Court File and Parties
COURT FILE NO.: MO-18-90000219-0000 DATE: 20181003 ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N : HER MAJESTY THE QUEEN – and – CANADIAN BROADCASTING CORPORATION
Counsel: Deborah Krick, for the Crown No one appearing for the Canadian Broadcasting Corporation
HEARD: September 25, 2018
M. Dambrot J. :
Reasons for Decision
[1] This ruling concerns the provisions of the Journalistic Sources Protection Act, S.C. 2017, c.22 (“JSPA”), which came into force on October 18, 2017. Despite its name, the Act addresses more than the protection of journalistic sources. It also gives a measure of protection to the right of journalists to privacy in their gathering or dissemination of information.
[2] The JSPA accomplishes the first of these objectives by amending the Canada Evidence Act, R.S.C. 1985, c.C-5 to protect the confidentiality of journalistic sources. It allows journalists to refuse to disclose information or a document that identifies or is likely to identify a journalistic source unless the information or document cannot be obtained by any other reasonable means and the public interest in the administration of justice outweighs the public interest in preserving the confidentiality of the journalistic source.
[3] The JSPA further advances the first objective and accomplishes the second objective by adding restrictions to the provisions of the Criminal Code of Canada, R.S.C. 1985, c.C-46 (“the Criminal Code” or “the Code”) that authorize search warrants, orders to intercept private communications and production orders when they relate to journalists.
[4] Detective Constable Withrow, a police officer with the Toronto Police Service assigned to the Sex Crimes Unit, has brought an application under s. 487.014 of the Criminal Code for an order that the Canadian Broadcasting Corporation (“CBC”) produce the complete audio and video footage of an interview conducted by a CBC reporter of a particular named person (“the complainant”) in which she alleges that she was sexually assaulted. This brings into play the provisions of the JSPA. She also seeks an order under s. 487.3(2) of the Criminal Code prohibiting access to, and disclosure of, any information relating to this production order.
[5] Of relevance to this application, the JSPA provides that only a judge of a superior court may issue such a warrant or order if it relates to a journalist (Code, s. 488.01(2)). In addition, it provides that such a warrant or order can be issued only if the judge is satisfied not only that the usual statutory prerequisites are met, but also that there is no other way by which the desired information can reasonably be obtained and that the public interest in the investigation and prosecution of a criminal offence outweighs the journalist’s right to privacy in the collection and dissemination of information (Code, s. 488.01(3)). I will refer to such a warrant or order as a “JSPA order”.
[6] Where a document (and I note that the term document has a broad meaning by virtue of s. 487.011 of the Code, which applies to sections 488.01 and 488.02 by virtue of s. 488.01(1), and includes the video footage here) is obtained pursuant to a JSPA order, it must be placed in a packet, sealed by the issuing court, and kept in secure custody (Code, s. 488.02(1)). No such document may be examined or reproduced by an officer without giving the journalist and relevant media outlet notice of such an intention (Code, s. 488.02(2)). The journalist or relevant media outlet may, within ten days of receiving the notice, apply to the court for an order that the document not be disclosed on the grounds that the document identifies or is likely to identify a journalistic source (Code, s. 488.02(3)). By virtue of s. 488.01(1), the term “journalistic source” has the same meaning as in s. 39.1(1) of the Canada Evidence Act. In essence, a journalistic source is a person who transmits information to a journalist on a confidential basis. If the journalist or relevant media outlet makes a disclosure application, the document may be disclosed to an officer only if a judge makes a disclosure order (Code, s. 488.02(4)). A judge may order disclosure only if he or she is satisfied that there is no other way by which the desired information can reasonably be obtained and that the public interest in the investigation and prosecution of a criminal offence outweighs the journalist’s right to privacy in the collection and dissemination of information (Code, s. 488.02(5)).
[7] This appears to be the first occasion when an application for a warrant or order under the Criminal Code that is subject to the provisions of the JSPA has been made in Ontario, and it arises in somewhat unusual circumstances. As a result, I am issuing these brief reasons to explain why I have granted the order.
