Documents related to the Richard Oland homicide investigation will remain sealed from the public for at least another month.
Prosecutors had been seeking to have an existing sealing order on the search warrants extended for six months.
But Provincial Court Chief Judge R. Leslie Jackson said on Wednesday he would not grant an extension without hearing new evidence.
He said the Crown's request amounted to a new application — not just monitoring of the previous one — and the court must have some information on which to act.
Jackson adjourned the matter until July 31 when one of the investigating officers with the Saint John Police Force will testify behind closed doors as to why the documents should remain sealed.
The judge agreed to the Crown's request to keep members of the public out of the hearing, for fear that releasing the evidence could jeopardize the police investigation.
But he ruled that a lawyer representing CBC News and the Telegraph-Journal, and two lawyers representing members of the Oland family will be allowed to hear the evidence and cross-examine the officer, with the understanding that they will not share any of the information with their clients or anyone else.
Crown prosecutor John Henheffer raised concerns that if other lawyers are allowed to listen to the evidence and cross-examine the officer, the information police are trying to protect could come out.
The judge said he understood Henheffer's concern and that the lawyers can deal with the issue as it arises.
The warrants will remain sealed until the hearing.
CBC News and the Telegraph-Journal are arguing to have the information contained in the search warrants made public.
David Coles, the lawyer representing the media outlets, told reporters outside the courtroom he was satisfied with the judge's decision.
"I see it as the court doing what the court ought to do," he said.
"It's got two competing interests — one is they do not want to jeopardize an investigation into a serious crime that's committed in this community. On the other hand, they do not want to sacrifice the open-court principle and the fact that this community has a legitimate interest in this police investigation and ought to know why nobody's been charged so far.
"So in balancing that, he's allowing the police evidence, he's allowing that evidence, at this stage, to be closed to the public, but also allowing evidence to be tested by the interested parties' lawyers. So it's a compromise that I think is in the best interest of justice."
It's been almost a year since Oland, a prominent Saint John businessman, was found dead in his uptown office on July 7.
Saint John Police confirmed the 69-year-old's death was a homicide and said he likely knew his killer. But no arrests have been made and few details about the investigation have been released.
The courts have ruled that warrants are normally public and should only be sealed by a judge in "extraordinary" cases, said Coles.
He contends the search warrants, the information used to obtain them, and information about the items seized, should be made public to reassure citizens that the investigation is proper, that it's proceeding and that the rights of the people who were searched were protected.
Opposed to release
Criminal defence lawyer Gary Miller, who previously told CBC News he had been retained by Oland's son, Dennis Oland, and Bill Teed, who is representing other members of the Oland family, are both opposed to having the documents released.
If the judge does eventually decide to release the documents, Miller and Teed want to argue that they should get to see the information first.
They also want to be able to argue to have certain parts of the documents redacted to "protect the rights of innocent persons."
Prosecutors have previously argued the documents contain "hallmark" forensic evidence that only the person or persons responsible for Oland’s death would know and releasing them could jeopardize the investigation.
On Wednesday, John Henheffer acknowledged the Crown would have to establish why the documents should remain sealed. He was not simply seeking a "rubber stamp" from the court, he said. "It's back to square one."
Henheffer had planned to have Const. Stephen Davidson take the stand on Wednesday. But he had hoped the judge would hear the officer's testimony behind closed doors and argued that his request was "appropriate in these circumstances."
Coles argued against the judge hearing evidence in private.
He said the New Brunswick Rules of Court allow for witnesses to be not only examined, but also cross-examined.
"Our courts do not simply accept unchallenged what a witness says," he said.
If the judge did agree to an in camera hearing, Coles suggested a "compromise."
He offered to enter an undertaking that he would not divulge any information he heard with his clients or anyone else.
Caught off guard
When the judge decided to hear the testimony behind closed doors, but to allow the other lawyers to be present, the Crown admitted he was "caught off guard."
Henheffer said he had prepared the officer's testimony under the belief that it would be a closed hearing and that having other lawyers present would affect what the officer could or should say on the stand.
He was also concerned about the other lawyers being able to cross-examine the officer and whether that would lead to some of the information they don't want released coming out.
Henheffer requested an adjournment to allow time to prepare an affidavit by the officer and to prepare him for cross-examination.
Coles told the court he found it "disrespectful" that the Crown was basically operating under the assumption that the judge would agree to hold the hearing in-camera.
He also noted the hearing had been scheduled for a couple of weeks and suggested the Crown should have been prepared to proceed.
Coles also expressed concern that any adjournment would just be a further delay in the process.
Miller, however, argued that he was also "somewhat caught off guard a little bit" and didn't expect to be faced with cross-examining the officer.
"That may have been my error, assuming past practice would be followed," he said.
Miller requested more time to "sit back and reload on this," suggesting the adjournment could help streamline the process because the lawyers will know the direct evidence of the officer, based on his affidavit, and can prepare their cross-examinations accordingly.
"It seemed to be the most efficient and fairest way," he said.
The judge said he was disappointed the matter didn't get any further than it did, but agreed to set it over until July 31.
Documents sealed nearly a year
Police searched the Rothesay home of Oland's son, Dennis Oland on July 14, a nearby wooded area by the Bill McGuire Community Centre on July 15, and a sailboat co-owned by Dennis Oland's wife, Lisa Oland, moored at the Royal Kennebeccasis Yacht Club in Saint John on July 21.
Details about other search warrants and a production order executed in the case are now under a publication ban.
The documents were sealed in July by provincial court Judge William McCarroll.
In December, CBC News and the Telegraph-Journal sought to have the documents released, but judge Jackson ordered they should remain sealed.
Jackson said he was satisfied releasing the documents could compromise the investigation, as well as the privacy of numerous persons because they contain intimate details about their lives.
He did, however, set a time limit of six months, which expired on June 15.
On that day, during a brief court appearance, Jackson agreed to a temporary extension on a sealing order until June 27.
But Jackson had said he felt it was "necessary" to have a "full and complete" hearing on the merits of keeping the documents sealed for an additional six months.
Based on case law, search warrants may only be sealed when the information they contain would:
- Compromise the identity of a confidential informant.
- Compromise the nature and extent of an ongoing investigation.
- Endanger a person engaged in intelligence-gathering techniques and thereby prejudice future investigations in which similar techniques would be used.
- Prejudice the interests of an innocent person.