Here’s how we obtained the documents.
First, a quick primer on search warrants.
To get a search warrant, police have to go to a judge or Justice of the Peace and submit a document called an “Information To Obtain a Search Warrant,” or ITO. The ITO lays out the police investigation, what police know, and why police think they need whatever they’re asking for in the warrant.
The judge or JP then signs off (or, rarely, doesn’t) on the warrant, and it’s served on the person/place named. If the warrant is successful — that is, if police seize property or DNA — they are then required to submit a document (called a “return”) to the judge or JP.
All three documents — the ITO, the search warrant itself, and the return — are court documents.
Canadian courts operate under the “open court principle”; that is, all proceedings and court documents are, by default, open to the public. Anyone can go to the courthouse and sit in on a trial, and anyone can look at a court file.
There are, however, some limits to the open court principle. A judge can place a publication ban on particular aspects of a case, so a reporter can’t write about those aspects and someone sitting in on a trial can’t post about those details on their Facebook page. A judge can also redact court documents; for instance, the full name of a rape victim is often reduced to their initials.
A judge can also seal search warrant documents — but in theory only in “extraordinary” circumstances. In practice, however, police often ask a judge to seal the documents related to the warrant, saying that making the details public would compromise an ongoing investigation, and so far as we’re aware, judges never or rarely deny such requests.
The security failure search warrant
In the case of the security failure search warrant (and, it turns out, the production order to Eastlink), the Halifax Regional Police asked Justice of the Peace Judith A. Gass to seal the warrant documents, saying that making the documents public would compromise their investigation.
The Halifax Examiner and Cape Breton Spectator felt the police rationalization for sealing the search warrant documents made no sense. The target of the search — the 19-year-old man who was arrested — certainly knew he had been searched and his computers seized. The details and scope of the investigation had been made public via press releases from both the province and police, and government ministers held press conferences and otherwise spoke to reporters about the ongoing investigation.
We thought sealing the search warrant probably had only one purpose: to shield government employees from public scrutiny. This is not a legitimate reason for sealing a search warrant— it flies in the face of the open court principle.
And so we retained the services of lawyer David Coles to pry open the search warrant documents.
Coles is the go-to media lawyer in Atlantic Canada. He represents media outlets in court. He provides pre-publication advice to the Halifax Examiner and otherwise represents the Examiner in legal matters.
Coles is an expert on search warrant law. For instance, he represented the CBC and the Telegraph Journal in their successful bid to unseal the search warrant in the Dennis Oland murder case.
Coles used his submissions in the Oland case to argue for the release of the warrant documents in the security failure case.
The police department’s lawyer, Marty Ward, responded with an offer: the City would not oppose an application for unsealing the warrant documents if we agreed to an order that the names in the documents be redacted.
Not knowing what the documents contained, Ward’s offer put us in a difficult situation.
The Examiner and Spectator had no interest in publishing the name of the 19-year-old who was arrested. He was, in our opinion, a hapless victim in this story, and publishing his name could only cause him difficulties. So we didn’t object to redacting his name.
Agreeing to the redaction of the other names, however, was a more difficult proposition.
For one thing, we didn’t know who else might have been named, so we couldn’t be sure how to proceed. But we guessed that the documents would name provincial employees who spoke with police, and we suspected that some of that conversation was an attempt to shift blame for the security failure off of themselves. This struck us as an important part of the story.
Another consideration was that the security failure has become international news, and government employees have been castigated by people around the world. It’s conceivable that naming those employees could cause them harm — probably just of a trolling nature, but depending on the details we didn’t yet know, potentially more serious. Whatever the government employees’ sins, we wished no vigilante justice on them.
Lastly was the reporting consideration. We felt we could refuse to agree to the redaction of names in the documents and still be successful in our application to unseal them, but had we not agreed to the redaction, the City would oppose us in court. That would mean two things: time and money.
A court battle to unseal the documents might take months. This is an important story in the news today. Would obtaining the names of the government employees move the story along far enough to justify a months-long delay in reporting? Probably not, we thought.
As for money, the Examiner and Spectator are small media operations working on shoestring budgets. Hiring Coles in the first place was a considerable hit to our budgets; continuing to use his services through a protracted court battle would be extremely onerous financially, to put it mildly.
Reluctantly, we agreed to the redactions.
And so Coles drafted the court documents and at 9:30am Tuesday morning, Coles and Examiner publisher Tim Bousquet showed up in Courtroom #1 of the provincial courthouse on Spring Garden Road in Halifax. Marty Ward represented the city.
We asked Justice Gregory Lenehan to approve our application to unseal the search warrant documents, and he agreed. Lenehan signed an order to that effect, and an hour later, after Ward had redacted them, we received the documents.
Strangely, we didn’t get the exact documents we were looking for — we were given the documents related to a production order to Eastlink to give up information about an IP address, and not the documents directly related to the search of the teenager’s house.
But the documents we did receive were helpful all the same.
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