Court File and Parties

COURT FILE NO.: CR-24/681 DATE: 2024-11-28 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HIS MAJESTY THE KING – and – JACK DENSMORE Applicant -and – THE HAMILTON SPECTATOR, A DIVISION OF METROLAND MEDIA GROUP LTD. Third Party

Counsel: B. Sosa, on behalf of the Crown M. Fahmy, for the Applicant J. Manoryk, for the Third Party

HEARD: November 12, 2024

a.j. goodman J.:

RULING WITH RESPECT TO DISCLOSURE OF THIRD PARTY RECORDS

[1] The applicant, Jack Densmore, (“Densmore”), stands charged with various offences, including sexual assault, voyeurism and distribute intimate images without consent, contrary to their respective provisions in the Criminal Code, R.S.C., 1985, c. C-46 (the “Code”).

[2] The applicant requests production of certain records related to the complainant and held by the third party, the Hamilton Spectator, a division of Metroland Media Group Ltd., (“the Spectator” or the “Third Party”). The Spectator is a daily newspaper published and circulated in Hamilton, Ontario, and surrounding areas.

[3] The applicant’s subpoena details the records being sought that are related to the above-noted criminal matter and all notes, statements, and correspondence of Ms. Susan Clairmont, a well-known and respected journalist for the Spectator.

[4] Specifically, the applicant seeks production and disclosure of all correspondence (including emails and text messages) between anyone at the Spectator and the complainant and/or the other witnesses; all notes of any reporters with respect to meetings with the complainant or the other witnesses; and all video or audio recordings of interviews with the complainant and/or the other witnesses.

[5] While none of the records can be classified as counselling or therapeutic records, there is no dispute that these documents are "records" as defined by the Code. Prior to the submissions of the parties, I had not seen the documents, nor had the Crown attorney or counsel for the applicant.

[6] In this case, there is a fundamental dispute as to the statutory regime or legal analysis/process that applies to govern this specific application.

[7] This case raises somewhat novel issues as to the scope of journalistic privilege and productions of records as may be applicable to the Journalistic Sources Protection Act, S.C, 2017, c. 22 (the “JSPA”) as codified in s. 39.1 of the Canada Evidence Act, R.S.C. 1985, c. C-5 (“the CEA”). There are some conflicting trial court decisions that have addressed the nature and scope of this issue. These decisions are discussed further in these reasons.

Background

[8] On October 22, 2022, the Spectator published a story co-authored by Ms. Clairmont entitled “Notorious YouTuber known as Jack Denmo charged with sexually assaulting Mac student.” The article included details of the allegations against the applicant, whose aliases include “Jack Denmo” or “Denmo”, and his arrest for sexual assault on March 23, 2021.

[9] Following publication of this story, a woman (“Source 1”) reached out to Ms. Clairmont and indicated that she had also been sexually assaulted by the applicant. Ms. Clairmont interviewed Source 1. She subsequently interviewed two more sources (“Source 2” and “Source 3”) who Source 1 had confided in at the time of the alleged assault.

[10] A follow-up story was written by Ms. Clairmont and was published in print, and online on November 11, 2022. The title of the story was: “Notorious Hamilton YouTuber under investigation for second sexual assault allegation.”

[11] The second article contained certain information, including but not limited to: that the applicant was under police investigation for an allegation of sexual assault; that the complainant had contacted the Spectator after seeing its publication the sexual assault charge laid against the applicant the month prior; that the complainant disclosed to the Spectator that she too had been sexually assaulted by the applicant; details of this sexual assault; that the police subsequently confirmed they were conducting an investigation and that no charges had yet been laid; and that the complainant had confided in two friends about the allegations and that these witnesses were contacted and interviewed by the Spectator; one of those witnesses was interviewed by the police. The Spectator made the decision not to publish the name of the complainant and no details of the interviews were circulated.

Positions of the Parties

[12] The applicant submits that the issues and law in this case have been addressed in a related decision rendered by Molloy J. - R. v. Lim #4, 2021 ONSC 45. The applicant says that Lim #4 is directly on point and decided the same issues as in the case at bar.

[13] The applicant contends that neither s. 278.1 of the Code nor the R. v. Mills, [1999] 3 SCR 668, “Mills” regime applies in this case and that this court ought to follow Lim #4, in applying the R. v. O’Connor, [1995] 4 SCR 411, “O’Connor” regime as the correct standard. At the same time, the “O’Connor” regime ought to be applied “in fusion with” the R. v. Vice Media Canada Inc., [2018] 3 SCR 374, 2018 SCC 53, “Vice Media” case: see Lim #4, at paras. 63-64.

[14] The applicant says that the first stage of the O’Connor regime concerns whether the applicant has established that the material being sought is “likely to be relevant” at trial. In this context, relevance is whether the information “may be useful to the defence” and whether there is a “reasonable possibility that the information is logically probative to an issue at trial”: See O’Connor at para. 22.

[15] This is not an “onerous” burden. The applicant submits that this threshold has easily been met since there is no reasonable expectation of privacy in the records. Were there to be a reasonable expectation of privacy than the Mills "likely relevant" consideration would apply. Further the impact of the Spectator in producing the material for review would be minimal and there is no confidential sources or journalistic privilege that can be claimed. Finally, the complainant came of her own volition to report the allegations to the media and expected the story to be published. The facts of this case are thus even distinguishable from Lim #4, (where the allegations were produced) in that the Spectator already published the allegations and details. Thus, whatever journalistic privacy interest that existed was severely diminished by the fact that the Spectator was able to “scoop” this story before it had even been reported to the police.

[16] The applicant also argues that the “Vice Media” factors bear little weight, on the current case since there is no potential chilling effect, as the story has already been fully published. The applicant reiterates that there is no request for any work product, only the journalist’s notes, and communications, unless the interviews were otherwise recorded.