Background
[8] The complainant alleges that she was sexually assaulted. A considerable time after the alleged assault, the complainant was interviewed about this incident by a journalist employed by the CBC. The interview was video and audio recorded.
[9] An article was subsequently published by the CBC which gave an account of the complainant’s sexual assault allegations, and contained details of those allegations obtained by the journalist in her interview of the complainant.
[10] Sometime later, the complainant reported her sexual assault allegations to the police, and provided an account of the incident to a civilian call centre agent. Following this report, the complainant attended at a police facility where detectives with the Toronto Police Service Sex Crimes Unit conducted an audio and video recorded interview of the complainant under oath or affirmation concerning the same incident. They subsequently interviewed other persons in relation to this matter.
Procedural History of this Application
[11] Detective Constable Withrow candidly acknowledged in her information in support of the production order that she initially applied for, and obtained a production order and a sealing order from a justice of the peace and served it on the CBC. The CBC filed an application for certiorari to quash the order on the basis that the justice was without jurisdiction to issue it. Upon learning of the jurisdictional defect, the police made an application to the issuing justice to revoke the order. For reasons that I cannot understand, the justice refused to do so. As a result, the Crown consented to the CBC’s certiorari application and the order was quashed.
[12] Counsel for the CBC requested that it be given notice if a further production order was sought, and alternatively asked that if notice were not given, a letter outlining the CBC’s position be included in the application. Notice of this application was not given to the CBC, but the CBC’s 10-page letter with attachments was included in the material provided to me by the applicant.
[13] In this letter, the CBC provides a description of the background of this matter, an argument supporting its position that it should be allowed to appear and participate in this phase of the application, and in the alternative asks that its substantive argument outlined in its letter be considered on the application and that a special advocate be appointed to “present observations in the interests of freedom of the press concerning the” additional considerations that must be met before a JSPA order can be made.
[14] The application was filed in this court and provided to me, for consideration ex parte. It was accompanied by a written submission provided by Crown counsel which briefly outlines the procedural history of this matter, summarizes the relevant provisions of the JSPA, responds to the CBC’s submissions, and provides an argument in support of the issuance of the order.
[15] Crown counsel did not ask to appear in person before me, and I determined the issue entirely on the basis of the information of the applicant and the written submissions of the Crown and the CBC. I did require Crown counsel to appear before me in chambers, but solely to discuss the procedural steps to be taken for the filing of the application, information, and other material presented to the court on this and future applications, and the sealing and securing of the recording when it is produced.
The Argument
[16] There can be no doubt that the general prerequisites for obtaining a production order pursuant to s. 487.014 of Criminal Code have been met in this case. There is information on oath before me that satisfies me that there are reasonable grounds to believe that an offence has been committed, and that a document in the possession or control of the CBC will afford evidence respecting the commission of the offence. I need only concern myself with the special conditions in s. 488.01(3) that I must be satisfied of before a JSPA order can be issued, namely that:
(a) there is no other way by which the information can reasonably be obtained; and
(b) the public interest in the investigation and prosecution of a criminal offence outweighs the journalist’s right to privacy in gathering and disseminating information.
[17] Before I reach that issue, I will discuss the preliminary concerns raised by the CBC, specifically whether or not they should be permitted to appear on this stage of the proceeding, and whether I should appoint a special advocate.
Should the CBC be allowed to appear and participate in this phase of the application?
[18] Section 487.014 (1) provides that an application for a production order will be heard ex parte. In large measure this requirement is intended to prevent the custodian of anything sought to be produced from learning about the application before it is made, and removing or destroying the thing sought before there is an order in effect that requires them to turn it over to the state. Needless to say, this concern does not arise in this case. The CBC knows about the application, and can be relied on not to remove or destroy the video. Nor is there any concern about the person alleged to have committed the offence learning that he is under investigation prematurely in this case. That person has already been charged.
