Court File and Parties

COURT FILE NO.: CR-23-0043-MO DATE: 2023-10-12

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HIS MAJESTY THE KING Applicant D. Krick, for the Crown Applicant

• and -

JAMIE KASTNER Respondent Journalist I. MacKinnon, for Jamie Kastner Respondent

• and -

The Canadian Association of Journalists Intervener L. Dougan, for the CAJ Intervenor

HEARD: July 7, 2023, at Thunder Bay, Ontario

Mr. Justice W.D. Newton

Reasons For Judgment

Overview

The Legislative Framework

[1] At times, police may seek judicial authorization to obtain a journalist’s work product to assist in a criminal investigation. Sometimes, that work product may involve a confidential source. At other times, it may not.

[2] One of the central issues in this application is the procedure to be followed when the journalist’s work product does not involve a confidential source.

[3] In 2017, Parliament enacted the Journalistic Sources Protection Act (“JSPA”) which amended the Criminal Code and introduced new procedures to obtain search warrants and production orders for a journalist’s communications or objects, documents, or data relating to, or in the possession of, a journalist.

[4] The amendments provided that the warrant or authorization must be obtained from a judge of a superior court of criminal jurisdiction. The amendments set out the test to be applied and the procedure to be followed.

[5] The judge may issue a warrant, authorization or order only if satisfied that:

(a) there is no other way by which the information can reasonably be obtained; and

(b) the public interest in investigation and prosecution of a criminal offence outweighs the journalist’s right to privacy in gathering and disseminating information.

[6] No notice to the journalist is mandated prior to the warrant, authorization or order being granted, but the application judge has the discretion to request that a “special advocate present observations in the interests of freedom of the press” concerning the foregoing conditions.

[7] Any document obtained pursuant to the warrant, authorization or order is to be sealed by the court that issued the order and is not to be accessed unless as authorized.

[8] No officer may examine or reproduce a document without giving the journalist notice of the intention to examine or reproduce the document.

[9] The journalist may, within 10 days of receiving that notice, apply to a judge of the court that issued the warrant, authorization or order for an order that the document is not to be disclosed to an officer on the grounds that it does, or is likely to, identify a journalistic source. A journalistic source is defined as:

a source that confidentially transmits information to a journalist on the journalist’s undertaking not to divulge the identity of the source, whose anonymity is essential to the relationship between the journalist and the source.

[10] No such document shall be disclosed unless a judge is satisfied that:

(a) there is no other way by which the information can reasonably be obtained; and

(b) the public interest in investigation and prosecution of a criminal offence outweighs the journalist’s right to privacy in gathering and disseminating information.

The Police Investigation and the Documentary There Are No Fakes

[11] The documentary, There Are No Fakes, was directed by Mr. Kastner and produced by Cave 7 Productions. The documentary was released on April 29, 2019, and was focused on the fraudulent production and sale of artwork represented as being the work of renowned deceased Anishinaabe artist, Norval Morrisseau.

[12] By written reasons reported at R. v. Kastner, 2022 ONSC 6676, released on November 28, 2022, I ordered the production of the unedited documentary interview footage (audio and video) of certain named (17) individuals used to produce the documentary. In support of the Crown’s application for a production order was a 375-page affidavit from Detective Constable Mark Pigeon. In my reasons I noted:

[4] It is alleged that the documentary contains portions, or excerpts, of interviews with individuals that Detective Constable Pigeon believes are relevant to this investigation. The interviews for the documentary are alleged to been completed prior to the commencement of this investigation by the Thunder Bay Police Service and the Ontario Provincial Police. Two of the 17 individuals who were interviewed for the documentary have since died and have not been interviewed by the police. Others have been interviewed by the police in this investigation and some have testified in other proceedings. Police interviews have revealed that there is controversy over the validity of what was said by the persons interviewed for the documentary.

[13] I concluded:

[14] Although some of the individuals who were interviewed for the documentary have also been interviewed by the police, two of the persons interviewed for the documentary have died before the police could interview them. I adopt the reasoning of Dambrot J. in CBC with respect to “necessity”. The material has significant evidentiary value to both the Crown and the defence. Mr. Kastner will not “simply turn over” the material sought. Therefore, there is no other way by which the information can reasonably be obtained. The “necessity” requirement is satisfied.

