COURT FILE NO.: CR-910000604

DATE: 20210507

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

Respondent

– and –

SHIN WOOK LIM

Defendant/Applicant

– and –

CANADIAN BROADCASTING CORPORATION

Third Party/Respondent

J. Witkin and L. Fineberg, for the Crown

D. Robitaille and K. Flanagan, for the Defendant

Monte MacGregor, for the complainant A.E.

Andrea Gonsalves and Pam Hrick, for the Canadian Broadcasting Corporation

HEARD: October 5, 7 and 13, 2020, by Zoom video conference

REASONS FOR DECISION #4

(Application for production of CBC Materials)

MOLLOY J.:

A. INTRODUCTION

[1] Shin Wook Lim was a high-level Taekwondo coach. He was charged with multiple counts of sexual assault involving two separate complainants, both of whom were teenage girls coached by him at the time of the alleged assaults. Prior to his trial, he learned that one of those complainants had been interviewed a number of times by a journalist with the Canadian Broadcasting Corporation (“CBC”).

[2] The defence applied for an Order requiring the CBC to produce certain materials in its possession, which the accused alleges are likely relevant to the sexual assault charges against him.

[3] For the reasons that follow, I ordered the CBC to disclose one line from notes taken by a journalist with respect to information given to her by A.E. and an excerpt from one of the videotapes of A.E. being interviewed by a CBC journalist.

B. FACTUAL CONTEXT

[4] Four young women have alleged sexual improprieties and/or sexual assault by Mr. Lim while he was their Taekwondo coach. All were teenagers at the time of the alleged assaults and were members of an elite group aspiring to compete in the Olympics. Of the four, two (A.E. and M.V.) were complainants on the 15-count indictment before me, and two (S.C. and E.L.) were the subject of a motion by the Crown to introduce evidence of similar acts of sexual impropriety as being relevant to whether Mr. Lim committed the offences charged. The Crown also sought a count-to-count similar fact ruling, permitting the evidence of A.E. (the complainant in 10 counts) to support the charges involving M.V. (the complainant in the remaining five counts), and vice versa.

[5] The defence opposed the admission of the similar fact evidence. The defence also sought to sever the indictment so that the charges regarding A.E. and M.V. would be heard in separate trials, with the trial involving A.E.’s charges proceeding first.

[6] A.E. was the first of these four young women to speak to the police about her allegations of sexual assault. She did so on April 27, 2018. This was shortly after first reporting her allegations to a friend and, soon thereafter, to her mother. The assaults alleged by A.E. occurred in the Taekwondo studios in Toronto where Mr. Lim coached, in her home, in Mr. Lim’s home, and at training camps in South Korea. The acts complained of ranged from groping and kissing to oral sex and full intercourse, with the sexual content of the acts escalating over time. These incidents are said to have occurred between 2015 and 2017, when A.E. was between the ages of 15 and 17. In her police interview and at the preliminary hearing, A.E. said that at the time of these events she did not tell anyone about what Mr. Lim did to her because she did not appreciate that his conduct could be characterized as sexual assault.

[7] In the winter of 2018, A.E. was a university student. That term, she took a course in Criminology as one of her electives. Students in the course were required to write a paper about a current or recent criminal case, relating the real-life facts of that case to principles of criminology. A.E. chose to write her paper about the case of King Leung, a Taekwondo coach in Winnipeg who pleaded guilty to sexually assaulting teenage girls and was sentenced to 10 years in prison. She submitted that paper on March 22, 2018. Subsequently, while in a lecture in the Criminology class about crimes of violence and sexual assault, A.E. said she suddenly realized that what Mr. Lim had done to her over the years was not for her benefit, but rather was sexual assault. She described having many “flashback” memories of what Mr. Lim had done between the time of that class and when she went to the police. However, she said that it was not as if she had ever forgotten any of these incidents, but rather that she had “put them in a box” and did not allow herself to think about them, until she suddenly realized during her class that these acts by Mr. Lim were criminal assault.

[8] The second young woman to come forward was S.C., who gave her statement to the police in May 2018. By then, she knew that Mr. Lim had been arrested and charged with the offences involving A.E. and had discussed the matter with A.E. before she went to the police. Her allegations related to a number of electronic messages sent to her by Mr. Lim in 2017, which were relied upon by the Crown as evidencing a pattern of grooming. She was 15 years old at the time of these communications. She did not allege any actual assaults.

[9] M.V. and E.L. were roommates and lived in London, Ontario. They gave statements to the Toronto police in March 2019. Nothing about their circumstances relates at all to the motion for production from CBC, so for present purposes I do not need to describe their allegations.[^1]

[10] In early May 2019, journalists with the CBC contacted A.E.’s mother to inquire about interviewing A.E. for purposes of a documentary about sexual assault being produced for the Fifth Estate. This was not long before the commencement of the preliminary hearing. Between May and October 2019, there were a number of communications between CBC journalists and both A.E. and her mother, as well as with their legal counsel. CBC filmed interviews with A.E. and others relating to the matter. Neither the Crown nor the defence knew this was happening.

C. PROCEDURAL HISTORY

1. Application for communications between proposed witnesses

[11] The pre-trial disclosure motions in this case began with an application by the defence to obtain production of any communications between A.E. (one of the complainants) and any of the other three similar fact witnesses, based on alleged collusion or collaboration between them. That motion was argued before Ducharme J. in August 2020 and resulted in an order for the production of a text message chain between A.E. and one of the similar fact witnesses (S.C.) that occurred before the CBC interviews. In that text exchange, A.E. told S.C. that the CBC was doing a documentary exposing the sexual abuse that had been going on in the Taekwondo community, including the sexual assault charges against Mr. Lim. She said that she would be featured in this program and perhaps S.C. might be included as well. They talked about being “Canadian celebrities” and walking the red carpet together. A.E. said that her lawyers would be talking to CBC before she was interviewed to ensure this would not interfere with the criminal charges against Mr. Lim or the civil lawsuit she was bringing against him.

2. Application for Communications Between A.E. and the CBC

[12] The disclosure of this communication between A.E. and S.C. was the first information the defence had about the proposed CBC documentary. At the request of the Crown, the officer in charge of the case (D.C. Ross) interviewed A.E. about her communications with CBC and the information obtained from that interview was disclosed to the defence. A.E. told D.C. Ross that her first actual contact with the CBC was through an email of May 2, 2019 and that she had met with the CBC five or more times, including before the commencement of the preliminary hearing in May 2019, and again when it resumed in July 2019. The initial contact from CBC came to A.E.’s mother (V.S.) through a friend who worked there. A.E. said that it was a condition of her involvement that she would only discuss her feelings as she was going through the judicial process and the stress she was under, and nothing about the substance of the charges against Mr. Lim. She could not recall providing the CBC with any information about other potential witnesses to contact. A.E. said that the only documentation she had of her discussions with CBC were text messages and emails passing between herself, her mother, and CBC personnel. She provided all those communications to D.C. Ross. The Crown disclosed to the defence a summary of what A.E. told D.C. Ross.

[13] The defence sought disclosure of the text of all communications between A.E. and her mother and the CBC. Having reviewed that material, the Crown concluded that matters of personal privacy might arise, that an application under s. 278 of the Criminal Code was required, and that A.E. and V.S. were entitled to notice. Both retained counsel.

[14] The defence brought an application before me for disclosure of the materials, maintaining that the Crown should disclose them pursuant to its duty under Stinchcombe or, in the alternative, that I should order their disclosure under the s. 278 regime. The defence argued both that the documents were likely relevant to its defence and trial, and that they were likely relevant to the defence ability to require production of the material in the hands of the CBC through a subsequent third party records application. All of the parties agreed that the preliminary test for production of the documents for my review had been met, and I was therefore able to read all the communications prior to the argument of the motion. The motion was argued before me on September 17, 2020 by conference call. For reasons dated September 24, 2020, I ordered the disclosure of a number of emails and texts, some of which were redacted to remove irrelevant personal information.[^2] Although none of the emails or texts could be said to be even remotely relevant to the substantive charges before the court, I ordered disclosure of material relevant to the pending motion by the defence for production of the CBC interview recordings. In summary, I ruled that the following must be disclosed (subject to redactions for irrelevant and private information):

(i) the dates of meetings arranged between A.E. and/or her mother and the CBC;

(ii) communications relating to the scope of the CBC documentary; and,

(iii) information about the terms upon which A.E had agreed to be interviewed by the CBC.

[15] Based on the content of these communications, it appears that A.E. met with the CBC a number of times around the time the preliminary hearing began on May 9, 2019. While A.E. was still under cross-examination, the hearing was adjourned to July 2019. She was ordered not to discuss her evidence with anyone prior to the return date. There were communications with CBC between the two hearing dates, as well as after the final hearing date. It was apparent from these communications that lawyers for A.E. had also met with the CBC and, as a result of their involvement, CBC undertook not to air the documentary until after the trial of the criminal charges against Mr. Lim. In one communication, the stipulation was that CBC would not air the documentary until the trial had ended and any appeal rights had expired. In another communication, there was an express statement that A.E. and her lawyers did not want the defence in the criminal trial to find out about the documentary. There were references to the interviews being limited to A.E.’s feelings as the judicial process unfolded, rather than to issues related to the alleged sexual assault itself. However, in an email sent on October 21, 2019, the principal CBC journalist asked A.E. for names of people who might have information about the sexual assaults by a Taekwondo coach in Winnipeg. The journalist also asked her what might have helped her “realize earlier that her coach’s behaviour was not appropriate”. Both inquiries supported the defence submission that A.E.’s current feelings about the judicial process were not the only things under discussion.