[17] The applicant says that the documents sought are necessary to allow the applicant to complete the narrative, which will also impact on the triable issues like the complainant’s credibility. The applicant submits that he requires these documents in order to make full answer and defence.

[18] For this discrete application, the Crown attorney adopts the submissions advanced by counsel for the Third Party. The Crown suggests that the applicant has not argued any specific basis for disclosure of these records, and speculates as to their utility in respect of the credibility of the complainant. In determining relevance and probative value, the materials being sought are “consistent” with what was already been recorded by the police. The Crown submits that the appropriate regime for the analysis falls under Mills, per s. 278.31 of the Code.

[19] Mr. Manoryk, on behalf of the Third Party, submits that the information caught by subpoena cannot be provided or disclosed to the Court. The records consist of information from a journalist’s file identifying confidential journalistic sources. As such, counsel says that the JSPA, and included amendments to the CEA at s. 39.1, apply and therefore the applicant must and cannot meet the relevant threshold test.

[20] Counsel for the Third Party submits that Ms. Clairmont is an experienced journalist who reports on crime, courts, and social justice issues, including instances of sexual misconduct and abuses of power and trust. Woman reporting on these sensitive topics rely on confidentiality undertakings from journalists like Ms. Clairmont to tell their stories. The applicant must establish that it is necessary and justified to set aside that privilege. In this case, he cannot do so.

[21] Moreover, even if this court did set aside the privilege, Mr. Manoryk argues that the applicant has not established entitlement to the records in accordance with the Mills regime, which wholly applies in this case. Finally, if neither of the JSPA nor the Mills regime apply to bar disclosure in this case, disclosure should be denied in accordance with the framework established by the Supreme Court of Canada in Vice Media.

Legal Principles – the JSPA

[22] In R. v. McNeil, [2009] 1 SCR 66, 2009 SCC 3, the Supreme Court articulated the third-party records disclosures procedure. Issues of privilege are best resolved at the outset. The application is brought before the judge seized with the trial. If a record holder or some other interested person advances a well-founded claim that the documents are privileged, in all but the rarest of cases, the existence of the privilege will bar the defence application.

[23] Section 39.1 of the CEA protects journalist-source privilege. Section 39.1 was added to the CEA by the JSPA in 2018 to provide robust statutory protection for journalistic sources and promote the freedom of press as considered by s. 2(b) of the Canadian Charter of Rights and Freedoms.

[24] In Denis v. Côté, [2019] 3 SCR 482, 2019 SCC 44, the Supreme Court considered this legislation for the first time. The Court explained that “[w]hereas the applicability of the journalist source privilege was the exception in the former scheme, it has now become the rule.” The change was intended “to afford enhanced protection to the confidentiality of journalistic sources in the context of journalists’ relations with those sources”: at paras. 28, 34.

[25] In Denis, at paras. 55-57, the Supreme Court identified a three-part test for establishing and displacing journalist-source privilege under s. 39.1 of the CEA: a. the individuals resisting disclosure must have the status of a “journalist” and an associated “journalistic source” within the meaning of s. 39.1(1), as a threshold requirement; b. the party seeking disclosure must establish reasonable necessity, in that the information or document cannot be produced in evidence by any other reasonable means; and, c. the public interest in the administration of justice must outweigh the public interest in preserving the confidentiality of the journalistic source in question, considering the following non-exhaustive criteria: the importance of the information to a central issue in the proceeding; freedom of the press; and the impact of disclosure on the journalistic source and the journalist.

[26] A party raising an objection under the JSPA bears the burden of demonstrating that there is a journalist and a journalistic source, as defined under the CEA. Once that has been established, the records sought are presumptively privileged, and the burden of proof shifts to the party seeking disclosure to displace that privilege.

[27] Subsection 39.1(1) of the CEA defines “journalist” as “a person whose main occupation is to contribute directly, either regularly or occasionally, for consideration, to the collection, writing or production of information for dissemination by the media, or anyone who assists such a person.”

[28] “Journalistic source” is also defined in s. 39.1(1) 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.

Discussion

[29] The applicant submits that the JSPA does not apply in this case as the Spectator has not satisfied their burden under both segments of the s. 39.1 two-part threshold. The applicant contends that it is impossible to reconcile Ms. Clairmont’s affidavit evidence with what transpired as there was never any promise or undertaking of anonymity or confidentiality either on the record or referenced in the article itself. The complainant was, in effect, not a “journalistic source”. The applicant further contends that the JSPA does not apply in the current case, as record disclosure is being sought by an individual, rather than the state.

[30] I note that the JSPA establishes two discrete tests that must be satisfied, before journalist sources are to be produced. The first applies where production is ordered under s. 488.01 of the Code (e.g., search warrants, production orders, and wiretaps). The JSPA is responsible for the addition of s. 488.01 to the Code. The second applies where disclosure is requested outside of the Code, in the context of civil and other proceedings, pursuant to s. 39.1 of the CEA. Section 2 of the CEA denotes that it “applies to all criminal proceedings and to all civil proceedings and other matters whatever respecting which Parliament has jurisdiction.”

[31] It is the presence of these two distinct tests/branches, and more importantly the distinction between the two, that may explain the apparent contradiction between Lim #4 and the subsequent case of R. c. Mund, 2024 QCCQ 5149.

[32] Where an application is made for disclosure of journalistic source documents, pursuant to the JSPA’s Criminal Code provision, such may only be brought by a state actor (i.e., only a peace officer or public officer has the authority to apply for a warrant under s. 487.01 or an authorization under s. 184.2, etc.). Thus, in turn, s. 488.01 of the Code only applies to state actors (as held in Lim #4). However, where an application is made for disclosure of journalistic source documents under the JSPA’s addition to the CEA provision, then the JSPA applies more broadly – to individuals/whoever is bringing the application (as held in Mund, at para. 11). Such is true, as long as the individual has brought their application before a body with the appropriate authority. The above distinction rests on the fact that the CEA poses no procedural requirement, like that in the Code, that a state actor be bringing about the disclosure request. Section 39.1 of the CEA states that “A person who request the disclosure has the burden of proving the conditions set out in subsection (7) are fulfilled.” “Person” is not qualified or defined in any way within this provision.