[15] The public interest in the investigation and prosecution outweighs the journalist’s right to privacy in this case. There is no confidential source to protect since the identity of the individuals interviewed has already been disclosed in the documentary which has already been made public. The Crown seeks nothing more than the footage. The journalist’s notes or other documents are not sought.

[14] The unedited documentary footage has been obtained and sealed and has not been accessed by anyone to date.

[15] In April 2023, eight people were charged with 40 offences relating to forgery of artwork attributed to Norval Morrisseau.

This Application

[16] This is an application by the Crown to “unseal” the unedited documentary film footage to allow the police to access and copy the material.

[17] Mr. Kastner received notice of the production order on November 30, 2022, and delivered a copy of the material sought to the police on March 7, 2023. He has indicated to the Crown his intention to challenge the unsealing of the material. He did not apply under subsection 488.02(3) of the Criminal Code for an order that any of the documents should not be disclosed as identifying or likely to identify a journalistic source.

[18] The Crown agrees that we are in “uncharted” territory in that s. 488.02 is silent about the mechanism for the Crown to get access to the sealed material. As there has been little judicial consideration of these amendments, the parties agreed that there would be a contested hearing to challenge the release of the material. The Crown further concedes that it is open to me to reconsider the decision to issue the production order based on submissions made at this hearing.

[19] On May 30, 2023, I granted leave to the Canadian Association of Journalists (“CAJ”) to intervene in this application. R. v. Kastner, 2023 ONSC 3237.

The Issues

[20] Mr. Kastner and the CAJ raise the following procedural issues:

i. Should the journalist receive notice at the issuing stage?

ii. If not, how does a journalist contest disclosure when the objection does not deal with a confidential source?

[21] The Crown raises this procedural issue:

iii. How do the police “unseal” the documents to get access?

[22] Mr. Kastner and the CAJ also challenge the decision to issue the production order on the grounds that neither of the following preconditions to issuing pursuant to s. 488.01(3) have been satisfied:

(a) there is no other way by which the information can reasonably be obtained; and

(b) the public interest in investigation and prosecution of a criminal offence outweighs the journalist’s right to privacy in gathering and disseminating information.

[23] Further, if the interviews are to be unsealed and released to the police, Mr. Kastner asks whether any conditions or restrictions should be imposed.

The Evidence

[24] In his affidavit, sworn June 5, 2023, Mr. Kastner states that:

− he is “an award-winning journalist and documentary filmmaker.”

− “Even for non-confidential sources, it is critical for my work that individuals do not view me as an agent of the police or believe that the information they provide me with will be directly used for purposes of a police investigation. Some people are prepared to talk to me and tell me things, but are not prepared to talk to police. If individuals that I interview for my films are aware that everything they tell me could be provided to police, I believe that they will be much less inclined to answer my questions and provide me with information, particularly sensitive information that may not be intended for broadcast but that could help advance my investigative work. Frequently, sources and interview subjects tell me information that is off the record and not meant for broadcast.”

− “Other individuals that I contacted only agreed to speak with me off camera and did not agree to appear in the film.”

− “I believe that some of the individuals I interviewed would not have spoken to me if they knew that my raw interviews would be provided to police for purposes of a criminal investigation.”

− “When editing the film, I included all the most relevant and pertinent information about the Morrisseau art forgeries in the documentary. That information was sufficient for the police to use as a starting point and employ their significant resources in gathering additional information and evidence for their criminal investigation.”

− “The police have already gathered the information they need to prosecute the individuals who have been charged. The negative repercussions of obtaining my raw interview footage, including the potential damage to my credibility as a journalist and the chilling effect on sources, outweighs the public interest in prosecuting the accused in these circumstances. The investigative techniques and procedures used by police officers and other representatives of the state is not just of interest to journalists. It's a matter of significant interest to all Canadians.”