3. This application for records held by the CBC

[16] Based largely on the information received from those text messages and emails between A.E., her mother, and the CBC, the defence brought an application for production from CBC of a broad-ranging list of materials, including:

• all correspondence (including emails and text messages) between anyone at CBC and A.E. and/or V.S. and/or Monte MacGregor (A.E.’s lawyer);

• all notes of any reporters with respect to meetings with A.E. and/or V.S. and/or Mr. MacGregor;

• all video or audio recordings of interviews with A.E. and/or V.S. and/or Mr. MacGregor;

• all correspondence (including emails and text messages) between anyone at CBC and any of the three proposed similar fact witnesses or their counsel;

• all notes of any reporters with respect to meetings with any of the three proposed similar fact witnesses or their counsel;

• all video or audio recordings of interviews with any of the three proposed similar fact witnesses or their counsel;

• any other such material with respect to any other witnesses or their counsel.

[17] Prior to the commencement of the hearing, counsel for Mr. Lim narrowed the scope of the documents sought. First, where there was any other record of a meeting or interview, the defence did not seek the reporter’s notes for that same interview. Second, the defence abandoned any request for the work product of the journalists involved. Where a journalist included personal observations or notes with respect to planning or the like, those portions could be redacted. Thus, the only journalist notes being sought were those related to information disclosed by witnesses and only where there was no other recording of that information.

[18] In response to this application, counsel for CBC prepared an index of all materials in the possession of CBC that would be responsive to the production requested by the defence. The CBC objected to production of any of those materials, either to the court for its review at the preliminary stage, or ultimately to the parties. The CBC index divided the documents into three categories:

Category One – Audio and Video Recordings: Items 1A to 1I (including five recordings of A.E.; two recordings of V.S.; two recordings of Mr. MacGregor; one recording of Individual A; and one recording of Individual B)

Category Two – Reporters’ Notes: Item 2A (notes of a meeting with A.E. and V.S. on October 21, 2019; and 2B (notes of a meeting with Individual A and Individual C on May 9, 2019)

Category Three – Correspondence: Item 3A (email to Individual C); Items 3B to 3G (six exchanges of text messages between the CBC and/or A.E. and V.S.); Item 3H (text messages between the CBC and Mr. MacGregor; Item 3I (email exchanges between the CBC and A.E. and/or V.S.).

[19] Counsel for CBC further advised that the three persons identified as A, B, and C were not the three proposed similar fact witnesses. The CBC had no documents relating to those witnesses.

[20] At the outset, I directed that the application would proceed first with respect to all documents relating to A.E., her mother, and her lawyer (“the A.E. Records”). The production request related to Individuals A, B, and C would be held in abeyance so that CBC could notify those individuals and determine whether they asserted a privacy interest in the material.

[21] The argument with respect to the A.E. Records proceeded in two stages. On October 5, 2020, the first stage of the hearing, I heard submissions as to whether some or all of the A.E. Records should be turned over to me for my review. At the conclusion of that first day of argument, I ordered CBC to provide me with copies of all interviews with A.E. and/or her mother. To the extent there might be video footage of either of them that did not include audio, it did not need to be disclosed. I also required production to me of the journalist’s notes from the October 21, 2019 interview with A.E. and her mother, except that any portions relating to anything other than information received from A.E. and her mother could be redacted. Further, I ordered production to me of all communications between CBC and either A.E. or her mother between May 9, 2019 and the resumption of the preliminary hearing in July 2019. I ruled that any communications or video interviews between Mr. MacGregor and the CBC need not be produced. I advised that I would provide reasons for this ruling in writing at a later date.

[22] An issue arose as to whether the CBC would also give Mr. MacGregor a copy of all A.E. Records provided to me at this stage. I advised counsel that it would likely be quite helpful on the return of the motion if Mr. MacGregor had seen the disclosed documents, so that I could receive more informed submissions. However, I was of the view that I had no legal authority to order CBC to do so, and therefore did not.

[23] CBC was very prompt in providing the records to me for my review. Counsel for CBC also provided me with an unofficial rough transcript, simply as an aid in reviewing the videos recordings, which was quite helpful. Over the course of that night and the next day, I reviewed all the records.

[24] On October 7, 2020, the hearing reconvened before me. I learned that the CBC had voluntarily provided Mr. MacGregor with the video recordings and correspondence, but not the October 21, 2019 journalist’s notes. I am grateful for this cooperation.

[25] At the outset of the final stage of the hearing, I advised counsel that the vast majority of the A.E. Records were very clearly irrelevant to any issue at trial and, no matter what test was applied, were not producible.

[26] I heard argument from all counsel with respect to a portion of the 1B video and a portion of the 2A notes. At the conclusion of argument, I ordered CBC to release to the parties one sentence from the 2A journalist’s notes and a short clip from the 1B video. Again, I advised that my written reasons would follow.

[27] I adjourned the hearing to October 13, 2020 to deal with the request for production of materials in relation to Individuals A, B, and C. During the intervening long weekend, defence counsel and counsel for CBC worked cooperatively to resolve many of the outstanding issues. As a result, defence counsel determined that nothing relevant could be gleaned from the records in relation to Individuals A and C. The application was withdrawn in respect of those individuals.

[28] Counsel were not able to resolve the issues with respect to Individual B. Counsel for CBC provided a letter addressed to the Court from a lawyer representing Individual B. The lawyer was unable to attend in court that day due to prior commitments, but provided brief written submissions on her client’s behalf and offered to appear at a later date if required. Based on those submissions, it appears that Individual B had spoken with the CBC on an “off the record” basis, conditional on assurances from CBC that Individual B would not be named or quoted and the information provided would not be published. The lawyer advised that “privacy and confidentiality were and remained key concerns” for Individual B.

[29] Defence counsel sought to examine a CBC journalist, Lisa Ellenwood, with a view to establishing that the interview with Individual B would provide information relevant to the defence. This was resisted by the Crown and by the CBC. However, I permitted limited questioning designed to determine the general nature of the information provided by Individual B, without divulging any of the content of those statements. Ms. Ellenwood testified. As a result of her evidence, Ms. Robitaille, for the defence, conceded that she could no longer make an argument for the disclosure of the interview, and withdrew her application in relation to Individual B. My reasons for permitting the examination of the CBC journalist are set out below.

D. JOURNALIST AS THIRD PARTY HOLDER OF RECORDS

[30] Special considerations apply when the records sought are in the hands of a journalist. In considering whether to order production of such material, the trial judge must recognize the unique position of the media in a free and democratic society. In this situation, it is not only the privacy rights of the complainant that are at stake, but also the rights of the media under s. 2(b) of the Canadian Charter of Rights and Freedoms.

[31] The Supreme Court of Canada has long recognized the integral role played by the media in our democracy and the need to protect the privacy interests of journalists to ensure they are not unduly hampered in their endeavours to gather and report the news and that freedom of the press is preserved. These principles have evolved over the decades, as reflected in three seminal decisions of the Supreme Court: CBC v. New Brunswick;[^3] R. v. National Post;[^4] and, R. v. Vice Media.[^5]

[32] CBC v. New Brunswick is a search warrant case decided in 1991. Some protestors at a demonstration against a New Brunswick pulp and paper company had thrown Molotov cocktails at the company’s guardhouse. A CBC crew had filmed the incident and broadcast clips of it. The police sought the video footage for the purpose of identifying the perpetrators and laying charges. The legal process went through four stages:

(i) a justice of the peace issued the warrant;

(ii) a Queen’s Bench judge quashed the warrant on the grounds that although the bare Criminal Code requirements for a warrant had been met, before a warrant could issue to search the premises of a media outlet, the police must demonstrate that there was no alternative source for the information available, or that reasonable steps were taken to obtain the evidence from alternative sources without success;

(iii) the New Brunswick Court of Appeal in a two-to-one split decision reinstated the warrant, holding that there are no special considerations imposed beyond the provisions of the Criminal Code;

(iv) the Supreme Court of Canada (with one dissenting judge) dismissed the appeal from the Court of Appeal decision.

[33] Although ultimately upholding the process, the Supreme Court recognized that the special status of the media in our democracy must be taken into account in deciding whether to issue a search warrant. Cory J. (writing for the majority) listed the following as two of the factors to be considered:

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.

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.[^6]

[34] National Post is also a search warrant case, decided almost two decades after CBC v. New Brunswick and its companion case CBC v. Lessard.[^7] Again, the justice of the peace issued the warrant, a superior court judge quashed it, the Court of Appeal reinstated it, and the Supreme Court of Canada (with one judge – Abella J. – dissenting) upheld the Court of Appeal, with the result that the warrant was found to have been validly issued. This case involved a journalist seeking to protect the identity of a confidential source, an issue that did not arise in the CBC v. New Brunswick case. Notwithstanding this issue of great significance, the warrant was ultimately upheld. The issue arose when a source (“X”) delivered a document in a plain brown envelope addressed to a National Post journalist. The document purported to be a bank record demonstrating that the then Prime Minister of Canada was in a serious conflict of interest. However, the National Post was unable to confirm the authenticity of the document and the bank involved alleged it was a forgery. The journalist had promised X that he would not reveal his identity unless it was established that X had deliberately misled him with respect to the authenticity of the document. Believing the document to be a forgery, the RCMP sought production of the document and the envelope for the purposes of forensic testing to discover the identity of the forger.

