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Section 2: Public access to criminal court files and documents

2.1 General principle of public accessibility

In general, once process is issued (meaning an Information is sworn and an arrest is made or a summons is served), criminal court files and documents are publicly accessible, unless legislation, a common law rule or a court order restricts access.

2.2 Criminal court files and documents with restricted access

Exceptions to this general principle of public accessibility are outlined below:

2.2.1 Documents in Youth Criminal Justice Act proceedings

General Rule

Court files and documents of Youth Criminal Justice Act (YCJA) proceedings or other proceedings that make reference to YCJA information (for example, Parental Responsibility Act Small Claims Court actions (see section “3.2.1 Documents regarding Parental Responsibility Act matters”), child protection cases (see section “4.2.1 Child protection cases”), or Mental Health Act (MHA) proceedings (see section “2.2.11 Mental health assessments”)) are not accessible to the public, unless the young person receives an adult sentence and:

  • the appeal period has elapsed; or
  • an appeal has been heard and the court of appeal has upheld the adult sentence.

YCJA records are accessible to persons listed in s.119 of the YCJA, or if a court order is obtained pursuant to s.119(1)(s) of the YCJA.

Exception for information about courtroom location and future court dates

Daily court lists providing the courtroom location for YCJA matters are available to the public. These lists include the initials of a young person and the charges they are facing.

Court staff will not release the young person’s name in a YCJA matter.

Future court dates in YCJA matters are available to the public if sufficient information is provided to allow court staff to access the information in a reasonable amount of time. The following are examples of information that may be necessary to allow court staff to locate the information:

  • court file number;
  • last court date;
  • charges against the young person; and
  • date of birth.

If an exclusion or sealing order has been made in the YCJA matter, disclosure of next court date information is not permitted.

2.2.2 Pre-Enquête documents and recordings

Intake is presided over by a justice of the peace and is a forum for the police and individuals to bring Informations before a justice of the peace in order to lay criminal charges.

The justice of the peace may conduct a pre-Enquête hearing to determine whether legal process should issue (meaning, whether an Information is sworn and then whether to issue process by way of a summons or warrant). Pre-Enquête hearings are not open to the public.

If process is issued

For both private and Crown prosecutions, if process is issued, the documents of the pre- Enquête hearing become publicly accessible once the defendant has been arrested or the summons has been served, unless there are legislative restrictions to access (for example, the YCJA) or a court order restricts access.

If process is not issued

If process is not issued, the documents and tapes of the pre-Enquête hearing are not publicly accessible.

2.2.3 Documents relating to a peace bond application

An individual or peace officer may make an application to the court for a peace bond to request that a person be ordered to keep the peace. To begin the application, the complainant presents an Information at an initial interview with a justice of the peace.

If the justice of the peace issues process, any documents relating to the application are accessible to the public once the defendant has been served with the summons (or in rare circumstances, has been arrested), unless otherwise ordered by the court. If the justice of the peace refuses to issue process, there is no public access to the documents.

2.2.4 Search warrants (s. 487 of the Criminal Code)

A search warrant is a tool that permits investigators to search specified locations (such as a residence, office or vehicle) and seize particular items. Warrants are not necessarily tied to a specific individual.

Specialized search warrants also exist for:

  • the seizure of bodily substances for DNA analysis;
  • controlled drugs and substances;
  • counterfeit money;
  • hate propaganda;
  • lumber or lumbering equipment;
  • obscene material;
  • precious metals; and
  • proceeds of crime.

General warrants permit peace officers to use devices or investigative techniques described in the warrant if a search and/or seizure without it would violate section 8 of the Charter of Rights and Freedoms (the right to be secure against unreasonable search or seizure).

DNA warrants are publicly accessible if the warrant has not been sealed by court order.

Search warrants and general warrants, including those under the Controlled Drugs and Substances Actare publicly accessible, if:

  • the warrant has not been sealed by court order;
  • the warrant has been executed and a seizure has been made; and
  • a Report to a Justice (Form 5.2 ) has been filed with the court office by the relevant police or investigating service or an Order of Disposition has been made by the presiding judicial official
    • Depending on the police or investigating service, it may take some time for the Report to Justice to be filed with the court, if a seizure has been made.

