to s. 487.3(4) of the Code on the basis
        that he was neither the justice nor judge who made the order, nor "a
        judge of the court before which any proceedings arising out of the investigation
        in relation to which the warrant was obtained may be held."  In his
        view, the fact that the investigation giving rise to the warrant had ended,
        together with the fact that the Crown was not proceeding with charges against
        Cst. Phillips, meant that there was no court before which proceedings arising
        out of the investigation "may be held" within the meaning of
        s. 487.3(4).  He concluded that, while the Supreme Court could vary the
        sealing order pursuant to its inherent jurisdiction, the Provincial Court,
      being a creature of statute, could not.

[23]

Mr.
        Justice Parrett's conclusions in that regard are stated at paras. 33-35
      of his reasons:

The language
        of s. 487.3(4) appears calculated, in my view, to allow applications
      to be made during the time between the issuance of a search warrant and
      the
        initiation of proceedings rather than in those relatively rare applications
      brought where a decision has been made not to proceed with charges.

While it may
        seem to be an anomaly in the legislation, absent a specific legislative
        authorization the jurisdiction does not exist in a court which has only
      statutory jurisdiction.

In the present case there was no uncertainty, the decision had
        been made and no proceedings would be initiated, nor have they been.  In
        these circumstances the options available under s. 487.3(4) were reduced
        to bringing the application before the "justice or judge" who
        made the order or to a court of inherent jurisdiction. I am satisfied
        that there was no jurisdiction in the court below to entertain the application
      in the circumstances of this case.

[24]

In
        my view, Mr. Justice Parrett's interpretation of s. 487.3(4) fails to
      give effect to the plain meaning of the words "the court before which any
        proceedings . . . may be held."  This phrase is couched in the future
        tense.  I agree with the Crown that it includes the court before which
        proceedings could be held, if proceedings were instituted.  Its language
        is not restricted to the court before which proceedings have
in fact
been
        instituted or would
in fact
be instituted.  In most cases, the court
        before which any proceedings may be held would be the Provincial Court
        since, in British Columbia, every charge, whether summary or indictable,
        is commenced by an Information laid in that court.  The only exception
        is where the Crown decides to proceed by direct indictment in the Supreme
      Court.

[25]

I
        am satisfied that the clear intent of s. 487.3(4) is to provide the court
        in which "any" proceedings arising out of the investigation in
        relation to which the warrant was obtained could be instituted with the
        jurisdiction to vary or terminate a sealing order issued under s. 487.3(1).  I
        note that this interpretation is consistent with the wording of the sealing
        order in issue, which provided that it should remain in effect "until
        further order of the court."  Given the fact that the sealed documents
        were then under the control of the Provincial Court, it is reasonable to
      conclude that J.P. Yee had in mind an order of the Provincial Court.

[26]

The
        narrow reading of s. 487.3(4) adopted by Mr. Justice Parrett does not
      take into account the broad jurisdiction given to Provincial Court judges
      to
        make a sealing order under s. 487.3(1), either at the time of issuance
        of the search warrant "or any time thereafter".  Nor does it
        recognize the general power of each court to control its own processes.  As
        Mr. Justice Dickson stated in the leading case of
A.-G. N.S.
        v. MacIntyre
, [1982] 1 S.C.R. 175 at 189, 132 D.L.R. (3d) 385, "Undoubtedly
        every Court has a supervisory and protecting power over its own records."  This
        general power would be rendered nugatory if the only Provincial Court
      judge who could vary the order was the one who made it.

[27]

The
        narrow construction placed on this provision by Parrett J. also gives
      rise to practical problems which militate against his interpretation. For
      example,
        if the justice or judge who made the original sealing order were unavailable,
        ill or deceased, any application to vary would have to be dealt with
      by the Supreme Court  a cumbersome procedure which could result in unnecessary
        delay and expense.  Counsel for the Sun and the Crown submit that it
      is unlikely that Parliament intended this result.

[28]

Mr.
        Justice Parrett acknowledged that his interpretation of s. 487.3(4) gave
        rise to an anomaly and that it significantly restricted the powers of Provincial
      Court judges to deal with such orders.

[29]

In
        the result, I am not persuaded that Parliament intended to limit the
      jurisdiction of Provincial Court judges in this manner.  I note that no rationale has
        been provided for reading this provision in such a restrictive fashion.  For
        these reasons, I conclude that Mr. Justice Parrett erred in finding that
        Judge Smyth did not have jurisdiction under s. 487.3(4) of the Code to
      vary the order of J.P. Yee.

(2)
Error of Law on the Face of the
          Record


[30]

The
        next issue which arises is whether Mr. Justice Parrett erred in finding
        that Judge Smyth's order should be quashed on the basis of error of law
      on the face of the record.

