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In November 2013, an Ontario judge refused to let a man pictured with Toronto’s mayor see the “crack video” that police had seized. The judge accepted that he had a legal interest in it, but held that access was premature. The ruling shows how Canadian law keeps two questions apart: when a person with an interest in seized evidence may examine it, and when the public and the media may see court records and exhibits.
On November 18, 2013, Justice Ian Nordheimer of the Ontario Superior Court of Justice released his ruling dismissing the application by Mohammad Khattak to access the Rob Ford ‘crack video’.
The Application was brought on behalf of Mohammad Khattak, one of three men pictured with Mayor Rob Ford outside a suspected drug house for the purpose of dispelling the perception there’s a connection between Khattak and the video of the mayor smoking crack cocaine.
During the application hearing, Justice Nordheimer watched two videos recovered by Toronto Police during the execution of search warrants as part of Project Traveller and clarified the contents of the two videos.
- Court
- Ontario Superior CourtJustice Ian Nordheimer
- Ruling
- November 18, 2013Application dismissed as premature
- Seized items
- Criminal Code s. 490(15)Examination by a person with an interest
- Court records
- Presumptively openLimits need the Sherman Estate test
What did the court decide about the Rob Ford video?
It was a widely held belief that the videos seized by police were essentially two versions of the same video depicting the Mayor smoking crack cocaine. This is apparently incorrect. At paragraph 2 of his ruling, His Honour confirmed that the longer video depicted the Mayor of Toronto and that the second video is much shorter and is “separate and apart” from the first video. He observed that, “it might reasonably be concluded that what is revealed in the second video relates back to the first video”.
Judge Nordheimer also noted that Police Chief Bill Blair “fairly characterized the contents of the video as being ‘consistent’ with previous media reports.”
“The second video is much shorter and is separate and apart from that first video.”
Justice Ian Nordheimer, Ontario Superior Court of Justice, November 18, 2013
The ruling concluded that while Mr. Khattak has a “legal interest” in the video, allowing him access to the video at this time would be premature. Given the interest in protecting the fair trial rights of Mr. Lisi, who was then charged with extortion, access to the video should only be considered after Mr. Khattak commences a civil action against those who associated his photograph with the video.
Justice Nordheimer concluded “there is nothing that prevents [Khattak] from bringing a subsequent application for access to the videos when his interests in them may have become more tangible”.
The full decision was published at the time on Scribd: Mohammad Khattak Ruling.
Who can see evidence the police have seized?
Four points where access comes up, from the search to the courtroom.
Mr. Khattak’s request was a personal one. He asked to see seized evidence because of his own interest in it, not to publish it. The Criminal Code gives a person who has an interest in things police have detained a way to ask to examine them: under s. 490(15), a judge “may” permit it on a summary application, after three clear days’ notice to the Attorney General, and s. 490(16) requires terms that keep the item safe for any later use. Justice Nordheimer accepted that Mr. Khattak had a legal interest in the video, but was not satisfied, given how contingent that interest still was, that access was necessary to advance it.
Requests by the media are different. They rest on the open court principle, which the Supreme Court of Canada treats as part of freedom of expression under s. 2(b) of the Charter. The starting point is that court proceedings, and the records filed in them, are open. Whoever wants to keep them closed has to justify it.
Who has to prove what when someone asks for access?
The answer depends on who is asking and what they want to see. A person with a stake in seized property has to show that interest. The public and the media do not have to justify wanting to see the court’s records; the party who wants them kept closed does.
| Who is asking | What has to be shown | Source |
|---|---|---|
| A person with an interest in what police seized | An interest in the item. The judge may permit an examination, on terms that keep the item safe and preserved. | Criminal Code, s. 490(15) and (16) |
| The public or the media, for search warrant materials | Nothing, once the warrant is executed. Whoever wants the materials sealed must show that disclosure would subvert the ends of justice. | s. 487.3; Toronto Star Newspapers Ltd v Ontario, 2005 SCC 41 |
| The media, for court exhibits | Nothing. The party opposing access or copying must prove, with convincing evidence, that the limit is justified. | R v Canadian Broadcasting Corp, 2010 ONCA 726 |
| Anyone asking a court to limit openness | A serious risk to an important public interest, no reasonable alternative, and benefits that outweigh the harm. | Sherman Estate v Donovan, 2021 SCC 25 |
The Supreme Court of Canada restated the test in Sherman Estate v Donovan, 2021 SCC 25. A person asking a court to limit openness must establish that (1) court openness poses a serious risk to an important public interest; (2) the order sought is necessary to prevent this serious risk to the identified interest because reasonably alternative measures will not prevent this risk; and (3) as a matter of proportionality, the benefits of the order outweigh its negative effects. Only then can a sealing order, a publication ban, an order excluding the public or a redaction order be made.