Court staff do not have the authority to provide any information about the search warrant or related documents (including confirming the existence of an application for a search warrant) if:

  • the warrant has not been executed;
  • the warrant was executed but nothing was seized; or
  • things were seized, but a Report to Justice has not been filed by the police or investigating service or an Order for Disposition has not been made.

This is consistent with rulings of the Supreme Court of Canada and ensures that ongoing investigations are not compromised and that privacy rights are respected.

If the individual seeking access believes that a search warrant has been executed, but there is no information publicly accessible at the court counter, they may wish to obtain further details from the police or investigating service.

Requesting access to search warrants

Individuals seeking access to search warrants must provide enough information for court staff to identify the records sought. This most commonly includes the location (for example, an address) searched and/or the date the warrant was executed and may also include, when known, the:

  • name of the person (often a police officer) or agency who sought the warrant;
  • name of the judicial official who approved the warrant; and/or
  • date the search warrant was issued.

Search warrants are filed by location to be searched and date of search. If an individual does not know the address and/or date of search, court staff will attempt to assist the requester, however sufficient information to allow court staff to identify the requested warrant is necessary. Search warrants are not filed by name of an individual subsequently charged as a result of an investigation.

Tracking warrants and number recorder warrants (s. 492.1 and s. 492.2 of the Criminal Code)

Staff must seek judicial direction when a third-party requests access to tracking warrants issued under section 492.1 and number recorder warrants issued under section 492.2 of the Criminal Code.

Sealed warrants

Under subsection 487.3(1) of the Criminal Code, the presiding judicial official may, upon application, make an order prohibiting access to and disclosure of documents related to any warrant. This is referred to as a sealing order. Access to sealed warrants is only permitted if the sealing order provides exceptions for specific persons or by further order of the court.

A sealing order typically provides the date the file was sealed and the name of the judicial official who sealed the documents, but it does not disclose information about the content of the warrant. Assuming that is the case, the sealing order is accessible unless otherwise ordered by a judicial official. However, if the sealing order contains confidential information that is under seal, judicial permission is required for access.

Given the confidential nature of sealed records and the limited information available to court staff where a warrant is sealed (for example, the location, address or subject searched is often itself confidential), staff may not always be able to identify the warrants sought.

Persons seeking access to the sealed materials may bring an application to the judicial official who made the order or to a judge of the court where any proceedings arising out of the investigation may be held.

2.2.5 Arrest warrants (warrants in the first instance and bench warrants)

Warrants of arrest (also known as Warrants in the First Instance) may or may not be filed with the court. Practices for filing warrants of arrest vary depending on the police service. If a warrant of arrest or copy of a warrant of arrest is in the court file, it is only publicly accessible after the accused has been arrested or has received a summons, provided no other public access restrictions apply (for example, the YCJA).

Bench warrants may also be issued and executed anywhere in Canada against a person who does not appear in court or remain in attendance for his or her court appearance. Information about these warrants is publicly accessible, provided no other public access restrictions apply (for example, the YCJA).

2.2.6 Production orders

A production order is made by a judge or justice of the peace and is similar to a search warrant. When a production order is made, the person in possession of the information identified in the order must produce it upon request to the law enforcement agency. There are five different types of production orders:

  • General production order – requires a person to produce or prepare a document from data in his/her possession or control.
  • Financial data production order – requires a financial or commercial institution to produce account details, such as the name and other identifying information about the owner, the status and type of account, and the day it was opened or closed.
  • Trace specified communication production order – requires a person to prepare a document containing data that identifies a device or person involved in the transmission of a communication.
  • Transmission data production order – requires a person to prepare or produce a document providing information including the origin, destination, date, time or duration of a telecommunication.
  • Tracking data production order - requires a person to prepare or produce a document containing data about the location of an individual or thing.

Information about an application for a production order, the documents or information provided is publicly accessible if:

  • the production order has not been sealed by court order;
  • the production order has been executed; and
  • documents or data were produced in response to the order.