[31]

The
        specific error which Mr. Justice Parrett found constituted an error of
        law on the face of the record arose from Judge Smyth's reasons, at para.
        21, and from the form of order drafted by counsel following Judge Smyth's
      decision.  The relevant provision of the order states:

THIS COURT ORDERS that the Sealing Order of a Search Warrant and an Information
        to Obtain a Search Warrant relating to a search executed on or about May
        28, 1999 at the office premises of the Respondent Murray Phillips be vacated,
        and an edited version of the Search Warrant and Information to Obtain a
      Search Warrant be disclosed to the Applicant.

[32]

Paragraph
        21 of Judge Smyth's reasons simply provides that "I order the disclosure
      of the edited warrant and its supporting materials."

[33]

All
        counsel agree that, in order to comply with s. 487.3(4) of the Code,
      the order should have been drafted to provide that the order of J.P Yee
      be "varied" to
        provide for disclosure of the edited warrant and Information.  The word "vacated" should
        not have been used.  It is not seriously disputed that this was the intent
        of Judge Smyth's order, and that the error in the drafted order is one
      of form rather than substance.

[34]

Mr.
        Justice Parrett found that the order referred to in para. 21 of Judge
      Smyth's reasons was ambiguous.  At paras. 51-53 of his reasons, he stated:

Finally, as
        I stated earlier, the language of the order in para. 21 is ambiguous.  On
        its face it directs disclosure of the "
edited
warrant
and
        its supporting materials"
. It does not direct disclosure of only
        the edited version of the Information to Obtain and it does not clearly
        deal with whether or not the sealing order is terminated or whether it
      is varied in order to disclose the edited versions.

Clarity and
        precision is needed in dealing with such matters and, regrettably, its
        absence in the present case leads to uncertainty as to the order given
      in the court below.

These difficulties,
        I find, constitute errors on the face of the record of the court below
      within the meaning of the relevant authorities.

[Emphasis in original.]

[35]

While
        it is undoubtedly true that orders should be drawn with clarity and precision,
        I am unable to agree that the deficiencies in form referred to by Parrett
        J. justify a quashing of Judge Smyth's order.  Although the original application
        before Judge Smyth sought access to unedited versions of the warrant and
        supporting materials, counsel agreed to an editing process during the course
        of the proceedings such that the only real issue became whether any access
        should be permitted to the edited materials.  No one was in doubt as
      to the nature of the order made; nor did the parties view it as ambiguous.

[36]

In
        my view, the Provincial Court, like other courts, has the power to correct
        errors of form under its general powers to control its own processes.  For
        that reason, and in the absence of authority to the contrary, I conclude
        that Mr. Justice Parrett erred in treating the imprecision in para. 21
        of Judge Smyth's reasons, and in the drafting of his order, as constituting
      an error of law on the face of the record justifying an order to quash.

(3)
The Merits  Disclosure
          or Non-Disclosure

(a)
Introduction

[37]

If
        I am right in finding that Judge Smyth had jurisdiction to vary the sealing
        order, and that his reasons and order do not give rise to an error of law
        on the face of the record, a further issue, raised by Cst. Phillips, is
        whether Judge Smyth erred in law in the exercise of his discretion by failing
        to give adequate consideration to
Charter
principles in accordance
        with
Dagenais v. Canadian Broadcasting Corp.
, [1994] 3
      S.C.R. 835.  This issue arises only in relation to the first appeal.

[38]

After
        dealing with this issue, I will go on to deal with the merits of Mr.
      Justice Parrett's order refusing disclosure, since his reasons were adopted
      by
      Associate Chief Justice Dohm in making the second order under appeal.

[39]

In
        discussing the merits of these decisions, I will refer to several of the
      authorities cited by counsel.

(b)
Judge Smyth's Order

[40]

Cst.
        Phillips submits that Judge Smyth's order providing for disclosure of
      the edited materials should be set aside on the merits, as failing to properly
        take into account Cst. Phillips' privacy interests, and the potential
      damage
        to his reputation.  He submits that he is an "innocent person" within
        the meaning of s. 487.3(2)(a)(iv) of the Code, such that his privacy
        interests, protected by ss. 7 and 8 of the
Canadian Charter of Rights and Freedoms
,
        should have taken precedence over the public's right to obtain access
        to the sealed materials.  In that regard, he relies on the analysis of
      Chief Justice Lamer, speaking for the majority, in
Dagenais.


[41]

In
Dagenais
,
        the court was considering a pretrial publication ban imposed under the
        common law to prevent the airing of a television program, the contents
        of which potentially jeopardized the fair trial rights of four accused.
        There, Chief Justice Lamer stated that the exercise of a judge's discretion
        whether or not to impose a publication ban should be exercised in accordance
        with
Charter
principles.  That was so whether the ban was
        imposed by statute or under the common law.  Failure to do so could give
        rise to a reversible error in law open to attack through
certiorari
.  Further,
        the remedies available to the court would not be restricted to quashing
        the order but would include remedies consistent with those available
      under s. 24(1) of the
Charter
.