[33] However, there is a slight, albeit important qualification in this dual-branch interpretation. The first branch, the Code branch, as written in s.488.01(2) as only relating to certain Code provisions – of which s. 287.3 is not:

Despite any other provision of this Act, if an applicant for a warrant under section 487.01, 492.1 or 492.2, a search warrant under this Act, notably under section 487, an authorization under section 184.2, 186 or 188, or an order under any of sections 487.014 to 487.017 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, they shall make the application to a judge of a superior court of criminal jurisdiction or to a judge as defined in section 552. That judge has exclusive jurisdiction to dispose of the application.

[34] No case law affirms this point. On the face of s. 488.01(2), it is clear to me that the Code branch of the JSPA does not apply to s. 278.3. If the CEA branch (of the JPSA) were similarly deemed to not apply to s. 278.3, a gap in the JSPA’s protection of journalist sources would ensue.

[35] In Lim #4, Molloy J. states, at para. 39,

…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.” ...

[36] From the above passage, I understand Molloy J. to have applied the Code branch of the JSPA, rather than the CEA branch, to her decision in Lim #4, despite s.488.01(2)’s restrictive language. It is in the proper JSPA branch to apply to a s.278.3 request for disclosure where I disagree with my learned colleague. I instead adopt the analysis of Compagnone J., in Mund. Mund also dealt with an application for production under s.278.3 of the Code. However, in Mund, at para. 11, the court deemed the CEA to be the proper scheme through which to realize the rights conferred by the JSPA:

CJN objects to the disclosure of the information requested by the accused on the grounds that the information identifies or is likely to identify a journalistic source, invoking s. 39.1(2) of the Canada Evidence Act (hereinafter CEA). Crown and complainant counsels agree with this and are also opposing the application for disclosure, adding that it does not satisfy the criteria set out in s. 278.5.

[37] The CEA test/branch is as follows:

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.

[38] 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.” The missing contextualization is that it is the JSPA, in relation to the Criminal Code, that applies only to applications by the state.

[39] At paras. 33-55 of the Mund decision, the CEA test/branch is applied. The facts in Mund are very similar to those at bar, in that the accused was facing two charges, regarding sexual offences allegedly committed in 1997 towards a person under the age of fourteen. The accused sought to obtain access to the entire record of the third-party record holder, Canadian Jewish News, regarding an interview given by the complainant to one of its journalists.

[40] The Spectator, just like in Mund, objects to the disclosure of the information request by the applicant on the grounds that such identifies a journalistic source. The Third Party invokes s.39.1(2) of the CEA to make out this objection, as opposed to any provision of the Code. Section 39.1(2) of the CEA reads as follows:

(2) Subject to subsection (7), a journalist may object to the disclosure of information or a document before a court, person or body with the authority to compel the disclosure of information on the grounds that the information or document identifies or is likely to identify a journalistic source.

[41] The reference to “court, person or body” is broad enough to include not only judicial proceedings, but also proceedings before federal boards, commissions and other administrative agencies or tribunals, (s. 37(3).

[42] It seems that because s.278.1 had been pleaded in Lim #4 that Molloy J. applied the Criminal Code version of the JSPA provisions (rather than the CEA).

[43] In sum, I find that the JSPA’s CEA provisions may apply beyond the state and to anyone bringing an application in similar circumstances. I agree with Molloy J. in Lim #4, that the JSPA only applies exclusively to state actors where disclosure of journalist sources is sought under a specified provision of the Code (i.e., by practice of warrant, production order, authorization). However, as such is not the current case, the JSPA’s CEA provisions govern (irrespective of whether the s. 278.3 regime or the common law O’Connor regime applies). Hence, I cannot adopt the interpretation in Lim #4, specifically to the brief reference to s. 278.3. In my opinion, the JSPA may apply in this case, contingent on the following steps begin satisfied.

Reasonable Necessity

[44] In this case, I accept Ms. Clairmont’s affidavit evidence without reservation or qualification.

[45] Ms. Clairmont is an investigative reporter employed full-time by the Spec. She interviewed the sources as part of her investigation and reporting process for the Spectator.

[46] Each of Sources 1, 2, and 3 fall within the definition of a “journalistic source.” In the course of interviewing each source, Ms. Clairmont made a promise to protect their identities and not to disclose them in her reporting. She took steps to protect the sources’ confidentiality. In her subsequent article detailing the allegations published on November 11, 2022, she did not use any of the source’s names or identify them in any way. Since publication of the second article, Ms. Clairmont has continued to hold the sources’ identities in confidence.

[47] Unlike the facts in Lim #4, Ms. Clairmont made express promises of anonymity to each source, as the JSPA requires, - and anonymity was essential to her relationship with each of these journalistic sources.

[48] The fact that Source 1 requested confidentiality after she initially spoke to Ms. Clairmont is, in the Third Party’s submission, irrelevant. The purpose of the JSPA is “to afford enhanced protection to the confidentiality of journalistic sources in the context of journalists’ relations with those sources.” Denying that protection on the basis of the timing of the request would frustrate and undermine the purposes of the JSPA.

[49] In my view, confiding in a journalist, under the ambit of anonymity, can take several forms, as long as the journalist is careful not to reveal the identity of the subject.

[50] I turn to s. 39.1(7)(a) of the CEA, which sets out the reasonable necessity requirement:

(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

[51] The Supreme Court in Globe and Mail v. Canada (Attorney General), [2010] 2 SCR 592, 2010 SCC 41, at para. 63, has said that “[i]f relevant information is available by other means and, therefore, could be obtained without requiring a journalist to break the undertaking of confidentiality, then those avenues ought to be exhausted.” Requiring a journalist to breach a confidentiality undertaking with a source should be done only as a last resort: Denis, at para 40.

