IN THE SUPREME COURT OF BRITISH COLUMBIA

Transcription

1 IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Between: The Vancouver Sun v. British Columbia, 2011 BCSC 1736 Date: Docket: S Registry: Vancouver The Vancouver Sun, a Division of Postmedia Network Inc., The Province, a Division of Postmedia Network Inc., Global Television, a Division of Shaw Media Inc., Canadian Broadcasting Corporation, The Globe and Mail, a Division of Bell Media Inc. and CTV Television, a Division of Bell Media Inc. Petitioners And Her Majesty the Queen in Right of British Columbia, Judicial Justice Joseph Chellappan and the City of Vancouver Respondents Before: The Honourable Mr. Justice Harris On Judicial Review of an Order granted from: British Columbia Provincial Court, September 23, 2011, Docket #V Reasons for Judgment Counsel for the Petitioners: Counsel for the Respondent City of Vancouver: Place and Date of Hearing: Place and Date of Judgment: Daniel W. Burnett Bronson Toy Vancouver, B.C. December 7 and 8, 2011 Vancouver, B.C. December 16, 2011

2 The Vancouver Sun v. British Columbia Page 2 Introduction [1] The petitioners are six media organizations who seek orders exempting them from the requirement to produce documents, data or information referred to in six production orders issued on September 23, 2011 by Judicial Justice J. Chellappan of the British Columbia Provincial Court. In the alternative, the petitioners seek to have the orders quashed. [2] The orders were issued in connection with the police investigation of offences committed during the course of the Stanley Cup riot which erupted on the evening of June 15, 2011 when the Vancouver Canucks lost game seven of the Stanley Cup final to the Boston Bruins. [3] Each production order is directed to a particular news organization. Each is in substantially identical terms. Each requires production of digital photographs and/or digital video files and analogue video taken between 4:00 p.m., June 15, 2011 and 12:30 a.m., June 16, 2011 in the area bound by Thurlow Street, West Hastings Street, Nelson Street and Pacific Boulevard. [4] The application for the production orders was supported by an information to obtain ( ITO ) which alleged that there were reasonable grounds for believing that the data sought will afford evidence in respect of a number of offences committed in connection with the riot. [5] Mr. Burnett, on behalf of the media organizations, conceded at the outset of the application that valid production orders could be issued in connection with the police investigation of the riot, but argued that these particular orders were invalid on multiple grounds and, accordingly, the media should be exempted from compliance with them or they should be quashed. Mr. Burnett conceded rightly, therefore, that there is no blanket protection from production to the police by the media of video recordings and photographs that will afford evidence in respect of the commission of offences. It is clear that much, but not all, of what is required to be produced records the commission of offences during the riot.

3 The Vancouver Sun v. British Columbia Page 3 [6] Mr. Burnett also acknowledged the test I must apply in deciding whether the production orders should be quashed on an application for the extraordinary remedy of certiorari. The scope of judicial review of the production orders is narrow. A reviewing judge does not engage in a de novo analysis nor is he or she permitted to substitute his or her own opinion in place of the opinion of the issuing judge. The test is whether there was evidence upon which the issuing justice could determine that a production order should be issued. It is not for the reviewing judge to weigh the evidence or decide whether the issuing judge should have been satisfied by the ITO. In the context of production orders against the media, this analysis must take into account not only the statutory preconditions set out in the Criminal Code, but also factors relevant to the status and role of the media in a democratic society. [7] In this case, Mr. Burnett argues that the orders are too broad, both in terms of time and place, to satisfy the statutory requirement that the photographs and video footage sought will afford evidence in respect of the commission of offences. The riot did not begin until the end of the game, at about 7:40 p.m., and was over by about 11:50 p.m. Moreover, he contends, the riot took place in a relatively confined area and did not spread throughout the entire area covered by the orders. He submits too that the ITO did not make full and proper disclosure of critical matters the issuing judicial justice should have considered. The ITO was, therefore, misleading, albeit unintentionally. Specifically, the judicial justice was provided with case law (a decision of Chief Justice Esson dealing with search warrants issued after the 1994 Stanley Cup riot) that is no longer good law, especially insofar as it dealt with the importance of alternative sources of evidence available to the police. By not providing the correct law, the issuing justice has, in substance, sanctioned the police abdicating their responsibility to investigate offences and gather evidence to the media, thereby turning them into an arm of the state. [8] For the reasons that follow, I am compelled to reject these principal arguments. Essentially, the same arguments about over breadth were considered and rejected by Mr. Justice Moldaver (as he then was) in upholding a search warrant issued in connection with riots in Toronto on May 4, Critical aspects of that