[42]

In
        stating that his privacy interests are of superordinate importance in
      this case, Cst. Phillips relies heavily on the fact that he was never charged
        with an offence. In short, he submits that Mr. Justice Parrett's analysis
      of the merits should be preferred to that of Judge Smyth.

[43]

Judge
        Smyth framed the issue before him (at para. 5 of his reasons) as "whether
        the principle of openness by which judicial proceedings are generally
      governed should yield to the privacy interests Cst. Phillips claims."

[44]

In
        answering this question, Judge Smyth reviewed the reasons for judgment
        of Mr. Justice Dickson, speaking for the majority in
MacIntyre
,
supra
,
        and several other decisions referred to by counsel, including
R.
        v. Mentuck
, [2001] 3 S.C.R. 442.  I will discuss those decisions
      later in these reasons.

[45]

Judge
        Smyth concluded that Cst. Phillips was "an innocent person" within
        the meaning of s. 487.3(2)(a)(iv) of the Code.  He also considered the
Charter
principles
        at stake, as reflected by his statement that he would have to determine "whether
        [Cst. Phillips'] general privacy interests subsumed under s. 7 of the
Charter
should
        be subordinated in this instance to the applicant's s. 2(b) rights."  (para.
      17.)

[46]

Judge
        Smyth ultimately resolved that balancing process in favour of disclosure,
        as reflected in the following extract from his reasons for judgment at
      paras. 19-20:

While I would
        not be comfortable saying that Cst. Phillips has no privacy interests relevant
        to this discussion, as the applicant submitted in argument, I think that
        his privacy interest in the results of the search and the basis upon which
        it was made must carry little weight.  The search concerned an allegation
        that he 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.

Conclusion

I agree with
The Vancouver Sun
that the investigation of
        Cst. Phillips and the judicial proceedings taken in respect of that investigation
        are matters of public interest.  So far as possible they should be open
        to public examination.  That is what the principle of openness calls for.  It
        can scarcely be over-stressed that no charges have been laid against
        Cst. Phillips, but in my view the privacy interest he has shown in this
        application
        should not be preferred to the s. 2(b) rights asserted by the applicant,
        and are really of the kind Dickson, J. had in mind when he wrote (at
        p. 402 of
MacIntyre
) that: "As a general rule the sensibilities
        of the individuals involved are no basis for exclusion of the public
      from judicial proceedings."

[47]

Cst.
        Phillips submits that the error in this passage arises from Judge Smyth's
        statement that Cst. Phillips' privacy interests "must carry little
      weight."

[48]

In
        my view, it is apparent from reviewing Judge Smyth's reasons as a whole
        that he was fully alive to the public interest in preserving the privacy
        interests of individuals.   In the circumstances of this case, however,
        he concluded that Cst. Phillips' privacy interests were entitled to less
        weight than the public interest in disclosure.  I agree with his conclusion
        in that regard, and I am satisfied that it is in accord with the
MacIntyre
decision
        and with the principles set forth in the other authorities to which I will
      refer later in these reasons.

[49]

I
        now turn to an analysis of the merits of Mr. Justice Parrett's decision
      which forms the foundation of both orders under appeal.

(c)
Mr. Justice Parrett's Order

[50]

Mr.
        Justice Parrett concluded that the balancing of interests referred to in
MacIntyre,
and
        in s. 487.3 of the Code, favoured protecting Cst. Phillips' privacy interests,
        including protection of his reputation.  The fact that no charges had been
        laid against Cst. Phillips was critical to Parrett J.'s entire analysis
        in arriving at that conclusion.  He framed the fundamental issue before
      him at para. 63 of his reasons:

The substance of the present application [for access] reduces itself
        to this:  Does the public interest in the execution of a search warrant
        which results in no charges being laid override the privacy interests of
        an individual who faces no criminal charges?  Put another way, in each
        case where a search warrant is granted, does the fact that items are
        seized pursuant to the warrant result in the underlying information becoming
        public
      even where charges do not proceed?

[51]

In
        my view, posing the question in this fashion suggests that there is only
        one "right" answer which applies in every case in which a search
        warrant is issued and items are seized pursuant to that warrant, but no
        charges are laid. It is apparent from his analysis that Mr. Justice Parrett
        thought that there was only one right answer to this question, and that
        the answer was "no disclosure."  In that regard, he stated,
      at para. 86 of his reasons:

It simply cannot
        be the case that it is the seizure of items or the absence of seizures
        which triggers an overriding public interest in disclosure.  What must,
        in my view, trigger that public interest is, rather, at the least, the
        seizure of evidence which discloses the commission of a criminal offence,
and
        the initiation of criminal proceedings.
Absent such a result the
        search is of primary interest only to the persons whose rights of privacy
        have
      been invaded by the search.

[Emphasis added.]

[52]

Later
        in his judgment (paras. 90-91), Mr. Justice Parrett concludes that the
MacIntyre
emphasis
        on openness of court proceedings "is predicated on charges proceeding
      to trial."