[19] Despite the foregoing, I chose not to order the hearing to be conducted inter partes, for several reasons.
[20] First, the scheme that the JSPA has put in place gives the CBC full opportunity to be heard before its right to privacy can be intruded upon. As I have already explained, the scheme anticipates a bifurcated procedure that provides exactly what the CBC wants. The video will inevitably identify the complainant as a journalistic source within the meaning of s. 39.1(1) of the Canada Evidence Act. The fact that the police already know that the complainant is a journalistic source does not diminish the importance of the journalist’s undertaking not to divulge the identity of a source, particularly since her identity remains unknown to the public. The complainant remains a journalistic source. The right to a hearing pursuant to s. 488.02(3) is triggered. As a result, the CBC will have an opportunity to make an application for an order that the document not be disclosed after it receives notice of an officer’s intent to examine or reproduce the document. If I were to permit the CBC to participate in the first phase of the scheme and the application were granted, nothing would preclude it from requiring the second phase to be conducted, giving it a second kick at the can which would be no different from the first kick.
[21] Second, I did accept the CBC’s alternative request that I consider its substantive written argument on the application. The CBC’s substantive submissions were before me, in the form of a letter. While counsel for the CBC might have said more if given an opportunity to make oral submissions, I doubt that he would have said what he has to say any more effectively than he did in his letter.
[22] Third, I note that the CBC is particularly not disadvantaged by the procedure I followed, because I also received Crown counsel’s substantive submissions in writing only. Crown counsel did not ask to make, nor did I ask her to make substantive oral submissions, and she made none. The only thing the CBC lost by not being present before me is the possibility of a right of reply on the issuance hearing.
[23] Finally, in respect of this issue, I take comfort from the decision of the Supreme Court in R. v. National Post, 2010 SCC 16, [2010] 1 S.C.R. 477. In that case, the Supreme Court upheld the validity of a warrant to search the premises of a newspaper issued prior to the enactment of the JSPA with its built in protection of journalistic privacy. The warrant had been issued on an ex parte application, despite the newspaper’s request to be given notice. One of the arguments advanced by the newspaper was that the warrant should be set aside because of this failure to give it notice. That argument had been successful before the reviewing judge on the initial application to quash the warrant. However on appeal to the Court of Appeal, the court stated, at para. 33 of its judgment (see National Post v. Canada, 2008 ONCA 139, 89 O.R. (3d) 1):
In our view, the reviewing judge erred in holding that the issuing judge committed a jurisdictional error by issuing the search warrant and assistance order without notice. The search warrant and assistance order fully recognized the respondents’ rights because they ensured that, if requested by the respondents, the items sought by the police would not be disclosed until the validity of the search warrant and assistance order was determined on judicial review.
[24] On further appeal to the Supreme Court of Canada, the Court concluded that the granting of a warrant to search the premises of a newspaper on an ex parte application, despite the newspaper’s request to be given notice, was not a ground to set the warrant aside. The Court reiterated that the newspaper’s position was fully protected by the terms of the justice’s order, as is the CBC here by both the statute and my order.
[25] I mentioned that the CBC also asked me to appoint a special advocate to present observations in the interests of freedom of the press concerning the conditions that must be met to obtain a JSPA order. The appointment of a special advocate is authorized by s. 488.01(4) of the Code. I declined to make such an appointment. The CBC offered no argument about how such a special advocate might assist me in this case, and I do not think there is any argument that could be made. After all, this is a case where the threat to journalistic privacy is slight; the prosecution seeks nothing more than the transcript of an interview of the alleged victim of a crime who has disclosed her identity to the police and is prepared to be a witness at a criminal trial, and whose words have already been partially disclosed to the public by the CBC. In any event, surely anything that might be said by the special advocate has already been said in counsel’s letter.
Should the Order be Issued?
Is there is any other way by which the information can reasonably be obtained?
