SUPERIOR COURT PRESIDING: THE HONOURABLE MR. JUSTICE J. FRASER MARTIN, J.S.C. JUDGMENT

Transcription

1 SUPERIOR COURT CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL No: DATE: August, 14 th 2008 PRESIDING: THE HONOURABLE MR. JUSTICE J. FRASER MARTIN, J.S.C. CTV INC. Petitioner v. JACQUES BARBÈS, agissant à titre de juge de paix and SERVICE DE POLICE DE LA VILLE DE MONTRÉAL Respondents JUDGMENT [1] For the reasons for judgment given in (La Presse Ltée v. Jacques Barbès and La police de la ville de Montréal) this day and attached as an annex to the present judgment, the Court: GRANTS the petition; QUASHES the seizure authorized by the Respondent Judge Jacques Barbes on April JM , 2008;

2 PAGE: 2 ORDERS the return to Petitioner of any of the material seized which is in the possession of the Respondent SPVM or its agents or representatives pursuant to the he said seizure; AUTHORIZES the unsealing of all material held in sealed envelopes whether by the consent of the parties or pursuant to the order Boilard J made on April 23, Me Mark Bantey Counsel for the Petitioner Me Louis Belleau Counsel for the Respondents

3 ANNEX SUPERIOR COURT CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL No: DATE: August, 14 th 2008 PRESIDING: THE HONOURABLE MR. JUSTICE J. FRASER MARTIN, J.S.C. LA PRESSE LTÉE Petitioner v. JACQUES BARBÈS, agissant à titre de juge de paix and SERVICE DE POLICE DE LA VILLE DE MONTRÉAL Respondents JUDGMENT JM0822 [1] The court is seized of a petition in certiorari aimed at setting aside. a warrant authorizing the seizure, at the premises of the petitioner, of photographic and videotape images captured by its employees and agents in the course of a riot which occurred in downtown Montreal during the night of the 21st and 22nd of April, 2008 following a hockey game at the Bell Center. The seizure in question was carried out during the forenoon of April the 21st at the premises of the petitioner in Montreal pursuant to a telewarrant authorized by the respondent, Judge Jacques Barbès, in his capacity of Juge de paix, sitting in Val d'or Quebec in the very early hours of April the 23rd.

4 PAGE: 2 [2] These proceedings arise out of the following unfortunate circumstances. In longstanding Montreal tradition, of which we can hardly be proud, celebrations following a victory by the Canadiens over the Boston Bruins during this year's Stanley Cup playoff series suddenly, and according to the police unpredictably, turned ugly. [3] In the aftermath of these disgusting events it was claimed by some that troublemakers who sought to use the celebrations as a springboard for their own nefarious and illegal activities had infiltrated the crowd. Perhaps so, I do not know. The upshot was the damage or destruction, and in some instances the torching of 15 or 16 police cars. Hundreds of thousands of dollars damage, (I am unaware of the final figure) was also inflicted upon local businesses and commercial establishments. [4] The Service de Police de la Ville de Montreal, (hereinafter SPVM) immediately launched an investigation targeted at determining the identity of the authors of the damage. Part of that investigation included an appeal to the public launched at approximately 11 h00 on April the 22nd to turn over to the police any films, digital recordings whether captured by camera or videophone by contacting the Info Crime telephone number. Sometime during the day and evening of April the 22nd the respondent Simpson and others involved in the investigation also commenced preparations to apply for a warrant authorizing the seizures that are the subject of these proceedings. [5] These applications, comprising some 73 pages, were submitted to the authorizing judge in Val d'or shortly after midnight on the 22nd of April and the first of the warrants was issued and received over the fax machine in Montreal within the space of approximately 15 minutes.] will have occasion to return to this issue later. [6] Subsequent to the receipt of the authorizations, and notwithstanding that the judge had authorized that they may be executed at night no attempt was made to do so. In fairness to the SPVM no request was ever made for such authorization and the warrants were never intended to be executed prior to approximately 09h00 the following morning as had been previously announced to the media outlets involved. [7] By agreement between the parties the material sought was identified and sealed with the cooperation of the petitioners. Several petitions initially came before this Court late in the afternoon of April the 23rd. Others were filed in the succeeding days. Pursuant to an order issued on that date by my colleague Boilard J. the material remained under seal and the matter was continued pro forma to the 25th of April in order to permit the production of the various reports pursuant to the seizure and to set a hearing date. These reports were duly filed as required and the 6 applications before me were fixed for hearing on their merits on June 17, Pursuant to the order of my colleague the sealing order remains in force pending the outcome. [8] The petitioners raise a number of arguments in support of their contention that the seizures are invalid. These are spelled out at length in the various petitions which were heard together. While they are worded somewhat differently they invoke