[53]

In
        my view, the
MacIntyre
decision does not justify such a narrow
        reading. In fact, at p. 186 of the decision, Dickson J. adverts to the
        fact that, in some cases, disclosure is necessary precisely because the
      Crown has made a decision not to lay charges.

[54]

I
      turn, then, to the
MacIntyre
decision.

[55]

As
        previously stated,
MacIntyre
is the leading case on access
        to search warrants and related materials.  Although it was decided in
        1982, approximately three months prior to the enactment of the
Charter
,
        it ultimately formed the foundation for s. 487.3 of the Code, which was
        enacted in 1997. Subsequent decisions of the Supreme Court of Canada, and
        of other courts, continue to rely on Dickson J.'s analysis in
MacIntyre
when
      issues of access to search warrant materials and related issues arise.

[56]

In
MacIntyre
,
        the Chief Clerk and Justice of the Peace of the Provincial Court refused
        to permit Mr. MacIntyre, a journalist who was researching a story on
      political patronage and fund raising, to have access to executed search
      warrants
        and related materials, on the basis that such materials were not available
        for inspection by the general public.  Mr. MacIntyre applied pursuant to
        then s. 446(5) of the Code for a declaration that he, as a member of the
      public, was entitled to inspect such documents.  Section 446(5) provided:

(5)   Where anything is detained under subsection (1) [the general power
        of search and seizure], a judge of a superior court of criminal jurisdiction
        or of a court of criminal jurisdiction may, on summary application on
      behalf of a person who has an interest in what is detained, after three
      clear
        days notice to the Attorney General, order that the person by or on whose
      behalf the application is made be permitted to examine anything so detained.

[57]

The
        Nova Scotia Supreme Court granted the declaration.  The Nova Scotia Court
        of Appeal not only upheld the declaration, but also stated that the public
      was entitled to be present in open court when search warrants were issued.

[58]

On
        appeal to the Supreme Court of Canada, all members of the Court agreed
        that the Court of Appeal had erred in finding that members of the public
        were entitled to be present at the time search warrants are issued.  They
        were divided on whether the public was entitled to obtain access to such
      documents.

[59]

Mr.
        Justice Dickson wrote for the majority in finding that Mr. MacIntyre was
      entitled to a declaration in the following terms:

IT IS DECLARED that after a search warrant has been executed, and objects
        found as a result of the search are brought before a Justice pursuant to
        s. 446 of the
Criminal Code,
a member of the public is entitled
        to inspect the warrant and the information upon which the warrant has been
      issued pursuant to s. 443 of the
Code
.  [at 190]

[60]

There
        is no indication in this declaration that it is a condition precedent
      to public access to these documents that someone be charged with an offence
        arising from the investigation giving rise to the warrants.  Nor is there
        any indication in
MacIntyre
whether charges had been laid
        in relation to the warrant materials to which access was sought.  Thus,
        I am unable to agree with Mr. Justice Parrett that
MacIntyre
stands
        for the proposition that it is only after charges have been laid that
        the public is entitled to seek, and obtain, access to such documents.  Rather,
        that is a factor to be considered by the court in determining whether
      access should be granted.

[61]

In
        discussing the search warrant provisions of the Code, Mr. Justice Dickson
        noted that Parliament had made a clear policy choice that the public
      interest in the detection, investigation and prosecution of crime was to
      be given
        precedence over the competing public interest of protecting the individual
        from interference with the enjoyment of his property.  He went on to note,
        however, that the Code provided little guidance on the question of accessibility
        by the public to search warrants and related documents.  For that reason,
        he concluded that it would be unwise to attempt any comprehensive determination
      of the right of access to judicial records.  At pp. 183-84, he stated:

The question before
        us is limited to search warrants and informations.  The response to that
        question [of public access], it seems to me, should be guided by several
        broad policy considerations, namely, respect for the privacy of the individual,
        protection of the administration of justice, implementation of the will
        of Parliament that a search warrant be an effective aid in the investigation
        of crime, and finally, a strong public policy in favour of "openness" in
        respect of judicial acts.  The
rationale
of this last-mentioned
      consideration has been eloquently expressed by Bentham in these terms:

In the darkness of secrecy, sinister interest, and evil in every shape
        have full swing.  Only in proportion as publicity has place can any of
        the checks applicable to judicial injustice operate.  Where there is no
        publicity there is no justice.  Publicity is the very soul of justice.  It
        is the keenest spur to exertion and surest of all guards against improbity.  It
      keeps the judge himself while trying under trial.

The concern
        for accountability is not diminished by the fact that the search warrants
        might be issued by a Justice
in camera
.  On the contrary, this fact
        increases the policy argument in favour of accessibility.  Initial secrecy
        surrounding the issuance of warrants may lead to abuse, and publicity
      is a strong deterrent to potential malversation.