4 The Vancouver Sun v. British Columbia Page 4 case were approved by Chief Justice Esson in the 1994 Stanley Cup riot case. That decision, which I have concluded continues to be an accurate statement of the law, was before the judicial justice when he issued these orders. In my view, given the evidence in the information to obtain, this is sufficient to establish that the judicial justice, acting judicially, could be satisfied that there were reasonable grounds to believe that the material to be produced will afford evidence with respect to the specific offences identified in the ITO. I am satisfied, moreover, that the ITO was not misleading in ways that affect the validity of the production orders. Most particularly, the issue of the availability of alternative sources is extensively canvassed. The issuing justice had before him the evidence necessary to take into consideration those factors relating to the status of the media and to exercise his discretion accordingly. As a reviewing judge, I am not entitled to substitute my view of what would be an appropriate exercise of discretion for his. [9] This is not, however, the end of the matter. There are two deficiencies in the production orders which I have concluded need to be addressed. First, the production orders do not describe a closed area. This creates an unacceptable uncertainty about what is required to comply with the order. Second, the production order incorrectly describes the targets who have to comply with it. These deficiencies should be corrected. [10] I turn now to address certain preliminary and procedural matters before considering the substantive issues argued before me. Procedural Issues [11] There are two types of applications before me. First, each petitioner applies for an exemption from compliance with the production order to which it is subject. Second, each petitioner applies for judicial review under the Judicial Review Procedure Act, RSBC 1996, c. 241 to quash the order. There are procedural problems with both sets of applications, although it is agreed that nevertheless I should determine them on their merits.

5 The Vancouver Sun v. British Columbia Page 5 The exemption applications [12] The key statutory provisions governing production orders are found in ss and of the Criminal Code, the relevant portions of which read as follows: Production order (1) A justice or judge may order a person, other than a person under investigation for an offence referred to in paragraph (3)(a), (a) to produce documents, or copies of them certified by affidavit to be true copies, or to produce data; or (b) to prepare a document based on documents or data already in existence and produce it Conditions for issuance of order (3) Before making an order, the justice or judge must be satisfied, on the basis of an ex parte application containing information on oath in writing, that there are reasonable grounds to believe that (a) an offence against this Act or any other Act of Parliament has been or is suspected to have been committed; (b) the documents or data will afford evidence respecting the commission of the offence; and (c) the person who is subject to the order has possession or control of the documents or data Power to revoke, renew or vary order (5) The justice or judge who made the order, or a judge of the same territorial division, may revoke, renew or vary the order on an ex parte application made by the peace officer or public officer named in the order Application for exemption (1) A person named in an order made under section and a financial institution, person or entity named in an order made under section may, before the order expires, apply in writing to the judge who issued the order, or a judge of the same territorial division as the judge or justice who issued the order, for an exemption from the requirement to produce any document, data or information referred to in the order. (Emphasis added) Exemption (4) The judge may grant the exemption if satisfied that

6 The Vancouver Sun v. British Columbia Page 6 (a) the document, data or information would disclose information that is privileged or otherwise protected from disclosure by law; (b) it is unreasonable to require the applicant to produce the document, data or information; or (c) the document, data or information is not in the possession or control of the applicant. [Emphasis added] [13] At the beginning of the application I asked whether I, as a judge of the Supreme Court, had the jurisdiction to hear an exemption application because it was not obvious to me that I was a judge of the same territorial division as the judge or justice who issued the order. [14] Both counsel agreed that I did have the statutory jurisdiction to hear the matter. Mr. Toy advised me that it was the considered position of the Crown that I did have jurisdiction to decide an exemption application in respect of a production order issued by the Provincial Court of British Columbia, but that the preferred practice was that in the ordinary course such an application should be made to the judge who made the original order or, failing that, another judge of that court. He asked that I make it clear in my reasons that I am not endorsing a practice of bringing an application for exemptions from a production order in the superior court at the same time as an application to quash the original order for jurisdictional error, and that by proceeding to hear this matter I was not setting a precedent. [15] The word judge is not defined in s. 2 of the Criminal Code nor is it defined for the purpose of Part XV of the Criminal Code. In other parts of the Criminal Code the word judge is defined to mean a judge of the superior court of criminal jurisdiction of the province. Territorial division is defined in s. 2. It includes any province or other judicial division or place to which the context applies. [16] Given the broad definition of territorial division, I accept that I do have the statutory jurisdiction to decide the exemption applications. I agree, however, with the following observations of the Manitoba Court of Appeal in Canadian Broadcasting Corp. v. Manitoba, 2009 MBCA 122, beginning at para. 80:

7 The Vancouver Sun v. British Columbia Page 7 80 Should CBC and CTV here have applied first to the authorizing judge for an exemption rather than having proceeded immediately with an application for certiorari quashing the production orders? Is their application premature, and if so, what is the impact in this case? 81 There are very few cases that have addressed this issue, especially in a case dealing with production orders. Caution should be exercised when looking to cases involving search warrants since there is no equivalent exemption section. The British Columbia Court of Appeal has noted that a party should not resort to an extraordinary remedy such as certiorari where the statute provides that the applicant may return to the judge who issued the order to request an amendment. Thus, in Angel Acres Recreation & Festival Property, the court held that it lacked jurisdiction to entertain the appeal. 82 It seems to me that there is a difference between arguing that a production order is unreasonable because the material is privileged or is not in the possession of the third party and arguing that there were insufficient grounds for issuing the orders at all. In the former, the section provides for an application for an exemption in front of the authorizing judge. In the latter, the Criminal Code provides for a review for jurisdictional error in front of a superior court. However, it must be remembered that, although the search warrant jurisprudence would appear to support the procedure adopted by the media outlets in this case, exemptions are not available to the targets of search warrants. Given the ability of the media outlets to apply for an exemption, it might be that Parliament intended that targets of production orders should have the onus of applying for an exemption and only then, if the target was denied such relief, apply for an extraordinary remedy to a superior court. 83 This matter has been argued on its merits before three levels of court at this point and should be resolved on its merits. I leave for another day the question as to whether a third party subject to a production order should be required to exhaust their remedies by first applying for an exemption before the authorizing judge pursuant to s and only then, if not satisfied, to apply to a superior court for the extraordinary remedy of certiorari. An appeal from that decision could then be taken pursuant to s. 784(1) of the Criminal Code. See R. v. Jobin, [1995] 2 S.C.R. 78. Section 784 provides for an appeal from a decision granting or refusing the relief sought in proceedings taken by way of one of the extraordinary remedies identified in s See also, Canadian Broadcasting Corp. v. Newfoundland and Labrador, at paras [17] In this case, given the agreement of the parties to have these issues resolved expeditiously, I accede to their request that I decide the exemption applications. Having done that, the jurisdictional foundation is laid to consider whether the original issuance of the orders involved jurisdictional error and whether they should be quashed. The fact that I have agreed, with some reluctance, to proceed in this way should not be taken as endorsing such an approach as a matter of practice. There is

8 The Vancouver Sun v. British Columbia Page 8 a strong argument that Parliament did intend an applicant to exhaust available remedies before the issuing judge or court before seeking review for jurisdictional error. Combining the two matters in one hearing is fraught with risk. One need only ask how a reviewing judge should deal with the issue of jurisdictional error if he or she had amended or partially exempted the target of the order. [18] In response to Mr. Toy s request, the fact that I am dealing with these matters does not endorse bringing an exemption application for an order granted by the Provincial Court in the Supreme Court and I am not setting a precedent by doing so. The Judicial Review Procedure Act [19] I agree with the respondent that this application should be treated as an application for an Extraordinary Remedy under Part XXVI of the Criminal Code (see ss ) and the Criminal Rules of the Supreme Court of British Columbia, Rules 1, 2 and 4. This matter is not properly brought, and I am not dealing with it, as an application for judicial review under the Judicial Review Procedure Act. Should the petitioners be exempted from complying with the production orders? [20] The applications to be exempted from the requirement to produce photographs and video is based on s (4)(b) which reads: (4) The judge may grant the exemption if satisfied that (b) it is unreasonable to require the applicant to produce the document, data or information. [21] The petitioners contend that the same considerations which inform whether the original production orders ought to have issued are to be used to assess whether it is unreasonable to require compliance with the order. In this instance, those factors are that the production orders are premature, overly broad and capture vast amounts of material not relevant to any crime; that they fail to account for the special position of journalists requiring proof of true necessity and absence of alternate sources.

9 The Vancouver Sun v. British Columbia Page 9 [22] I am unable to accept this submission. The exemption provision is part of a statutory scheme which begins with the ex parte issuance of an order. The scheme also includes provisions for revoking, renewing and varying the order. As the Supreme Court of Canada noted in Tele-Mobile Co. v. Ontario, 2008 SCC 12 at para. 47, this is not a procedure amenable to an assessment of the cost and burden of compliance with the order at the time it is issued. The public have civic responsibilities to assist in maintaining law and order, but that duty does not, however, give the state a licence to abusively exploit the public s civic responsibilities. That is why the scheme for production orders includes relief in the form of an exemption where compliance would be unreasonable (at para. 52). In the view of the Supreme Court of Canada, the purpose of the exemption provision is to provide a remedy when a judge is satisfied that the burden of compliance is unreasonable (at para. 62). The theme that unreasonableness relates to the burden of compliance on the target of the order is reinforced at para. 67 of the judgment. [23] The issues raised by the petitioners are, in my view, factors that relate to whether an order should have been issued in the first place. They relate to such matters as whether the ITO meets the statutory criteria that are a condition of a production order and whether the position of the press and the availability of the alternative sources were properly disclosed or considered when the production orders were first issued. These factors are relevant to whether the issuing justice committed a jurisdictional error in issuing the orders. That is a different question from whether the petitioners are entitled to a statutory remedy exempting them from the operation of an order that is otherwise valid. The availability of the remedy presumes, in my view, the jurisdictional validity of the order. [24] Had Parliament intended to import into the criteria of unreasonableness, for the purposes of an exemption order, all of the factors that go into an analysis of whether issuing an order in the first place reasonably took into account all of the statutory conditions for issuing orders and the factors bearing on the exercise of

