SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 79/15
DATE: 2015/08/17
ONTARIO
BETWEEN:
CTV, A Division of Bell Media Inc.
J. Lefebvre, for the Applicant
Applicant
- and -
Her Majesty the Queen
J. Carnegie, for the Respondent
Respondent
HEARD: July 28, 2015
LEITCH J.:
[1] The applicant seeks review of a production order made pursuant to the newly enacted s. 487.0193 of the Criminal Code.
[2] On March 30, 2015 Justice of the Peace Patricia Hodgins required the applicant to produce “media interviews conducted with Megan Sproul by CTV London Television and AM 1290 CJBK radio on Wednesday, March 11, 2015”.
Background Facts
[3] Megan Sproul has been charged with the offences of failing to provide the necessaries of life contrary to s. 215 of the Criminal Code, child abandonment contrary to s. 218 of the Criminal Code and operation of a motor vehicle while impaired by drugs contrary to s. 253 (1)(a) of the Criminal Code.
[4] Ms. Sproul was interviewed by the media and segments of her interview were broadcast on radio and television.
[5] As the applicant points out, the news clip from the applicant’s broadcast, as well as an article quoting from the broadcast interview, remain available on its website. In addition, the CJBK interview is available for download in its entirety from the CJBK website.
The ITO made to obtain the Production Order
[6] Section 487.014 permits a police officer or public officer to make an ex parte application before a justice or judge (which is defined in s. 487.011 as a judge of a Superior Court of criminal jurisdiction) for an order that a person produce a document in their possession or control or to prepare and produce a document containing data that is in their possession or control at that time.
[7] Section 487.014(2) requires the justice or judge, before making a production order, to be satisfied by information on oath that there are reasonable grounds to believe that an offence has been or will be committed under the Criminal Code and the document or data is in the person’s possession or control and will afford evidence respecting the commission of the offence.
[8] This production order was granted based on an information sworn by Detective Carne of the London Police Service on March 29, 2015 (“the ITO”).
[9] There was no issue that Detective Carne had reasonable grounds to believe that an offence had been committed and that the applicant, as the person subject to the production order, had possession or control of the requested data.
[10] His grounds to believe that the requested data would afford evidence respecting the commission of the offence were more controversial. Paragraph 49 of the ITO set out these grounds as follows:
- As mentioned above, I have personally listened to and watched both interviews/segments Sproul had with both AM 1290 CJBK radio and CTV London television. Within both of these interviews, Sproul admits to leaving the baby in the position where he was found. I feel as if this is an admission of sorts and contributes to the evidence of the charges currently before the courts. I am particularly interested in all of the unedited portions of the interviews that was not shown to the public.
[11] Detective Carne concluded at para. 50 of the ITO the following:
- I have reasonable grounds to believe that Megan Sproul has committed the offences of Failing to Provide the Necessaries of Life and Child Abandonment, contrary to section 215 and section 218 of the Criminal Code of Canada. Sproul has admitted to committing these offences not only to me in my interview with her, but while being interviewed by local media outlets as described. This was an admission of guilt of sorts for these offences. I am therefore requesting judicial authorization to obtain official copies of these interviews including all unedited portions not broadcast to the public. The contents of these records could be valuable and/or crucial pieces of evidence to assist in the prosecution of the said offences.
The Issue on this application
[12] The contentious issue on this application is the question whether the new s. 487.0193 has changed the scope of review from that which existed under the former s. 487.015. These two sections are set out below.
(i) The Current Legislative Provision
Application for review of production order
487.0193(1) Before they are required by an order made under any of sections 487.014 to 487.018 to produce a document, a person, financial institution or entity may apply in writing to the justice or judge who made the order – or to a judge in the judicial district where the order was made – to revoke or vary the order.
Notice required
(2) The person, institution or entity may make the application only if they give notice of their intention to do so to a peace officer or public officer named in the order within 30 days after the day on which the order is made.
No obligation to produce
(3) The person, institution or entity is not required to prepare or produce the document until a final decision is made with respect to the application.