[52] Much of the information the applicant seeks can be produced by other reasonable means. The applicant’s factum indicates that both the complainant and another witness were interviewed by the police before he was arrested on November 22, 2022. The contents of those police interviews were disclosed by the Crown.

[53] The applicant has not demonstrated any basis for a belief that the contents of Ms. Clairmont’s interviews are unique or different from the police interviews. He has not pointed to any information (such as the allegations published in the article) that would suggest the contents of Ms. Clairmont’s interviews differ from those given to police. I am persuaded that there is no basis to breach journalistic-source privilege because the information is already available to the defence.

[54] The Third Party acknowledges that the interview with the third source did not result in an interview by police. The information contained in this interview is therefore not reasonably available to the applicant. I agree that the necessity threshold is met with respect to Source 3. However, I find that this does not rebut the presumptive privilege over the records. It only allows me to proceed to the balancing exercise.

The Public Interest and Balancing Exercise

[55] Section 39.1(7)(b) of the CEA is “the heart” of the JSPA (at least on the CEA branch) - it requires that the court decide whether “the public interest in the administration of justice outweighs the public interest in preserving the confidentiality of the journalistic source” in question.

[56] Under s. 39.1(7)(b), the court must take into account: (i) “the importance of the information… to a central issue in the proceeding” before it; (ii) “freedom of the press”; and (iii) “the impact of disclosure on the journalistic source and the journalist”.

[57] First, as per Denis, at para. 44, it is necessary to determine whether the records being sought are important to a central issue in the proceeding. This requires a determination of relevance, as information that is not relevant “cannot be characterized as important.” The standard at this stage is arguably higher than at the third party records application, (at least within the O’Connor regime) where the accused must show that “there is a reasonable possibility that the information is logically probative to an issue at trial or the competence of a witness to testify.” The JSPA imposes an additional requirement that the records in question be “important” to an issue that is “central” to the proceedings, as opposed to one that is “peripheral or “whose consequences for the proceeding are limited.”

[58] Again, it bears repeating that the applicant has not identified any issue of central importance to which the records he seeks are relevant. The sole basis proffered in his submissions is the assertion that Ms. Clairmont’s interview is “[t]he “very first time” that the complainant has discussed her allegations against the applicant and that this “is essentially ‘first disclosure’ and ‘public account’” of those allegations.

[59] In my view, the claim of “first disclosure” is not borne out on the facts. As the November 11 article makes clear, the complainant did “confide in two friends” at the time of the assault in late 2018. Whether or not this is probative or even relevant at trial, statements provided to Ms. Clairmont four years later in 2022 cannot be said to be “first disclosure”.

[60] Further, I agree with the Third Party that even if the interview with Ms. Clairmont was the first account of the allegations, this does not establish those records’ importance to a central issue in the proceedings. The applicant’s assertions amount to an argument that the mere existence of the records establishes their relevance. The mere fact of a prior statement does not even suffice to establish relevance, let alone importance.

[61] Premised on the arguments advanced in writing and during submissions in court, in my opinion, the applicant has not established the importance of the information he seeks to a central issue in the proceeding. He has in fact not “gone beyond speculative assertions of relevance” or even “drawn a specific line between the records sought and one or more live issues for trial: see R. v. Brazier, 2022 ONSC 3807, at para. 17.

[62] Moreover, Ms. Clairmont has deposed that her work relies in significant part upon establishing trust with her sources. She has testified that confidentiality is critical to her work, as it gives her the freedom to collect information broadly without the fear that such information will be turned over to the state or the public. She has also testified to her belief that people in vulnerable positions “rely on promises of anonymity and confidentiality” to tell their stories in the first place and “will be less likely to come forward if they do not believe their identities and privacy are safe”.

[63] Ordering disclosure of a journalist’s file impacts both the public’s confidence in their ability to perform their work and the journalists’ confidence in their ability to perform their work without state interference. As Bourque J. recognized in CBC/Radio-Canada c. Arsenault, 2020 QCCS 2898, at para. 340, ordering a journalist to hand over unpublished material “sends the message to the population that the journalist has no real independence.”

[64] Ms. Clairmont’s evidence speaks to the exact concerns raised by the Supreme Court in Denis. These are not abstract fears, but direct and foreseeable consequences described by an experienced journalist. These impacts militate strongly against setting aside the privilege over the records.

Will Disclosure Negatively Impact the Journalist and the Sources?

[65] In enacting the JSPA, Parliament “made a conscious choice to impose on the applicant (i.e. the person who wishes to obtain the source’s identity) the burden of proving that the impact of disclosure will be minimal or insignificant,” in recognition that disclosing such information “will generally have an adverse impact on the source as well as the journalist”: Denis, at para. 50.

[66] The applicant cannot demonstrate that the impact on the journalist is insignificant. I accept Ms. Clairmont’s evidence that being forced to disclose journalistic source documents would make it more difficult to perform her work and compromise her ability to report on information of public interest. Confidential sources would be less likely to trust her and disclose information to her. Disclosure would have a direct chilling effect on her ability to conduct investigative journalism in the future.

[67] The Third Party has established a basis for the JSPA’s protection to apply in this case. In my opinion, the relevant journalist’s documents are privileged. I agree with Mr. Manoryk and find that the applicant has not successfully met or rebutted the JSPA test for production of the records.

[68] If I am in error in my interpretation of s. 39.1 of the JSPA CEA regime, as it applies to this case, then I turn to my alternative analysis.

