Notice Regarding Publication and Broadcast Order

The court hearing this matter directs that the following notice be attached to the file:

A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code. This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1), read as follows:

486.4 Order restricting publication — sexual offences. — (1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (a) any of the following offences: (i) an offence under section 151, 152, 153, 153.1, 155, 160, 162, 163.1, 170, 171, 171.1,172, 172.1, 172.2, 173, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or (ii) any offence under this Act, as it read from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (i) if it occurred on or after that day; or (b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).

(2) MANDATORY ORDER ON APPLICATION — In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall (a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and (b) on application made by the victim, the prosecutor or any such witness, make the order.

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

Court File and Parties

COURT FILE NO.: 21-30454 DATE: 2023/07/20 SUPERIOR COURT OF JUSTICE, ONTARIO

RE: HIS MAJESTY THE KING, (Respondent) AND: HAYDN EDMUNDSON, Defendant (Respondent)

BEFORE: Regional Senior Justice Calum MacLeod

COUNSEL: Alyssa Holland and Sean Grassie, for the Appellant CBC Naomi Lutes, for the Defendant Juliana Martel, for the Crown Biagio Del Greco, (Amicus Curiae) for the unidentified person

HEARD: July 18, 2023

Reasons for Decision

[1] CBC/Radio-Canada appeals against the ruling made by the Honourable Justice Frank D. Crewe of the Ontario Court of Justice at Ottawa, Ontario on June 22, 2023. This is the second appeal in this matter. An earlier decision of Crewe J. dated February 17, 2023 was appealed to this court and heard by my colleague Justice Parfett. It was pursuant to her Order that Crewe J. reconsidered his ruling on June 22.

[2] For the reasons that follow, I do not agree that Crewe J. made an error in applying the relevant section of the Canada Evidence Act, R.S.C., 1985, c. C-5 in his June 22nd decision. The documents in question must be produced to the trial court pursuant to the subpoena so that the trial judge may complete the pre-trial third-party records application that is underway.

Context

[3] I will not repeat the facts as they are set out in the two decisions of Crewe J. and the decision of Parfett J. (2023 ONSC 2206). These decisions are covered by a publication ban because the issues before the court are allegations of sexual assault. There is also a temporary order in place to protect the privilege which is at the heart of this appeal.

[4] It is important to put the matter in context, however. The defendant is charged with sexual assault and committing an indecent act arising out of an incident on board a Canadian naval vessel many years ago. The charges are currently before the Ontario Court of Justice. The accused was charged on December 7, 2021. On March 31, 2021, CBC published a story under the headline “Senior military commander under investigation after being accused of sexually assaulting subordinate”. The story was based on information provided by the complainant and by two unnamed sources.

[5] The main Crown witnesses are the complainant and X.X. who may or may not be the unnamed female source mentioned in the article. The defence and the trial judge infer from the circumstances and the nature of the evidence X.X. will be giving at trial that X.X. was interviewed by the CBC reporter prior to writing the article. Not surprisingly, the defence would like access to the notes of that interview to determine whether the information provided to the reporter at that time is materially similar or different from the statement subsequently given to the police and evidence that may be given at trial.

[6] The ruling by Crewe J. was sought in connection with a third-party records application or an O’Connor / Mills application under s. 278.1 of the Criminal Code of Canada. That application was brought on January 13, 2023. A subpoena was issued the same day. The contentious parts of the subpoena call upon the CBC to deliver “all records in the possession of CBC/CBC News constituting communications with the unnamed witness, if that witness is X.X. (e.g. Emails, text, notes of calls)” and “all recordings (audio, video) or, if no recordings exist, summary notes of interviews (formal or informal) with the unnamed witness, if that witness is X.X.” In other words, the accused only seeks production of the notes and records if they pertain to X.X. who will be a witness at trial and who voluntarily gave a statement to authorities during the criminal investigation.

[7] The documents and records have not yet been produced to the accused because the s. 278.1 Application has not yet been concluded. As Parfett J. noted, the initial ruling of the trial judge required “CBC to disclose journalistic records to the trial judge for the purpose of the first-stage analysis in a third-party records application.”

[8] It had apparently been agreed between counsel that a preliminary step before the s. 278.1 Application could proceed would be a ruling under s. 39.1 of the CEA. This section was enacted in 2017 to codify the issue of journalist source privilege.

[9] All parties agree that the privilege applies. There is no doubt that CBC News and the journalist in question are “journalists” within the meaning of the section and no doubt that the individuals who provided the reporter with information are “journalistic sources”. The issue before Crewe J. was whether or not the privilege should be overridden in the interests of justice. That question is governed by subsection (7) which reads as follows:

Authorization

(7) The court, person or body may authorize the disclosure of information or a document only if they consider that

• (a) the information or document cannot be produced in evidence by any other reasonable means; and
• (b) the public interest in the administration of justice outweighs the public interest in preserving the confidentiality of the journalistic source, having regard to, among other things,
  • (i) the importance of the information or document to a central issue in the proceeding,
  • (ii) freedom of the press, and
  • (iii) the impact of disclosure on the journalistic source and the journalist.