5 PAGE: 3 essentially the same grounds and no purpose will be served in reproducing at length the relevant portions of each petition. Briefly the petitioner takes the view that seizures should never have been authorized for a number of reasons, which may be summarized as follows: a) A telewarrant was, in the circumstances, an inappropriate vehicle to obtain authorization for the seizure contemplated. In choosing to use such a vehicle, for whatever reason, Simpson failed to follow the mandatory requirements set out in the criminal Code. b) Simpson's four-page information filed in support of the application for each warrant (the information is identical with regard to each) is insufficient in that it does not contain the information necessary to permit the justice of the peace to exercise his discretion was judicially. c) The issuing judge failed to consider and weigh the requirements relating to the issuance of such an. authorization, failed to require additional essential information from Simpson, and generally exceeded his jurisdiction both in issuing a warrant in the first place and compounding his error by authorizing that it be executed at night. d) The application for the warrant fails to track or attempt to satisfy the requirements established by the Supreme Court of Canada, notably in CBC v New Brunswick [1991] 3 SCR, 459, with regard to seizures which place in juxtaposition the competing interests of the liberty of the press on one hand and the administration of justice on the other. e) The issuance of the warrant contravenes the petitioners rights guaranteed by sections 2 (b) and 8 all of the Charter. [9] The telewarrant subject of these proceedings was issued by the respondent judge in Val D'Or Quebec, some 700 km to the north of Montreal. This in itself raises a number of questions that it would perhaps be appropriate to deal with at this stage. At the commencement of the hearing the petitioners agreed to the filing of an admission to the following effect: a) According to directive issuing from the Court of Quebec all applications for telewarrants by police services in Quebec between 16h00 and 09h00 and the following morning must be directed to a call center. b) As a matter of administrative arrangement there are two judges available in Quebec to deal with the issuance of telewarrants during that period. Depending upon the duty roster the closest issuing judge may as well be in Montreal, Val D'Or or elsewhere in Quebec. As I understand it the police services may address themselves whoever is available.

6 PAGE: 4 c) Police officers are required to conform to these administrative arrangements. [10] It is not for me to engage in any second-guessing regarding the propriety of the administrative arrangements put in place either by the Chief Judge of the Court of Quebec or the Judge responsible for the administration of the Criminal and Penal Division of that court. I will observe however that an application for a search warrant brings into play certain requirements pursuant to the provisions of the Criminal Code. These requirements, in my respectful view, are not lessened, varied or palliated by the fact that there are in place the kinds of administrative arrangements which exist here in Quebec for that "after hours" period. Furthermore the police cannot circumvent the mandatory provisions of the Criminal Code by choosing their hours as far as an application for a search warrant is concerned. [11] In the course of argument Mr.Bantey observed that all the SPVM required to do was to advise the media outlets of its intention to apply for the warrants and to request that they conserve the material in question pending the execution of the seizure. This is apparently the sort of accommodation which has been sought and obtained in the past. Mr. Vanchestein immediately intervened to point out that such calls had indeed been made and that certain of the media outlets had in turn advised counsel. Mr. Belleau agreed that such calls were made. [12] Paragraph 34 of Simpson's "statement in writing" submitted to the respondent judge Barbes reads as follows and confirms that the media outlets were indeed contacted presumably in the course of the afternoon or evening of April the 22nd. Le Sergent Ian Lafreniere du SPVM a communiqué avec les responsables des médias suivants pour leur signifier notre intention d'obtenir un mandat de perquisition pour obtenir toutes les photos et bande vidéo des emeutes du 21 au 22 avril 2008: TQS Christian Richard, CFCF Peter Schiavi, TVA et LCN Martin Cloutier, Journal de Montréal Georges Kalogerakis, La Presse et Cyberpresse Mario Girard et Radio Canada et CBC Daniel Levasseur. [13] While from the wording. of paragraph 34 it is unclear as to whether the media were specifically requested to preserve the material the implication that they were is crystal clear. What other purpose would the calls have had? [14] What I conclude from this is that the SPVM announced to representatives of the media outlets concerned, in the course of the afternoon or evening of April 22 that "the cavalry would be coming" in the morning. I am therefore left to wonder why then it was so urgent to seek a telewarrant in the course of the evening. In my view there was no reason at all. If any had ever existed it evaporated with the call to the media outlets advising of the coming seizures. The prepared documentation could as easily have been presented in person to a juge de paix in Montreal in the morning. Mr. Belleau was faintly heard to argue that the SPVM did so because they wished to be ready to proceed with dispatch in the morning. That argument simply will not carry the day.

