For the second time in less than five years, B.C. Supreme Court Associate Chief Justice Patrick Dohm is at the centre of a political controversy involving the RCMP, sealed search warrants, and allegations of organized crime.

In both instances, Dohm issued the search warrants, ordered them sealed, and then sat in judgment on media applications to release some of the information.

As the Georgia Straight went to press, the media were in B.C. Supreme Court applying for release of the RCMP's information used to obtain the search warrant executed at the provincial legislature on December 28.

In 1999, Dohm waited almost six months before ordering the release of a summary of the RCMP's justification for the search of then-premier Glen Clark's home. Clark was eventually acquitted on criminal charges.

Dohm may no longer have the legal latitude to dither for so long. Since his ruling on the Clark warrant, four major court decisions have favoured more openness in the handling of search warrants and publication bans.

The B.C. Court of Appeal issued one of those rulings on January 13. It thoroughly repudiated earlier decisions by Dohm and B.C. Supreme Court Justice Glen Parrett upholding a permanent seal on search-warrant information in an investigation of former Vancouver police Const. Murray Phillips.

B.C. Court of Appeal Justice Jo-Anne Prowse's unanimous ruling noted that the search occurred at Phillips's office. Her decision stated that most of the items could be described as "work product", which would not normally attract a "high expectation of privacy".

The Ontario courts also recently issued decisions upholding public access to search-warrant information. Last October, Ontario Court of Appeal Justice J. A. Doherty ordered the release of most of the information justifying search warrants executed at a meat-packing company that August.

This occurred despite a police claim that the sealing order was necessary to preserve the integrity of an ongoing criminal investigation.

"I can accept that the police might have an advantage in questioning some individuals if those individuals were unaware of the details of the police investigation," Doherty wrote. "Fundamental freedoms, like the freedom of expression and freedom of the press, cannot, however, be sacrificed to give the police a 'leg up' on an investigation."

Later in October 2003, Ontario Superior Court Justice Edward Then dismissed arguments by businessman Karlheinz Schreiber and Eurocopter Canada Ltd. to maintain a sealing order on warrants involving corruption allegations. Schreiber and Eurocopter Canada unsuccessfully argued that their right to privacy and a fair trial should trump the public's right of access to the courts.

To obtain a search warrant, police must provide a judge with "reasonable grounds" to believe items relevant to a criminal investigation are at a particular location. This "information to obtain" the search warrant is often presented in a sworn statement, which is normally a public document.

Under Section 487.3(1) of the Criminal Code, a judge may prevent the release of search-warrant information if disclosure would compromise the identity of a confidential informant.

The two Ontario decisions retained the seal on search-warrant information relating to confidential informants.

A judge may also seal a warrant if disclosure would prejudice an innocent person's interests or compromise an investigation. Dohm cited these reasons in his order sealing the warrant executed at the legislature.

In 2001's R. v. Mentuck, Supreme Court of Canada Justice Frank Iacobucci ruled that access to court documents cannot be denied "solely because maintaining the secrecy of those proceedings would give the police an advantage in the conduct of their investigation".

In addition, Iacobucci wrote, the "salutary effects" of a publication ban must outweigh the "deleterious effects" on the media's constitutional right to freedom of expression and the accused person's right to a fair and public trial.

The RCMP in B.C., perhaps recognizing how the law has evolved, have already agreed to release an edited version of search-warrant information in connection with a drug investigation that eventually led to the raid on the legislature.