[10] In his initial decision, Crewe J. described in detail the report of what was disclosed by the unnamed source in the CBC article and compared it with what was contained in the police interview with X.X. The CBC article describes having interviewed an individual who “confirmed that [the complainant] went missing during the time of the alleged assault” and going looking for the complainant and calling her name. This is consistent with the much more detailed information provided to the police when X.X. was subsequently interviewed and consistent with the time and place where the sexual assault allegedly occurred. Crewe J. found that this gave rise to the reasonable inference that X.X. was most probably the journalistic source. He concluded that as the purpose of the privilege in s. 39.1 was to protect the anonymity of the journalistic source, this privilege was lost or waived when X.X. gave a voluntary witness statement during the investigation of the criminal charges.

[11] On the appeal of that decision to Parfett J., the parties both agreed that “the trial judge erred in finding that no journalist-source privilege existed in relation to X.X.”. “They agree that the finding that X.X. was likely the unnamed female source should have formed part of the analysis pursuant to s. 39.1 (7) CEA”. On that basis, Parfett J. held that it was an error to conclude that the privilege did not apply. She found that the trial judge should have completed the analysis required by subsection (7) and turned his mind to the statutory test. She remitted it back to Crewe J. to reconsider the matter.

[12] CBC concedes that the privilege does not apply to the complainant and have produced the records in respect to her interviews. The only issue is the request to produce the records of information provided by the other unnamed female source if that source was X.X.

[13] When the matter was reconsidered by Crewe J., he once again made the inference that the unnamed female source was probably X.X. and set out considered reasons for reaching that conclusion. He then applied that inference in considering one of the criteria in subsection (7), that is the impact of disclosure upon the journalistic source and the journalist. This is precisely the use of the inference suggested by Parfett J. at paragraph 12 of her reasons.

[14] Crewe J. also turned his mind to the other criteria in the s. 39.1 (7) test. He concluded that the only possible sources of the information sought by the defence (that is the particulars of information provided to CBC by the source if the source was X.X.) would be X.X. herself or the CBC files. He considered the guidance provided by the Supreme Court in Denis v. Coté, 2019 SCC 44, [2019] 3 SCR 482 on the interpretation of subsection (7). He dealt explicitly with the centrality of reliability and credibility of the evidence in a case of historical sexual assault and concluded that the documents sought would potentially be both central and important. He then proceeded with the balancing exercise, concluding that if X.X. was the source, has now given a non-confidential statement to the authorities and will be a witness for the prosecution, the statutory protection of her identity (as a journalistic source) would no longer be significant. In essence, he found that potential damage to freedom of the press in these circumstances would be minimal in comparison with the public interest in ensuring a fair trial.

[15] Section 39.1 (10) (d) of the CEA is the authority for an appeal to this court. Section 39.1 (12) provides that the appeal “shall be heard and determined without delay and in a summary way”. This is particularly important where as here, this is an appeal of a mid-trial – or in this case a mid-pre-trial application – in an ongoing trial before the Ontario Court of Justice. The trial itself is currently scheduled to begin on August 8th.

[16] The interpretation of a statutory provision is a question of law subject to review on a standard of correctness as is the application of the test to a set of facts if the judge at first instance fails to apply the correct test or alters the test. (See Teal Cedar Products Ltd. v. British Columbia, 2017 SCC 31, [2017] 1 SCR 688, para. 43 – 44) Absent an error of law on an extricable legal question, however, appellate intervention attracts a standard of deference, and the reviewing court should not interfere in the absence of a “palpable and overriding error”. (See Houlden v. Nikolaisen, 2002 SCC 33, [2002] 2 SCR 235).

Analysis & Decision

[17] I begin by considering what the Appellant describes as the “impugned inference”. CBC argues that the trial judge should not have inferred that the unnamed source was probably X.X. and it argues this inference was improperly used to “short-circuit the analysis mandated by Parliament”.

[18] I do not agree that this is an error in the circumstances of this case, nor do I agree that the trial judge altered the statutory test. As noted above, the subpoena in question is conditional. CBC need only produce notes and records in relation to one of the unnamed journalistic sources, if that source was X.X., the proposed Crown witness. As I also noted, paragraph 12 of the decision of Parfett J. suggests that on that appeal, counsel had not suggested the inference itself was improper but simply that the inference was misused. The direction from Parfett J. to Crewe J. was that the inference should form part of the analysis under subsection (7).