Position of Mr. Kastner

Right of the Journalist to Make Submissions

[25] Central to Mr. Kastner’s position is that journalists have a right to make submissions regarding the production order even if no confidential source is involved.

[26] This argument flows from the fact that there is no provision under s. 488.01 or s. 488.02 to bring an ex parte application to access journalistic material submitted to the court pursuant to production order.

[27] Mr. Kastner submits that since the test under s. 488.02(5) is the same as the test under s. 488.01(3), the purpose of this “2-step” process is to ensure that if a journalist does not receive notice and an opportunity to make submissions at the issuing stage, the journalist will have an opportunity to make submissions at the disclosure stage.

[28] According to Mr. Kastner, prior to the JSPA, the most common procedure for journalists to challenge a production order was an application for certiorari to quash a production order or search warrant.

[29] Following the enactment of the JSPA, Mr. Kastner argues that a journalist’s only opportunity to challenge such a warrant, authorization or order is at the issuance stage, if the issuing judge exercises their discretion and requires notice to the journalist, or alternatively at the disclosure stage, when the Crown or journalist must bring an application to release the journalistic materials on notice. Mr. Kastner argues that there is no statutory right of appeal for a journalist, under sections 488.01 and 488.02, or any other section, of the Criminal Code, if the journalist is not successful at opposing the release of journalistic material to the police.

[30] Therefore, in order to afford journalists adequate protection in view of the special role journalists play in a free and democratic society, Mr. Kastner submits that that the JSPA should be interpreted to require notice to the journalist at the issuing stage and, if not at the issuing stage, then when the police move to access the sealed material, regardless of whether a confidential source will or may be revealed.

Application of the s. 488.01(3) Test in this Case

i. No Other Way by Which the Information Can Be Reasonably Obtained

[31] Mr. Kastner submits that there are other ways by which this information can reasonably be obtained.

[32] He notes that, in this case, the police have interviewed and obtained recorded statements from 16 of the 17 persons who were interviewed for the film. The only person who was interviewed for the film, but not by the police, was Robert Fox, now deceased. However, Mr. Fox testified in a civil trial regarding alleged fake Morrisseau paintings, and the police have a transcript of Fox’s trial testimony.

[33] Mr. Kastner argues that the police have all the information that is contained in the interviews and that, therefore, the Crown cannot establish that there is no other way by which the information can reasonably be obtained.

[34] Mr. Kastner relies upon a 2022 Québec decision, Terre de chez nous c. Sûreté du Québec (SQ), 2022 QCCQ 11732, at paras. 75-81, which found that the unaired audio recording of the journalist’s interview had limited probative value for the criminal trial and was not of crucial importance to the prosecution. The Court noted that the information relates to elements largely documented by the police investigation and did not have the importance to the litigation that the police attributed to it. Terre de chez nous, at para. 78.

ii. The Public Interest in the Investigation and Prosecution of a Criminal Offence Does Not Outweigh Kastner's Right to Privacy in Gathering and Disseminating Information

(a) The “Chilling Effect”

[35] Mr. Kastner argues that, if the interviews are released to police, there will be a “chilling effect” on individuals who speak to journalists generally, and on Mr. Kastner’s ability to conduct interviews for future documentaries.

(b) Scope of Material Sought

[36] Only two of the interviews were conducted with individuals who have been charged – Benjamin Morrisseau and James White. Kastner submits that such a broad production order, which does not identify specific interviews, topics, or statements made by the interviewees, is a fishing expedition and weighs against disclosure.

[37] Mr. Kastner argues that there is likely little probative value of the interviews.

[38] Mr. Kastner submits that the Court should be guided by the following reasons expressed in Schoen v. Schoen, 5 F.3d 1289 (9th Cir. 1993), the Ninth Circuit Court of Appeals in the U.S., in support of enforcing a law providing protection to both confidential and non-confidential sources:

[T]he compelled disclosure of non-confidential information harms the press' ability to gather information by damaging confidential sources' trust in the press' capacity to keep secrets and, in a broader sense, by converting the press in the public's mind into an investigative arm of prosecutors and the courts. It is their independent status that often enables reporters to gain access, without a pledge of confidentiality, to meetings or places where a policeman or a politician would not be welcome. If perceived as an adjunct of the police or of the courts, journalists might well be shunned by persons who might otherwise give them information without a promise of confidentiality, barred from meetings which they would otherwise be free to attend and to describe, or even physically harassed if, for example, observed taking notes or photographs at a public rally.