In short, what should be sought is maximum accountability and accessibility
        but not to the extent of harming the innocent or of impairing the efficiency
        of the search warrant as a weapon in society's never-ending fight against
      crime.

[62]

Dickson
        J. expressly rejected the argument that the principle of openness of
      court proceedings was restricted to the trial and did not apply at the
      pre-trial
        investigative stage of proceedings.  At pp. 185-186 of the decision,
      he stated:

The same policy considerations upon which is predicated our reluctance
        to inhibit accessibility at the trial stage are still present and should
        be addressed at the pre-trial stage.  Parliament has seen fit, and properly
        so, considering the importance of the derogation from fundamental common
        law rights, to involve the judiciary in the issuance of search warrants
        and the disposition of the property seized, if any.  I find it difficult
        to accept the view that a judicial act performed during a trial is open
        to public scrutiny but a judicial act performed at the pre-trial stage
      remains shrouded in secrecy.

[63]

And,
      at pp. 186-87, he stated:

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.

Many search
        warrants are issued and executed, and nothing is found.  In these circumstances,
        does the interest served by giving access to the public outweigh that served
        in protecting those persons whose premises have been searched and nothing
        has been found?  Must they endure the stigmatization to name and reputation
        which would follow publication of the search?
Protection of the innocent
        from unnecessary harm is a valid and important policy consideration.
        In my view that consideration overrides the public access interest in
        those
        cases where a search is made and nothing is found.  The public right to
        know must yield to the protection of the innocent.  If the warrant is
      executed and something is seized, other considerations come to bear.

[Emphasis added.]

[64]

Later
        in his reasons, Dickson J. went on to make the statement referred to
      at para. 26 of my reasons that "every Court has a supervisory and protecting
        power over its own records" whereby the court can deny access where
        the ends of justice would be subverted by access, or where the documents
      might be used for an improper purpose.

[65]

I
        note here that various courts and commentators, including the Law Reform
        Commission in its report:
Public and Media Access to the Criminal Process
,
        Working Paper 56 (Ottawa: Law Reform Commission of Canada, 1987), have
        debated the significance of the distinction drawn by Dickson J. between
        searches resulting in seizures, and searches where nothing is seized,
        in relation to the issue of determining whether someone is an "innocent
        person" whose privacy interests are of superordinate importance.  I
        also emphasize that, in this case, no one seriously disputes that Cst.
        Phillips qualifies as an "innocent person" within the meaning
        of s. 487.3(2)(a)(iv) of the Code, given the fact that he was never charged
        with an offence, and despite the fact that materials were seized from his
        office in the course of the search.  This view, with which I agree, was
      also shared by Judge Smyth and Mr. Justice Parrett.

[66]

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.

[67]

The
        critical analysis under s. 487.3 involves a balancing of interests in accordance
      with the provisions of that section which, as earlier stated, provides:

487.3 (1)   A judge
        or justice may, on application made at the time of issuing a warrant
      under this or any other Act of Parliament . . . or at any time thereafter,
      make
        an order prohibiting access to and the disclosure of any information
      relating to the warrant . . . on the ground that

(a)   the ends of justice would be subverted by the
        disclosure for one of the reasons referred to in subsection (2) or the
      information might be used for an improper purpose; and

(b)   the ground referred to in paragraph (a) outweighs
      in importance the access to the information.

(2)   For the purposes
        of paragraph (1)(a), an order may be made under subsection (1) on the
      ground that the ends of justice would be subverted by the disclosure

(a)   if disclosure of the information would

(i)     compromise the identity of a confidential
      informant,

(ii)    compromise the nature and extent
      of an ongoing investigation,

(iii)   endanger a person engaged in particular
        intelligence-gathering techniques and thereby prejudice future investigations
      in which similar techniques would be used, or

(iv)    prejudice the interests of an innocent
      person; and

(b)   for any other
      sufficient reason.

[68]

It
        is apparent from the language of this section that it was drafted to accord
        with Dickson J.'s judgment in
MacIntyre
.  In my view, it
        also reflects the
Charter
principles in issue here; namely,
        the principles of freedom of expression and freedom of the press encompassed
        under s. 2(b) of the
Charter
, and the public interest in
        protecting individual privacy encompassed under ss. 7 and 8 of the
Charter
.  The
        section does so by starting from the presumption of openness referred
        to in
MacIntyre
, taking into account the well-recognized
        concerns for the proper administration of justice including the protection
        of informants
        and the need to preserve the integrity of ongoing investigations, and
        considering the protection of the privacy interests of innocent persons.  The
        privacy interests are protected by taking into account any prejudice
        that may be
        occasioned to innocent persons in the event disclosure is granted, as
        well as whether the disclosure of the information could be used for an
        improper
      purpose.

[69]

The
        ultimate question to be resolved by the balancing of interests under
      s. 487.3 is whether any of the interests subsumed under s-s. 487.3(1)(a),
        which incorporates the grounds set forth in s-s. 487.3(2), "outweighs
      in importance the access to the information."