[35] In National Post, the Supreme Court of Canada rejected the submission that there should be some form of constitutional immunity preventing the disclosure of a journalist’s confidential source. Likewise, the Court held that this was not a situation that should be protected by absolute privilege. Rather, the appropriate approach was to weigh all the relevant factors in the balance, on a case-by-case basis, while recognizing the importance of the media interests involved. The Court held (at para. 78):

Even where no privilege is found to exist, warrants and assistance orders against the media must take into account their “special position” and be reasonable in the “totality of circumstances” as required by s. 8 of the Charter (“Everyone has the right to be secure against unreasonable search and seizure”). It is not sufficient for the Crown to establish that the formal statutory requirements of ss. 487.01 and 487.02 were met. Physical searches of media premises may be highly disruptive. Searches may cause temporary or even permanent suspension of print publication or broadcasting. Search warrant cases like this one constitute a head-to-head clash between the government and the media, and the media’s ss. 2(b) and 8 interests are clearly implicated. As McLachlin J. observed in her dissenting reasons in Lessard:

The ways in which police search and seizure may impinge on the values underlying freedom of the press are manifest. First, searches may be physically disruptive and impede efficient and timely publication. Second, retention of seized material by the police may delay or forestall completing the dissemination of the news. Third, confidential sources of information may be fearful of speaking to the press, and the press may lose opportunities to cover various events because of fears on the part of participants that press files will be readily available to the authorities. Fourth, reporters may be deterred from recording and preserving their recollections for future use. Fifth, the processing of news and its dissemination may be chilled by the prospect that searches will disclose internal editorial deliberations. Finally, the press may resort to self-censorship to conceal the fact that it possesses information that may be of interest to the police in an effort to protect its sources and its ability to gather news in the future. All this may adversely impact on the role of the media in furthering the search for truth, community participation and self-fulfillment. [p. 452]

[36] In 2014, a multimedia news organization (Vice Media) published three articles based on text message exchanges between one of its reporters and a Canadian man (Shirdon) who was believed to have travelled to Syria and joined the terrorist organization, ISIS. In these messages, Shirdon publicized his activities with ISIS, broadcast its extremist views, and threatened that if Canada joined the crusade against Muslims, blood would flow in the streets of Canada and Canadians would be attacked in their homes. The RCMP applied for and obtained a production order directing Vice Media and its reporter to produce documents in their possession relating to these text messages for use by the RCMP in a prosecution against Shirdon. The production order was issued by a judge of the Ontario Court of Justice; a motion to quash that order was dismissed by a judge of this Court; and the Court of Appeal dismissed the appeal from that decision. Vice Media appealed to the Supreme Court of Canada, arguing that the framework developed in CBC v. New Brunswick and its companion case Lessard was not working and should either be reformed or abandoned completely to provide better protection to the media and the role it plays in our society. The nine-member Court unanimously found that the production orders were validly issued and also agreed that reforms to the previous framework were required. However, they divided five-to-four on the nature of the reforms. The minority decision, authored by Abella J. (with Wagner C.J. and Karakatsanis and Martin JJ. concurring), would have recognized a distinct constitutional guarantee for freedom of the press under s. 2(b) of the Charter. The majority decision, authored by Moldaver J. (with Gascon, Côté, Brown, and Rowe JJ. concurring), rejected the view that it was necessary to recognize freedom of the press as enjoying distinct and independent constitutional protection, but emphasized that this did “not suggest that the press was anything less than essential in a free and democratic society.”[^8] Rather, the majority held that freedom of the press was adequately protected by the Lessard/New Brunswick framework, although with some tweaking as to how that framework should be applied.

[37] Some of the changes established in Vice Media have no application to the case before me (e.g. issues of advance notice to the press and the impact of partial publication) and I will not address them here. Moldaver J. reorganized the nine factors listed in the Lessard framework and provided for a four-step process: (1) notice to the press; (2) satisfying the statutory preconditions; (3) balancing the competing interests; and, (4) imposing conditions to reduce the impact on the media.[^9] It is the third of these steps that is pivotal here, as is typically the case. This step requires the judge to “balance the state’s interest in the investigation and prosecution of crimes and the media’s right to privacy in gathering and disseminating the news” within the context of all the surrounding circumstances.[^10] The non-exhaustive list of relevant surrounding circumstances listed are:

(a) the likelihood and extent of any potential chilling effects;

(b) the scope of the materials sought and whether the order sought is narrowly tailored;

(c) the likely probative value of the materials;

(d) whether there are alternative sources from which the information may reasonably be obtained and, if so, whether the police have made all reasonable efforts to obtain the information from those sources;

(e) the effect of prior partial publication, now assessed on a case-by-case basis; and

(f) more broadly, the vital role that the media plays in the functioning of a democratic society and the fact that the media will generally be an innocent third party.^11

[38] Although CBC v. New Brunswick, National Post, and Vice Media all related to attempts by police authorities to obtain materials in the hands of the press, the principles established therein have equal application to situations where other persons seek to obtain material in the possession of the media. The case before me is a typical example, being an application by an accused person seeking a court order to obtain documents in the possession of the media. Although the same approach and general principles are involved in such an application, the nature of the interests to be balanced will vary. For example, here I must balance the constitutional right of the accused to a fair trial and to make full answer and defence against the other interests involved including the protection of freedom of the press, as well as the impact, if any, on the privacy rights of the complainant. Apart from that, in my view, the framework established in Vice Media applies.

[39] The Supreme Court of Canada’s decision in Vice Media was released in 2018, but related to a production order first issued in 2014. In the meantime, in October 2017, the Journalistic Sources Protection Act (“JSPA”) had come into force. That legislation provides a special procedure within the Criminal Code where an applicant for a search warrant, production order or authorization knows that “[…]the application relates to a journalist’s communications or an object, document or data relating to or in the possession of a journalist.”[^12] In Vice Media, Moldaver J. specifically noted that the JSPA had no application because the underlying facts arose prior to that legislation coming into force. He ruled that the Court’s reasoning in Vice Media would therefore relate only to “the statutory and common law framework standing separate and apart from the JSPA.”[^13]

[40] The JSPA also has no direct application in this case. The application before me is brought by an individual to obtain material in the hands of the media, whereas the JSPA applies only to applications by the state. What is clear, however, is that if the Crown in this case sought to obtain this same material, the JSPA conditions would apply to protect the interests of the media. Counsel for CBC before me recognized that, strictly speaking, the JSPA does not apply, but argued that the protection of media interests should not be treated any differently in applications by an accused than would be the case for applications by the Crown or the police. There is support for that proposition in R. v. O’Connor in the dissenting decision of Lamer C.J. and Sopinka J. as follows:

In applying these factors, it is also appropriate to bear in mind that production of third party records is always available to the Crown provided it can obtain a search warrant. It can do so if it satisfies a justice that there is in a place, which includes a private dwelling, anything that there are reasonable grounds to believe will afford evidence of the commission of an offence. Fairness requires that the accused be treated on an equal footing.[^14]

[41] Although this observation about the requirements of fairness is found in the dissenting judgment, the majority decision does not disavow that general principle, but rather merely points out that it is not as easy for the Crown to get confidential third party records through a search warrant as was suggested by the Chief Justice and Justice Sopinka.[^15] The majority decision appears to accept that the accused should be on an equal footing to the Crown. What is argued in this case is the reverse: the defence should be subject to the same strictures as the defence when seeking to obtain records in the hands of the media. To put it another way, the media interests should be treated equally, whether it is the Crown or the defence that is seeking the records.

[42] Further, in my view, a comparison of the requirements in O’Connor and the requirements in the JSPA supports there being a similar analysis. As a result of the JSPA amendment to the Criminal Code, a judge may only issue a warrant, authorization or order in relation to material in the possession of a journalist where two conditions are met: (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.[^16]

[43] Clearly, the JSPA does not apply, by its own terms. I also recognize that it would have been open to Parliament to extend these same requirements to an application for third party records in the possession of the media, but it did not do so. Therefore, I agree with the Crown’s argument that there is no absolute statutory requirement for the accused to show that the information cannot be reasonably obtained in some other way. That said, I see no principled reason for the test to be substantially different depending on whether it is the state as opposed to an accused person seeking production. In my view, this is consistent with the common law standard for production established in O’Connor, which would result in an analysis that is generally consistent with the JSPA conditions. I note, in particular, the basis upon which Wilson J. found that an order requiring production of third party records to an accused could be justified, as follows:

The use of state power to compel production of private records will be justified in a free and democratic society when the following criteria are applied. First, production should only be granted when it is shown that the accused cannot obtain the information sought by any other reasonably available and effective alternative means. Second, production which infringes upon a right to privacy must be as limited as reasonably possible to fulfil the right to make full answer and defence. Third, arguments urging production must rest upon permissible chains of reasoning, rather than upon discriminatory assumptions and stereotypes. Finally, there must be a proportionality between the salutary effects of production on the accused's right to make full answer and defence as compared with the deleterious effects on the party whose private records are being produced. The measure of proportionality must reflect the extent to which a reasonable expectation of privacy vests in the particular records, on the one hand, and the importance of the issue to which the evidence relates, on the other. Moreover, courts must remain alive to the fact that, in certain cases, the deleterious effects of production may demonstrably include negative effects on the complainant's course of therapy, threatening psychological harm to the individual concerned and thereby resulting in a concomitant deprivation of the individual's security of the person.[^17]

[Emphasis added]

[44] Thus, the balancing process referred to in O’Connor contemplates that the judge must take into account whether the material can reasonably be obtained by some other means. Moreover, Vice Media requires that the trial judge balance the media’s right to privacy in gathering and disseminating the news against the state’s interest in the investigation and prosecution of crimes (or, in cases such as this one, against the right of the accused to make full answer and defence). Therefore, the factors provided for in the JSPA remain part of the analysis in all cases involving production of material in the possession of the media, whether by statute or at common law.