10 The Vancouver Sun v. British Columbia Page 10 discretion, one would have expected a clear statement of that intent. I can find no such intent in the scheme. [25] The petitioners did not provide evidence of the financial cost of compliance or the amount of time that it would take to comply or any other burdens of compliance. The petitioners have not discharged their acknowledged onus to demonstrate that complying with the production orders imposes an unreasonable burden on them. [26] It is in any event, clear that complying with the production orders does not place an unreasonable burden on the petitioners. Little more is required than copying data from the petitioners computer storage systems to hard drives provided by the investigators. The fact that the orders require production of all files of video footage, for example, shot within a certain area between certain times simplifies and reduces the burden of compliance. Resources do not have to be devoted to viewing images to identify whether they relate to particular places or incidents within the defined area. The editing process is simplified. The petitioners remain in possession of all the files and images; they merely have to provide copies of them. They remain able to make whatever use they otherwise would have done with the information. [27] The petitioners have not satisfied me that it is unreasonable to require them to produce the materials required by the production orders. Should the production orders be quashed? [28] It is common ground that the standard of review applicable to production orders is the same standard applied to the review of search warrants. The question is whether, based on the record before the authorizing judge, as amplified on review, the authorizing judge, acting judicially, could have granted the order. This is the test from R. v. Garofoli, [1990] 2 S.C.R. 1421, (the Garofoli test). [29] Where production orders are sought against the press or the media, that test is modified to include special factors that take account of the role of the press or media in a democratic society. These factors are intended to ensure that a proper balance is struck that respects the media s right to gather and disseminate

11 The Vancouver Sun v. British Columbia Page 11 information and news without improper state intrusion and the public interest in the investigation and prosecution of crime. [30] The first series of questions, therefore, relate to whether the statutory conditions for issuing a production order have been satisfied. It is convenient to set those conditions out again. (3) Before making an order, the justice or judge must be satisfied, on the basis of an ex parte application containing information on oath in writing, that there are reasonable grounds to believe that (a) an offence against this Act or any other Act of Parliament has been or is suspected to have been committed; (b) the documents or data will afford evidence respecting the commission of the offence; and (c) the person who is subject to the order has possession or control of the documents or data. [31] The petitioners contend that given the geographic and temporal breadth of the orders as well as the lack of specific detail connecting what the media filmed and where they filmed it, these conditions have not been met. An authorizing judge, acting judicially, could not have issued the orders. [32] The second series of questions involves giving consideration to the role of the media. The leading cases are Canadian Broadcasting Corp. v. Lessard, [1991] 3 S.C.R. 421; and Canadian Broadcasting Corp. v. New Brunswick (Attorney General), [1991] 3 S.C.R The so-called Lessard factors were summarized by Cory J. at para. 47 of that decision: a) It is essential that all the requirements set out in Section 487(1)(b) of the Criminal Code for the issuance of a search warrant be met. (b) Once the statutory conditions have been met the justice should consider all of the circumstances in determining whether to exercise his or her discretion to issue a warrant. (c) The justice of the peace should then ensure that a balance is struck between the competing interests of the state in the investigation and prosecution of crimes, and the right to privacy of the media in the course of their news gathering and news dissemination. It must be borne in mind that the media play a vital role in the functioning of a democratic society. Generally speaking, the news media will not be implicated in the crime under investigation; they are truly an innocent third party. This is a particularly