[70]

A
        recent decision which counsel for the Sun relies upon as shedding some
        light on the balancing process under s. 487.3 is
R. v. Eurocopter
        Canada Ltd.
, [2003] O.J. No. 4238 (Sup. Ct. J.).  There, the Crown
        was applying to vary a sealing order under s. 487.3 of the Code to permit
        public access to a warrant and supporting materials on the basis that the
        Crown could no longer justify the sealing order that was in place.  Mr.
        Justice Then framed the argument before him as "whether the Court
        should continue the sealing orders at the instance of Eurocopter Canada
        Limited ("Eurocopter") and Karlheinz Schreiber who submit that
        their entitlement to the protection of the innocent within the framework
        of s. 487.3 and at common law, in conjunction with their privacy rights
        and fair trial rights, outweighs the strong presumption of public access
      to the courts."

[71]

Mr.
        Justice Then concluded that, except for information relating to informants,
        the warrants and supporting materials should be made public.  In that
        case, charges had been laid, and the accused raised arguments concerning
        the
      validity of the warrants and their right to a fair trial.

[72]

In
        dealing with the "protection of innocence exception", Mr. Justice
        Then placed considerable reliance on
MacIntyre
and stated
        his view that s. 487.3 of the Code represents a "substantial codification" of
        the principles set forth in that decision.  At para. 47 of his reasons,
        Mr. Justice Then noted that privacy interests
per se
were not
        sufficient to displace the presumption of openness.  He then went on
        to refer to the quote from
MacIntyre
(referred to at para. 63,
supra
)
        in which Dickson J. referred to the importance of protection of the innocent
        from unnecessary harm, and his distinction between searches where something
        is seized and searches where nothing is seized.  Mr. Justice Then found
        it unnecessary to engage in the controversy involving the interpretation
      of that passage.  At para. 49 of his reasons, he stated:

At this point I propose to leave open the issue of whether the
        example of innocence adverted to by Dickson J. is exhaustive as I do not
        propose at this stage to decide, as Mr. Henry for the CBC would submit,
        that only the protection of this precise form of innocence will displace
        the presumption in favour of openness.  However, what is clear from
MacIntyre
is
      that the burden of proof is upon the person who would deny public access.

[73]

In
Eurocopter
,
        the accused sought to persuade the Court that their privacy and related
        reputation interests should be given superordinate status over the public's
        right to access to the search warrant materials on the basis that the warrants
        in issue had been illegally obtained. In considering that submission, Mr.
        Justice Then referred (at para. 53) to the
Mentuck
decision,
        which counsel before him had agreed should be applied.  At para. 53 of
Eurocopter
,
      Mr. Justice Then stated:

In the context of s. 487.3 of the Criminal Code
as
          informed by
Mentuck
, the burden was on the Crown to displace
          the general rule of openness by means of a sufficient evidentiary basis
          with respect inter alia to the exigencies of the investigation and
          the protection of the innocent in order to initially obtain a sealing
          order
          and a publication ban.  Similarly, the burden of proof and the provision
          of an evidentiary basis for the continuance of the sealing order and
          the publication ban must lie now with the party seeking the continuance
          when the Crown is no longer in a position to justify either the original
          sealing order or the publication ban.  The party seeking the sealing
          order must demonstrate based on evidence that absent a sealing order
          there is a serious risk to the administration of justice.  In this respect
          I do not doubt that the unjust stigmatization of reputation and invasion
          of privacy of an innocent person constitutes a serious risk to the administration
          of justice.  The issue is whether Eurocopter and Mr. Schreiber have
          discharged the evidentiary burden upon them to prove that there is
          a reasonable
        probability the information supporting the warrants was illegally obtained.

[Emphasis added.]

[74]

In
        the result, Mr. Justice Then found that the accused had not met the burden
        upon them to demonstrate, on the basis of reasonable probability, that
        the search was illegal, which was the foundation of their claim to "protection
      of the innocent".

[75]

Mr.
        Justice Then went on to reject the argument that the right of the accused
        to a fair trial was jeopardized by granting access to the search warrant
        materials.  In so doing, he referred to
Hill v. Church of Scientology
        of Toronto
, [1995] 2 S.C.R. 1130, in the context of the incorporation
        of
Charter
values into the balancing process.  The
Hill
decision
        is relied upon by Cst. Phillips in this case as highlighting the importance
      of the protection of his reputation.

