The Ottawa Citizen and Juliet O’Neill Win Right to Disclosure and Production of Documents

The Ottawa Citizen and journalist Juliet O’Neill won the right to disclosure and production of government documents related to the RCMP search at the home and office of Ms. O’Neill in the first Canadian judicial decision to award pre-charge disclosure in a criminal case. The Attorney General of Canada will not appeal Justice Lynn Ratushny’s decision, dated May 26, 2005.

Ms. O’Neill’s home and office were raided on January 21, 2004 in connection with a November 8, 2003 news article concerning Maher Arar. The Ottawa Citizen and Ms. O’Neill are challenging the search warrants on the basis that the search violated their free press rights, and on the basis that the offence in support of which the warrants were issued (section 4 of the Security of Information Act) is unconstitutional. The Ottawa Citizen and Ms. O’Neill requested an order requiring the Attorney General of Canada to disclose and produce records related to the purposes, basis or motives for obtaining the search warrants, in order to assist them to vindicate their constitutional rights.

The Attorney General of Canada argued that no right to pre-charge disclosure exists in Canada and also disputed the relevance of the requested records. Justice Ratushny held that the absence of a charge does not automatically bar any right of disclosure or production in connection with an alleged unreasonable search and seizure. Justice Ratushny observed: “[the applicants] are constitutionally protected against unreasonable search and seizure. They have a constitutional right to freedom of the press and to protection against abuse of process. They don’t have a “case to meet” as charged persons. They do have a “case to make” regarding their constitutional rights that were engaged in the searches. They are entitled to make their case”.

Justice Ratushny held that relevance is measured by considering whether there is in existence “further material to allow” a court “to conclude there is a reasonable possibility that [the material sought] is potentially relevant or logically probative”. Although a majority of the applicants’ disclosure and production requests were denied on this application, Justice Ratushny ordered disclosure and production of discussions related to an internal RCMP e-mail message referring to Ms. O’Neill’s article and indicating that a “course of action” was needed on what was reported in the article, and that the writer was very concerned about the “issue”. She also ordered disclosure and production of all information relating to an answer given by Sgt. Quirion (the RCMP officer who swore the information to obtain the search warrants) during cross-examination that the “focus of this investigation was to ascertain the person or person responsible for releasing information from a secret document”.

The Ottawa Citizen and Juliet O’Neill were represented by Richard Dearden and Wendy Wagner of Gowling Lafleur Henderson LLP, and David Paciocco, of counsel at Edelson & Associates. The Attorney General of Canada was represented by Eugene Williams, Q.C., and Marion Bryant.