12 The Vancouver Sun v. British Columbia Page 12 important factor to be considered in attempting to strike an appropriate balance, including the consideration of imposing conditions on the warrant. (d) The affidavit in support of the application must contain sufficient detail to enable the justice of the peace to properly exercise his or her discretion as to the issuance of a search warrant. (e) Although it is not a constitutional requirement, the affidavit material should ordinarily disclose whether there are alternative sources from which the information may reasonably be obtained and, if there is an alternative source, that it has been investigated and all reasonable efforts to obtain the information have been exhausted. (f) If the information sought has been disseminated by the media, in whole or in part, this will be a factor which will favour issuing of the search warrant. (g) If a justice of the peace determines that a warrant should be issued for the search of media premises, consideration should then be given to the imposition of some conditions on its implementation, so that the media organization will not be unduly impeded in the publishing or dissemination of the news. (h) If, subsequent to the issuing of the warrant, it comes to light the authorities failed to disclose pertinent information that could well have affected the decision to issue the warrant, this may result in a finding that the warrant was invalid. (i) Similarly, if the search itself is unreasonably conducted, this may render the search invalid. [33] Critical questions in these applications are the status of the requirement that the ITO canvass the issue of alternative sources and whether production orders should be issued only in circumstances of true necessity or as a last and not a first resort. These issues are particularly important because the petitioners allege that the ITO was misleading because it misstated the current law by referring to the decision of Esson C.J.B.C. in the first Stanley Cup riot. That decision is not good law, they contend, because it wrongly downplays the true importance of alternative sources and does not reflect the criteria of true necessity and last resort. Were the statutory conditions met? [34] The petitioners point out that the riot, as it is defined in the ITO, began at 7:43 p.m., some three minutes after the Vancouver Canucks lost game seven of the Stanley Cup finals. It began with the flipping of a car and continued until 11:50 p.m. when windows at Simon Fraser University s downtown campus were smashed. In the interim, multiple criminal acts occurred that were concentrated around certain

13 The Vancouver Sun v. British Columbia Page 13 principal locations including Sears, London Drugs and the Bay in the area of West Georgia Street and Granville Street, and the Bank of Montreal, the Canada Post building and Easy Park, along a three block stretch of West Georgia Street. [35] Although the ITO identifies the principal locations of the riot, it also refers to offences committed at other locations throughout a much larger area of the downtown core, but not in every place covered by the boundaries of the production orders or at all times covered by them. [36] The ITO catalogues offences including participating in a riot, mischief, theft, robbery, assault, arson, break and enter and disguise with intent. The ITO with attachments runs to over 100 pages. It states that as of September 21, 2011, 270 criminal offences have been identified and each offence can have between 1 and 300 possible suspects. Over 1,100 suspect names have been provided to the police and 207 suspects were at that time under active investigation. The ITO states that because of the large number of incidents which are in the process of being identified and investigated, the large number of people involved and the large number of tips being provided to the police, it is not possible to include all of the information about every incident. As a result, the ITO focuses on the main details concerning the investigation. [37] The ITO covers incidents that occurred before the riot, as defined, erupted at 7:43 p.m. By 4:00 p.m. the Live Site on West Georgia Street was near capacity. At 4:45 p.m. people were climbing on roof awnings and lamp standards. At 5:00 p.m. there were about 25 people on the roof of Canada Post. Between 5:00 p.m. and 6:00 p.m. reports continued to come in of sporadic assaults and a person inciting the crowd. A group of 4 to 5 men wearing bandannas were seen within the Live Site crowd. At about 6:00 p.m. a police car was damaged and shortly thereafter two police officers were assaulted. Before 7:00 p.m., there were reports of persons damaging signs on buildings, burning a flag, and fighting. After 7:00 p.m., but before the game ended, there were reports of fights involving significant numbers of protagonists, fires being started, confrontations, assaults, attempted breaking and

14 The Vancouver Sun v. British Columbia Page 14 entering and crowds beginning to gather after leaving the Live Site. It is clear that trouble was brewing well before the full scale riot broke out at 7:43 p.m. [38] The ITO sets out extensive reasons and facts to provide reasonable grounds to satisfy the issuing justice that the material to be produced would afford evidence with respect to the commission of criminal offences. Detail was provided of Constable Hunter s belief that the media had captured images of individuals involved in criminal acts which had not been captured by other sources, or if similar images were otherwise available, those from the media were of superior quality and more clearly identify the participants. Importantly, Constable Hunter deposed to the effect that media images are of greater evidentiary value than other images owing to such matters as resolution of the images and because the provenance of media images is more readily established. [39] In summary, the information sought from the media is said to be evidence in many instances of the commission of offences, but is also relevant to issue of identification of those involved in committing offences, even where the image of the person is captured in a different place from where the offence was committed. Evidence relevant to identification may either inculpate or exculpate a suspect. Part of the justification for both the time and geographical limits of the production orders is that images recorded during that time and in that area may assist in identifying individuals arriving or departing from the scene of the offences. [40] Mr. Burnett submits that the ITO fails to establish reasonable grounds that the material sought would contain evidence of the commission of offences. It is obvious, however, that many of the images do capture the commission of offences. Published images show the offences being committed. On the strength of the ITO, it is apparent that the media organizations have unpublished images of those offences being committed. [41] Mr. Burnett's real objection is that the production orders compel production and images that he says are not evidence of the commission of offences because they are recorded at unspecified locations within a large area of downtown before