[76]

Mr.
        Justice Then dealt with the relationship between
Hill
and
MacIntyre
at
      paras. 91-92 of his reasons:

In
MacIntyre
,
        Dickson J. recognized that the privacy rights of individuals must be
      respected and weighed in the balance with other compelling policy considerations,
        such as effective law enforcement, in determining whether the presumption
        in favour of openness of the courts should prevail.  Privacy rights also
        attract the protection of the Charter equal to other Charter values and,
        accordingly, must be respected and put in the balance with other Charter
        values in this case.  In
Hill v. Church of Scientology of Toronto
[citation
        omitted], Cory J. in dealing with a Charter challenge to the tort of defamation
      stated the following with respect to privacy rights at para. 121:

. . . reputation is intimately related to the right to privacy which
        has been accorded constitutional protection.  As La Forest J. wrote in
R.
        v. Dyment
(1988), 55 D.L.R. (4
th
) 503 at pp. 512-13, 45
        C.C.C. (3d) 244, [1988] 2 S.C.R. 417, privacy, including informational
        privacy, is "[g]rounded in man's physical and moral autonomy" and "is
        essential for the well-being of the individual".  The publication
        of defamatory comments constitutes an invasion of the individual's personal
        privacy and is an affront to that person's dignity.  The protection of
        a person's reputation is indeed worthy of protection in our democratic
        society and must be carefully balanced against the equally important
      right of freedom of expression.

(See also:
R. v.
        Mills
(1999), 139 C.C.C. (3d) 321 at pp. 364-369 (S.C.C.).)

In assessing the nature of the balance to be struck, it is pertinent
        to recall that Dickson J. in
MacIntyre
held that if the "protection
        of the innocent" is properly made out, the right to be free of the
        stigmatization and loss of reputation associated with the revelation of
        the Information to Obtain does prevail over the presumption of access and
        open courts.  However, in
MacIntyre
, Dickson J. also held that the
        loss of privacy per se, in the sense of embarrassment or loss of reputation
      is not, in itself sufficient to overcome the presumption in favour of openness.

[77]

In
        considering the weight to be given to the various factors under s. 487.3,
        as informed by
Mentuck
, Mr. Justice Then referred to the
        anomaly which would occur if the question of loss of reputation or privacy,
per
        se
, were given inordinate weight since that would mean the more serious
        the offence and the higher the standing of the individual at risk, the
        greater the likelihood that the proceedings would be kept secret from
        the public.  In the result, in the circumstances before him, he concluded
      that the balance must be struck in favour of public access.

[78]

Unlike
        this case and
Eurocopter,
the
Mentuck
decision
        (which is also relied upon by the Sun) did not involve the application
        of s. 487.3 of the Code, but, rather, a publication ban at trial to protect
        the identity of police officers and the investigatory methods they employed
        in their undercover operation.  The accused and two newspapers opposed
        the ban.  The trial judge granted a one-year ban on the identity of the
        undercover operators but refused to grant a ban with respect to the operational
        methods used by the police.  This decision was upheld on appeal to the
        Ontario Court of Appeal and on a subsequent appeal to the Supreme Court
      of Canada.

[79]

Mr.
        Justice Iacobucci, speaking for the court, noted that the decision raised "important
        questions about publicity rights in trials" which Parliament had not
        addressed in the Code and thus was to be determined by the common law.  There,
        Iacobucci J. posited the following principles (at para. 32) as governing
        the court's discretion in determining whether to issue a publication
      ban at common law:

A publication ban
      should only be ordered when:

(a)   such an order
        is necessary in order to prevent a serious risk to the proper administration
        of justice because reasonably alternative measures will not prevent the
      risk; and

(b)   the salutary effects of the publication ban outweigh the deleterious
        effects on the rights and interests of the parties and the public, including
        the effects on the right to free expression, the right of the accused
      to a fair and public trial, and the efficacy of the administration of justice.

[80]

These
        principles were considered in relation to the sealing of search warrants
        not only by Mr. Justice Then in
Eurocopter
,

but also
        by the Ontario Court of Appeal in
Toronto Star Newspapers Ltd. v.
        Ontario
, [2003] O.J. No. 4006 (C.A.).  In
Toronto Star
,
        the Crown applied for an order sealing search warrants, the Information,
        and related documents in relation to six searches which had been executed
        against a meat-packing business pursuant to an investigation under provincial
        legislation. (Thus, s. 487.3 of the Code did not apply.) The Crown alleged
        that the disclosure of the material in the warrants could identify a
        confidential informant and could interfere with the ongoing police investigation,
        both
        of which are relevant factors under s. 487.3 of the Code.  The order was
        granted.  Two newspapers sought and obtained an order for
certiorari
in
        the Supreme Court quashing the sealing order.  The quashing order was upheld
        on appeal.  Although the ratio of the Court of Appeal decision turned
        on the narrow ground of the Provincial Court judge's refusal to grant
        an adjournment
        so that the newspapers could be heard from, the Court went on to endorse
        the
Mentuck
analysis referred to above as relevant to the
      determination of whether a sealing order should be granted.

[81]

Counsel
        for Cst. Phillips sought to distinguish the various cases relied upon
      by the Sun on the basis that none of them dealt with the situation, as
      here,
        where the person who was the target of the investigation and named in
      the warrant had not been charged with a criminal offence.  In his view,
      that factor should be highly persuasive, if not determinative, in the balancing
      of interests under s. 487.3.