That test grew out of Dagenais v Canadian Broadcasting Corp, [1994] 3 SCR 835, which dealt with publication bans that protect a fair trial, and R v Mentuck, 2001 SCC 76, which widened it to any serious risk to the proper administration of justice. In Toronto Star Newspapers Ltd v Ontario, 2005 SCC 41, the Court held that it applies to all discretionary court orders that limit freedom of expression and freedom of the press in relation to legal proceedings, including orders sealing search warrant materials. The Court of Appeal for Ontario applied it to exhibits in R v Canadian Broadcasting Corp, 2010 ONCA 726, and held that the right to access exhibits includes the right to make copies.
Why can a court delay access to search warrant documents?
Section 487.3 of the Criminal Code lets a judge prohibit access to information about a warrant where the ends of justice would be subverted by disclosure and that reason outweighs in importance the access to the information. The most common reasons are these.
Informants and investigations
s. 487.3(2)(a)(i)–(iii)
A sealing order can protect a confidential informant, the nature and extent of an ongoing investigation, or people using particular intelligence-gathering techniques.
Innocent people
s. 487.3(2)(a)(iv)
Disclosure that would prejudice the interests of an innocent person is a ground for sealing. The aim, the Supreme Court has said, is maximum accountability and accessibility, but not to the extent of harming the innocent.
A fair trial
Dagenais
Publicity can be limited where it poses a real and substantial risk to the fairness of a trial and no reasonable alternative will prevent it. The 2013 ruling weighed Mr. Lisi’s fair trial rights.
A general worry is not enough. In Toronto Star Newspapers Ltd v Ontario, 2005 SCC 41, the Court held that a party seeking to limit public access must rely on more than a generalized assertion that publicity could compromise investigative efficacy. A sealing order can also be varied or ended later: s. 487.3(4) allows an application to the judge who made it, or to a judge of the court where the resulting case may be heard.
The police document in the related investigation of Mr. Lisi shows how that works in practice. The roughly 500-page Information to Obtain a search warrant was first released on October 31, 2013 with pages blacked out to protect the names of innocent parties and police information. On November 13, 2013, Justice Nordheimer ordered many of those blacked-out sections made public.
When was the Rob Ford video finally released?
Not until the prosecution it was part of had ended.
- November 18, 2013Justice Nordheimer dismisses Mr. Khattak’s application, leaving him free to apply again if his interest became more tangible.
- August 11, 2016The Crown withdraws the extortion charge against Mr. Lisi, who enters into a peace bond. A Superior Court judge rules that the video, which had been entered as evidence, can be released, and it is made public the same day.
With the prosecution over, the fair trial concern that the 2013 ruling relied on no longer stood in the way. As the Supreme Court put it in Toronto Star, when access to sensitive material is limited, “a temporary shield will in some cases suffice; in others, permanent protection is warranted.”
Why Choose Daniel Brown Law?
Daniel Brown Law is a leading Canadian criminal defence firm. When a case turns on what police seized and what the court file shows, our lawyers know how to get to it.
A nationally recognized defence firm
Ranked among Canada’s top criminal law boutiques by Canadian Lawyer, listed for criminal defence by The Globe and Mail and Best Law Firms, and voted Best Law Firm and Best Legal Services by Toronto Star readers.
From the first call to appeal
Our team advises after arrest, runs bail hearings, defends the case at trial and argues appeals at the Court of Appeal for Ontario and the Supreme Court of Canada.
Recognized by the profession and the public
Daniel Brown Law is ranked among Canada’s top criminal law boutiques by Canadian Lawyer, listed by The Globe and Mail and Best Law Firms for criminal defence, and voted Best Legal Services by Toronto Star readers. Five of its lawyers are recognized by Best Lawyers in Canada for criminal defence.