15 The Vancouver Sun v. British Columbia Page 15 and after the riot. He says that the ITO does not adequately connect the specific images recorded to the offences committed. His argument is that valid search warrants or production orders recording images of riotous behaviour always connect specifics of the recordings to the events that constitute the offences. [42] Essentially, the same argument was made and rejected in R. v. Canadian Broadcasting Corp. (CBC), 77 C.C.C. (3d) 341 (Ont. Ct. J. (Gen. Div.)). That case involved riots in Toronto that occurred on May 4, A demonstration was held outside the United States Consulate. The demonstration moved around various locations in downtown Toronto. As it did so, some demonstrators caused some minor vandalism and began throwing rocks. Some two hours after leaving the Consulate, at 7:10 p.m., a riot broke out and continued until 11:00 p.m. [43] A search warrant was issued seeking unpublished videos or photographs depicting the actions of an out of control crowd of persons between 6:30 p.m. and midnight in a quadrangle of downtown Toronto defined by the intersection of certain cross streets. The geographical area encompassed is similar in size, although somewhat larger, to the area involved in these applications. [44] Mr. Burnett says that the validity of the search warrant in the Toronto riot case turned on the fact that the images to be produced were linked to the activity of the crowd in committing offences. I do not share that view. [45] The argument advanced to quash the warrant was that the information contemplated nothing more than a "fishing expedition". Mr. Rosenberg, as he then was, for the media outlets, argued that the fact that the media had been covering the riotous conduct did not provide a reasonable basis for believing that they had possession of any evidence in relation to the specified offences. He submitted that the information to obtain the warrants was completely devoid of any indication that the photographers or cameraman took pictures or videos of the commission of any offence. He argued that there was no indication of the photographing of any particular location or time or event other than a general disturbance over a period of several hours across a significant area of downtown Toronto. While by chance the

16 The Vancouver Sun v. British Columbia Page 16 media might have evidence, this was mere speculation and therefore did not meet the "reasonable grounds" test. [46] Mr. Justice Moldaver, as he then was, agreed that the information before him failed to set out reasonable grounds that the material seized would afford evidence of persons actually committing the specified offences. Parenthetically, I note, that that is not the case with the information before me. But Moldaver J. went on to conclude that this analysis did not accurately reflect the scope of the phrase "will afford evidence with respect to the commission of an offence". He had this to say: The proper interpretation was set out many years ago by Chief Justice McRuer in the case of Re Bell Telephone Company of Canada (1947), 89 C.C.C. 196 (Ont. H.C.). At p. 198, the Chief Justice said: As I view it, the object and purpose of these sections is to assist the administration of justice by enabling the constable or other properly designated person to go upon the premises indicated for the purpose of procuring things that will in some degree afford evidence of the commission of an alleged crime. It is not necessary that the thing in itself should be evidence of the crime, but it must be something either taken by itself, or in relation to other things, that could be reasonably believed to be evidence of the commission of the crime. Applying that interpretation to the case at hand, I am satisfied that the information did contain reasonable grounds which could satisfy the issuing judge that the material sought would, not taken by itself but in relation to other things, afford evidence with respect to the commission of at least some of the specified offences. In this regard, it will be remembered that the alleged crimes were committed by persons who made up a portion of the approximate 800 rioters. These crimes occurred at various places within the quadrangle of streets described in the space of about four hours. According to the information, representatives of the applicants were present during the entire period of the rioting. In view of this, I am satisfied that it was open to the issuing judge to believe on reasonable grounds, that some of the photographs or videos would capture at least some of the persons responsible for some of the crimes, albeit perhaps at locations distant from scene of the actual crime. Many of the victims are of the view that if given the opportunity they would be able to identify the person or persons responsible. In this regard, it is not necessary that the issuing justice or judge be satisfied that identifications will be made but simply that they might be made. [Emphasis added]. [47] From this, I take it that it was sufficient in that case that unpublished footage might lead to identification of persons who had committed the specific offences, even if that footage was recorded at a location distant from the location of the