7 PAGE: 5 [15] At Tab 8 of his book of authorities Mr. Belleau cites in support of his position the matter of R. v. Berry 56 WCB (2d) 630, a decision of the British Columbia Supreme Court rendered in At paragraph 28 Edwards J. stated the following; 28. I find that the absence of a local JP is a sufficient basis on which the JP considering the "telewarrant" application could determine under the criminal code section (5) (b) that it was "impracticable" for the informant to appear personally before a JP. [16] I do not believe that this is authority for the proposition that the police, in situations where there is no urgency, may invoke an administrative directive of the Court of Quebec to justify their ignoring the requirements of section 487 of the Criminal Code. [17] Besides there were other courses open to Simpson and his associates. Not the least of these would have been to recruit the assistance of counsel. I am not for a moment suggesting that it is either practical or necessary to consult counsel in the great majority of matters where warrants are sought. Not at all. This matter however was complex and problematical in view of the fact that a number of media outlets were the target of the seizures. Counsel would presumably have ensured that the requirements of the case law were satisfied with regard to the information. Quite apart from the foregoing I cannot believe that counsel could not have found a way to present the application in person to a juge de paix in Montreal notwithstanding the directive to which I referred earlier had he or she decided that the matter was so urgent that it could not wait until the morning. [18] Pursuant to section 487 (1) an information on oath must be presented to a "justice" as defined in section 2 of the code who in turn must be satisfied that there are reasonable grounds to believe that what is sought will be found in the premises which the police propose to search. As the section is an exception to the common-law rule, reinforced by the charter, regarding the sanctity of personal property the code sets the bar relatively high for the issuance of such a warrant. It contemplates the application being made in person to the "justice" by the peace officer and imposes on the "justice" a duty of verification. The warrant may be issued at any time be it morning noon or night. [19] In the case at bar the SPVM decided to proceed by way of a request for a telewarrant. Section (1) permits this procedure where "it would be impracticable to appear personally before a justice and make application for a warrant in accordance with section 256 or 487". In such a case the peace officer may submit the information by telephone and where such an application generates "a writing" the officer may be absolved from swearing an oath provided that he submits a "statement in writing". [20] While the Criminal Code does not use the word "urgency" but rather adopts the phrase "impracticable to appear personally" there is no doubt in my mind that urgency is an important component of the expedited procedure surrounding issuance of a telewarrant. Furthermore the section requires the peace officer to set out the grounds

8 PAGE: 6 susceptible of dispensing him from appearing personally. It follows that the "justice" has a duty to satisfy himself that these grounds are sufficient. [21] Given the sheer size `of this country I should not be interpreted as holding that distance is never a factor. Physical distance between the peace officer and the justice may in some easily imaginable instances be considerable and generally, when a warrant is sought, there is some degree of urgency. It is in that context that I read R. v. Berry (supra). I believe that that is why the legislator adopted the construction used in section (1). As I have said earlier the section was not intended to provide the police with the opportunity to make an "end run" around the general rule. [22] It follows that Simpson's electronic affirmation which reads: "Aucun juge disponible dans le district judiciaire de Montréal" is insufficient. The mere fact that the "justice" deemed this response to be sufficient does not operate to make it so. In my view he had a duty to question the Simpson on the necessity of using this expedited procedure. [23] No witnesses were heard in the course of the hearing and there is simply no evidence as to whether or not Simpson had any prior discussion with the judge before the information was sent by fax shortly after midnight on April 23. Given the sheer bulk of the material that was submitted it is surprising that the reply was forthcoming within a period of 15 minutes. While indeed the 73 pages are to an extent repetitive the various applications nevertheless had to be read, compared, verified and assessed. [24] Inasmuch as the media were involved the judge had a number of additional issues with regard to which he had a duty to satisfy himself. Given the 34 paragraphs submitted to him together with the Simpson's conclusions I find it difficult to credit that the warrants were issued without a number of further questions being put to Simpson. Perhaps the juge de paix had taken prior cognizance of the case law. To conclude that he had done so would, however, be pure speculation on my part. In any event, given the exigencies of the case, law, it is surprising indeed that all the warrants were delivered within half an hour and that no questions were put to Simpson. [25] Quite apart from the validity of employing the telewarrant procedure Mr. Belleau submits that the "statement in writing" contained in the appendix is sufficient when analyzed against the requirements of section (1). While at first blush, from a procedural point of view that position may be arguable the information furnished by Simpson is clearly insufficient in the context of the additional requirements imposed by the case law. [26] The police ought to have known that particular rules come into play with regard to media seizures. If they did not know then as I have said, they might have considered consulting counsel. This is, after all, not a new legal issue. It extends back at least as far as Pacific Press Ltd. v. R. 37 CCC (2"d.) 487, a pre-charter decision dating back to the days of the Bill of Rights. The principles discussed by the British Columbia Court of Appeal have been built and expanded upon in a number of decisions of more recent