2.2.7 Court files and documents under Criminal Code publication bans

When a publication ban is imposed by the court (for example, s. 486.4 related to sexual offences or s. 517 related to judicial interim release or bail hearings) or is automatically provided for (for example, s. 542 related to preliminary hearings), the court file and documents are still accessible to the public. Staff will notify the recipient that the file or document is under a publication ban and will warn him or her that publication, broadcasting or transmitting in any way the information governed by the publication ban could be a violation of law.

2.2.8 In camera / publicly-excluded proceedings

Under various sections of the Criminal Codefootnote 1 , the public may be excluded in whole or in part from a court proceeding. These proceedings are known as in camera or publicly excluded proceedings. If the public is excluded from a court proceeding, the public cannot access the records relating to that portion of the proceeding, except by court order.

2.2.9 Court files and documents in section 276(2), section 278.2, section 278.92(2) and O’Connor applications

Applications to:

  • determine the admissibility of a complainant’s sexual activity (s. 276(2) of the Criminal Code);
  • determine whether there will be production of third-party records in sexual offence cases (s. 278.2 of the Criminal Code);
  • determine the admissibility of records relating to a complainant that are in the possession of the accused (s. 278.92(2) of the Criminal Code); and
  • determine whether there will be production of third-party records in non-sexual offence cases (O’Connor applications).

require that specific documents be filed with the court. These documents may be filed at the time of the application or before the court date

Applications for a hearing and hearings to determine admissibility under s. 276(2) or s. 278.92(2) must be held in camera.

For s. 278.2 applications, the judicial official will consider the application in a mandatory in camera proceeding. If the judicial official orders the record be produced to the court, the judicial official may hold an in camera hearing to determine whether to produce the record to the accused.

Documents filed in advance of these mandatory in camera proceedings are not publicly accessible prior to the court hearing, except by court order.

For O’Connor applications, a hearing will be held to determine the relevance of third-party records. There is no mandatory requirement that the hearing be held in camera. However, an order excluding the public may be requested by one or both of the parties either at the time of the application or in their documents filed before the court date. Until the judge hearing the application determines whether or not the public should be excluded, any documents filed in advance of these proceedings are not publicly accessible, except by court order.

2.2.10 Identifying information about witnesses

Section 486.31 of the Criminal Code allows a court to restrict disclosure of any information that could identify a witness in a criminal proceeding if the order is in the interest of the proper administration of justice. Upon an application by the prosecutor or witness, a hearing will be held to determine whether the order should be made. These hearings may be held in camera and until the judge hearing the application determines whether or not the public should be excluded, any documents filed in advance of the application are not publicly accessible, except by court order. If the court grants the non-disclosure order after the hearing, identifying information about the witness is not publicly accessible, without judicial permission.

2.2.11 Mental health assessments

Access to the materials listed below requires judicial direction:

  • assessment reports prepared for the court under s. 672.11 of the Criminal Code (mental disorder);
  • any written information filed with the court regarding an accused person’s fitness to stand trial;
  • any written information filed with the court regarding whether an accused person should be found not criminally responsible due to mental disorder;
  • all records relating to assessments ordered by a judge in a criminal proceeding under s. 21 or 22 of the Mental Health Act; and
  • all records relating to applications to a Justice of the Peace under the Mental Health Act for an order for an examination by a physician of a person thought to be suffering from a mental disorder.

As previously noted, any reference to Youth Criminal Justice Act information contained in Mental Health Act records is not publicly accessible.

2.2.12 Sealed files and documents

A sealing order typically provides the date the file was sealed and the name of the judicial official who sealed the documents, but it does not disclose information about the content of the sealed documents. Assuming that is the case, the sealing order is accessible unless otherwise ordered by a judicial official. However, if the sealing order contains confidential information that is under seal, judicial permission is required for access.

Please refer to the section “2.2.4 Search warrants (s. 487 of the Criminal Code) for information about access to sealed search warrants.