17 The Vancouver Sun v. British Columbia Page 17 offence itself. The validity of the search warrant, accordingly, did not turn on the fact that the information connected the recording of images to specific incidents that constituted offences. The search warrant encompassed a large area of downtown Toronto. It was valid because it might support identification of those who committed the specific offences. This is precisely the situation in the case before me. [48] It is material that Mr. Justice Moldaver s judgment in this case was considered by Chief Justice Esson in the first Stanley Cup riot case in He said this: 21 While the information set out under oath to the justice of the peace in this case was clearly inadequate, I do not accept the submission of counsel for the petitioners that the standard which must be met in providing detail is that to be found in the information dealt with in H.M.T.Q. v. CBC et al. (1992), 17 C.R. (4th) The material relied on by the police, in contrast to that in this case, went into staggering detail in setting out the facts as to the 78 separate offences in respect of which the film was sought, and in establishing a link between those offences and the things sought to be seized. A copy of the information and warrant was provided to me as an example of how things should be done. The information runs to 100 pages or so, the warrant to some 25 pages. Like the information, the warrant is impressively organized and impressively detailed. That did not prevent the media from launching an attack upon it. The principal contention apparently was that the information failed to set out grounds upon which the justice of the peace could be satisfied that the material seized would afford evidence of persons actually committing any of the 78 specified offences. Moldaver, J. held that not to be the test. Rather, it was enough that the information contained grounds which could satisfy the issuing judge that the material sought would, not just taken by itself but in relation to other things, afford evidence with respect to the commission of at least some of the specified offences. That, I think, is what the case stands for and is a finding which could be applied directly to this case were it not for the total lack of specificity in the information. [49] In the case before me the level of detail in the information is similar to what appears to have been before Moldaver J.: a level of detail that, in the view of Chief Justice Esson, goes beyond the necessary. [50] As Major J., for the Supreme Court of Canada, noted in the CanadianOxy Chemicals Ltd. v. Canada (Attorney General), [1999] 1 S.C.R. 743 at para. 15: On a plain reading, the phrase "evidence with respect to the commission of an offence" is a broad statement, encompassing all materials which might shed light on the circumstances of an event which appears to constitute an

18 The Vancouver Sun v. British Columbia Page 18 offence. The natural and ordinary meaning of this phrase is that anything relevant or rationally connected to the incident under investigation, the parties involved, and their potential culpability falls within the scope of the warrant. [51] Finally, as Moldaver J. also noted, a search warrant is not invalidated because there is uncertainty about whether the material seized will actually produce evidence of the commission of an offence. In commenting on the scope of what may be validly seized he said: I recognise that this approach carries with it a degree of uncertainty. However, in my opinion, the concept of "reasonable grounds to believe" necessarily imports some measure of uncertainty. This was recognised by Lamer J. (as he then was) in the case of Descoteaux et al. v. Mierzwinski et al. (citation omitted), where his Lordship said at p.410: After all, searches, while constituting a means of gathering evidence, are also an investigative tool. It will often be difficult to determine definitively the probative value of a particular thing before the police investigation has been completed. Later, at p.412, Mr Justice Lamer remarked: As I have already stated, a search warrant is not only a means of gathering evidence but also an investigative tool. Therefore, a determination of what is reasonable in each case will take into account the fact that the search makes it possible not only to seize evidence but also to ascertain that it exists, and even sometimes that the crime was in fact committed and by whom. [52] I was at first concerned by both the geographic and temporal scope of the production orders. They struck me as broad. But the question is not whether I would have approved the orders, but whether the judicial justice, acting judicially, could do so. On the basis of the authorities I have canvassed, and in light of the evidence in the information, I am satisfied that the issuing justice, acting judicially, had sufficient evidence before him to have reasonable grounds to believe that the material to be produced will afford evidence in respect of the commission of an offence. The information both disclosed reasonable grounds to believe that the video footage recorded the commission of actual offences and that video footage recorded between the hours of 4:00 p.m. and 12:30 a.m. will afford evidence in respect of identification which is evidence in respect of the commission of an offence. The information before the justice was not mere speculation and did not merely justify a

19 The Vancouver Sun v. British Columbia Page 19 fishing expedition". Accordingly, I conclude that the statutory conditions for the issuance of the production orders were satisfied. Do the production orders properly take account of the fact they are directed to the media? [53] It is common ground that a validly issued production order directed to the media must take into account the so-called Lessard factors. The issuing justice is required to exercise a discretion based on those factors. If I conclude that the issuing justice failed to give adequate or any consideration to a pertinent factor or the amplified record discloses information that could well have affected the decision to issue the production orders, but was not before the issuing justice, the production orders may be invalid. [54] Here the petitioners complain that the information misstated the applicable law by relying on the decision of Chief Justice Esson and by failing properly to demonstrate that the material sought was truly necessary and had been sought as a last resort. In particular, the petitioners say the issuing justice must have been misled about the significance of "alternative sources". Much of this argument turns on whether Chief Justice Esson misstated the law in respect of alternative sources or whether his statements are no longer good law. [55] The ITO contained the following two paragraphs dealing directly with Chief Justice Esson s decision and the relevance of alternative sources: 94 On June 20, 2011 BURNETT sent me an with a link to the case of Canadian Broadcasting Corp. v. British Columbia,(citation omitted) [see Exhibit 5]. I have read that case and noted the factors that should be considered by a Justice of the Peace on an application to obtain a search warrant. It should be noted that I am requesting a Production Order, and thus the police would not be searching any media premise. I am also requesting certified true and accurate copies of the video footage and photographs in the original format, therefore the media outlets would retain the originals. By not searching the premise, and only requesting certified true and accurate copies, the police would not be impeded or interfering with the media outlet publishing or disseminating the news. 96 Another factor, to be considered by a Justice of the Peace, is the availability of alternate sources from which the information may be obtained and the efforts the police have taken to obtain these alternate sources of