9 PAGE: 7 vintage. These notably are CBC v. New Brunswick (Attorney General) (supra) and CBC v. Lessard 67C.C.C. (3d) 517. In sum and substance these decisions hold that even where the statutory requirements for a warrant have been met the justice must nevertheless delve into the information and make a prima facie determination, albeit on an ex parte basis as to whether the factors listed by Cory J. in CBC v. New Brunswick (supra) have been satisfied. While Cory J. listed 9 factors it is the first seven which are pertinent application stage. These factors are the following: II faut prendre en considération les facteurs suivants pour décerner un mandat de perquisition visant les locaux d'un média. (1) Les exigences énoncées à I'al. 487(1)b) du Code criminel doivent être respectées. (2) Le juge de paix doit alors examiner toutes les circonstances pour déterminer s'il dolt exercer son pouvoir discretionnaire de décerner un mandat et (3) s'assurer qu'on a bien pondéré l'intérêt de I'État à découvrir et à poursuivre les criminels et le droit des médias à la confidentialité des renseignements dans le processus de collecte et de diffusion des informations. Les médias sont vraiment des tiers innocents; c'est un facteur tout particulièrement important à prendre en considération pour essayer de trouver un bon équilibre, notamment en étudiant la possibilité d'assortir ce mandat de certaines conditions. (4) L'affidavit présenté à I'appui de la demande doit contenir suffisamment de détails pour permettre un bon exercice du pouvoir discrétionnaire en ce qui concerne ('attribution d'un mandat de perquisition. (5) Bien qu'il ne s'agisse pas d'une exigence constitutionnelle, ('affidavit devrait ordinairement indiquer s'il y a d'autres sources de renseignements raisonnables et, dans ('affirmative, si elles ont été consultées et si tous les efforts raisonnables pour obtenir les renseignements ont été épuisés. (6) La diffusion par le média, en tout ou en partie, des renseignements recherchés, favorisera ('attribution du mandat de perquisition. (7) Si un juge de paix décide de décerner un mandat de perquisition dans les locaux d'un média, it y a alors lieu d'examiner ('imposition de certaines conditions à son application. [27] While I suppose that it could be argued that the first two factors may well have been considered I do not believe, on the basis of the information contained in Simpson's statement, that there is sufficient detail to permit the respondent judge to properly exercise his discretion with regard to the issuance of the search warrant. [28] The tensions between the notion of media freedom on one hand and the exigencies of the administration of justice on the other stand ultimately to be considered and decided at the level of the hearing of the certiorari proceedings. This clearly does not absolve the "justice" of the duty, at the ex parte stage, of satisfying himself with regard to the first seven points enunciated by Cory J. which I have reproduced above. Simpson's statement gives virtually no indication of the progress of the inquiry or of its nature and scope. It limits itself simply to establishing generally the extent of the damage and, in 13 of the 15 instances, alludes to the fact that no eyewitnesses have been identified for the moment. It goes on to set out how the SPVM became aware that the media are in possession of information which they seek. Beyond that there is nothing whatever which would be of assistance to the judge in deciding whether to issue the warrants or not.

10 PAGE: 8 [29] Simpson alleges that it is urgent to obtain the videos in order to prevent a repeat of these events on April 24. As counsel contend I hardly see how the required analysis could have been done in such a short period of time. Furthermore the last two points concerning the return of Americans who may have been involved in the riot, to the United States and the sentiment of insecurity on the part of the citizenry do nothing to justify the application for a telewarrant. Indeed, the question of visiting Americans being involved is at the very least pure speculation and more likely pure invention. [30] Given the foregoing and the conclusion which I have reached it will not be necessary for me to analyze in detail the other issues raised by the petitioners nor to embark on a weighing of the competing issues of law enforcement agencies and the liberty of the medias in the light of the Charter and the case law. By the same token it will also be unnecessary to decide whether the authorization to execute the seizure at night, unsolicited though it may have been, operates independently of everything else to set aside the warrants. I will leave that question for another day. FOR THESE REASONS, THE COURT: GRANTS the petition; QUASHES the seizure authorized by the Respondent Judge Jacques Barbès on April 23, 2008; ORDERS the return to Petitioner of any of the material seized which is in the possession of the Respondent SPVM or its agents or representatives pursuant to the he said seizure; AUTHORIZES the unsealing of all material held in sealed envelopes whether by the consent of the parties. or pursuant to the order Boilard J made on April 23, Me Érick Vanchestein Counsel for the Petitioner Me Louis Belleau Counsel for the Respondents J. FRASER MARTIN, J.S.C.