Search warrant sealing rules need reform

The Richard Oland homicide investigation illustrates the need for new rules about the sealing of search warrants in New Brunswick, says a lawyer.

David Coles, who represented the CBC and the Telegraph-Journal in anunsuccessful bid to have search warrant information in the case released, says the courts should provide notice to interested parties when an application to seal a search warrant is filed.

He says the case law is clear and other provinces, such as Alberta, have already adopted such rules.

"If the Crown wants to seal, people have a right, according to law, to stand up and oppose," Coles argued in provincial court Friday.

But without notice, they likely don't even know the applications exist, he said.

"It's definitely a remedy that's soughtand maybe even with regularity," said Chief provincial court Judge R. Leslie Jackson.

"I'm not saying there's anything wrong with that," he added.

'It's "almost a matter of routine [the RCMP] are getting them sealed.' Gary Miller, lawyer

Criminal defence lawyer Gary Miller said he deals with a number of drug cases involving search warrants in the province.

It's "almost a matter of routine [the RCMP] are getting them sealed," he said.

"It's almost a rubber stamp application. If they want them, they'll get them."

Miller, who previously told the CBC he had been retained by Oland's son, Dennis Oland, was also seeking access to the search warrant information in the case.

He told the court he was there representing "an interested party."

Richard Oland was found dead in his Saint John office on July 7. Police confirmed the 69-year-old businessman's death was a homicide and said he likely knew his killer, but they have refused to give many more details about the investigation.

CBC and the Telegraph-Journal were seeking to have information about five search warrants and a production order in the case released. All of the documents in question were previously sealed by a provincial court judge.

On Friday, Judge Jackson ordered the documents would remain sealed for another six months.

He said he was satisfied by the Crown's argument that releasing the information would jeopardize the case. He said they contain information that only the person or persons responsible for Oland's death would know.

New rules of court pending

The media lawyer, David Coles, suggested such hearings could be avoided if rules were in place to deal with notifications of sealing orders.

Other courts have ruled failure by provincial court to require notice "is a failure of natural justice and error of law," he said.

In Alberta, if anyone applies to have a search warrant sealed, electronic notification is sent to a standing list of people who have registered to be notified.

Similarly, Alberta, Nova Scotia, P.E.I., British Columbia, Saskatchewan, Manitoba, Ontario and the Northwest Territories have all adopted a general requirement for notice to the media regarding publication bans.

New Brunswick does notprovides notice of sealing orders or publication bans.

Coles urged the judge to offer supplemental reasons in his decision to address the issue.

"All of this could be clarified if dealt with at first instance," he said.

Crown prosecutor John Henheffer argued such matters are best left to the discretion of the judges dealing with them.

But he suggested the issue could be addressed by new rules of provincial court that are currently being developed.

The judge agreed the matter "may be one that should be" addressed by the rules, which he expects will be revised an improved upon.