20 The Vancouver Sun v. British Columbia Page 20 information. I believe that the issue of alternate sources has been addressed in the section titled Alternate Sources above. I note that in the case of Canadian Broadcast Corp v. British Columbia, (citation omitted) there is no constitutional requirement for the police to show alternative sources have been exhausted. [56] In his decision, Chief Justice Esson applied the Lessard factors which had been stipulated by the Supreme Court of Canada. The decision quotes Cory J. s statement on behalf of the majority of the Supreme Court of Canada regarding alternative sources. That statement is the following: (5) Although it is not a constitutional requirement, the affidavit material should ordinarily disclose whether there are alternative sources from which the information may reasonably be obtained and, if there is an alternative source, that it has been investigated and all reasonable efforts to obtain the information have been exhausted. [57] In this case, I can see no material difference between what is stated in para. 96 of the information and the statement of principle of the Supreme Court of Canada set out in the judgment. [58] Chief Justice Esson went further, however, in discussing the relevance of alternative sources in different circumstances. He observed that on the facts before him there was no need to raise the subject of alternative sources. He said this: In my view, there was no need to raise the subject of alternative sources which first came into our law in the decision of Nemetz, C.J.S.C. (later C.J.B.C.) in Re Pacific Press Ltd. and the Queen (1977), 37 C.C.C. (2d) 487. It was there held that no warrant should have issued to authorize a search of the pressrooms of Pacific Press without that condition being met. That conclusion, which may have been obiter because other more conventional grounds were found, was said to follow from the Bill of Rights and a judgment of Lord Denning. In that case, the warrant covered such things as the handwritten notes of reporters and a reporter's "contact book". But these petitions relate only to videotapes and still photographs of matters which occurred in public places. In the Lessard and New Brunswick cases, the matter of alternative sources was not raised before the justice of the peace and yet, in each case, the validity of the warrant was upheld. In each of those cases, the material sought to be seized was exactly of the kind involved here and the events being investigated were similar in kind, i.e. public disturbances. The ground of decision in the judgment of Cory, J. appears in this paragraph at p. 535: The failure to set out the lack of alternative sources was simply another factor to be taken into account in assessing the reasonableness of the search.

21 The Vancouver Sun v. British Columbia Page 21 Here, the actual search was conducted reasonably and properly. There was no interference with the operation of the news media, nor was the freedom of the press threatened. The media had already completed their basic function of news gathering and news dissemination; thus, in my view, the seizure of the tapes at this stage could not be said to have a chilling effect on the media's sources of news. It was therefore appropriate for the justice of the peace to issue the search warrant in this case. There are other passages in the judgment of the majority which make it clear that the court did not consider the matter of alternative sources to be one which had to be considered in such circumstances. La Forest, J. said at p. 523: In my view, the threat to the freedom of the press that would result from unrestrained searches of certain journalistic material goes beyond the merely speculative. I would draw a line, however, between films and photographs of an event and items such as a reporter's personal notes, recordings of interviews and source "contact lists". In both this case and the companion New Brunswick case, Canadian Broadcasting Corp. v. New Brunswick... the only materials seized were video tapes and photographs of the demonstration. I find the C.B.C.'s argument that there will be a "chilling effect" on newsgathering unpersuasive, in so far as that argument pertains to films and photographs taken of an event. I think the chill is already there. Absent a promise of confidentiality, no one can reasonably believe that there is no danger of identification when he is being captured on film by the press. When the press is covering an event under circumstances such as those in the present case, the very reason for the presence of cameramen is to take film and photographs for the purpose of broadcasting. While not all of the photographs will get published, there is a very real possibility that someone who commits a crime in front of the camera will find himself on the evening news or on the front page of a newspaper. [Emphasis Added] [59] Contrary to the submissions of the petitioners, Chief Justice Esson did not downplay or ignore the importance of alternative sources as a factor to be taken into account in assessing the validity of a search warrant. Chief Justice Esson analysed the reasoning of the Supreme Court of Canada in order to identify those circumstances in which the existence of alternative sources play a material role in the exercise of a discretion to issue a search warrant. Chief Justice Esson did not ignore Pacific Press, he simply found it inapplicable to the particular facts before him. In reaching that conclusion he applied the rationale of the alternative sources principle explained by the Supreme Court of Canada. I cannot see that he made any mistake in doing so.