Legal Principles - Mills/O’Connor

[69] The court in McNeil, at paras. 31 and 32, outline key differences between the O’Connor and Mills regimes:

First, the likely relevance standard adopted by Parliament under the Mills regime is tailored to counter speculative myths, stereotypes, and generalized assumptions about sexual assault victims and about the usefulness of private records in sexual assault proceedings. Such generalized views need not be countered at large in respect of all third party records that fall outside the Mills regime. The general common law threshold of likely relevance under O’Connor is intended rather to screen applications to ensure the proper use of state authority in compelling production of third party records and to establish the appropriateness of the application so as to avoid squandering scarce judicial resources.

Second, while the Mills regime retains the two-stage framework set out in O’Connor, it differs significantly in that much of the balancing of the competing interests is effected at the first stage in determining whether production should be made to the court for inspection. This reflects Parliament’s assumption that a reasonable expectation of privacy exists in the types of records targeted by the statutory regime: see R. v. Clifford (2002), 163 C.C.C. (3d) 3 (Ont. C.A.), at paras. 48-49. An equivalent presumption of privacy does not attach in respect of all third party records that fall outside the Mills regime. Hence, any balancing of competing interests is reserved for the second stage of the O’Connor regime, when the documents can be inspected by the court to better ascertain the nature of the privacy interest, if any. Because of these significant differences, it is important not to transpose the Mills regime into the O’Connor production hearing in respect of documents to which the statutory dispositions do not apply.

[70] The relevant provisions of the Code on this point are referenced by the Supreme Court of Canada as noted above. The statutory provisions themselves were enacted by Parliament following the decision of the Supreme Court of Canada in O’Connor. Further, the Court of Appeal, in R. v. Batte (2000), 49 O.R. (3d) 321, considered the import of the s. 278/Mills provisions, and the appropriate tests to be considered by a trial judge in determining whether documents should be ordered to be produced.

[71] Section 278 of the Code provides for a complete code and procedure for production of third party records in cases involving sexual offences. The relevant provisions are found in s 278.3.

[72] It is clear that there is no duty on third parties whose records are not part of a criminal investigation to disclose them to an accused. Where there exists a reasonable expectation of privacy in the sought-after records, there exists competing constitutional rights – an accused’s s.7 Charter right to a fair trial including the right to make full answer and defence, and a third party’s right to privacy as protected by the same constitutional regime. Such competing interests are applicable to the Mills analysis. Although the court’s obligation is to balance those rights within the factual context of a specific prosecution, fair trial interests may require intrusion upon privacy. At para. 94, the Supreme Court held:

In summary, the following broad considerations apply to the definition of the rights at stake in this appeal. The right of the accused to make full answer and defence is a core principle of fundamental justice, but it does not automatically entitle the accused to gain access to information contained in the private records of complainants and witnesses. Rather, the scope of the right to make full answer and defence must be determined in light of privacy and equality rights of complainants and witnesses. It is clear that the right to full answer and defence is not engaged where the accused seeks information that will only serve to distort the truth-seeking purpose of a trial, and in such a situation, privacy and equality rights are paramount. On the other hand, where the information contained in a record directly bears on the right to make full answer and defence, privacy rights must yield to the need to avoid convicting the innocent.

Discussion

[73] As has been alluded to above, while the Mills and O’Connor regimes both inquire as to the likely relevance of the records requested for production, the Mills regime (at s. 278.5(1) sets out a more onerous standard at this ‘first stage’. See Mills, at para. 126:

Section 278.5(1) requires the accused at the stage of production to a judge to demonstrate not only that the information is “likely relevant” but, in addition, that the production of the record “is necessary in the interests of justice”. The first requirement takes up the unanimous view in O’Connor that the accused, to get production to the judge, must show that the record is “likely relevant”. The additional requirement that production to the judge be “necessary in the interests of justice” encompasses (but is not confined to) the concern of the minority in O’Connor that even where likely relevance is shown, there should be room for the court to consider the rights and interests of all those affected by disclosure before documents are ordered disclosed to the court.

[74] Therefore, I must consider the balance of the statutory criteria in s. 278 and determine which regime applies (i.e., Mills or O’Connor), as such may be determinative of whether the “likely relevant” test is ultimately made out.

The Mills Regime

[75] The starting point of the Mills regime (s. 278.2 of the Code) is that certain records, for which the complainant retains a reasonable expectation of privacy, should not be produced. More specifically, s. 278.2 prohibits the disclosure of certain types of records to the defence, where the accused is charged with one or more enumerated sexual offences, unless disclosure has been applied for through the process described in ss. 278.3 to 278.91.

[76] The Mills test for production is founded on the following principles:

Per s. 278.1 of the Criminal Code, the judge must determine if the records meet the proper definition of records, as defined in this section. The Core of such being whether said documents contain a reasonable expectation of privacy.

Section 278.1 includes an enumerated list of documents (to which a reasonable expectation of privacy presumptively attaches – R. v. Clifford, 58 O.R. (3d) 257, at. para. 49). Should a document not fall into this list, such does not mean it cannot hold a reasonable expectation of privacy.

278.1 For the purposes of sections 278.2 to 278.92 [provisions re production of records for sexual offences], record means 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.

[77] Once the disclosure materials are believed to be captured by the definition of “records”, under s. 278.1. the trial judge must determine whether the application, for disclosure of the enumerated records, is “likely relevant” and in the “interests of justice” (s. 278.5(1)). The judge must also determine whether the relevance of the requested records outweighs their privacy interest, in which case release will be ordered as necessary (s. 278.6).

Whether the Mills or O’Connor Regime Properly Applies

[78] The applicant’s submission that the O’Connor regime applies, is largely based on the reasons in Lim #4. Justice Molloy, in turn, relies in large part on the British Columbia case of R. v. Hughes, [1998] B.C.J. No. 1694 (S.C.).

[79] The facts of Hughes are as follows, a complainant in a pending sexual assault trial approached a journalist and provided him with information about the accused having assaulted her. Three additional women subsequently contacted that journalist, disclosing similar allegations. The accused sought production of material in the possession of the journalist relating to his interviews with these women. Justice Romilly held that the issue should be decided under the O’Connor framework rather than the s. 278.1 (Mills) regime, 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.