Revocation or variation of order
(4) The justice or judge may revoke or vary the order if satisfied that
(a) it is unreasonable in the circumstances to require the applicant to prepare or produce the document; or
(b) production of the document would disclose information that is privileged or otherwise protected from disclosure by law.
(ii) The Predecessor Provision
487.015 (1) A person in an order made under 487.012 and a financial institution, person or entity named in an order made under section 487.013 may, before the order expires, apply in writing to the judge who issued the order, or a judge of the same territorial division as the judge or justice who issued the order, for an exemption from the requirement to produce any document, data or information referred to in the order.
Notice
(2) A person, financial institution or entity may only make an application under subsection (1) if they give notice of their intention to do so to the peace officer or public officer named in the order, within 30 days after it is made.
Order suspended
(3) The execution of a production order is suspended in respect of any document, data or information referred to in the application for exemption until a final decision is made in respect of the application.
Exemption
(4) The judge may grant the exemption if satisfied that
(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.
[13] There are no issues of privilege raised on this application and the applicant is seeking a variation or revocation of the production order under s. 487.0193(4)(a) asserting that it is unreasonable in the circumstances to require it to prepare or produce the data. Therefore, the issue on this application involves a consideration of how a court determines if it is unreasonable in the circumstances to require the applicant to comply with the production order.
[14] On this application brought by the media, does the interpretation of this question take into account s. 2(b) of the Charter of Rights and Freedoms and the unique role played by the media in a democratic society?
The applicant’s position
[15] The applicant’s position is that in interpreting the phrase “unreasonable in the circumstances” in s. 487.0193(4) a reviewing court should undertake the analysis of whether the production order ought to have been made. The applicant emphasizes the use of the term “review”; the fact that these applications may also now be made to the Superior Court of Justice, which has inherent jurisdiction to quash invalid orders; and, the ability to seek a variance or revocation of the order pursuant to the current provisions which expands the right to seek an exemption under the predecessor legislation.
[16] The applicant requests that this production order be revoked in its entirety based on how the order was made.
[17] The applicant contends that the production order is unreasonable in the circumstances because Detective Carne did not make full disclosure to the court in the ITO and the court did not consider the relevant factors to make a production order against a media organization, including the necessity of the order and other available sources for the sought after information.
[18] Alternatively, the applicant requests that the order be varied to oblige the applicant to produce only a copy of the CTV broadcast containing the interview with Ms. Sproul but not the raw footage recorded and a copy of the interview between Ms. Sproul and the party from the radio station who interviewed her.
[19] The applicant submits that these segments available to the public contain the “admission of sorts” that Detective Carne is seeking. Indeed, Detective Carne acknowledged that in paragraph 49 of the ITO. The applicant further submits that requiring it to produce more inappropriately and unnecessarily involves it in evidence gathering in this criminal investigation.
The Crown’s position
[20] The Crown’s position is that the amendments have not broadened the scope of review nor are they intended to replace the requirement for an application for certiorari to quash a production order that was not properly issued.
[21] The Crown notes that the word “review” only appears as a title and does not appear in s. 487.0193.
[22] The Crown’s position is that the new section has only broadened the remedies available by permitting variations to, and revocation of, the production order in addition to the granting of an exemption and the fact that applications can now be made to this court does not further expand the relief that can be granted.
Analysis and Disposition
[23] I will first address the question whether this application ought to include a review of the decision of the justice of the peace to issue the production order or only a consideration of whether the order should be varied or revoked.
[24] I agree with the position advanced by the Crown that, although this section now includes the word “review” in its title, the application under this section has not replaced a certiorari application.
[25] I find it significant that the word “review” appears only in the title to the section. I also find it significant that these applications under s. 487.0193(4) can be made not only to this court but also to the justice or judge who made the order. In other words, these applications are not solely within the purview of the Superior Court. It could not have been intended that applications could be made to the issuing court requesting that it review the exercise of its own jurisdiction.
