Court File and Parties

Court File No.: Not provided

Date: 2013-10-21

Ontario Court of Justice

Between:

Thomson Reuters Canada Ltd.

— and —

Her Majesty the Queen

Before: Justice M. Greene

Reasons for Judgment released on: October 21, 2013

Counsel:

• J. D. Sutton for the Public Prosecution Services of Canada
• Brian MacLeod Rogers for Thomson Reuters Canada Ltd.

Introduction

[1] On April 10, 2013, Justice of the Peace M. Brihmi signed an Order compelling Thomson Reuters Canada Ltd to produce "all communications associated with Carolyn Van der Veen, spokeswoman for Irving Oil Company Limited, namely an e-mail, and the full contents of the E-mail Header, in relation to the relevant time period of September 28, 2012".

[2] Thomson Reuters Canada Ltd. applies to this Court for an Order that they are exempt from complying with this Order for Production.

Relevant Background

[3] In September, 2012, the Competition Bureau published an announcement that charges were laid against Irving Oil Canada Limited (IOCL) for conspiring to lessen competition of the price of gasoline. Jesse Jones, a journalist, wrote an article about the charges including a statement from Irving Oil Canada's spokesperson. In the article, Mr. Jones wrote the following:

The company said it was not aware of price fixing activities by its staff prior to 2007.

"Our company was not aware of these activities and, when our company became aware of them, we took immediate steps to address the situation, including disciplinary action" spokeswoman Carolyn Van der Veen said in an email. "our company believes that we should not be held responsible for the actions of employees who knowingly violate company policy."

[4] Shortly after Mr. Jones' article was published, officers from the Competition Bureau contacted Mr. Jones a number of times. During these communications, Mr. Jones confirmed that the email from Carolyn Van der Veen had been accurately quoted in his article. When the officers made further inquiries, Mr. Jones directed the officers to his legal counsel.

[5] When contacted, counsel for Mr. Jones advised the officers that he would not release any information absent a court order or subpoena. He further advised that he would object to providing any "email header information" and tracking information.

[6] On April 13, 2013, officers from the Competition Bureau obtained a production Order requiring Thomson Reuters Canada Ltd. to produce the email in question, any other email communications on the date in question, the headers and all the tracking information.

[7] In response to the production order, Thomson Reuters Canada Limited applied to this court for an exemption from producing these documents.

Relevant Legislation

[8] Section 487.012 of the Criminal Code provides that a judge or justice may order a person to produce certain documents to a police officer or public officer. As noted by Glithero J. in R. v. Dunphy [2006], O.J. No. 850 (SCJ), the production order provisions closely resemble the search warrant provisions of the Criminal Code. The main difference between search warrants and production orders is in their manner of execution. Search warrants involve the officers executing the warrant to conduct the search and seize the relevant items. Production orders, on the other hand, require the innocent third party to monitor, collect, and supply the relevant information to the police or investigative agency (see Canadian Broadcasting Corp. v. Manitoba (Attorney General), 2009 MBCA 122, [2009] M.J. No. 409 (C.A.) at paragraph 28).

[9] Given the similarity between the search warrant provisions and the production order provisions, the courts have consistently held that the standard for judicial review of production orders is the same as that for search warrants (see R. v. Dunphy, supra, at paragraph 41 and Canadian Broadcasting Corp. v. Manitoba (Attorney General), supra at paragraph 32).

[10] Unlike the search warrant provisions, however, Section 487.015 of the Criminal Code allows for the person or agency named in the production order to apply to the court for an exemption from the order where:

a) The document, data or information would disclose information that is privileged or otherwise protected from disclosure by law;

b) It is unreasonable to require the applicant to produce the document, data or information; or

c) The document, data or information is not in the possession or control of the applicant.

[11] It is the position of Thomson Reuters Canada Limited that the first two exemptions apply in the case at bar. It is the position of the Competition Bureau that none of the exemptions apply.