[26] Counsel for the CBC refers to the question of whether there is any other way by which the information can reasonably be obtained as the “necessity requirement”, and submits that it has not been met because the complainant has cooperated with the police and has been interviewed by them. The CBC argues that since there is an alternative source of her account, there is no need to require the CBC to produce its video.
[27] I note first of all that the reference to s. 488.01(3)’s requirement that there be no other way by which the information can reasonably be obtained as the “necessity requirement” is derived from the common law jurisprudence prior to the enactment of the JSPA. It is important to remember what was meant by necessity in this context. In Canadian Broadcasting Corporation v. New Brunswick (Attorney General), [1991] 3 S.C.R. 459, Cory J., for the majority, stated, at p. 474:
28 In Pacific Press, the search disrupted the operation of a corporation which was not implicated in the crime being investigated and delayed the publication of its newspaper. These factors weighed heavily in the determination that the search warrant was not valid. Perhaps the only circumstance which could have counterbalanced and outweighed the serious interference with the operations of the media organization was a demonstrated necessity to obtain the information. This necessity could have been demonstrated by establishing that:
- no other reasonable alternative source of obtaining the information was available, or
- if an alternative source were available, that reasonable steps had been taken to obtain the information from the alternative source and that they had been proved unsuccessful.
Because these two factors were not demonstrated on the information placed before the justice of the peace, Nemetz C.J., on balancing all of the factors involved, held that the search warrant should be quashed.
[28] As can be seen, it adds nothing to the analysis to label as “necessity” s. 488.01(3)’s requirement that there be no other way by which the information can reasonably be obtained.
[29] The common law necessity requirement was further discussed by Doherty J.A. in R. v. Vice Media Canada Inc., 2017 ONCA 231, 13 O.R. (3d) 263. In Vice Media, the appellants argued that the reviewing judge must consider whether the prosecution actually needs the evidence sought to support the prosecution or, alternatively, whether the Crown has enough evidence to make its case without that material. This is effectively the same argument as is made here: since the Crown has the cooperation of the complainant, it does not need her first statement to the CBC. Doherty J. A. did not agree. He stated, at paragraphs 40-41:
[40] I would reject the argument that the Crown must show that the material sought is essential to the prosecution. As the Attorney General of Ontario points out, when production orders or search warrants are issued, often there is no prosecution underway and the investigation is very much in its formative stage. No one could accurately assess what the Crown does or does not need to prove its case at trial.
[41] More significantly, in my mind, this submission improperly blurs the line between judge and prosecutor by assigning judges the job of deciding whether the prosecution has sufficient evidence to prove its case without access to the information in the hands of the media. To suggest that a judge can foreclose police access to relevant evidence otherwise producible in law, because the judge thinks the prosecution does not need the evidence to prove its case, is to seriously confuse the role of those who investigate and prosecute crime with the role of those who adjudicate the cases brought by the prosecution against individuals.
[30] In this case, the CBC interview was the complainant’s first recorded account of this alleged sexual assault, and appears from what was disclosed by the CBC to be a full account. As a result, it has significant evidentiary value. It completes the narrative surrounding how the complainant came to report the alleged offence to the police, and contains details about the complainant’s account of the events that may or may not appear in a subsequent account. The narrative and those details, as well as the extent to which various accounts of the offence are consistent, are of real importance to the truth-seeking function of a criminal trial, and are inevitably of evidentiary interest to the Crown and the defence. There is no other way to know what was said by the complainant in her recorded account of these events other than by obtaining the recording. The mere fact that the complainant is cooperating with the police and has provided further accounts of these events is no substitute for her first recorded account.
[31] To suggest that I should foreclose police access to this relevant evidence otherwise producible in law on the basis that I think that the prosecution does not need the evidence to prove its case is to do exactly what Doherty J.A. warned against: to seriously confuse the role of those who investigate and prosecute crime with the role of those who adjudicate the cases brought by the prosecution against individuals.
[32] Accordingly, I conclude that there is no other way by which the information sought can reasonably be obtained.
Does the public interest in the investigation and prosecution of this criminal offence outweigh the journalist’s right to privacy in gathering and disseminating information?