[45] There is very little case law on the tests to be applied for production of material in the possession of a journalist on the application of an accused, as opposed to such records being sought through some mechanism by the state. I was referred to two cases: the 1998 decision of Romilly J. of the British Columbia Supreme Court in R. v. Hughes[^18] and the 2020 decision of Bourque J. of the Quebec Superior Court in R. v. Arsenault.[^19] Counsel for the CBC urges me to adopt the reasoning in Arsenault, pointing out that Hughes was decided prior to many of the seminal decisions dealing with freedom of the press, such as National Post and Vice Media.

[46] In Hughes, a complainant in a pending sexual assault trial approached a journalist and provided him with information about the accused having assaulted her. Her purpose was to encourage other women who had been assaulted by him to come forward. Three additional women subsequently contacted that journalist, disclosing similar allegations. After speaking to the journalist, they contacted the police and further charges were laid against the accused based on their allegations. The accused sought production of material in the possession of the journalist relating to his interviews with these women. Romilly J. held that the issue should be decided under the O’Connor framework rather than s. 278.1 because the women gave their interviews to the journalist with a view to it being made public and they therefore had no reasonable expectation of privacy in the material. Romilly J. found that the material was likely relevant and therefore must be provided to the accused. However, he also engaged in the balancing exercise established in O’Connor, holding as follows (at para. 32):

Because I have found that there is no reasonable expectation of privacy in these notes held by Mr. Hunter, it is not necessary to go onto the second stage of the O'Connor application. I have, however, examined and weighed the salutary and deleterious effects of a production order and I am satisfied that, subject to my ruling on the issue of media privilege, a non-production order would constitute a substantial limit on the ability of the accused to make full answer and defence. I also find that the production of the record is necessary in order that the accused could make full answer and defence; that the probative value of the notes of Mr. Hunter is high; that the reasonable expectation of privacy in the notes is negligible; there would be no potential prejudice to the complainants' dignity, privacy or security of the person that would occur as a result of the production of the notes of Mr. Hunter.

[47] In Arsenault, CBC/Radio-Canada had conducted an intensive investigation into allegations of sexual and physical abuse allegedly committed by Mr. Arsenault while he was a gymnastics coach. In the course of the investigation, 60 people were interviewed. Radio-Canada then aired a television report in which eight of these individuals participated on air. Following the program, sexual assault and other charges were laid in respect of six complainants. At trial, the accused sought production of all of Radio-Canada’s audio and video recordings, as well as written statements from all 60 people interviewed, relying upon O’Connor. The trial judge narrowed the scope of the motion to information about the eight people who participated in the program. Radio-Canada argued that the application should have been brought under s. 278.1 of the Criminal Code, rather than under the O’Connor framework, and also relied upon Vice Media. The trial judge held that the O’Connor regime applied and that the first stage of establishing likely relevance had been met. Radio-Canada appealed.

[48] The underlying facts in Arsenault are complicated. Some of the people featured in the program appeared with their faces on camera; others did not. Some people interviewed did so only after assurances that their confidentiality would be maintained. Some spoke, but with their faces covered and under a pseudonym. Some had been assaulted; others had not. The trial judge operated on the premise that the individuals featured in the program were the same as the complainants in the charges before him, which turned out not to be completely correct. There was also a significant issue at trial as to the applicability of legislation dealing specifically with confidential journalistic sources. A large proportion of the decision on appeal has no application to the case before me. However, two important principles emerge: (1) the Quebec Superior Court held that the Vice Media approach applied to the interests raised by the media; and (2) the Court held that the s. 278.1 Criminal Code provisions applied and that there was a reasonable expectation of privacy in the material. The Court noted (at paras. 133-134):

Society expects that when a source, complainant or not, in a sexual assault case confides in a journalist, that their confidences will not be disclosed beyond what the journalist considers necessary and useful for the purposes of his/her work. It also expects the journalist to protect the confidentiality of his/her investigative file, especially in a case as sensitive and delicate as this one.

The complainants’ interest in protecting their right to privacy in their dealings with the journalistic team is undeniable. Their story is theirs. They must be able to choose why, when, how and to whom to entrust it, without fear of opening the door to an automatic invasion of their privacy because the state has decided to lay criminal charges.

[49] I agree with the ultimate conclusion of Bourque J. in Arsenault that when a request for production of documents is made, the procedure in Vice Media should apply, and the four steps outlined by Moldaver J. in that case must be followed. As Bourque J. noted, applying these principles will ensure that the rights of media are protected regardless of whether the party requesting production is the Crown, the police, or the accused, and regardless of whether the analysis proceeds under the O’Connor regime or under s. 278.1 of the Criminal Code.[^20] To this, I would add that where O’Connor applies, there may still be a consideration of the infringement of media rights at the first step of the process.

[50] I do not, however, agree completely with the reasoning in Arsenault as to whether the analysis should proceed under s. 278.1 or pursuant to common law as provided for in O’Connor.

E. WHICH REGIME APPLIES?

No Reasonable Expectation of Privacy

[51] At this stage of the application, the only materials at issue are communications between A.E., her mother, and the CBC. Clearly the charges involved include those falling within the statutory regime in s. 278.1 to 278.9 of the Criminal Code. However, the types of records to which the statutory regime applies are limited to those falling within the definition of “record” in s. 278.1, as being:

…any form of record that contains personal information for which there is a reasonable expectation of privacy and includes medical, psychiatric, therapeutic, counselling, education, employment, child welfare, adoption and social services records, personal journals and diaries, and records containing personal information the production or disclosure of which is protected by any other Act of Parliament or a provincial legislature, but does not include records made by persons responsible for the investigation or prosecution of the offence.

[52] I accept that the records relating to A.E. in the hands of the CBC will undoubtedly contain personal information about A.E. I also accept that the list of things included in the definition is not meant to be exhaustive and that interviews given to a journalist about the offence in question would fall within the parameters of the definition. However, the requirements of the definition are only met if there is a “reasonable expectation of privacy” in the record.

[53] In my view, neither A.E. nor her mother had any reasonable expectation of privacy with respect to their communications with CBC. There was no stipulation that those communications be confidential. Indeed, their actual expectation is that these videotapes and communications would be part of a documentary which would be aired by CBC across the nation. The fact that CBC agreed not to publish their communications until after the criminal trial does not alter that fact. Having provided these thoughts and materials to the CBC for the purposes of eventual broad publication, any expectation of privacy was removed. I believe strongly that survivors of sexual abuse should not be silenced if they choose to speak publicly about their experiences. By the same token, however, having chosen to go public with those experiences, they can no longer claim a reasonable expectation of privacy in what they said.

[54] In this regard, I agree with the words of Romilly J. in Hughes, as follows:

From my reading of s. 278.1 and the O’Connor case, I think it is clear that the only issue for me to decide is whether the complainants who gave this information to Mr. Hunter gave it to him with a reasonable expectation of privacy. In my view, this is clearly not the case. The complainants gave this information to him because they wanted it published to attract other complainants to come forward and report sexual abuses by the accused.[^21]

[55] While A.E.’s motivation in speaking to CBC was clearly not the same as the complainants in Hughes, she did provide her thoughts for the express purpose of them being communicated to the public.

[56] I respectfully disagree with the conclusion reached in Arsenault on this issue, wherein the Quebec Superior Court held (at paras. 133-134):

Society expects that when a source, complainant or not, in a sexual assault case confides in a journalist, that their confidences will not be disclosed beyond what the journalist considers necessary and useful for the purposes of his/her work. It also expects the journalist to protect the confidentiality of his/her investigative file, especially in a case as sensitive and delicate as this one.

The complainants’ interest in protecting their right to privacy in their dealings with the journalistic team is undeniable. Their story is theirs. They must be able to choose why, when, how and to whom to entrust it, without fear of opening the door to an automatic invasion of their privacy because the state has decided to lay criminal charges.