Special Role of Media

[12] The exemptions for production orders have not received a lot of judicial attention. There is therefore very little interpretation of these sections. Counsel for the Applicant argued that in assessing whether or not the exemptions apply to this particular Order, this court must look at the exemptions through the lens of the special position that the media have in a free and democratic society.

[13] It is well recognized in our jurisprudence that the media is afforded certain protections in order to ensure and maintain their independence and ability to keep the public informed. As was noted by La Forest J. in Canadian Broadcasting Corp. v. Lessard, [1991] S.C.J. No. 97, "freedom of the press and other media is vital to a free society". La Forest J. went on to note that the media should not become an investigative arm of the police (see paragraphs 2 and 7).

[14] In Canadian Broadcasting Corp. v. Manitoba (Attorney General), supra, the Manitoba Court of Appeal noted that certain factors have been developed for the courts to consider in reviewing search warrants where the media is the target of the search. Justice Steele, writing for the Court noted at paragraph 34:

Where the targets of the search warrants are media outlets, the jurisprudence has developed certain factors which must be weighed and considered during the exercise of the authorizing judge's discretion. This is something that the reviewing judge must consider when applying the Garofoli test. When the targets of a search warrant are media outlets, the reviewing judge must apply a modified Garofoli test, modified in that some special factors must be considered in the exercise of the authorizing judge's discretion. The media are entitled to particularly careful consideration because of the importance of their role in a democratic society, whether production orders or search warrants are issued. See Lessard, at p.44. In Dunphy, in addition to accepting that the existing law regarding search warrants should apply to production orders generally, Glithero J. also found that the specific rules regarding media searches should be applied when production orders were sought for media outlets…

[15] The Court went on to then review the relevant factors a justice must consider when deciding whether to issue a production order on a media outlet. The Court stressed the need to strike a balance between the competing interests of the state in the investigation and the media's right to privacy. In order to do so, the information filed in support of the production order should include other available sources for the sought after information if they exist and whether the media has already disseminated the information being sought. Where a production order is issued, it should include the necessary limitations to protect the interest of the media (see Canadian Broadcasting Corp. v. Manitoba (Attorney General), supra at paragraph 37).

[16] It is clear that in reviewing a production order the Court must balance the privacy interests of the media, given their important role within our society. Thomson Reuters Canada Ltd, however, has not applied for a review of the Production Order. Instead, the Applicant applies for an exemption from the Order.

[17] It is important to note at the outset that there is a substantial difference between quashing a production order and making a finding that the subject of the Order is exempt from complying with it. A review of the order requires the Court to assess whether or not the law has been complied with, in order to determine if the Order was properly issued. A determination as to whether a party is exempt from complying with a production order, starts with the assumption that the Order itself is valid, but that for one of the articulated reasons the Applicant is exempt from complying with its terms.

[18] One of the issues raised in the case at bar is whether the exemptions should be interpreted in a manner that recognizes the special position of the media in our society. In my view they must be considered through this lens. As was noted by Binnie J. in R. v. National Post, 2010 SCC 16, [2010] S.C.J. No. 16 "It is important, therefore, to strike the balance between two public interests – the public interest in the suppression of crime and the public interest in the free flow of accurate and pertinent information. Civil society requires the former. Democratic institutions and social justice will suffer without the latter". The only way to give full force and effect to this sentiment is to balance in the privacy needs of the media when interpreting the exemption provisions.

Exemption 1: Is the Information Ordered to be Produced "Otherwise Protected by Law"?

[19] The first exemption included in the legislation relates to data/documents/information that would disclose privileged information or information otherwise protected by law. It is conceded by both parties that there is no general class privilege to information in the possession of the media. Instead counsel for Thomson Reuters Canada Ltd. argued that the information sought by the competition bureau investigators is otherwise protected by law.