[82]

As
        earlier noted, however, it is not clear that anyone had been charged with
        an offence in
MacIntyre
.

Further,

under
        s. 487.3, prejudice to the innocent is but one of several factors the
        court must take into consideration in determining whether a sealing order
        should
        be granted or varied.  The extent of the prejudice an innocent person may
        suffer if access is granted may vary substantially depending on such things
        as the nature and extent of the investigation, the nature of the charges
        laid, if any, the nature and extent of the publicity surrounding the case,
        the extent to which the search warrant material may reveal personal, confidential
        or intimate matters only peripherally related to the investigation or charge,
        and various other factors.  Section 487.3 does not, on its face, separate
        out those who have been charged with a criminal offence from those who
        have not been charged.  Nor does the fact that someone has not been charged
        give rise to any logical or necessary inference that they should be protected
        from disclosure by virtue of that fact alone.  Rather, as Mr. Justice
        Osler said in
Canadian Newspapers Co. v. Canada (A.G.)
,

(1986),
        29 C.C.C. (3d) 109 at 121 (Ont. H.C.J.), (in considering the constitutionality
        of s. 487.2 of the Code): ". . . the very fact that no charge is laid
        may in some circumstances properly merit criticism and, in my view, the
        failure to lay a charge, or even to lay a particular charge 'in relation
        to which the warrant was issued' should not justify the prohibition of
      publication."

[83]

As
        earlier noted, Mr. Justice Dickson made a similar observation in
MacIntyre
when
      he said, at p. 186:

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.

[Emphasis added.]

[84]

With
        these authorities in mind, I return to the merits of Cst. Phillips' position
      that the sealing order should be continued.

[85]

In
        this case, the basis for making the sealing order in the first instance
        was to protect the confidentiality of informants (s. 487.3(2)(a)(i)),
      and to preserve the ongoing investigation into the allegations of breach
      of
        public office against Cst. Phillips (s. 487.3(2)(a)(ii)).  Given the editing
        of the warrant materials which counsel agreed was appropriate in this case,
        these considerations no longer apply.  Neither the Crown nor the VPD
        opposes the Sun's position that the sealing order should be varied to
        the extent
        of providing access to edited versions of the warrant, Information and
      related materials.

[86]

Cst.
        Phillips takes the position, nonetheless, that the ends of justice would
        be subverted by granting access to the materials, and, in particular, to
      the Information.

[87]

Because
        the balancing of interests under s. 487.3 must depend on the individual
        circumstances of each case, I have reviewed the edited materials to which
        access is sought.  I have also reviewed the other materials in the Appeal
        Books which form part of the record on this appeal.  The newspaper articles
        in the materials before us raise questions as to whether the prosecuting
        authorities and the VPD ought to have proceeded differently as a result
        of this investigation, including the decisions not to lay criminal charges
        against Cst. Phillips and not to proceed with internal disciplinary measures.  The
      articles also cast a shadow over Cst. Phillips.

[88]

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.

[89]

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.

[90]

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.

[91]

On
        the other hand, it is a very serious matter for someone in the position
        of Cst. Phillips to be accused of breach of public trust and to be subjected
        to ongoing public scrutiny once it has been determined that there is
      no basis for proceeding with charges.  In that respect, I agree with Mr. Justice
        Parrett that the fact of no charge being laid is a significant factor in
        the balancing process.  Further, the fact that there has already been
        publicity about this case does not mean that further publicity which
        may flow from
      disclosure is of little consequence to Cst. Phillips.

[92]

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.  To use the language of that section,
        Cst. Phillips has not established that an order permitting the Sun to
        have access
        to the edited warrant, Information and related materials would subvert
        the ends of justice having regard to the factors set forth in s. 487.3(2)(a),
        or that the information might be used for an improper purpose. In my
        view, the result would be the same if the not dissimilar criteria for
        common
        law publication bans set forth in
Mentuck
(quoted at para.
      79 of these reasons) were applied.

CONCLUSION

[93]

I
        would allow both appeals.  In the first appeal, I would set aside the order
        of Mr. Justice Parrett.  I would reinstate and amend the order of Judge
        Smyth to provide that the sealing order made by J.P. Yee on September
        29, 2000 be varied to provide disclosure to the Sun of an edited copy
        of the
      warrant, Information and related materials.

[94]

In
        the second appeal, I would set aside the order of Associate Chief Justice
      Dohm and quash the order of J.P. Yee made October 28, 2002.



The Honourable
Madam Justice Prowse

I Agree:

The Honourable
Madam Justice Rowles

I Agree:

The Honourable
Madam Justice Saunders





Correction: January 13, 2004

Changes
      were made at p. 30, para. 70.

The
      words:
of the Supreme Court of Canada
have been removed.