[57] One key distinguishing feature between that case and the one before me is that there had been no criminal charges laid in the Quebec case at the time these individuals spoke to the journalist. That was clearly not the case for A.E., who agreed to speak to the CBC only after her lawyers were satisfied that neither the criminal trial nor her civil action for damages would be compromised. There was no promise of confidentiality and no control over what CBC would publish. The only restriction imposed by A.E. and her lawyers was that there be no publication until after the trial, the concern being to keep this information out of the hands of defence counsel.

[58] I therefore find that there was no expectation of privacy and that the statutory regime under 278.1 of the Criminal Code does not apply. The test for production of the records in the possession of the CBC is the third party records regime established by the Supreme Court of Canada in R. v. O’Connor.

The Test Under O’Connor

[59] The O’Connor analysis involves a two-stage process. At the first stage, the trial judge must consider whether the material should be provided to her for review. At the second stage, the issue is whether the parties are entitled to production of the material.

[60] At the first stage, the test to be applied is whether the accused has established that the material is “likely to be relevant” at trial.[^22] The Court in O’Connor clarified that relevance for this purpose means that it “may be useful to the defence” and that “there is a reasonable possibility that the information is logically probative to an issue at trial.”[^23] The Court also emphasized that this should not be seen as an onerous burden, but rather as a threshold requirement to ensure the defence is not engaging in speculative and unmeritorious requests for production.

[61] As established in O’Connor, once the threshold test is established, the trial judge is required to review the material and determine whether any of it should be provided to the accused. In making that determination, the trial judge is required to weigh the salutary and deleterious effects of ordering production of the material and determine whether refusing access to the accused would constitute a reasonable limit on the accused’s right under s. 7 of the Charter to make full answer and defence to the charges against him. In balancing those competing rights, the trial judge is required to consider:

(1) the extent to which the record is necessary for the accused to make full answer and defence;

(2) the probative value of the record;

(3) the nature and extent of the reasonable expectation of privacy vested in the record;

(4) whether production of the record would be premised upon any discriminatory belief or bias;

(5) the potential prejudice to the complainant's dignity, privacy or security of the person that would be occasioned by production of the record;

(6) the extent to which production of records of this nature would frustrate society’s interest in encouraging the reporting of sexual offences and the acquisition of treatment by victims; and,

(7) the effect on the integrity of the trial process of producing, or failing to produce, the record, having in min the need to maintain consideration in the outcome. [^24]

Fusing the O’Connor and Vice Media Regimes

[62] In this case, the Crown conceded that the stage one test was met, although not agreeing with all of the reasons advanced by the defence for why this was the case. However, CBC did not agree that the stage one test was met. In particular, the CBC argued that the analysis at this stage should include a consideration of the freedom of the press as guaranteed under s. 2(b) of the Charter, and that when this is coupled with the privacy rights of the complainant, the threshold test at stage one is not met.

[63] As I have already noted, the complainant and her mother did not have a reasonable expectation of privacy. However, I agree with counsel for the CBC that the Charter protections afforded to the media must be taken into account, even at this preliminary stage of the analysis. This requires some modification of the O’Connor regime (which did not contemplate a consideration of privacy interests other than those of the complainant) and the Vice Media regime (which did not contemplate an application by an accused person, rather than the state).

[64] In Vice Media, Moldaver J. described four steps to be taken: (1) notice to the media; (2) the legal preconditions must be met; (3) balancing of interests; and (4) conditions to limit the impact on the media. The first step (notice to the media) was met. The requirement that the legal preconditions be met includes a determination as to which regime governs. As I have noted above, I have determined that the O’Connor regime applies. Strictly applying Vice Media, I would proceed to consider whether all of the O’Connor requirements were met for production to the accused before embarking on step three of Vice Media (balancing of interests). This would involve proceeding through O’Connor stage one (production of the material to judge for review) and stage two (the test for production of the material to the accused). However, it makes little sense to balance the competing interests under stage two of O’Connor and then start over to balance the interests again under step three of Vice Media. Rather, all of the competing interests should be balanced at stage two of O’Connor, including the interests of the media as articulated in Vice Media.

[65] To this I add a further caveat. Upon concluding that a complainant has no privacy interest in the record, the next step in the O’Connor analysis is typically focused entirely on relevance. However, given the interest of the media, it might not always be the case that production of the record to the trial judge should follow upon establishing this initial threshold. There may well be cases where the interest of the media will need to be taken into account even at the first step of the O’Connor analysis. In every instance, the trial judge should at least address the impact of ordering production of material to the trial judge.

[66] That said, the incursion into the privacy rights of journalists at this initial stage of the analysis, both generally and on the particular factual scenario before me, is relatively minimal and carries less weight than is the case at the second stage of the analysis. It is at stage two, when competing interests are weighed in the balance, that the s. 2(b) rights of the journalists in question come more clearly to the fore. There may be cases, however, where even the requirement of producing the materials to the presiding judge for review may have a significant impact on media interests. This may arise, for example, when there are confidential sources involved or the privacy rights of other individuals are at issue. Since nothing of that nature arises here, I will leave that analysis for a case where such rights are directly at issue. In this case, and at this stage of the analysis, I am concerned only about the communications between CBC and A.E. and her mother, all of which it was anticipated would be subject to eventual public broadcast.

F. STAGE ONE: MY REVIEW OF THE A.E. MATERIAL HELD BY CBC

[67] In my view, the “likely relevant” test at stage one is easily met with respect to this material. A.E. told the police that her discussions with CBC were limited to the emotional impact of the judicial proceedings, rather than the substance of her allegations against the accused. However, in a March 2019 text exchange with her friend S.C. (one of the similar fact witnesses), A.E. said that the documentary was about sexual abuse by Mr. Lim and another Taekwondo coach and would expose what was going on in a sport that was supposed to be about integrity. She also said that this would raise awareness in the sport and be an opportunity for her to tell her story.

[68] On the previous motion, I ordered the disclosure of an email dated October 21, 2019 sent by Ms. Ellenwood (a CBC journalist) to A.E. In that email, Ms. Ellenwood referred to “connections that were made to Winnipeg” that day and asked A.E. to confirm whether the friend to whom she had made her initial disclosure was in Winnipeg to train with Mr. Lim. Ms. Ellenwood also referred to a Winnipeg coach, Kate Noseworthy, noting that this was the person who had suggested that A.E. write her university paper on King Yeung (the Winnipeg Taekwondo coach sentenced to 10 years for sexually assaulting his students). This is information she appears to have obtained from A.E., as she then adds that somebody else also suggested that she reach out to Kate Noseworthy. Ms. Ellenwood asked if A.E.’s friend might have other ideas about who she could talk to about the Taekwondo scene in Winnipeg and in Toronto. She then stated, “Also, if you do have any thoughts that you want to share about what you think might have helped you realize earlier that your coach's behaviour was not appropriate, please send them along whenever you feel up to it.”

[69] Part of the defence theory in this case was that the complainant’s recollections of abuse by Mr. Lim were unreliable, and possibly also not credible. A.E. testified at the preliminary hearing that she wrote a paper for her criminology course about a Taekwondo coach in Winnipeg who sexually abused students who were in a position of trust with him. She said that writing this paper did not trigger any realization in her mind that she had also been the victim of sexual abuse by her Taekwondo coach, Mr. Lim. However, she said that a few weeks later, while sitting in a criminology lecture, the realization that she had been assaulted by Mr. Lim suddenly hit her. The defence argued that this was an unusual pattern of disclosure.

[70] It would appear from this correspondence with Ms. Ellenwood that A.E. had discussed with the CBC: that she had written this paper; where she got the idea about writing it; and the circumstances of her first realization that she had been assaulted by Mr. Lim. These issues are central to the theory of the defence with respect to the reliability of A.E’s memory of the events. As such, I found that within the material held by the CBC there was information that was likely relevant to the defence and which could be helpful to the defence.

[71] I also note that some of the conversations A.E. had with the CBC were between May 2019 and the resumption of the hearing in July 2019, while she was under cross-examination and subject to an order not to discuss her evidence with anyone.

[72] In addition, I found it troubling that A.E. told the police in March 2019 that she had been contacted by the CBC but had decided not to speak to them, and yet proceeded over a period of many months to have multiple meetings and communications with the CBC without telling either the police or the Crown. Further, it is troubling that she and her counsel stipulated to CBC that none of this material could be broadcast until after the trial, and after the expiration of any appeal period, specifically because they did not want it coming into the hands of the defence. I am not suggesting that either A.E. or her counsel had any obligation to volunteer this information to the police, nor is there anything inherently wrong with their stipulating that CBC not air the material until after trial. However, A.E.’s efforts to keep this information away from the police and the defence suggested to me that the material would in fact be helpful to the defence. I considered it to be in the interests of justice for me to review the material and determine whether there was anything there that could affect the ability of the accused to make full answer and defence in this case.

[73] The impact on CBC of producing the material for my review would be minimal, apart from the obvious inconvenience to all involved. There were no confidential sources or journalistic privilege asserted for the material involving A.E. The defence limited its production request to exclude journalists’ notes where there was another record available and to exclude the journalists’ work product (such as their own observations and planning notes). There would be no impact on the timing of any broadcast.

[74] Accordingly, I ffound that the first stage of the O’Connor test had been met and ordered that the materials be provided to me for my review.