[20] To summarize the applicant's position very briefly; it was argued that in assessing whether the information ordered to be produced is otherwise protected by law, one must consider all the same factors the court is required to consider when reviewing the validity of a production order. It was counsel's position, that while not protected by general class privilege and even though Ms. Van der Veen cannot not be considered a confidential informant, given the chilling effect the order for production would have on members of the public speaking to the media, an exemption ought to be granted to the Applicant. Counsel for the Applicant specifically relied on the fact that the investigators did not exhaust all alternative avenues to obtain the information before seeking a production order, they did not limit the scope of the order nor did they express why the information sought would assist in the investigation.

[21] In further support of his position, counsel for the Applicant noted that while a portion of the communication between Ms. Van der Veen and Mr. Jones was cited verbatim in his article, it is quite likely that there is other information in their communication that was intended to be kept confidential including the header and tracking information.

[22] Counsel for the competition Bureau argued that as "otherwise protected by law" is limited to instances of "case by case privilege" and under this analysis the communications in question are not protected.

[23] In my view, the interpretation sought by counsel for the Competition Bureau is too narrow an approach. If this was the intention of Parliament, then the wording of the section would have simply exempted all privileged communications. Parliament, however, chose to go further.

[24] I also reject the position of the Applicant that the test for "otherwise protected by law" requires the Court to exempt any media outlet from producing communications where the criteria for a valid production order against the media as set out in Canadian Broadcasting Corporation v. Manitoba (Attorney General), supra is not met. In my view, this approach would create no distinction between reviewing a production order and determining whether or not the media is exempt from complying with the order. It must be assumed that Parliament created two different regimes for a reason. I note that as a judge sitting in the Ontario Court of Justice I have no jurisdiction to review the validity of a production order, this power is limited to the Superior Court. It seems absurd that while I have no jurisdiction to review the order, I can exempt an agency from complying with the order because in my view it is not a valid order.

[25] With that said, what interpretation can be attached to the phrase "otherwise protected by law"? In my view, it is not possible on this application, given the limited record, to fully define this phrase nor is it necessary. It seems reasonable, however, that the section would serve to exempt from production information that is protected from disclosure either under statute or at common law. For the purposes of this case, the only potential means of exempting the Applicant from complying with the order is to find that the material is subject to privilege – be it class privilege or case-by-case privilege (otherwise referred to as Wigmore's criteria). In my view, allowing for the expanded definition of privilege in the case at bar properly takes into account the special role of the media and the concern about a chilling effect occurring as a result of the production order. As was noted by Binnie J. in R. v. National Post, 2010 SCC 16, [2010] S.C.J. No. 16, "Professor Wigmore's criteria provide a workable structure within which to assess, in light of society's evolving values, the sometimes-competing interests of free expression and the administration of justice and other values that promote public interest".

[26] Neither party suggests that the communications sought are protected by class privilege. That leaves this court to consider whether the documents sought are protected by case-by-case privilege. In R. v. National Post, supra, the Supreme Court of Canada held that "case-by-case privilege" may attach to certain communications between journalists and their sources. The Court also articulated the test to determine whether or not case-by-case privilege will attach to a particular communication (see paragraph 50).

[27] The "Wigmore Criteria" consists of four elements:

a) The communication originate in a confidence that the identity of the informant will not be disclosed

b) The confidence must be essential to the relationship in which the communication arose

c) Must be a relationship that is "sedulously fostered" in the public good

d) The public interest in retaining confidentiality outweighs the public interest in getting at the truth (see R. v. National Post, supra, at paragraph 53)

[28] In the case at bar, the communication did not originate in confidence nor can it be said that Ms. Van der Veen spoke on the promise that her identity would not be made known. The content of the reported portion of the communication suggests the opposite; that she wanted her identity and the position of her company made public. Ms. Van der Veen is quoted as saying that her company knew nothing of the illegal activities, that those engaged in the illegal activities were doing so against company policy and that once discovered the company reacted immediately. The most obvious inference to attach to this communication is that Irving Oil wanted the public to know that they are innocent and do not condone the actions of their non-law abiding employees.