[26] The applicant included in its record excerpts from the House of Commons debate of Bill C-13, which included the amendments to s. 487. The members of Parliament who spoke in favour of the Bill commented, as the applicant described, in its factum, on the need for “the proper balance between law enforcement and intrusion upon third parties”. However, these comments do not detract from, and are not inconsistent with, the interpretation of this new section as permitting only a consideration of whether compliance with the production order would be unreasonable in the circumstances.
[27] I am satisfied that the reasonableness inquiry relates to the preparation and production of documents, data or information and not the granting of the order. In other words, the appropriate inquiry is to address the question whether the preparation and production is so onerous as to be unreasonable in the circumstances.
[28] In Tele-Mobile Co. v. Ontario, [2008] 1. S.C.R. 305, the Supreme Court of Canada considered the production order scheme under the predecessor sections. The particular issue before the court was whether a judge considering a production order had the jurisdiction to require, as a term or condition of that order, that the police reimburse the producing party for its reasonable expenses incurred in complying with the production order. The court concluded that the court issuing the production order had no such jurisdiction and the financial consequences of a production order could only be considered on an application for an exemption under the predecessor s. 487.015(4)(b). The court made clear that such an application involved a consideration as to whether or not it was unreasonable to require the producing party to produce the document, data or information.
[29] The court concluded at para. 67 that “in essence, the financial consequences must be so burdensome that it would be unreasonable in the circumstances to expect compliance”, noting further at para. 67, that “what is reasonable will be informed by a variety of factors, including the breadth of the order being sought, the size and economic viability of the object of the order, and the extent of the order’s financial impact on the party from whom production is sought. Where the party is a repeated target of production orders, the cumulative impact of multiple orders may also be relevant.”
[30] Ms. Sproul voluntarily participated in a radio and television interview for public broadcast. It would not be onerous or difficult for the applicant to produce the unedited interviews, which are the subject of this production order. This data is already prepared and readily available. I do not find it unreasonable in these circumstances to require the applicant to comply with the production order.
[31] For the sake of completeness, if the inquiry under s. 487.0193(4)(a) extends to a review of the reasonableness of the decision to make the production order, I will also undertake that review and consider whether the order was properly issued taking into account the special considerations that must be afforded to the media as described below.
[32] Both counsel referred to the Supreme Court of Canada’s seminal decision in CBC v. Lessard, 1991 49 (SCC), [1991] 3 S.C.R. 421, where Cory J. speaking for the majority set out the following factors to be considered in issuing a search warrant for media premises, all of which are equally applicable to the issuance of a production order against the media:
It is essential that all the requirements set out in s. 487(1)(b) [the relevant provision to that case] of the Criminal Code for the issuance of a search warrant be met.
Once the statutory conditions have been met, the justice of the peace should consider all of the circumstances in determining whether to exercise his or her discretion to issue a warrant.
The Justice of the peace should ensure that a balance is struck between the competing interests of the state in the investigation and prosecution of crimes and the right to privacy of the media in the course of their news gathering and news dissemination. It must be borne in mind that the media play a vital role in the functioning of a democratic society. Generally speaking, the news media will not be implicated in the crime under investigation. They are truly an innocent third party. This is a particularly important factor to be considered in attempting to strike an appropriate balance, including the consideration of imposing conditions on that warrant.
The affidavit in support of the application must contain sufficient detail to enable the justice of the peace to properly exercise his or her discretion as to the issuance of a search warrant.
Although it is not a constitutional requirement, the affidavit material should ordinarily disclose whether there are alternative sources from which the information may reasonably be obtained and, if there is an alternative source, that it has been investigated and all reasonable efforts to obtain the information have been exhausted.
If the information sought has been disseminated by the media in whole or in part, this will be a factor which will favour the issuing of the search warrant.
If a justice of the peace determines that a warrant should be issued for the search of media premises, consideration should then be given to the imposition of some conditions on its implementation, so that the media organization will not be unduly impeded in the publishing or dissemination of the news.