Best Law Firms: Criminal Law
The Globe and Mail, 2026
Top Criminal Law Boutique
Canadian Lawyer, 2026–27
Criminal Defence, Tier 1
Best Law Firms Canada, 2026
Best Lawyers in Canada
Criminal Defence, 2027
Toronto Star Readers’ Choice
Best Law Firm and Best Legal Services, repeat winner
Crime, Nationwide
Chambers Canada, 2027
The firm and its lawyers have been repeatedly recognized for excellence in criminal defence:
- Canada’s Best Law Firms 2026 — The Globe and Mail (Report on Business)
- Canada’s Top Criminal Law Boutiques 2026–27 — Canadian Lawyer Magazine
- Best Law Firms 2026 — Criminal Defence and Appellate Practice (Best Lawyers / Best Law Firms)
- Best Lawyers in Canada — Criminal Defence — Daniel Brown, Hilary Dudding, Mark Halfyard, Lindsay Board and Colleen McKeown
- Toronto Star Readers’ Choice Awards — Best Law Firm and Best Legal Services, repeat winner
- Chambers Canada 2027 — ranked for Crime, nationwide, by Chambers and Partners
- Certified Specialists in Criminal Law — Law Society of Ontario (Daniel Brown and Mark Halfyard — fewer than 2% of Ontario criminal lawyers hold this designation)
Frequently Asked Questions
Short answers about the 2013 ruling and about access to seized evidence and court records.
The 2013 ruling
Why was the application to see the Rob Ford video dismissed?
Justice Nordheimer accepted that Mr. Khattak had a legal interest in the video, but held that access at that time would be premature, given how contingent his interest was and the need to protect Mr. Lisi’s fair trial rights. He left Mr. Khattak free to bring a later application if he started a civil action.
Were the two videos police seized the same video?
No. The judge found that the longer video, about 90 seconds, featured the Mayor, and that the second was much shorter and “separate and apart” from it, although what it showed might reasonably be concluded to relate back to the first.
Did Mr. Khattak appear in the video?
According to the Crown in court, he was neither seen on the video nor heard speaking on it. His application aimed to dispel the perception that he was connected to it.
When was the Rob Ford crack video released?
On August 11, 2016, after the Crown withdrew the extortion charge against Alexander (Sandro) Lisi and a Superior Court judge ruled that the video, which had been entered as evidence, could be released.
Access to court records and seized evidence
Are search warrant documents public in Canada?
Once a warrant has been executed, the warrant and the information used to obtain it are presumptively available to the public. Whoever wants them sealed must show that disclosure would subvert the ends of justice (Toronto Star Newspapers Ltd v Ontario, 2005 SCC 41; Criminal Code s. 487.3).
What is a sealing order under s. 487.3 of the Criminal Code?
An order prohibiting access to, and disclosure of, information about a warrant or production order. Grounds include protecting an informant, an ongoing investigation or an innocent person. The order can be varied or ended on a later application under s. 487.3(4).
Can the media get copies of court exhibits?
Yes, as a starting point. In Ontario the right to access exhibits includes the right to copy them, unless the party opposing proves with convincing evidence that a limit is justified (R v Canadian Broadcasting Corp, 2010 ONCA 726).
Can I see or get back property the police seized from me?
A judge may let a person with an interest in seized items examine them (s. 490(15)). Once the detention periods expire, the person it was taken from can apply for its return (s. 490(7)), and a lawful owner can apply at any time (s. 490(10)).
What test does a court use to seal a file or ban publication?
The person asking must show a serious risk to an important public interest, that the order is necessary because reasonable alternatives will not prevent the risk, and that its benefits outweigh its negative effects (Sherman Estate v Donovan, 2021 SCC 25).
Charges we defend
Learn more about some of the charges we defend. We defend more than what we have written blog articles about.
- Assault
- Bail hearings
- Bail pending appeal
- Coercive control
- Criminal appeals
- Criminal harassment
- Dangerous driving
- Distributing an intimate image
- Domestic assault
- Drug possession
- Drug trafficking
- Extradition
- Fail to appear at court
- Fail to comply with bail
- Failing to remain at the scene
- Firearm and weapon possession
- Forcible confinement
- Fraud
- Impaired driving
- Importing drugs
- Mischief
- Murder and manslaughter
- Obstruct police
- Peace bonds
- Public mischief
- Refusing a breath sample
- Robbery
- Sexual assault
- Sexual exploitation
- Theft and shoplifting
- Uttering threats
- Voyeurism
- Young offenders
Questions about a search warrant or seized property? Talk to Daniel Brown Law
If police have searched your home, seized your property or laid a charge, speak to a lawyer before you speak to police. To arrange a consultation with Daniel Brown Law, contact our team or call our office at (416) 297-7200.
Phone: (416) 297-7200
Office: Daniel Brown Law, 400–103 Church St., Toronto, ON M5C 2G3