[29] The Applicant presented no other evidence to contradict this obvious inference. Moreover, while the Applicant argued that the material sought may include other confidential communications that were not repeated in the paper, the Applicant provided no evidence of this. In my view, the Applicant must provide at least some evidence that confidentiality was expected and/or promised. There is nothing on the record before me to suggest that Ms. Van der Veen expected or wanted confidentiality of her identity or her communication, let alone that it was essential to the relationship between herself and Mr. Jones.

[30] I do accept, however, that as a professional journalist the relationship between Mr. Jones and any of his sources, including Ms. Van der Veen must be fostered. That said, given the absence of promised or expected confidentiality I need not embark on the fourth requirement of the Wigmore test and find that no case-by-case privilege exists in the case at bar.

[31] I note, as an aside, that even if I were to take the broader approach suggested by the Applicant in the interpretation of the first exemption, I am satisfied that the Applicant still would not have met the test for the exemption. In the case at bar, the only evidence about the nature of the communication between Ms. Van der Veen and Mr. Jones comes from what Mr. Jones reported – which can only be described as a public statement that her company is not at fault, but that a few employees breached the company policy and once it was discovered, they were disciplined. Nothing in this content suggests that this communication was meant to be private or protected or that by refusing to produce the original document it would deter others from speaking to the media. On its face, the statement appears to be exculpatory – one made to garner public support.

[32] I appreciate that there is an argument that the investigators could have sought the production of Ms. Van der Veen's communication from other media sources that apparently reported the same comment from Ms. Van der Veen, but in my view, this is an issue better addressed on a review of the order as opposed to whether the applicant ought to be exempt from complying with the Order.

[33] The Applicant has not satisfied me that documents in question are privileged or otherwise protected by law.

Exemption 2 – It Would be "Unreasonable" to Compel the Agency to Produce the Item(s) Sought

[34] The Applicant's argument under this second exemption closely resembles his argument under the previous exemption; that is that given the unique role of the media, in deciding whether compelling the Applicant to produce the requested item, this Court must consider the same factors the court is called upon to consider in reviewing the validity of a production order.

[35] I disagree with this approach for the same reasons I articulated above. If the approach was this simple, then there would be no distinction between reviewing an Order and an exemption. Justice Harris of the British Columbia Supreme Court in The Vancouver Sun v. British Columbia, 2011 BCSC 1736 when addressing a similar issue specifically held that this exemption requires consideration of factors different from what one would consider when reviewing the validity of an order. He stated at paragraph 24:

Had Parliament intended to import into the criteria of "unreasonableness", for the purposes of an exemption order, all of the factors that go into an analysis of whether issuing an order in the first place reasonably took into account all of the statutory conditions for issuing orders and the factors bearing on the exercise of discretion one would have expected a clear statement of that intent. I can find no such intent in the scheme.

I agree with Harris J.'s remarks.

[36] Moreover, I note that the second exemption specifically calls upon the court to consider whether it would be unreasonable to compel the agency to produce the items sought. It does not provide for an exemption where the order itself is unreasonable. I agree that in Canadian Broadcasting Corp v. Lessard, supra, and in many other cases, the Courts have set out factors to test the reasonableness of a search, and by extension the reasonableness of a production order, but the exemption in question does not relate to the reasonableness of the order. It only relates to the reasonableness in compelling the agency to comply with the order. The former relates to the validity of the order itself while the latter relates to the ability or the position of the agency to comply with the order.

[37] While I would not go so far as to find that this exemption only applies where the cost of compliance with the order is unbearably high, it does, in my view, require some evidence that complying with the order would place an unreasonable burden on the Applicant. As no such evidence was presented in the case at bar, I have no basis to find that it would be unreasonable to compel the Applicant to comply with the production order.

[38] The applicant has not satisfied me that it is unreasonable to require him to produce the material required by the production order.

Decision

[39] For all these reasons, the application is dismissed.

Released: October 21, 2013

Signed Justice Mara Greene