[75] However, if I had applied the procedure under s. 278.1, I would have come to the same conclusion. The relevance of the material goes beyond the general assertions set out in s. 278.3(4), and its relevance is not based on stereotypical assumptions about complainants in sexual assault trials. Given the manner in which A.E.’s realization that she had been assaulted unfolded, and the importance of this issue to the accused’s ability to make full answer and defence, I would have considered it necessary to at least review the material. Any review of the material by me would be minimally intrusive on the privacy rights of the complainant, particularly since she was prepared for all of it to be broadcast on nationwide television at some point in the future. In these circumstances, any impact on complainants in the future being deterred from reporting abuse or seeking treatment would also be minimal. In my view, the factors listed in s. 278.5(2) all point to the importance of my reviewing the material. In particular, s. 278.5(2)(h) requires me to consider the “effect of the determination on the integrity of the trial process.” Here, the complainant appears to have been prepared to speak freely to the press on condition that it be kept confidential until not only after the trial has finished but until all appeal rights of the accused have expired. Such a condition is so contrary to the truth-seeking function of a criminal trial that the integrity of the process requires me to at least look at the material to ensure that the fair trial rights of the accused are protected. My chief concern is that A.E. ought not to be able to shield herself from cross-examination by stipulating the timing of the broadcast. The ability to cross-examine a complainant, described so eloquently by Ms. Robitaille in her submissions as “the engine of the adversary system,” is a key component of the accused’s right to make full answer and defence.

[76] Accordingly, no matter which regime I applied, I would have reviewed all of the material relating to the CBC interviews with A.E. and her mother.

G. STAGE TWO: PRODUCTION OF THE MATERIAL TO THE DEFENCE

The Nature of the Material

[77] Counsel for CBC provided the material to me and also provided a list of the materials disclosed, divided into subcategories: Category 1 (audio and video recordings of interviews); Category 2 (journalists’ notes of other discussions); and Category 3 (emails and text messages). I reviewed all of it. Much of the material was simply film footage of mundane everyday activities of no relevance whatsoever to the issues at trial. There was also a large volume of material related to A.E.’s emotional reactions to the trial process itself, as opposed to anything substantive about the trial or her feelings in relation to the accused. Again, these are irrelevant to any issue at trial. Having reviewed the material, it was clear that there was nothing of relevance in any of the texts and emails (Category 3). However, one of the videos (Item 1B) had some areas of potential relevance and there was one potentially relevant entry in one set of the journalists’ notes (Item 2A). I heard submissions from the parties with respect to these two items, having provided the Crown and defence with a cryptic general description of what the material contained.

[78] Item IB was a video interview from May 6, 2019 consisting of 11 minutes interviewing A.E.’s mother and 34 minutes interviewing A.E. Nothing in the mother’s interview was relevant to issues at trial. I heard submissions with respect to two segments of this interview and ultimately ordered CBC to produce both segments to the parties.

[79] The first such segment was A.E.’s answer to the question, “What do you hope for though all of this?” Her response described her motivation in going to the police. She said that while the abuse was happening to her, she always thought that she was the only one being treated that way. She explained that the first time she thought about anyone else being hurt was when she disclosed to her friend what had happened to her and he asked her, “Who do you think will be next?” A.E. then stated that this was her “big thing” in coming forward, to ensure that this would not happen to anybody else.

[80] The second segment began with a question about whether A.E. thought she would ever go back to Taekwondo. She explained why she would never return, including that she had already “started falling out of love” with the sport long before she quit. She described Taekwondo as being about respect and integrity, which she thought had now been completely violated. She said she did not think she could go back to having a coach in any sport, not just Taekwondo. When asked if she had anything to add, she mentioned Mr. Lim always giving her little motivators to keep her going, and then moved into a rambling discussion of how she dealt with the abuse while it was happening, how she compartmentalized those events at the time, refusing to think about them, and the eventual process through which she came to understand and acknowledge that she had been abused. She also described memories coming back to her bit by bit, why she made her first disclosure, and what flowed from that.

[81] Item 2A are notes made by Lisa Ellenwood, a CBC journalist, with respect to a discussion she had with A.E. and her mother on October 21, 2019. The notes were redacted, as had been agreed upon in advance, to remove anything that was the journalist’s work product (e.g. her own observations or notes to herself). All that was left was information given to her. At the end of the notes, there was a heading, “PEOPLE IN TAEKWONDO COMMUNNITY TO TALK TO”, after which Ms. Ellenwood wrote two first names (a mother and daughter) and the words “as soon as the allegation surfaced they left the school and quit Taekwondo.” It is not clear from the notes whether these names were provided by A.E. or by her mother. Counsel for CBC advised that CBC has not interviewed these two individuals. This is the only portion of the notes I considered to be of any possible relevance.

The Factors to be Weighed

[82] At this stage of the process, I am required to weigh the competing factors. For ease of reference, I will set out the relevant factors under both O’Connor and Vice Media. Under O’Connor, I am required to weigh the salutary and deleterious effects of ordering production having regard to: (a) the extent to which the record is necessary for the accused to make full answer and defence; (b) the probative value of the record; (c) the nature and extent of the reasonable expectation of privacy vested in the record; (d) whether production of the record would be premised upon any discriminatory belief or bias; (e) the potential prejudice to the complainant's dignity, privacy or security of the person that would be occasioned by production of the record; (f) the extent to which production of records of this nature would frustrate society’s interest in encouraging the reporting of sexual offences and the acquisition of treatment by victims; and, (g) the effect on the integrity of the trial process of producing, or failing to produce, the record, having in mind the need to maintain consideration in the outcome.[^25]

[83] Under Vice Media, the relevant factors include: (a) the likelihood and extent of any potential chilling effects; (b) the scope of the materials sought and whether the order sought is narrowly tailored; (c) the likely probative value of the materials; (d) whether there are alternative sources from which the information may reasonably be obtained and, if so, whether the [party seeking production has] made all reasonable efforts to obtain the information from those sources; (e) the effect of prior partial publication, now assessed on a case-by-case basis; and (f) more broadly, the vital role that the media plays in the functioning of a democratic society and the fact that the media will generally be an innocent third party.[^26]

[84] Essentially, at this point, there are two primary competing Charter rights: freedom of the press vs. the right of the accused to make full answer and defence. Where two Charter rights conflict, it is never a question of which is more important than the other. It is well-established that there is no hierarchy of rights under the Charter.[^27]

O’Connor: Factors with Little Weight

[85] Many of the O’Connor factors have little impact at this stage. As I have already stated, because the complainant was prepared to have anything she said to CBC published in a documentary, she no longer had any expectation of privacy in these communications. Production of the communications is not based on a stereotype or discriminatory belief and I do not see any prejudice to the complainant’s dignity, privacy or security of the person. Therefore, O’Connor factors (c), (d), and (e), have little, if any, impact on this analysis.

Vice Media: Factors with Little Weight

[86] The original defence motion was cast very broadly. However, on this portion of the application now under consideration, the scope has been substantially narrowed. Only the communications of A.E. and her mother to CBC are at issue. The work product of the CBC journalist has been exempted and no journalists’ notes are sought where the communications are already in an audio or video recording. The only sources of what A.E. said to CBC about relevant matters are these recordings and notes. There has been no prior publication of the CBC material, although A.E. has discussed some of these matters in her statement to the police and her evidence at the preliminary hearing. In these circumstances, I do not see Vice Media factors (b), (d), or (e) as carrying much weight here.

Probative Value and Full Answer and Defence

[87] The probative value of the material sought is a relevant consideration under both regimes. The video recordings are highly reliable sources of exactly what A.E. said to CBC, and I likewise have no doubt that Ms. Ellenwood accurately recorded the names given to her by A.E. and/or her mother.

[88] At this early stage of the proceedings, it was clear to me that the manner in which A.E. was able to compartmentalize these incidents of alleged abuse over a period of years without understanding that there was anything improper or illegal in Mr. Lim’s conduct would undoubtedly be a central issue at trial. Likewise, the circumstances in which she claimed to have come to a realization that she had been assaulted would be vital to the defence. I fully realize that many victims of sexual abuse make no complaint at the time of the incident, and often make no disclosure until long after the event, sometimes years or decades later. Nevertheless, this particular manner in which the complainant came to her realization is pivotal to understanding her allegations, as well as pivotal to the accused’s ability to defend against the allegations. Wrapped up in this pattern of realization and disclosure are the other reasons A.E. may have decided to leave Taekwondo and her motivation in going to the police when she did.

[89] There is a very real concern about collusion in the similar fact application, given the manner in which the similar fact witnesses came forward and the communications A.E. appears to have had with them. The fact that she may have provided an additional source of information to CBC (which CBC has stipulated is not one of the existing known similar fact witnesses) may be relevant to indirect contamination of witnesses, not just A.E., but one of the other three complainants.

[90] A.E. previously told police that: (a) she did not discuss anything about the substantive offences with CBC, but only talked about her emotions in connection with the trial process; and (b) she did not believe she had given the reporters the names of anyone else who might have information. At first blush, both of these statements would appear to be contradicted by the disclosures in Items 1B and 2A. That said, A.E.’s statement to police about not providing names was somewhat equivocal and the names might have been provided by her mother (although possibly in A.E.’s presence). Also, A.E.’s statements to CBC in 1B came about in a natural way when talking about her feelings and did not relate to the details of what she alleged Mr. Kim had done to her. Therefore, I did not see these statements as being critical to the issue of the complainant’s credibility or reliability, in terms of providing material for cross-examination on prior inconsistent statements.

