November 13, 2004

Court ruling upholds freedom of press

It's unconstitutional to keep secret the reasons for RCMP raid on Citizen, judge declares

By IAN MACLEOD

Court orders sealing the detailed reasons for national security raids against the Citizen and reporter Juliet O'Neill violated the constitutional guarantees of a free press, freedom of expression and the public's right to an open court system, a high court has ruled.

Yesterday's precedent-setting decision by Ontario Superior Court Judge Lynn Ratushny found that an Ottawa justice of the peace erred when he agreed to an RCMP request to keep secret the reasons for the Jan. 21 raids on Ms. O'Neill's home and a Citizen office. The search warrants were executed under the Security of Information Act.

Judge Ratushny quashed the sealing orders and ordered that some of the secret information be disclosed to lawyers for the Citizen and Ms. O'Neill, who are trying to have the search warrants declared invalid and have items seized from Ms. O'Neill returned.

"The sealing orders limited the applicants' Charter rights including the fundamental right of freedom of expression and freedom of the press," the judge wrote in a 24-page decision. "They limited the public's right of access to our court system. They limited these fundamental rights in both an unauthorized and unjustifiable way."

Citizen lawyer Richard Dearden said the decision "strongly affirms that freedom of the press and open courts actually matter in this country."

"Sealing orders are not to be granted simply because police ask for them, even if national security allegations are made," Mr. Dearden said. "And there's no presumption in favour of secrecy when national security allegations are made by police seeking search warrants."

The police raids were part of an RCMP criminal investigation in search of the identity of a source who allegedly leaked classified documents to Ms. O'Neill from Canada's security dossier on Maher Arar, the Syrian-born Canadian deported by the U.S. into a year of detention and alleged torture in Damascus.

On Nov. 8, 2003, the Citizen published a front-page story by Ms. O'Neill about the RCMP investigation of Mr. Arar, who came to their attention during an investigation into an alleged al-Qaeda terrorist logistical support group in Ottawa.

Two months later, the Mounties raided the newspaper's Laurier Avenue office and Ms. O'Neill's Lowertown home, seizing notebooks, files and other materials. The newspaper and Ms. O'Neill launched a court action to have the search warrants declared invalid. The first step was to have the orders sealing the grounds for the warrants quashed.

Federal officials have countered that the search warrants were legally valid, but that the full reasons for the raids should remain secret to protect the integrity of an RCMP investigation and national security.

Yesterday's court decision ordering them to release some of that detailed information now gives the newspaper and its reporter new information on which to continue their broader challenge over the legal validity of the search warrants.

"Information is not secret just because someone has called it secret," said Wendy Wagner, another member of the newspaper's legal team. The ruling is "a strong statement that you can't just call something secret or allude to it as being secret and then that's going to be accepted by the judge."

But in a move that should offer some solace to police and justice officials, Judge Ratushny stopped short of ordering authorities to disclose all the information contained in a heavily edited document police used to secure the search warrants. Instead, she ruled information in the document related to the classified documents allegedly leaked to Ms. O'Neill can continue to be withheld because much of it is protected under the Security of Information Act. As well, some information in the edited document identifies an innocent third-party and should also be protected, she said.

On another key point, Judge Ratushny ruled justice of the peace Richard Sculthorpe and the RCMP failed to satisfy a Supreme Court of Canada ruling, known as the Mentuck test. It lays out three "necessities" police and judicial authorities must consider when seeking court bans on the release of information: That the interests sought to be secured by the sealing order must be of superordinate importance; that the interests sought to be secured cannot be defined in an "overbroad" way; and that the orders that are made must be "minimally impairing" of the constitutional rights they impede.

Judge Ratushny called the failure to apply the Mentuck requirements "significant."

"Fundamental to Canada's rule of law and to the operation of our democracy is the principle that all of our judicial proceedings should be open to public scrutiny and public criticism. Every time the public is excluded from some part of Canada's court process, there exists the potential that the operation of Canada's rule of law and its democracy is being secretly undermined.

"National security claims are to be considered seriously. They are naturally intimidating. However, there is no presumption in favour of secrecy, even in the face of national security confidentiality issues arising during judicial proceedings."

Mr. Dearden said the message to police is that "they just can't holus-bolus scare a justice of the peace, or intimidate a justice that national security is at play and you've got to seal every word, every page of the information that they've put before the justice of the peace.

"Now we have a decision that's telling the Crown, 'you can't get sealing orders like this.' Maybe there's going to be a time in the future when this happens again (but) they're not going to be allowed to get away with that and the records aren't going to be sealed."

Crown attorneys handling the case for federal justice officials could not be reached for comment. They have 12 days to appeal the ruling and, until then, the information the judge ordered disclosed will remain secret.

But based on the ruling, Ms. Wagner said that information includes "investigative techniques" used by police in their pursuit of Ms. O'Neill and the location of an RCMP building police want to keep secret, even though it has an exterior sign indicating that it is an RCMP building. It also includes information police said pertains to secret classified information. The judge, however, ruled that information has already been made public at the Arar inquiry and that there is no evidence that its release will pose a serious risk to the administration of justice.

"I'm very pleased to get this ruling," said Drew Gragg, the Citizen's executive editor. "It shows that Canadians' rights to open courts and a free press have to be considered very carefully whenever someone seeks to limit them. These rights aren't always convenient for police, but they are essential pillars of our democratic society and have to be treated as such."

© The Ottawa Citizen 2004