Publication Ban Warning

The President of the panel hearing this appeal directs that the following should be attached to the file:

An order restricting publication in this proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide:

486.4(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

(a) any of the following offences;

(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii) any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant’s sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).

(2) In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and

(b) on application made by the victim, the prosecutor or any such witness, make the order.

(2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.

(2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall

(a) as soon as feasible, inform the victim of their right to make an application for the order; and

(b) on application of the victim or the prosecutor, make the order.

(3) In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way.

(4) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22,48; 2015, c. 13, s. 18.

486.6(1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

(2) For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15.

Court of Appeal for Ontario

Date: 20230922 Docket: COA-23-CR-0857

Gillese, Trotter and Coroza JJ.A.

BETWEEN

Toronto Star Newspapers Limited and Morgan Bocknek Applicants (Appellants)

and

Bruce Timothy Cavey and His Majesty the King Respondents (Respondents)

Counsel: Samara Secter, Justin Manoryk, and Emma Carver, for the appellants Megan Savard and Arash Ghiassi, for the respondent Bruce Timothy Cavey Nicholas Hay, for the respondent His Majesty the King

Heard: September 19, 2023

On appeal from the order of Justice Andrew J. Goodman of the Superior Court of Justice, dated July 26, 2023.

REASONS FOR DECISION

Overview

[1] Bruce Timothy Cavey has been charged with sexually assaulting R.T. He was arrested on May 31, 2022. He faces a trial for sexual assault in the Ontario Court of Justice. That trial is scheduled to start in February 2024.

[2] On August 13, 2022, the Toronto Star published an investigative report, written by one of its journalists, Morgan Bocknek. This report included statements from an interview with someone referred to by the pseudonym “Alanna.” In that interview, “Alanna” alleged that Mr. Cavey had sexually assaulted her. Mr. Cavey alleges that Alanna is actually R.T. [1] Accordingly, Mr. Cavey has brought a third-party records application before the trial judge under s. 278.3 of the Criminal Code, R.S.C. 1985, c. C-46. He seeks production of any notes or recordings of that interview. Mr. Cavey alleges that the records sought are likely to contain prior inconsistent statements that are relevant to impeaching R.T.’s credibility at trial, or that if adopted will raise a reasonable doubt as to non-consent.

[3] On May 19, 2023 Mr. Cavey sought a subpoena against the Toronto Star via Form 16.1, as required by s. 278.3(5) of the Criminal Code in advance of a stage one hearing pursuant to R. v. Mills, [1999] 3 S.C.R. 668. In support of that subpoena request, he submitted the affidavit of a student-at-law with exhibits, a notice of application, and a factum – his complete s. 278.3 application record. A judge of the Ontario Court of Justice issued a subpoena on May 24, 2023. That subpoena requires the appellants to deposit copies of any notes, recordings, or other documents generated during the course of Ms. Bocknek’s interview with R.T. in a sealed package at the Ontario Court of Justice in Hamilton; however, the subpoena provides for an exception: the appellants “are not required to provide the things specified to any person or to discuss their contents with any person unless and until ordered by the court to do so.” Further, if, as here, the document is a “record,” then the appellants “are not required to bring it with you until a determination is made in accordance with [ss. 278.1-278.91] as to whether and to what extent it should be produced.”

[4] The Toronto Star and Ms. Bocknek applied to the Superior Court of Justice for a writ of certiorari to quash the subpoena. On July 26, 2023 Goodman J. (“the application judge”) declined to grant that extraordinary remedy. The appellants now appeal that decision to this Court.