[80] Coming to a similar conclusion, as that in Hughes, Molloy J. states that as there is no reasonable expectation of privacy in the disputed records, the O’Connor regime naturally applies. Justice Molloy recognizes that the relevant records no doubt contain personal information, and that the s.278.1 enumerated classes do not form a closed list (and thus could, in effect, include interviews given to a journalist).

[81] However, it is ultimately held in Lim #4 at para. 53 that:

… 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…

[82] In the current case, the applicant asserts that, like in Lim #4, there is no reasonable expectation of privacy in the records sought, and thus the statutory regime does not apply. It was the Spectator that made the decision not to name the complainant, as in the event that police were to lay charges, then a publication ban would likely go into effect. The applicant asserts that in all respects, the Spectator conducted their own investigation prior to the police being made aware of the allegations or beginning their own investigation into the applicant, and the Spectator published the story of the allegations before charges had been laid.

[83] The applicant’s position is that there is no indication anyone interviewed by the Spectator wanted to remain anonymous or confidential. Instead, the only indication is that the complainant wanted to make her allegations available for public consumption. This appears to be a bald assertion. The only relevant piece being the accusation that it was the Spectator who made the decision not to name the complainant. However, such is not backed up on any evidentiary basis before me.

[84] Drawing on Ms. Clairmont’s Affidavit, I accept those facts contained therein, which are markedly different from those in Lim #4. For example, in the current case, Sources 1, 2, and 3 did not agree to be publicly identified in the Spectator’s reporting. None of the three sources told their story in front of a camera, and while some of the information each source provided was intended to be made public, this was not necessarily true of all the information.

[85] To this point, I accept Ms. Clairmont’s evidence wherein she detailed that while sources never have final say over what is published, they do expect that some of the information they provide will be kept private. In her Affidavit, she also explained that which necessitated the protection of the source’s identities: Source 1 indicated the very same day she first spoke to Ms. Clairmont regarding the allegations, that she was having second thoughts about her name being used in reporting. Source 1, a few days later, specifically asked Ms. Clairmont not to use her name in any Spectator reporting as she was fearful of threats to her safety. Ms. Clairmont ultimately agreed.

[86] Source 2 and 3, both from the start, indicated they would only be comfortable speaking to Ms. Clairmont on the condition of anonymity and her agreement not to use their names in her reporting. Ms. Clairmont also described the process in which she solicits information from sources and assures confidentiality, as the case may be.

[87] That being said, the Mills test takes its definition of “record” from s. 278.1 of the Code. As mentioned, ‘journalist records/sources’ do not fit into this scheme in any obvious manner. However, s.39.1(2) of the CEA links journalistic sources with notions of confidentiality and anonymity.

[88] More specifically, the JSPA (and by amendment to the CEA) defines a journalistic source at s. 39.1(1) to mean “a source that confidentially transmits information to a journalist on the journalist’s undertaking not to divulge the identity of the source.” While the applicant criticizes the timing of such an undertaking in this case, it is clear to me that such was afforded the source prior to any publication.

[89] Having concluded that JSPA, through s. 39.1(2) of the CEA is applicable to this case, and on the evidence raised during this hearing, I would go on to find that the Mills regime also applies- and not O’Connor - as a reasonable expectation of privacy has been made out.

Are the Records Sought Likely Relevant?

[90] Having decided that Mills properly applies, the test to order the production of records requires the applicant to satisfy me on a balance of probabilities that the records are likely relevant to an issue at trial and their production is necessary in the interests of justice.

[91] As mentioned, the documents to be reviewed are not what one would typically find under a s. 278 application. None are journal entries, counselling, or therapeutic records. However, the applicant must still demonstrate through evidence that production of the records is necessary in the interests of justice. Even if I conclude that there is a nexus to the allegations of sexual crimes and are likely relevant to other issues, is the production of the records in the interests of justice, applying the factors enumerated in s. 278.5(2).

In determining whether to order the production of the record or part of the record for review pursuant to subsection (1), the judge shall consider the salutary and deleterious effects of the determination on the accused’s right to make a full answer and defence and on the right to privacy and equality of the complainant or witness, as the case may be, and any other person to whom the record relates. In particular, the judge shall take the following factors into account: (a) the extent to which the record is necessary for the accused to make a full answer and defence; (b) the probative value of the record; (c) the nature and extent of the reasonable expectation of privacy with respect to the record; (d) whether production of the record is based on a discriminatory belief or bias; (e) the potential prejudice to the personal dignity and right to privacy of any person to whom the record relates; (f) society’s interest in encouraging the reporting of sexual offences; (g) society’s interest in encouraging the obtaining of treatment by complainants of sexual offences; and (h) the effect of the determination on the integrity of the trial process.

[92] If at the end of this balancing process I am not certain as to whether or not to order production or there is a danger that the accused's right to make full answer and defence will be violated, the interests of justice require that I err on the side of production: Mills, at paras. 132 and 137.

[93] As noted by O’Connor J. in R. v. L.F. (2006), 37 C.R. (6th) 152 (Ont. S.C.), the accused often finds himself or herself in a dilemma, simply because he or she does not know what the records contain and is thus hampered in his or her ability to demonstrate likely relevance. However, it is clear from the cases interpreting the legislative provisions, that the applicant must demonstrate likely relevance through evidence, and not through speculation or assumptions. In Batte, at para. 53, Doherty J.A. stated: “The likely relevance of the records to an issue at trial, a witness’ credibility or the competence of a witness to testify is a prerequisite to an order compelling production of the records to the judge.” Moreover, “the onus is on the accused to establish likely relevance. In doing so, the accused cannot rely on speculative assertions”.