Position of the Intervenor - CAJ

[39] It is the CAJ's position that the same procedural entitlements that apply to confidential source materials under the JSPA must also be available for all journalistic material. This, the CAJ argues, will uphold a journalist's right to privacy and freedom of expression, and ensure the public's access to credible information.

[40] The CAJ notes that there is no express procedure in the JSPA to oppose disclosure of journalistic material that does not necessarily risk revealing the identity of a confidential source.

[41] CAJ submits that if police can proceed through the JSPA process and access journalists' documents ex parte simply on the basis they are unlikely to disclose the identity of a confidential source, then the JSPA fails to uphold the constitutional protection given to this information and to the media's special status in society. At no point would the court have the benefit of the journalists' information to conduct a proper balancing of interests.

[42] The JSPA must be interpreted in accordance with the Charter values underlying the protection of journalistic materials to ensure there is a procedure for opposing disclosure, if required, and an opportunity for the media to be heard, in the balancing framework.

[43] CAJ submits that ensuring that the media has a reasonable opportunity to be heard at the disclosure stage in cases involving state access to journalistic materials aligns with the Charter and upholds the essential values of our democracy.

Position of the Crown

[44] It is the Crown’s submission that the JSPA draws on the common law principles set out in Supreme Court of Canada jurisprudence and represents Parliament's view of how the competing interests should be balanced when the state seeks to obtain material from the media.

Notice

[45] The Crown submits that Parliament delicately refined the issue of notice in the JSPA. At the issuance stage, under s. 488.01, a special advocate can be consulted. On the basis of common-law authority from the Supreme Court of Canada's in R. v. Vice Media Canada Inc., 2018 SCC 53, the application judge retains the discretion to require that notice be given to the media, but such notice is discretionary, not mandatory.

[46] At the disclosure stage, under s. 488.02 (in conjunction with the related requirements of non-examination and sealing), there is mandatory notice to the media to provide the media with the opportunity to oppose the disclosure of the material on the basis that the material identifies or is likely to identify a journalistic source. The Crown submits that, as Parliament chose not to mandate a review procedure for non-confidential sources when enacting the JSPA, this reflects an intention to maintain a distinction between confidential and non-confidential sources.

[47] If no confidential sources are involved, the Crown submits that a journalist may bring an application to vary or revoke the production order pursuant to s. 487.0193 of the Criminal Code and noted that, pre-JSPA, the Supreme Court of Canada recognized this statutory right of review. Vice Media, at para. 68.

Reconsideration of the Decision to Issue the Production Order

[48] The Crown submits that the recorded interviews have evidentiary value in the prosecution, for both the Crown and the defence. Relying on R. v. Canadian Broadcasting Corporation, 2018 ONSC 5856, the Crown states that what potential witnesses have said “as well as the extent to which various accounts are consistent are of real importance to the truth-seeking function of a criminal trial”. CBC, at para. 30. There is no other way to know what the interviewees said in audio and video recordings that were not reproduced in the documentary. Absent the production order, there is no other way that this information can be obtained.

[49] The Crown submits that the public interest in the investigation and prosecution of these offences outweighs the journalist’s right to privacy in gathering and disseminating information. The Crown states that Mr. Kastner’s right to privacy has been minimally impaired as the police are not seeking his communication or notes, or access to any witness who was promised confidentiality. The police seek access to recorded interviews that may be relevant to their investigation for a documentary that has already been aired and continues to be publicly available.

The Law

R. v. Vice Media Canada Inc. (“Vice Media”)

[50] This decision of the Supreme Court of Canada was released after Parliament passed the JSPA and addressed pre-JSPA journalistic rights when police sought production orders for journalistic work product. The focus of this decision was whether the then current framework (pre-JSPA) provided adequate protection to journalists and media in view of the special role that media and journalists play in a free and democratic society. All parties referred to Vice Media in their submissions.