[91] There was some argument before me as to whether the statements in the video were relevant or probative, given that they were said to be consistent with what A.E. said on other occasions, such as in her police statement or in her evidence at the preliminary inquiry. As I indicated in the course of oral argument, I did not consider it advisable at that point to determine the extent of any inconsistencies in the statements made by A.E. in her video interviews. If there was a substantial difference between what A.E. told the CBC on these pivotal points and what she said at the preliminary hearing or at trial, there would be little debate as to their relevance to the defence. However, to determine whether there were such inconsistencies, I would need to read the entirety of the police statements and preliminary hearing transcripts with a view to finding inconsistencies. Further, even if I then ruled that the statements were consistent, I would need to revisit that issue if the complainant said something at trial that was different from her CBC interview. Conducting such an exercise puts me in an adversarial position to the complainant before she has even taken the witness stand. It also puts me in a position of having gone through all the prior statements with a fine-tooth comb before hearing the complainant’s evidence at trial. This is not a position I should be in as a trial judge, nor is that a responsibility I want to assume. The better practice in my view is to produce material touching on the clearly relevant issues at trial, and leave it to defence counsel to determine whether to cross-examine on it as a prior inconsistent statement. I also agree with Ms. Robitaille that the fact that a witness has given a consistent version numerous times and then changes her story at trial is a relevant factor in determining credibility at trial.

[92] Accordingly, I find that these excerpts from the CBC material are directly relevant and material to the ability of the accused to make full answer and defence. That said, they do not relate to the specific incidents of sexual abuse alleged by the complainant, and so do not fall within the rubric of the most directly relevant evidence that could exist.

[93] Overall, the probative value of the material is a strong factor supporting its production to the defence.

Chilling Effects and Broad Societal Factors

[94] In Vice Media, Moldaver J. noted the relevance of the likelihood and extent of any chilling effect if production was ordered and also emphasized the vital role of the media in the functioning of our democratic society. In O’Connor, the broader societal issues were also noted to be relevant, in particular the extent to which production of the records of this nature would frustrate society’s interest in encouraging the reporting of sexual offences and the effect on the integrity of the trial process of producing, or failing to produce, the record.

[95] In my view, neither of the chilling effects referred to in these decisions is significantly raised here. This is not a situation like the disclosure of a complainant’s psychiatric records, which might well deter complainants in the future from ever reporting abuse to the police. There was no issue of A.E. reporting this matter to the police. She had already done that, long before talking to the CBC. I fail to see how disclosure of the CBC records could lead to the chilling effect described in O’Connor. With respect to the chilling effect of people talking to the media, I note that there was no confidentiality involved here. A.E.’s identity was known, she had already reported the matter to the police, and CBC gave no assurances of confidentiality with respect to what she disclosed. Eventually, everything A.E. told the CBC could or would have been broadcast nationally. The only issue was one of timing.

[96] It is probably true that disclosure of these statements would have a chilling effect on persons who would seek to make statements to the media but keep them from the accused until his trial is over and his appeal rights expired. However, in my view, this enhances rather than undermines the integrity of the justice system. It might well be the case that if such statements came to light after the trial, they might be the basis of an application to reopen the matter based on newly discovered evidence. But this is cold comfort to an accused who may already have been convicted on evidence that is materially different from what appeared on television. I do not say this to criticize any of the lawyers who were involved in negotiating and agreeing to these terms. However, I find attempting to insulate the complainant from cross-examination in this manner to be antithetical to the truth-seeking role of the trial process. Complainants can choose to speak publicly and speak to the press, but they should do so knowing they may be cross-examined on what they say.

[97] On many levels it grieves me to say these things. From what I can tell from the interviews given by A.E. thus far, this CBC program does not appear to be designed as an exposé of the horrors of the court process or how badly complainants are treated by the system. On the contrary, A.E., while talking about how difficult the process is emotionally, was largely positive about the assistance she had along the way, how she was treated and the importance of coming forward with her story. These are themes it would be important to convey to the public, in order to encourage the reporting of these kinds of crimes. The exposure of abuse in settings such as this, where young victims are so under the control of their coaches or teachers, is an important message to vulnerable victims and to parents of children in these situations. I therefore applaud both the CBC and the content of the proposed program – the medium and the message – as exemplifying the vital role of the media in protecting the public and expanding society’s understanding of these issues.

Result of the Balancing

[98] In my view, the relevance of the material and its importance to the defence case overpowers the detrimental effects of ordering its production, even when the strong rights of the media are taken into account. The amount of material I am ordering produced is minimal, and the intrusion on the rights of the press is also minimal. There are no confidential sources involved and no interruption in the broadcast or publication rights of the media. The societal interests cut both ways, as I have outlined above. Accordingly, in my view the balance weighs in favour of production and I so ruled.

Conditions to Reduce the Impact

[99] CBC took the position that no conditions could ameliorate the detrimental impact on the media. I do not accept that position. The imposition of conditions, although not removing the negative impact, can reduce it. Although maintaining that position, CBC did, in the alternative, suggest four conditions that could be imposed. All of these were agreeable to the defence, and some had already been put forward by Ms. Robitaille as an undertaking to the court. In the result, I ordered the following conditions to the production:

(v) the material is only permitted to be used for purposes of trial;

(vi) the material is not to be disclosed to anyone other than the parties and their counsel (for purposes of the video interviews, this would include the complainant);

(vii) copies of the material are to be destroyed after all appeal routes have been exhausted or the time for appeal has expired; and,

(viii) my reasons for ordering the production should be published, even if presumptive prohibition of publication in the statutory regime applies.[^28]

[100] I have ruled that the O’Connor regime applies and there is therefore no presumption of non-publication. I consider it important to report the decision given that there is very little case law on these issues, particularly in this jurisdiction. Because of this, I would have been inclined to order publication even if the statutory regime applied, but since I did not have the benefit of submissions from the complainant on this point, I will say no more than that. These reasons can be published in the usual course, subject to the usual non-publication of the identity of the complainant, which I have initialized throughout.

H. EXAMINATION IN AID OF THIRD PARTY RECORDS APPLICATION

[101] CBC prepared a list of records in its possession that would fall within the subpoena. The list included records about discussions with A.E. and her mother and also records of interactions with three other individuals, who were labelled Individuals A, B, and C. After I ordered the limited production of the records involving A.E. and her mother (see above), the defence application for production of the records concerning Individuals A, B, and C continued before me. Defence counsel and counsel for CBC were able to work out the issues relating to Individuals A and C, resulting in the defendant withdrawing his application for production of those records. The sole issue remaining was production of the records relating to a one-hour audio recorded interview with Individual B.

[102] I accepted as evidence a letter from Individual B’s lawyer regarding B’s privacy interest. Based on that letter, I accepted that:

• B spoke with the CBC on an “off the record” basis in the context of a broad investigation it was conducting into the issue of sexual abuse within Taekwondo in Canada;

• B only granted the interview on the express condition that it be off the record;

• B’s key concerns were privacy and confidentiality and B would not have agreed to be interviewed but for CBC’s express assurances that they would not be named or quoted; and,

• CBC’s assurances were made in accordance with its own official policy entitled “Journalistic Standards and Practices,” which provides that when CBC agrees to speak to a source “off the record,” information from that source “cannot be used in a published form, nor can that source be named.”

[103] Therefore, I accept that Individual B has an independent privacy interest, apart from CBC’s privacy interest, and that B’s identity if one of the privacy interests B seeks to protect. Without knowing who B is or the nature of the information B gave to the CBC, it is difficult to determine the nature and extent of B’s privacy interest, apart from B’s stated desire to maintain confidentiality and the assurances to that effect provided by CBC.

[104] On the basis of that information, it is impossible to determine the likely relevance of the content of that interview at trial, much less to weigh the competing interests involved in determining whether it should be produced. Ms. Robitaille, for the defence, sought leave to ask limited questions of the journalist who conducted the interview to determine whether certain topics were discussed, in particular the factual allegations against Mr. Lim made by the two complainants and the two similar fact witnesses. Ms. Gonsalves, for CBC, argued that the fact the defence cannot establish relevance without cross-examining the record holder demonstrates that this is a fishing expedition and no questioning should be permitted.

[105] No counsel cited any case directly on point, nor am I aware of any.

[106] However, I am persuaded that the defence is in a Catch 22-position here in that the interview has been listed by CBC as responsive to the documents requested, but the defence does not have sufficient information to make informed submissions about its relevance. In O’Connor, the Supreme Court recognized this conundrum. Lamer C.J. and Sopinka J. noted (at para. 25):

…by placing an onus on the accused to show "likely relevance", we put the accused in the difficult situation of having to make submissions to the judge without precisely knowing what is contained in the records. This Court has recognized on a number of occasions the danger of placing the accused in a “Catch-22” situation as a condition of making full answer and defence…

And further at para. 26:

However, it should be remembered that in most cases, an accused will not be privy to the existence of third party records which are maintained under strict rules of confidentiality. Generally speaking, an accused will only become aware of the existence of records because of something which arises in the course of the criminal case.