[94] Further, in Batte, Doherty J.A. opined that it is not sufficient that a record might assist in cross-examining a complainant. It must contain something that has impeachment value. At para. 77, he stated:

It will not, however, suffice to demonstrate no more than that the record contained a statement referable to a subject matter which would be relevant to the complainant’s credibility. The mere fact that a witness has said something in the past about a subject matter on which the witness may properly be cross-examined at trial does not give that prior statement any relevance. It gains relevance only if it is admissible in its own right or has some impeachment value. In my view, the mere fact that a complainant said something about a matter which could be the subject of cross-examination at trial, does not raise a reasonable possibility that the complainant’s statement will have some probative value in the assessment of her credibility.

[95] Ultimately, in accordance with Mills at para. 124, the test for “likely relevant" in s. 278.5(1) is whether there is a reasonable possibility that the information is logically probative to an issue at trial which can include the credibility of witnesses and the reliability of evidence. This requires case-specific evidence or information to show that the record in issue is likely relevant to an issue at trial.

[96] In sum, the “likely relevance” threshold requires that the presiding judge be satisfied that there is a reasonable possibility that the information is logically probative to an issue at trial or the competence of a witness to testify. Section 278.3(4) of the Code sets out a number of assertions by the accused that are “not sufficient on their own to establish that the record is likely relevant to an issue at trial or to the competence of a witness to testify”. Many of the applicant’s assertions fall within this list.

[97] In my opinion, the applicant’s materials do not disclose grounds to establish that the materials sought are likely relevant at stage one. The nexus between the applicant’s claims of relevance and those factors listed in s. 278.3(4) demonstrate that the interests of justice do not favour production.

[98] On this alternative basis, the application can be dismissed. However, for the sake of completeness, I now turn to the final segment of my analysis.

Discussion: R. v. Vice Media Canada Inc.

[99] Where the JSPA or Mills regimes do not apply to bar disclosure, the framework established by the Supreme Court in Vice Media may nevertheless apply to prevent disclosure of the records sought.

[100] Paragraph 49 from Lim #4, goes to the point that the analysis within Vice Media, does not replace O’Connor or Mills and instead must be considered alongside these tests (whichever is chosen as appropriate).

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 …

[101] Further, the relevant passage in Arsenault, as referred to above, states that the second step of Vice Media, is actually decided on whether the test in Mills or O’Connor (whichever is relevant) has been met: Arsenault, at para. 378:

Step 2: Compliance with the legal prerequisites.

Since the O'Connor motion is not the appropriate procedural vehicle in the circumstances, and the allegations in the motion are inadequate on their face, it must be concluded that the statutory preconditions are not met.

Discussion

[102] I agree with the Third Party’s submission wherein it is postulated that where an application for third party production is governed by the Mills regime, satisfying the disclosure requirements of that regime is a precondition to disclosure under Vice Media. If an accused has failed to meet its disclosure requirements, this is determinative within the Vice Media framework. However, in the event a court finds that the accused has complied with the requirements of the Mills regime, it is necessary to proceed to the balancing analysis.

[103] In this case, the parties essentially agree that step two of Vice Media requires a determination as to whether the Mills or the O’Connor regime applies. The parties disagree as to which regime actually applies – Mills or O’Connor – with the Crown supporting the Third Party’s assertion of Mills. The applicant argues that since the O’Connor regime (rather than the Mills regime) applies, Lim #4 should be adhered to strictly and the O’Connor regime should be “fused” with Vice Media: at para. 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.

[104] Notably, the ruling in Vice Media divided the Supreme Court five to four. Justice Moldaver wrote for the majority, stating at para. 105:

In declining to recognize freedom of the press as enjoying distinct and independent constitutional protection under s. 2(b), I do not suggest that freedom of the press is anything less than essential in a free and democratic society. Nor do I deny that freedom of the press is entitled to constitutional protection — the text of s. 2(b) confirms that it clearly is. Rather, I simply take the view that because this appeal can readily be disposed of without going so far as to rethink s. 2(b), and because the matter was not fully argued by the parties or considered by the courts below, I do not view this appeal as an appropriate venue in which to formally recognize a distinct and independent constitutional protection for freedom of the press under s. 2(b). I would leave that question for another day.

[105] It is clear from both the majority and dissenting opinions in Vice Media, that any application of the framework cannot skim over the rights of the journalist/media/press, as they are deserving of protection. Even under the Lim #4 “fusion approach”, the interests of the media would need to be given due consideration. As such, the s.7 Charter rights of an accused, in making full answer and defence, would be considered alongside the “rights of a journalist(s)” and the privacy rights of their sources (where appropriate).

[106] I accept the submissions from the Third Party, largely contingent on their application of Mills, rather than O’Connor. While claiming that the discussion in Lim #4 is erroneous and ought not be followed, the Third Party aligns itself with both Arsenault and Mund). I observe that in Lim #4, the jurist considered Arsenault, ultimately making the following conclusion at para. 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.

[107] As it stands, given the discussion and analysis in Lim #4, one cannot reconcile the approach in that case with Arsenault.

[108] While Arsenault and Mund are out-of-province lower court decisions, my preference is the reasoning found within both of these Quebec cases.

[109] I also acknowledge the following statement that flows from the authorities for the purposes of my analysis.

Where the JSPA or Mills regime do not apply to bar disclosure, the framework established by the Supreme Court in R. v. Vice Media may nevertheless apply to prevent disclosure of the records sought. The framework consists of a four-part analysis:

(1) Notice. First, the authorizing judge must consider whether to exercise his or her discretion to require notice to the media. (2) Statutory Preconditions. Second, all statutory preconditions must be met. (3) Balancing. Third, 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. In performing this balancing exercise, which can be accomplished only if the affidavit supporting the application contains sufficient detail, the authorizing judge should consider all of the circumstances (including certain enumerated circumstances). (4) Conditions. Fourth, if the authorizing judge decides to exercise his or her discretion to issue the order, he or she should consider imposing conditions on the order to ensure that the media will not be unduly impeded in the publishing and dissemination of the news.