[51] The court decided that a four-part analysis should be applied on an application for a production order against the media:

(1) the authorizing judge must consider whether to exercise his or her discretion to require notice to the media;

(2) all statutory preconditions must be met;

(3) the authorizing judge must 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; and

(4) if the authorizing judge decides to exercise his or her discretion to issue the order, he or she should consider imposing conditions to ensure that the media will not be unduly impeded in the publishing and dissemination of the news.

[52] Issues considered in Vice Media that are relevant to this application include:

(a) the important distinction between confidential and non-confidential sources;

(b) whether a presumptive notice requirement should be imposed when police seek production orders or search warrants in relation to media;

(c) assessment of the “chilling effect” of production orders; and

(d) the effect of prior publication on decisions to issue production orders.

(a) The Distinction Between Confidential and Non-confidential Sources

[53] Writing for the majority, Justice Moldaver, referring to the enactment of the JSPA, noted that Parliament has acknowledged that there is a meaningful difference between confidential and non-confidential sources and stated: “Accordingly, I would not erase the distinction between confidential and non-confidential sources.” Vice Media, at paras. 36-37.

(b) Presumptive Notice

[54] In declining to impose a presumptive notice provision for journalists and media, Justice Moldaver stated:

65 I would not impose a presumptive notice requirement in situations where the police are seeking a production order in relation to the media. In my view, the traditional model of ex parte applications for production orders "provides adequate protection to ensure a strong, vibrant and independent media, free to carry out its important role in our society without unwarranted state intrusion" (R. v. Canadian Broadcasting Corp. (2001), 52 O.R. (3d) 757 (C.A.), at para. 6) ("CBC (ONCA)"). I would therefore give effect to the language of the Criminal Code and to this Court's decision in National Post: as a starting proposition, there is no notice requirement where the police are seeking a production order relating to the media. Instead, the Criminal Code permits peace officers and public officers to bring an ex parte application for a production order (s. 487.014(1)), subject to the authorizing judge's overriding discretion to require notice where he or she deems appropriate (see National Post, at para. 83; CBC (ONCA), at para. 50).

66 Absent urgency or other circumstances justifying an ex parte proceeding, the authorizing judge may well find it desirable to require that notice be given to the media (see National Post, at para. 83), especially if he or she considers that more information is necessary to properly balance the rights and interests at stake. That conclusion, however, is not mandatory. [Emphasis added.]

[55] The court also noted that requiring notice “will generally obviate the need for a de novo review, with consequential savings to the administration of justice.” Vice Media, at para. 80.

(c) Assessment of the “Chilling Effect”

[56] The court described the “chilling effect” as the “stifling or discouragement of the media’s legitimate activities in gathering and disseminating the news for fear of legal repercussions such as compelled disclosure.” Vice Media, at para. 26.

[57] Justice Moldaver concluded that “the existence and extent of any potential chilling effect should be assessed on a case-by-case basis” Vice Media, at para. 28 and stated further:

30 I would add that in cases where the police are seeking information that the media did not procure through a promise of confidentiality and has already published in large measure, as was the case in Lessard and New Brunswick, the order may cause little to no chilling effect. And to the extent there is a risk that some potential chilling effects may arise, those potential effects may be neutralized through the imposition of conditions on the order. [Emphasis added.]

(d) The Effect of Prior Publication

[58] Justice Moldaver concluded that:

[44] [T]he effect of prior partial publication should be assessed on a case-by-case basis. In determining the effect of prior partial publication in any particular case, the authorizing judge should consider all the circumstances, including the nature of the materials (both published and unpublished) and how much of the full body of materials has already been published. Where, for example, the published materials raise serious and credible concerns over potential criminality, the disclosure of the unpublished materials would not reveal a confidential source or disclose "off the record" or "not for attribution" communications, and much of the materials have already been published, prior partial publication may militate in favour of granting the order. [Emphasis added.]

