Re Regina and CITY TV
[Indexed as: R. v. CITY TV]
49 O.R. (3d) 756
 O.J. No. 2808
Court File No. M509/00
Ontario Superior Court of Justice
Archie Campbell J.
July 28, 2000
Search and seizure — Sealing — Police officer seizing videotape depicting possible criminal offences from media organization pursuant to search warrant — Warrant containing provisions stating that request could be made for sealing of things which were subject to seizure — Editor handing over videotape without reading those provisions and without requesting that tape be sealed — Police viewing videotape and took further investigative steps on basis of contents of tape — Subsequent motion by media organization for interim order sealing videotape dismissed — Public interest in thorough investigation of alleged criminal offences and practical impossibility of turning back clock once tape had been viewed and acted on outweighing interests of media in these circumstances — Irreparable harm not established — Application dismissed.
A police officer attended the premises of the applicant television company with a search warrant and seized a videotape for use in a criminal investigation. The search warrant contained a provision entitled “Conditions for Media” which provided for the sealing and placing with the Sheriff of the things subject to seizure at the request of anyone at the place to be searched. The editor who handed over the videotape did not read the media condition portion of the warrant when invited to do so by the police officer and turned over the tape unsealed. The police viewed the tape, took further investigative steps and made arrests. The applicant subsequently moved for an interim order that the court seal the videotape.
Held, the motion should be dismissed.
The purpose of sealing is to preserve the unique privacy interest in the thing seized and to preserve it from the intrusive view of the state until the matter can be dealt with in court. That purpose was now impossible to attain because the unique privacy interest no longer existed now that the police had viewed the tape and used it in their investigation. The search warrant conditions demonstrated full sensitivity to the special consideration due to the media, gave the applicant full notice of its rights and carefully constructed a series of procedures to minimize undue interference with the media. The public interest in the proper and thorough investigation of alleged criminal offences, combined with the practical impossibility of turning back the clock as if the tapes had not been viewed and used for investigative purposes, outweighed the interest of the applicant, which failed to exercise its right to have the videotape sealed before turning it over to the police.
Cases referred to
143471 Canada Inc. v. Quebec (Attorney General),  2 S.C.R. 339, 61 Q.A.C. 81, 167 N.R. 321, 21 C.R.R. (2d) 245, 90 C.C.C. (3d) 1, 31 C.R. (4th) 120 (sub nom. Qubec (Sous- Ministre du Revenue) v. 143471 Canada Inc.); Canadian Broadcasting Corp. v. Lessard,  3 S.C.R. 421, 130 N.R. 321, 7 C.R.R. (2d) 244, 67 C.C.C. (3d) 517, 9 C.R. (4th) 133; Dagenais v. Canadian Broadcasting Corp.,  3 S.C.R. 835, 20 O.R. (3d) 816n, 120 D.L.R. (4th) 12, 175 N.R. 1, 25 C.R.R. (2d) 1, 94 C.C.C. (3d) 289, 34 C.R. (4th) 269
APPLICATION for an order sealing a videotape.
Marlys Edwardh, for applicant.
Michal Fairburn, for Attorney General.
 ARCHIE CAMPBELL J. (orally): — CITY TV, a commercial television company, moves for an interim order that the court now seal a composite videotape of the incident described as the June 15 Queen’s Park Riot.
 After preliminary discussions between the police and the company, a police officer phoned the chief assignment editor on July 11th and said he would be coming with a search warrant later that day. The officer attended with the search warrant for the tape and executed it later that day. The search warrant contained a provision entitled “Conditions for Media” which read in part as follows:
In the event that anyone at the respective place to be searched, following upon voluntary production and seizure by the police, requests that the things subject to seizure be sealed, the police officer(s) executing this search shall:
a. Without making copies of the said material, suitably seal the things seized in a package and identify the package;
b. Record on the package the identity of the person requesting sealing of the things and any reason advanced for the said sealing;
c. Place the package in the Office of the Sheriff at the Superior Court of Justice, 361 University Avenue, Toronto, Ontario
 It should be noted that the conditions in subparas. a, b, and c are set out in the warrant in bold in a larger type-face than the rest of the document. They stand out prominently and immediately to anyone reading the document.
 Before executing the warrant the officer gave the assignment editor a copy of the warrant, turned to the media conditions page, and asked the editor if he was providing the tape sealed or unsealed. The editor who acted at all times in good faith, very frankly and candidly agrees that the officer invited him to read the media condition portion of the warrant but the editor declined to do so and simply turned over the tape unsealed without seeking advice and without appreciating the import of the conditions, which he had declined to read although invited to do so.
 Since then various police investigators have viewed the 35-or 40-minute composite tape, have made copies of it, have made notes about it, have taken further investigative steps and have made arrests.