[33] This question requires me to identify both the extent of the public interest in the investigation and prosecution of this offence, and the importance of this journalist’s right to privacy, and to then determine whether or not I am satisfied that the former outweighs the latter.
[34] With respect to the former, it cannot be denied that there is a strong public interest in the investigation and prosecution of the sexual offences in this case. The CBC does not suggest otherwise. It merely says that the benefit of ordering production of the video is marginal at best, and that “we can assume that the complainant will be testifying at trial” in any event. I simply say that this response confuses the first prerequisite (whether there is any other way by which the information can reasonably be obtained) with this second, and in any event we cannot know in advance what effect the refusal of the order will have on the ultimate strength of the Crown’s case.
[35] With respect to the second question, the order sought will authorize the least interference with the journalist’s right to privacy in gathering and disseminating information that one can imagine. There is no confidential source to protect, since the police already know who she is, and the public will not (Criminal Code, s.486(4)). Portions of the interview have already been made public by the CBC. The Crown does not wish to inquire into how the journalist came to know of the complainant, or how she secured the complainant’s cooperation and her consent to an interview. The Crown does not seek the journalist’s notes or other documents that may reveal the journalist’s opinion or strategies. The Crown seeks nothing more than the footage.
[36] I note that in Canadian Broadcasting Corporation v. Lessard, [1991] 3 S.C.R. 421, Cory J. stated, for the majority, that publication by the media of information that it has gathered is a very important factor in applications such as this one, and favours the issuing of, in that case, a search warrant in respect of the information. Similarly, in Canadian Broadcasting Corporation v. New Brunswick (Attorney General), he said that publication by the media significantly attenuates any chilling effect that production to the police could have on media sources.
[37] In light of the significant public interest in the investigation and prosecution of sexual offences in general and this one in particular, and the minimal interference that the production order sought will have on journalistic privacy, I readily conclude that the former outweighs the latter.
Is this application premature?
[38] The CBC ends its letter with a submission that if the judge otherwise is of the view that this order should be made, this application should still be dismissed because it is premature. It should only be entertained at the outset of or during trial, when the complainant’s testimony is a certainty. I do not agree. First, it contradicts the CBC’s earlier position that “we can assume that the complainant will be testifying at trial”. Second, a production order is an investigative tool, and the making of an application for such an order should ordinarily not be restricted to the commencement of trial. Third, even in this case, where the issue of journalistic privacy has been raised, it would be inappropriate to delay the making of such an order until the outset of the trial. The protection of privacy will not be advanced by such a delay, because it is almost inevitable that the order will still be sought. Such delay risks interfering with the strategic decisions that must be made by the Crown and the defence, and in turn may occasion trial delay.
DISPOSITION
[39] For the above reasons, the JSPA order will issue. Upon its execution, the video sought will be placed in a packet, sealed by this court and kept in secure custody, without prior examination or reproduction by any officer, in accordance with s. 488.02(1) and (2) of the Criminal Code. The journalist and/or the CBC may, within ten days of receiving the order, apply to the court pursuant to s. 488.02(3) of the Code for an order that the video not be disclosed. If no application is made within the ten day period, officers may examine the video. If an application is made with the ten day period, the video may not be examined without further order of the court.
[40] I note that s. 488.02(5) contemplates that the judge at the disclosure hearing must be satisfied of the same prerequisites as I was satisfied of before issuing the production order. For greater certainty, despite the fact that I reviewed the CBC’s written submissions, this was an ex parte application, and the disclosure judge will be free to take whatever position he or she deems appropriate after hearing full argument from both sides.
[41] Finally, as an interim measure, I made a non-disclosure order pursuant to s. 487.3(2) of the Criminal Code to preserve the authority of the disclosure judge, should he or she order the video disclosed, to impose such restrictions and conditions as the judge deems appropriate. These reasons, which have been carefully tailored to protect the interests of all concerned, are excluded from the non-disclosure order.