[19] Even in the absence of this finding and direction, however, I do not regard the inference that X.X. was one of the sources to be an improper “guess” at the identity of X.X. as one of the journalistic sources. There is very good reason to assess the probability that X.X. was one of the sources as high. Firstly, there were very few women serving on the ship in question at the time and even fewer who would have been in the position to search for the complainant at the time of the alleged assault. Secondly, the description of what the unnamed source could confirm in the media report is almost identical to certain of the facts detailed by X.X. in her statement to the investigator and her anticipated evidence at trial. Since there is a very high probability that X.X. was the source and CBC has the documents in question, this probability is a consideration in applying the factors in subsection (7).

[20] Crewe J. was alive to the factors set out in subsection (7) and his application of those factors to the evidence before him is entitled to deference. He concluded that if CBC has notes and records of a statement made by the witness to a journalist on a different and earlier occasion than her statement to the investigator, that information is unavailable elsewhere. I do not consider that conclusion to be unreasonable nor do I agree that production as ordered renders the protection under s. 39.1 illusory.

[21] Section 39.1 firmly plants journalistic source privilege in Canadian law as a class privilege. It does not make the privilege absolute. As with most privileges, if the interests of justice require it, the privilege may yield. (See Blank v. Canada (Minister of Justice), 2006 SCC 39, [2006] 2 SCR 319, para 56). In the case of s. 39.1, the very provision which entrenches the privilege in the CEA also provides the court with the specific authority to override the privilege if the court is satisfied that the statutory factors in s. 39.1 (7) are met. Applying those factors after due consideration to the impact of the order to freedom of the press is not, as the applicant argues, to compel journalists to reveal their sources “as a matter of course”.

[22] It is important to limit mid-trial appellate review to cases that truly require it. While here the right of summary appeal is a statutory right and therefore unlike certiorari which is discretionary, the principle of restraint remains important and goes hand in hand with the principle of deference. Recall that this ruling is only the first stage of an analysis which has not yet taken place in which the trial judge must consider whether to order production of the records in question to the accused. In addition, the trial judge has an ongoing task to revisit his rulings as circumstances may dictate during the trial. This is particularly acute under the s. 276 regime (See R. v. Barton, 2019 SCC 33, [2019] 2 SCR 579, para. 65) but it is frequently the case that evidence initially ruled inadmissible may have to be reconsidered if the evidence given at trial differs from that anticipated and alters the balancing exercise. Trial judges need to be nimble and should not be unreasonably constrained in the exercise of their discretion by mid-trial appeals.

[23] In this case, I do not find that Crewe J. committed an error of law or altered the test. The inference about the high probability CBC is holding information gleaned from X.X. is not an inappropriate inference. I would reach the same conclusion on the facts before the court. The inference was not used to avoid applying the subsection (7) factors but was used appropriately as one factor supporting production of the documents. The trial judge’s assessment of the factors and exercise of discretion are entitled to a high degree of deference and should not attract appellate interference.

[24] The appeal is dismissed.

Sealing Order

[25] The parties agreed that I should consider their submissions on the sealing order in writing. There had been agreement to the terms of a temporary order which now expires. The only disagreement was in relation to a non-disclosure order.

[26] The sealing order relates only to the material before this court. That is the material filed for the two appeals. It will not affect the material filed in the trial itself. That is a matter for the trial judge.

[27] Having considered the written submissions, I grant the sealing order but not the non-communication order. I agree with the submissions of the accused that there is no statutory authority for a non-communication order and if the court can grant such an order, it would have to be precisely tailored to a specific demonstrated risk. This does not mean that the accused is at liberty to disclose information he gleans from information or documents produced under compulsion. There is an implied undertaking rule which applies in both civil and criminal proceedings. (See Juman v. Doucette, 2008 SCC 8, [2008] 1 SCR 157, paras 23 – 28 and Hedley v. Air Canada, (1994) 23 CPC (3d) 352 (Ont.CA)) and there is a publication ban in the criminal proceedings as noted at the top of these reasons.

[28] In summary, on consent, the materials relating to these appeals shall be sealed.

Justice C. MacLeod Date: July 20, 2023

COURT FILE NO.: 21-30454 DATE: 2023/07/20 ONTARIO SUPERIOR COURT OF JUSTICE RE: HIS MAJESTY THE KING, (Respondent) AND: HAYDN EDMUNDSON, Defendant (Respondent) BEFORE: Regional Senior Justice Calum MacLeod COUNSEL: Alyssa Holland and Sean Grassie , for the Appellant CBC Naomi Lutes, for the Defendant Juliana Martel, for the Crown Biagio Del Greco, ( Amicus Curiae ) for the unidentified person reasons for decision Regional Senior Justice C. MacLeod Released: July 20, 2023