On August 27th, the Manitoba Court of Queen’s Bench quashed two Criminal Code production orders issued against the CBC and CTV. It held that the deficiency of the information as it related to the media’s privacy interest led to a flawed exercise of judicial discretion.
The order was for audio and video recordings of a press conference held at the Assembly of Manitoba Chiefs that the RCMP sought on a belief that they contained admissions by a man who had recently been shot and tasered in a confrontation with police.
The Court considered the sufficiency of the information in light of the discretionary factors for assessing the reasonableness of searching a media organization laid out by the Supreme Court of Canada in New Brunswick and Lessard. It held that the informant ought to have disclosed:
- that the police had been given prior notice of the press conference but had chosen not to attend;
- the possibility that the tapes might include one-on-one interviews given the media’s greater privacy interest in this type of content (even though the informant only later discovered that the tapes being sought contained one-on-one interviews with subject of his investigation); and
- the existence of eyewitnesses to the admissions being sought (though such was obvious) and whether they were an adequate alternative source of evidence.
The decision stresses that the police ought to do their best to help issuing judges conduct the public interest balancing exercise required by the media search jurisprudence, an exercise made difficult given the media does not participate. The Court also suggested that issuing judges should issue reasons to facilitate effective review.