[110] As intimated earlier, I adopt the reasoning in Mund. The court in Mund described the approach taken in Arsenault as the “adapted Vice Media test”. In the circumstances of this case, such is not to be confused with the “fusion” O’Connor/Vice Media approach.

[111] In the realm of Arsenault/Mund, “adapted” simply means that in addressing Vice Media, the Supreme Court was concerned with claims for disclosure made by the state (i.e., police seeking disclosure). In Arsenault (and later in Mund) it was an accused who sought disclosure from a journalist. As such, some of the Vice Media language became less relevant and the ‘adapted framework’ was borne. See Mund at para. 171:

[112] As was contemplated in Arsenault, to adapt the Vice Media regime to accused’s application, the analysis must be carried out by replacing at each stage of the analysis the state's interest in investigating crimes and prosecuting their perpetrators with the right of the accused to full answer and defense.

[113] While neither the court in Arsenault nor Mund specify a framework for a Mills/Vice Media fusion approach, they also do not engage in a full Mills, then Vice Media analysis.

[114] Again, I am persuaded by the reasoning advanced in Mund. The court - modeling their decision off of Arsenault, affirmed Mills as the proper approach, and then considered its requirements within the Vice Media framework, as referenced below in the paragraphs from the decision.

Step 2: Compliance with the legal prerequisites:

[173] The application is presented under the Mills regime which requires likely relevance to be satisfied for such an application to succeed at the first stage to order production for review by the judge.

[189] Here, there is no basis for concluding that the records have some potential to provide the accused with some added information not already available to the defense or have some potential impeachment value.

[190] Ultimately, and as was outlined earlier in this decision, the information upon which the accused relies to obtain disclosure of confidential records are either erroneous, misleading, or purely hypothetical.

[191] In conclusion, the application does not meet the conditions of s. 278.5 of the Criminal Code, the evidence being insufficient to demonstrate likely relevance.

[192] This conclusion is sufficient to dispose of the application and objection to disclosure by CJN.

[193] However, if the Court errs on this question and given the importance and diversity of interests at stake, it will continue the analysis of the application under the adapted Vice Media regime.

[115] As under the JSPA, the balancing exercise is the heart of the Vice Media analysis. Justice Moldaver listed numerous non-exhaustive factors to consider in balancing the rights of the accused against the media’s right to privacy in the gathering and disseminating of the news. While rather repetitive, each factor is referenced and addressed in turn below; following the guidance of the court’s decision in Arsenault and expanded upon in Mund.

The Likelihood and Extent of any Potential Chilling Effects

[116] This factor does not relate solely to the publication of the article in question. Journalists and journalism suffer from a “chilling effect” when sources are afraid to speak for fear that their identity or their communications might be revealed. The same is true when journalists are forced to worry that they may be compelled to reveal the identities of their sources (and the content of their communications) to the authorities. Ultimately, forced disclosure may discourage sources from speaking out and journalists from performing an important role in our democracy of informing the public. Ms. Clairmont’s evidence supports the existence of a chilling effect in this instance. This criterion militates against disclosure.

The Scope of the Materials Sought and Whether the Order is Narrowly Tailored

[117] The scope of the records sought by the application is extremely wide. It covers all exchanges between Ms. Clairmont and her sources, regardless of the subject to which they relate. Courts have been clear that such applications are correctly characterized as thinly veiled fishing expeditions. This criterion therefore militates against disclosure.

The Likely Probative Value of the Materials

[118] Again, as referenced earlier in these reasons, I am persuaded that the applicant has not demonstrated any probative value in the records being sought. This factor therefore militates against disclosure.

Alternative Sources from which the Information may Reasonably be Obtained

[119] As mentioned earlier, much of the information, (aside from Source 3) that the applicant seeks production of, can be obtained through sources other than Ms. Clairmont’s journalistic files. I am informed that the police did not obtain a statement from the third individual. In any event, this criterion militates against disclosure.

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

[120] The important role of the media, while stated above, was addressed by the court in Mund, at paras. 218-220.

Through investigative journalism, media can mobilize attention and support for different causes. When giving a voice to vulnerable persons and communities, media can play a pivotal role in advocating social justice and tending to a more tolerant and inclusive society.

More recently, media has played an important role in advocating for sexual abuse victim’s rights by exposing criminal behavior they have had to deal with and suffer through.

In summary, a healthy democracy requires an informed public. To inform the public, journalists depend on their ability to protect their sources’ confidentiality and the journalistic material gathered through them.

[121] As was the case in Mund, this case arises in the context of alleged sexual assault survivors and their reluctance to come forward to report instances of abuse. This criterion therefore militates against disclosure.

The Nature of the Documents Sought

[122] Where records sought pertain to a complainant’s identity as a sexual abuse victim, disclosing such information can be detrimental to the complainant and any other person who might want to come forward, whether such information is eventually published or not. This factor has repeatedly been recognized by various courts when conducting such a balancing exercise.

[123] In my opinion, the overall guidance arising from Vice Media, viewed and analyzed either independently or “in fusion” with the relevant Code provisions militates against production.

Conclusion

[124] For all of the aforementioned reasons, I find that the JSPA, as codified through s. 39.1 CEA, applies in this case.

[125] Thus, the impugned journalist records are privileged. In the alternative, the applicant has not satisfied his onus under the requisite s. 278/Mills regime or through the application of the Vice Media factors. for production of any of Ms. Clairmont’s notes, records, or related materials. The application is dismissed.

A.J. Goodman J.

Released: November 28, 2024

COURT FILE NO.: CR-24/681 DATE: 2024-11-28 ONTARIO SUPERIOR COURT OF JUSTICE

HIS MAJESTY THE KING – and – JACK DENSMORE Applicant -and- THE HAMILTON SPECTATOR Third Party RULING ON PRODUCTION OF THIRD PARTY RECORDS A.J. GOODMAN J.

Released: November 28, 2024