 CITY TV moves further for an order that the copies of the tape and notes about the tape made by the police during the course of their investigations since July 11 should somehow be sealed or impounded or in some manner quarantined pending the hearing in late September of motions by CITY TV and other television and newspaper companies to quash the warrants in question.
 A number of similar warrants were executed at other media companies. Some of them chose to seal their tapes and some of them chose to hand them over unsealed in the same manner as CITY TV. This court earlier this week ordered the continued sealing, pending the final determination of the pending motions to quash the search warrants and return the materials, in respect of those media companies who chose to seal their tapes as indicated in the media conditions in the search warrant.
 Some days after the execution of the CITY TV warrant, the company on July 14 got in touch with the police and asked that the unsealed material be sealed. The police, having taken investigative steps on the basis of their viewing of the tape, said it was too late and declined to so do.
 The editor in one affidavit swore that in-house legal counsel were consulted about the content of the warrant and media conditions on July 12 and in a second affidavit swore they were consulted on the 14th. Although the police as noted were asked on the 14th to seal the material, in-house counsel took no legal steps. It was only on the afternoon of July 20 that Ms. Edwardh was retained and she immediately brought this motion in court the next morning. There is no explanation for the six- or eight-day delay of the media company and its legal advisers in taking steps to bring this motion.
 The merits of the motion to quash the warrants are not before the court on this motion today. The only thing in issue today is whether or not the court should make some retroactive sealing order with the purpose of putting CITY TV and the videotape back in the same position they would have been in had CITY TV decided, as did other media companies, to exercise their right to seal the tapes before handing them over to the police.
 There is no evidence of any impropriety in the execution of the warrant which clearly set out the right to seal the tapes before handing them over to the police. The officer, as noted, invited the editor to read the media conditions. The editor, as noted, acted in good faith.
 The difficulty with CITY TV’s position is that, in consequence of its failure to take advantage of the media conditions in the warrant, the seized material has been used during the course of investigations, copies and notes have been made, police investigators have used the footage during their investigations and arrests have been made. Even if the constitutional disclosure rights of those charged are not yet fully crystallized, the Stinchcombe clock has started to tick. It is now, in practical terms, too late to put the genie back into the bottle.
 Even if one assumes there is a serious issue to be tried, the test of irreparable harm is somewhat difficult to establish at this late date now that the cat is already out of the bag and any harm, if indeed there is harm, has largely been done already.
 The purpose of sealing is to preserve the unique privacy interest in the thing seized and to preserve it from the intrusive view of the state until the matter can be dealt with in court. That purpose is now impossible to attain because the unique privacy interest no longer exists now that the police have viewed the film and have used it in their investigations. Even if there is further investigative work to be done in relation to the footage, this is not a case like 143471 Canada v. Quebec (Attorney General),  2 S.C.R. 339 at p. 353, 21 C.R.R. (2d) 245 at p. 268 where the examination of the documents seized was far from being completed.
 There is a public interest in protecting the privacy interests engaged in this case. As Cory J. said in Canadain Broadcasting Corp. v. Lessard,  3 S.C.R. 421 at p. 444, 67 C.C.C. (3d) 517 at p. 533:
. . . among commercial premises, the media are entitled to particularly careful consideration, both as to the issuance of a search warrant and as to the conditions that may be attached to a warrant to ensure that any disruption of the gathering and dissemination of news is limited as much as possible. The media are entitled to this special consideration because of the importance of their role in a democratic society.
 This interest is reflected in the careful conditions set out in the warrant. Indeed these conditions were originally drafted in response to the Supreme Court of Canada’s judgment in Lessard in order to protect the media interests identified in that judgment. The search warrant conditions demonstrated full sensitivity to the special consideration due to the media, gave the television company full notice of its rights, and carefully constructed a series of procedures to minimize undue interference with the media along the general lines of the guidelines set out by the Supreme Court of Canada in Dagenais v. Canadian Broadcasting Corp.,  3 S.C.R. 835 at pp. 890-91, 94 C.C.C. (3d) 289 at pp. 326-27. These privacy interests, secured by the search warrant media conditions and the machinery for sealing, must be balanced and weighed against other public interests.
 There is a public interest in the proper and thorough investigation of alleged criminal offences, an interest which includes the use of properly seized videotapes not only to charge individuals reasonably suspected of crime, but also to use the videotapes to screen out innocent people and to have the videotapes available through defence disclosure to assist the defence of those charged with offences.
 This public interest, combined with the practical impossibility of turning back the clock as if the tapes had not been viewed and used for investigative purposes, outweighs the interest of the media company which, unlike other media companies, failed to exercise its right to have the videotapes sealed before turning them over to the police.
 The motion is therefore dismissed.