2.2.13 Cannabis Act ticketable offence proceedings

The federal Cannabis Act contains prohibitions on the recreational use of cannabis. For certain offences under the Act, persons 18 years of age or older may be dealt with using a criminal ticket instead of being prosecuted under the usual criminal process.

Pursuant to the Act, records of criminal tickets are not accessible if the accused:

  • pleads guilty to the ticket or is convicted of the offence and all outstanding fines are paid; or
  • accused is convicted of the offence and has served, in full, any period of imprisonment imposed as a result of a default in payment of the fine.

Where access to these matters is restricted, court staff must not allow access to the court documents and must not disclose the existence of documents to any person.

2.2.14 Documents relating to absolute and conditional discharges

This section does not apply to absolute discharges imposed as a result of a ticket under the Cannabis Act. Information on access to those records can be found in the section “2.2.13 Cannabis Act ticketable offence proceedings.

The Criminal Records Act denies public access to criminal records:

  • after one year, if the defendant has received an absolute discharge; or
  • after three years, if the defendant has received a conditional discharge.

The Province of Ontario has adopted this policy with regard to court documents that are the subject of an absolute or conditional discharge. The access period commences from the date the discharge was imposed by the judicial official.

If an absolute or conditional discharge has been ordered, court staff must not allow access to the court documents and must not disclose the existence of these documents, after the specified periods noted above, to anyone other than the person who is the subject of the discharge or counsel acting on his or her behalf. Requests for access by the person who is the subject of the discharge must be made in writing to the court.

2.2.15 Documents relating to record suspensions and expungements

If a record suspension has been granted, documents relating to the original conviction in the custody of a department or agency of the Government of Canada are not publicly accessible, without prior approval of the Federal Minister of Justice. The Province of Ontario has adopted this policy with regard to court documents that are the subject of a record suspension.

If an expungement has been granted, documents relating to the original conviction in the custody of a department or agency of the Government of Canada will be destroyed or removed from its repositories or systems.

If a record suspension or expungement has been granted, court staff must not allow access to the court documents and must not disclose the existence of these documents to any person, other than the person who is the subject of the record suspension or expungement or counsel acting on his or her behalf. Requests for access by the person who is the subject of the record suspension or expungement must be made in writing to the court.

2.3 Index books

In criminal cases, index books are not accessible to the public, as they may contain information about documents for which access is prohibited.

2.4 Dockets and case event lists

2.4.1 Pre-court docket and case event list

The pre-court docket or case event list is a list of names of the accused persons and the charges scheduled to be heard in a specific courtroom, on a specific date, and at a specific time.

Pre-enquêteYouth Criminal Justice Act and Prevention of and Remedies for Human Trafficking Act, 2017 restraining order dockets must remain confidential and are not publicly accessible. All other pre-court dockets are publicly available.

Court staff must make pre-court dockets or case event lists available to the public at no charge, by either posting the docket or list in a location convenient to the public or by making it available at the court counter. A copy of the docket can be provided on payment of the prescribed copy fee.

The daily court lists provide users with basic next day case event information for Ontario Court of Justice and Superior Court of Justice cases, subject to certain restrictions. Website users may choose a court location and case type from drop down lists. A list of scheduled matters to be heard the next day at that location will then be displayed.

Hearing lists of the Ontario Court of Appeal are also available the week before matters are to be heard.

2.4.2 Post-court docket and case event list

The post-court docket or case event list is the same as the pre-court docket or list, with notes outlining the judicial decisions for each charge listed.

The post-court docket or list is publicly accessible, except to the extent that it includes cases that:

Court staff must make post-court dockets or lists available to the public for viewing at no charge. If a copy of the docket or list is requested, staff should charge the prescribed copy fee.

Note: Due to storage limitations in the court office, some older court dockets and lists may not be immediately available at the court counter. The time required to access older dockets and lists that are not stored in the court office might be longer.

2.5 Provincial Offences Act court documents

As noted previously in the section “1.1 Open and accessible court system”, municipal partners administer court files and documents in Provincial Offences courts under a transfer agreement with the province. In general, court documents related to the Provincial Offences Act (POA) are publicly accessible, unless otherwise ordered by the court.

