Case Report – Man C.A. affirms quashing of orders to produce media tapes

On December 8th, the Manitoba Court of Appeal affirmed the quashing of two Criminal Code production orders issued against the CBC and CTV.

The orders were for production of 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.

In August 2008, Joyal J. of the Manitoba Court of Queen’s Bench considered the sufficiency of the supporting 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. He 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.

Joyal J. held that these deficiencies, as they related to the media’s privacy interest, led to a flawed exercise of judicial discretion and quashed the production orders as unreasonable.

The Manitoba Court of Appeal held that Joyal J. articulated and applied the proper legal test, did not err in his findings of fact and did not err in finding the police search unreasonable.

Canadian Broadcasting Corporation v. Maintoba (Attorney General), 2009 MBCA 122.

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