Analysis

Notice Prior to Issuing the Production Order

[59] I agree with the Crown that mandating notice to the journalist or media at the pre-issuing stage would be rewriting the legislation. By providing for the “Special Advocate”, Parliament has provided a means by which the interests of the journalist and the media may be addressed.

[60] However, I also agree with the conclusion of Justice Moldaver that, “absent urgency or other circumstances justifying an ex parte proceeding, the authorizing judge may well find it desirable to require that notice be given to the media.” Vice Media, at para. 66. Indeed, I found the submissions of all parties most helpful in this application and, with the benefit of hindsight, I would have directed that notice be given to the journalist in this case at the pre-issuing stage.

Procedure at the “Unsealing” Stage

[61] I also agree with the Crown, and the observation of Justice Moldaver, that Parliament intended the distinction between the treatment of confidential and non-confidential sources, and expressly provided for a different procedure when confidential sources are involved or likely to be involved.

[62] In cases not involving confidential sources, I agree with the Crown, and again with Justice Moldaver, that the procedure contemplated by s. 487.0193 of the Criminal Code would be available to the journalist or media. I note that s. 487.0193 references reviews of production orders made under sections 487.014 to 487.018 and this was an application for a production order pursuant to s. 487.014 following the procedure set out in s. 488.01.

[63] Where no application is brought by a journalist to prevent disclosure of a confidential source, the Crown is not required to give notice of its intention to seek a “unsealing” order. However, I commend the Crown for adopting the procedure that was followed in this case. Having received notice that there was an objection to disclosure, the application to “unseal” was brought on notice. Again, recourse to this procedure would not have been required had notice been given at the pre-issuing stage.

Reconsideration

[64] As I already stated, I found the submissions of all parties most helpful.

[65] After carefully considering the submissions of counsel and reviewing the law, particularly the helpful guidance from the Supreme Court of Canada in Vice Media, I confirm my decision to issue this production order.

[66] I am satisfied that there is no other way by which the information can reasonably be obtained.

[67] As stated in my initial reasons, police interviews have revealed that there is controversy over the “validity” of what was said by the persons interviewed for the documentary. As noted in CBC, what potential witnesses have said “as well as the extent to which various accounts are consistent” are of real importance to the truth-seeking function of a criminal trial. There is no other way to know what the interviewees said in the audio and video recordings that were not reproduced in the documentary. There is no other way that this information can be obtained other than by a production order. I distinguish the Québec case relied upon by Mr. Kastner as that case involved a situation where promises of confidentiality were given with respect to certain information provided by the interviewee. No promises of confidentiality were given in this case.

[68] In this case, the public interest in the investigation and prosecution of these criminal offences outweighs the journalist’s right to privacy in gathering and disseminating information. In balancing these respective rights, I note that no confidential sources will be revealed. As Mr. Kastner states in his affidavit, certain individuals only agreed to speak with him “off-camera and did not agree to appear in the film.” The police are not seeking information or notes regarding those individuals.

[69] It is not asserted that any of the audio and video footage sought was “off the record and not meant for broadcast”. In this case, the police are seeking the unedited interview footage of certain named individuals used to produce the documentary. All individuals were named and appeared in the documentary. It is not asserted that any of the interviewees placed any restrictions on what portions of their interviews could be used in the documentary.

[70] The documentary was released over four years ago and is still publicly available.

[71] I adopt the statements of Justice Moldaver in Vice Media that, where the information was not procured through promise of confidentiality and has already been published in large measure, the prior partial publication may militate in favour of granting the order. Vice Media, at paras. 30 and 44.

[72] In this particular case, I find that the “chilling effects” are lessened since no information is sought that was obtained “off the record” or not to be published.

[73] Further, I find that in this particular case, no conditions are needed to balance the interests of the journalist.

[74] For these reasons, I confirm my decision to issue the production order and order the “unsealing”, or variation of my sealing order, to allow the police to access and copy the sealed material as required.

“Original signed by”

The Hon. Mr. Justice W.D. Newton

Released: October 12, 2023