However, the following court documents for Provincial Offences Act proceedings are not publicly accessible:

  • all records relating to an application for an order of examination under the Mental Health Act, unless access is approved by a justice of the peace; and
  • all proceedings against young persons commenced under Part VI of the Provincial Offences Act.

Search warrants issued under the Provincial Offences Act are accessible in accordance with the policy for criminal search warrants. In general, search warrants are accessible if:

  • the warrant has not been sealed by court order;
  • the warrant has been executed and a seizure has been made; and
  • a Report to a Justice (Form 5.2 ) has been filed with the court office by the relevant police or investigating service, or an Order of Disposition has been made by the presiding judicial official. Depending on the police or investigating service, it may take some time for the Report to Justice to be filed with the court, if a seizure has been made.

For more detailed information about accessing search warrants, see section “2.2.4 Search warrants (s. 487 of the Criminal Code)”

2.6 Prevention of and Remedies for Human Trafficking Act, 2017 court documents

The Prevention of and Remedies for Human Trafficking Act, 2017 (PRHTA) allows victims, or potential victims, of human trafficking to apply for a restraining order. Unless legislation, a common law rule or a court order restricts access, records of such applications are publicly accessible if:

  • an application is made with notice to the respondent; or
  • an application is made without notice to the respondent, the order is granted, and the respondent has been served.

Where an order is made without notice to the respondent, the application form and any supporting affidavits may be provided only to the sheriff and members of the police service to assist in carrying out service of the restraining order.

In all other circumstances, judicial permission is required before court staff can provide any information about a  PRHTA restraining order or related documents, including confirming the existence of an application for such an order.

2.6.1 Court files and documents under Prevention of and Remedies for Human Trafficking Act, 2017 publication bans

When a publication ban is automatically provided for under subsection 10(1) of the PRHTA, or a publication ban is imposed by the court under subsection 10(2) of the  PRHTAPRHTA restraining order court files and documents are still accessible to the public. Staff must notify the person who is accessing the file or document that it is under a publication ban and must warn them that publishing, broadcasting or transmitting the information governed by the publication ban in any way could be a violation of law.

2.7 Criminal court documents

Criminal court staff can provide information and copies of court documents relating to matters that are either before the court or have been before the court in the past in accordance with these policies and procedures, as long as no other access restrictions exist. In the event an individual received an absolute or conditional discharge, the criminal record suspended (formerly known as pardoned) or the court documents sealed by court order, access is limited and information and court documents will be provided only in accordance with “2.2.12 Sealed files and documents”,  “2.2.14 Documents related to absolute and conditional discharges”, and “2.2.15 Documents relating to record suspensions and expungements”.

A request for access to criminal court documents should include a combination of information that will permit staff to accurately identify the individual concerned, which most commonly will be name and date of birth. In some circumstances where a name is common, further information such as home address, date of offences or charges may be required in order for court staff to accurately identify the individual. The combination of information required will vary depending on what is necessary to correctly identify the requested information in a particular case.

Some people believe that court staff can provide an official criminal record check. The court case tracking system is not a comprehensive database of criminal charges or criminal dispositions and does not constitute an official criminal record. Only police services can undertake an official criminal record check for employment or related purposes


Footnotes

  • footnote[1] Back to paragraph s. 486(1) - Exclusion of the public in certain cases; s. 486.5(6) - Judge may hold private hearing to determine whether a publication ban under s. 486.5(1) or (2)) should be made; s. 278.93(3) - Evidence of complainant’s sexual activity or records relating to the complainant’s sexual history; s. 278.4(1) and s. 278.6(2) - Production of record to accused; s. 462.34(5) - Hearing to determine reasonableness of expenses in relation to an application for review of special warrants and restraint orders; s. 672.5(6) - Exclusion of public from all or part of a disposition hearing re: mental disorder; s. 672.51(6) - Exclusion of accused and/or certain persons from a mental disorder disposition hearing.
Updated: June 02, 2022
Published: March 18, 2022