[5] At the conclusion of oral submissions, the panel dismissed the appeal with reasons to follow. These are those reasons. [2]

Analysis

[6] We accept that the appellants, as third parties to Mr. Cavey’s trial, had the right to seek relief before the application judge by way of certiorari, since they had no statutory right to an interlocutory appeal. We also agree that the scope of certiorari available to the appellants is broader than that available to Mr. Cavey or the Crown. Parties to a criminal proceeding can only seek certiorari for errors of jurisdiction, but third parties, such as the appellants in this case, may also seek review for errors of law that are apparent on the face of the record. However, the order being reviewed must have a final and conclusive character vis-à-vis the third party: R. v. Awashish, 2018 SCC 45, [2018] 3 S.C.R. 87, at para. 12; and R. v. Primeau, [1995] 2 S.C.R. 60, at para. 12.

[7] The appellants assert that the issuance of the subpoena demonstrates errors of law on the face of the record, since the purposes for which Mr. Cavey seeks the records are impermissible under the s. 278 regime, and since the records are subject to journalistic privilege under s. 39.1 of the Canada Evidence Act, 1985, c. C-5. The appellants assert that the application judge should have exercised his discretion to grant certiorari, because these errors were patently obvious and he erred by failing to grapple with them.

[8] We are not persuaded by the appellants’ submissions. To begin, the application judge recognized that certiorari is a discretionary remedy. In this case, the application judge refused to grant the relief sought because, in his view, the trial judge was well placed to determine the crux of the appellants’ objection: that they were being “forced” to participate in a third-party records hearing that threatened the journalist-source relationship. He further held that the trial judge was in the best position to determine the likely relevance of the records and the intersection of journalistic privilege in the context of the s. 278 application, especially given the full record that will be before the trial judge. Indeed, the appellants have standing under s. 278 to assert their privacy interest in the records and their claim to journalistic privilege. They will have a full opportunity to make submissions on the issues before the trial judge.

[9] This court can only interfere with a discretionary decision not to grant certiorari where an application judge fails to give weight to all relevant considerations, rests on an error in principle, or is plainly wrong: Bessette v. British Columbia (Attorney General), 2019 SCC 31, [2019] 2 S.C.R. 533, at para. 35. The application judge considered all the arguments put forth by the appellants to quash the subpoena, and his reasons not to exercise his discretion reveal no errors in principle. We see no basis to interfere with his exercise of discretion.

[10] Nor do we accept the appellants’ argument that the application judge’s decision can be read as effectively removing the procedural safeguard of certiorari for third parties to challenge the issuance of subpoenas in the context of s. 278 hearings. The application judge recognized that the purpose of a subpoena duces tecum is not the discovery of documents from third parties. His decision reflects a careful consideration of the fact that alternative procedural protections exist which can protect the appellants’ legitimate interests without fragmenting Mr. Cavey’s criminal trial. In the specific circumstances of this case, he saw nothing that would warrant the immediate granting of an extraordinary, prerogative remedy: R. v. Johnson (1991), 3 O.R. (3d) 49 (C.A.), at pp. 53-54. We see nothing in the application judge’s reasons that would suggest third parties are prohibited from applying for certiorari to quash subpoenas in future cases.

Disposition

[11] For these reasons, the appeal is dismissed.

“E.E. Gillese J.A.”

“Gary Trotter J.A.”

“S. Coroza J.A.”

Footnotes

[1] The appellants do not concede that “Alanna” is R.T., but were willing to conduct this appeal on the assumption that she is. In our view, nothing in this appeal turns on the identity of “Alanna.”

[2] These reasons were released only to the parties on September 22, 2023, because s. 278.9(1) of the Criminal Code, R.S.C. 1985, c. C-46 imposes a publication ban relating to the third party records application. The parties advised in further submissions that they have no objection to the full publication of our reasons because it is not clear that the s. 278.9(1) publication ban applies, and in any case, the parties take no issue with the Court exercising its inherent jurisdiction to publish the reasons. We agree. To the extent the s. 278.9(1) publication ban applies, it is in the interests of justice for this court to exercise its inherent jurisdiction and publish these reasons, without redaction: R. v. N.H., 2021 ONCA 636, 158 O.R. (3d) 294.