[107] Similarly, L’Heureux Dubé J. noted the need for flexibility in permitting the defence to build an evidentiary record, stating (at para 146):

In establishing the required evidentiary basis, the applicant may resort to the Crown's disclosure, to its own witnesses, and to cross-examination of the Crown witnesses at both the preliminary inquiry and the trial. On some occasions, it may also be necessary to introduce expert evidence to lay the foundation for a production application (for instance, expert evidence to the effect that a certain type of therapy may lead to "created memories"). The determination of relevance is a fluid, rather than fixed, process. In consequence, information which cannot be proved relevant at one point during the trial may later become relevant, in which case a further application for production may be warranted. However, regardless of when it is brought, an application for production will not succeed if it is not supported by evidence demonstrating the likely relevance of the records.

[Emphasis added]

[108] The defence relies, by way of analogy, on R. v. B.(E.),[^29] in which the Court of Appeal upheld the right of the defence to question a complainant at the preliminary hearing about entries he made in his diary concerning the sexual assault charges at issue. The Court of Appeal recognized that the defence was not entitled to production of the diary itself without a proper application before the trial judge, nor was the defence entitled to obtain information from the complainant about matters that were personal or private in nature. However, the defence was entitled to ask questions designed to lay a foundation for an eventual application for production of the diary, provided those questions were limited in nature and closely controlled to ensure that disclosure of the actual content of the diary was not elicited. For example, questions about the nature of the book, how entries are organized, and the complainant’s usual habit about writing in the diary would be permissible. Cronk J.A. held (at para. 65):

I note also that, for the purpose of laying an evidentiary foundation for a production application under s. 278.3 of the Criminal Code in respect of the diary, it is unlikely that the respondent could obtain information relating to the complainant's diary by any available means other than through limited cross-examination of the complainant. There is no evidence in this case that any person other than the complainant has access to the diary or knowledge of its contents, its physical characteristics and the circumstances of its creation and maintenance. These are facts which, on the record before this court, are within the exclusive knowledge of the complainant.

[109] The Court of Appeal in B.(E.) pointed to the discovery function inherent in a preliminary hearing as a basis for permitting general questioning about the nature of a record to establish potential relevance of that record, with a view to using that information in a possible subsequent application for its production. The defence argued before me in this case that limited questions of the CBC should be permitted for that same purpose.

[110] The Crown referred to a number of cases in which an accused brought an application for production of third party records in circumstances where there had been no right to a preliminary hearing, arguing that the inability to lay a proper factual foundation was because they had been deprived of the discovery aspects of the preliminary hearing and that production should nevertheless be ordered.[^30] In those cases, production was refused because the accused had failed to meet the initial hurdle of showing likely relevance. I would distinguish those cases on two bases. First, none of those cases involved an accused seeking to examine a witness on the application in order to lay that factual foundation, which is the issue before me. Second, in those cases, the accused would have another opportunity at trial to obtain information about the documents and whether they would be relevant, at which point the matter could be revisited. In the application now before me, this is the only opportunity the accused will have. Only CBC knows the identity of Individual B and what Individual B disclosed during the interview.

[111] The Criminal Proceedings Rules for the Superior Court of Justice (Ontario)[^31] provide that a party may examine or cross-examine witnesses in an application with leave of the presiding judge (subject to any other applicable statute or rule of law). In my view, this procedural right encompasses calling witnesses to provide an evidentiary foundation for an application for production of documents in the hands of a third party, including in appropriate cases calling the third party as a witness. Often, the third party will be the only one with knowledge of what is in the record. However, this will not always be the case. Where the complainant might also have knowledge of the nature and content of the record, the presiding judge might choose to exercise her discretion to defer the issue until trial when the accused will have an opportunity to cross-examine the complainant in the normal course. There may also be occasions when leave might be denied because of the nature of the third party, e.g. perhaps if the third party is providing therapeutic care to the complainant, or is a lawyer whose communications would be protected by solicitor/client privilege. I do not believe journalists would automatically fall into that category of witnesses who should not be summonsed to testify, but certainly the special role of the media would require any examination of journalists in this context to be tightly controlled.

[112] Ms. Witkin, for the Crown, suggested that as an alternative to subjecting the journalist to examination about the content of the interview, I could review a transcript of the interview and determine the topics covered and whether likely relevance had been established. I indicated that I was reluctant to take that step as it would essentially duplicate Stage 1 of the O’Connor process. However, if CBC was of the view that such a step would be less intrusive on their rights, I was prepared to do that rather than have the journalist examined as a witness on the application. Having considered the matter and obtained instructions, counsel for CBC advised that CBC’s position was that either of these two alternatives would be intrusive upon their rights, but that the having the journalist subject to questions that were limited in scope would be preferable to simply turning over the entire interview to me.

[113] Accordingly, I ruled that limited questions of a general nature could be asked of the CBC journalist and that all such questions must be vetted by me in advance. I did not permit questions as to the identity of Individual B. I do note, however, that in the course of argument counsel for CBC voluntarily advised defence counsel that Individual B was not a specific person that defence counsel strongly suspected would be the case. I did permit questions about:

• whether Individual B had talked about the sexual assault allegations against Mr. Lim made by any of the four witnesses;

• whether Individual B had made any observations of interactions between Mr. Lim and any of the four witnesses;

• whether Individual B had said anything about the four witnesses speaking to one another about the case;

• whether any discussions about the sexual assault allegations went beyond rumours or gossip Individual B had heard;

• whether Individual B had disclosed any information that would tend to show that Mr. Lim was innocent of the charges against him; and,

• whether Individual B reported any direct conversations with the witnesses.

[114] The CBC journalist then entered the virtual courtroom and answered questions within those parameters put to her by Ms. Robitaille. After a short recess, Ms. Robitaille advised that based on the information obtained from the journalist, the defence no longer sought production of records relating to Individual B.

Molloy J.

Released: May 7, 2021

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

Respondent

– and –

SHIN WOOK LIM

Defendant/Applicant

– and –

CANADIAN BROADCASTING CORPORATION

Third Party/Respondent

REASONS FOR JUDGMENT

Molloy J.

Released: May 7, 2021

[^1]: In the result, I severed the charges relating to M.V. and ordered they be tried after the conclusion of the trial involving the allegations made by A.E. However, I ruled that the evidence of S.C. and E.L. was admissible against Mr. Lim in the trial before me, as would have been the case for the evidence of M.V. but for the severance order. (See R. v. Lim, 2021 ONSC 44). At the conclusion of the trial, I found Mr. Lim guilty of all charges involving A.E., although some counts were stayed as duplicative. (See R. v. Lim, 2021 ONSC 35). A week later, Mr. Lim pleaded guilty to charges involving M.V. and, on a joint submission, I sentenced him to 6 ½ years in prison.

[^2]: R. v. Lim, 2020 ONSC 5745.

[^3]: Canadian Broadcasting Corp. v. New Brunswick (Attorney General), [1991] S.C.R. 459.

[^4]: R. v. National Post, 2010 SCC 16, [2010] 1 SCR 477 (“National Post”).

[^5]: R. v. Vice Media, 2018 SCC 54, [2018] 3 S.C.R. 374 (“Vice Media”).

[^6]: CBC v. New Brunswick.

[^7]: Canadian Broadcasting Corp. v. Lessard, 1991 CanLII 49 (SCC), [1991] 3 S.C.R. 421 (Lessard).

[^8]: Vice Media, at para. 105

[^9]: Ibid, at para. 82.

[^10]: Ibid, at para. 82(3).

[^12]: Journalistic Sources Protection Act, S.C. 2017, c. 22.

[^13]: Vice Media, at para. 6.

[^14]: R. v. O’Connor, 1995 CanLII 51 (SCC), [1995] 4 S.C.R. 411, at para. 34 [O’Connor].

[^15]: Ibid, at para. 160

[^16]: Criminal Code, R.S.C. 1985, c. C-46, s. 488.01.

[^17]: O’Connor, at para. 132

[^18]: R. v. Hughes, [1998] B.C.J. No. 1694 (BCSC).

[^19]: R. v. Arsenault, 2020 QCCS 2898.

[^20]: Arsenault, at paras. 316-318.

[^21]: Hughes, at para. 27.

[^22]: O’Connor, at para 19.

[^23]: Ibid, at para. 22

[^24]: Ibid, at paras. 31-32.

[^25]: O’Connor, at paras. 30-32.

[^26]: Vice Media, at para. 82.

[^27]: Gosselin c. Québec (Procureur général), 2005 SCC 15, [2005] 1 S.C.R. 238, at para. 2.

[^28]: Criminal Code, s. 278.9(1)(c).

[^29]: R. v. B.(E.). (2002), 2002 CanLII 23582 (ON CA), 57 O.R. (3d) 741 (C.A.), leave to appeal to the Supreme Court of Canada denied, January 9, 2003 S.C.C. Bulletin, 2003, p. 32; see also R. v. J.F.S., [1997] O.J. No. 5328 (Prov. Div.).

[^30]: R. v. M.G., [2001] M.J. No. 61(Man. Prov. Ct.); R. v. A.S., 2019 ONCJ 655; R. v. T.F., 2009 ONCJ 656.

[^31]: Rule 6.08, Criminal Proceedings Rules for the Superior Court of Justice (Ontario).