If, subsequent to the issuing of the search warrant, it comes to light the authorities failed to disclose pertinent information that could well have affected the decision to issue the warrant, this may result in a finding that the warrant was invalid.
Similarly, if the search itself is unreasonably conducted, this may render the search invalid.
[33] In Lessard, the court also noted that the media are entitled to particularly careful consideration when a search warrant for their premises is sought because of their important role in a democratic society. The majority held that the search was reasonable under s. 8 of the Charter and not a violation of s. 2(b) of the Charter and the justice of the peace was justified in issuing the warrant to enter, search and seize video tapes at the offices of CBC.
[34] The applicant also relies on the conclusion in Canadian Broadcasting Corp. v. Manitoba (Attorney General), 2009 MBCA 122, on an appeal from a certiorari application to quash production orders made against the media. At para. 34, applying Lessard, the court stated a “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”.
[35] Referencing the first Lessard factor, I am satisfied that the ITO contained the requirements of s. 487.014. While the applicant asserted that Detective Carne did not acknowledge that there were portions of Ms. Sproul’s interview that were already in the public domain, in paragraphs 46 and 49 of the ITO, as previously referred to, he stated that he had personally listened to and watched what had been broadcast on the radio and the TV and stated his belief that the interviews contained “an admission of sorts and contributes to the evidence of the charges currently before the courts”. He also deposed that unedited portions of the interview could be valuable to assist in the prosecution of the offences.
[36] The second and third factors from Lessard require that the justice of the peace should consider all of the circumstances; ensure a balance is struck between the competing interests of the state in investigating crimes and the right to privacy of the media; and, bear in mind that the media play a vital role in the functioning of a democratic society, it will not be implicated in the crime being investigated and is truly an innocent third party.
[37] Referencing the fourth and fifth Lessard factors, I am satisfied the ITO contained sufficient detail to enable the justice of the peace to properly exercise her discretion and it disclosed that there were alternate sources from which information may reasonably be obtained: Detective Carne described his interview with Ms. Sproul and he indicated he had listened to and watched what had been broadcast.
[38] With respect to the sixth Lessard factor, I note again that part of the interview, the information in issue here, had been broadcast and this factor favours the issuing of a search warrant or production order in relation to all of the information.
[39] In terms of the seventh Lessard factor, the implementation of this production order will not impede the applicant in the publishing or dissemination of the news.
[40] Considering the eighth factor, there has not been a failure to disclose pertinent information that could well have affected the decision to issue the production order.
[41] With respect to the ninth factor, there is nothing unreasonable in how the inquiries relating to the information and the production order were conducted
[42] The information sought from the applicant is not notes from a reporter representing his research or notes from private interviews with a person speaking in confidence to a reporter. This information is an on air and on camera interview intended for public broadcast. It was not, and could not be, argued that Ms. Sproul expected her statements to remain private. As earlier noted, the applicant has not asserted that the information in issue is privileged.
[43] These circumstances are analogous to those before the court in Lessard. Cory J.’s comments at para. 53 are particularly apposite. He first noted that the ITO did not state there was no alternative source of information or, if there was, the information could not be obtained from that alternative source, which was a factor for the justice of the peace to consider. However, he found at para. 21 that it was appropriate for the justice of the peace to issue the search warrant to enter, search and seize video tapes at the offices of CBC because there was no interference with the operation of the news media, nor was the freedom of the press threatened. The media had already completed their basic function of news gathering and news dissemination; thus, in my view the seizure of the tapes at this stage could not be said to have a chilling effect on the media’s source of news.
[44] Those observations are equally applicable here.
[45] For these reasons, the application is dismissed and the applicant shall comply with the production order.
“Justice L. C. Leitch”
Justice L. C. Leitch
Date: August 17, 2015
COURT FILE NO.: 79/15
DATE: 2015/08/17
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
CTV, A Division of Bell Media Inc.
Applicant
- and -
Her Majesty the Queen
Respondent
REASONS FOR JUDGMENT
LEITCH J.
Released: August 17, 2015