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.

Case Report – Ont. C.A. considers pre-trial publicity, jury contamination and the internet’s long memory

On January 26th, a 3-2 majority of the Ontario Court of Appeal held that the mandatory ban on publication of bail proceedings when requested by an accused violates the Charter-protected right to freedom of the press and is not saved by section 1. The majority read down the Criminal Code ban so that it applies only to charges that may be tried by a jury.

All members of the panel agreed that the mandatory ban breached freedom of the press. They also agreed on the purpose of the ban:  to ensure a fair trial by promoting expeditious bail hearings, avoiding unnecessary detention and allowing accused to retain scarce resources to defend their cases. The panel members differed, however, on how to apply the Charter‘s saving provision, section 1.

The majority, in judgement written by Madam Justice Feldman, held that the ban was over-broad in its application to charges that may not be tried by a jury. While finding that judges are “professional decision-makers” immune to the influence of pre-trial publication, the majority was not willing to invalidate the legislation as it applied against juries given the conflicting social science evidence on the impact of pre-trial publication on jury decisions. It held that the legislature is entitled to act upon a “reasoned apprehension of harm” in enacting laws based on such disputed domains.

The minority, in a judgement written by Mr. Justice Rosenberg, held that the conflicting evidence was a basis for striking down the ban in whole (with a 12 month suspension). The minority held that the salutary effects of the ban did not outweigh its deleterious effects because the causal connection between pre-trial publicity and jury contamination is weak and speculative.

Both the majority and minority made comments on the internet and the concept of practical obscurity.  The majority said:

It is also, in my view, no longer appropriate or realistic to rely on jurors’ faded memories of any pre-trial publicity by the time of the trial as the basis for confidence that they will not remember what they read or heard. Once something has been published, any juror need only “Google” the accused on the Internet to retrieve and review the entire story.

The minority made a similar note:

On the one hand, the salutory effect of any publication ban is undermined by the ease with which the ban can be circumvented.  On the other hand, because of the nature of the Internet, information first published at the time of the bail hearing is always accessible, right up to the time of the trial.  In other words, the court cannot always simply rely upon the fact that time will have passed from when the information was first published and that this passage of time will lessen any prejudicial effects of the information.

On the whole, perhaps all that can be said about the efficacy of publication bans in the era of mass communication and the Internet is that the salutory and deleterious effects are uncertain.

The concept of practical obscurity is one favoring the maintenance of an individual’s privacy interest despite the disclosure of information because the information can be hard to find or recall.

For more detailed commentary, see the Court’s summary here.

Toronto Star Newspapers v. Canada, 2009 ONCA 59.

Case Report – SCC says informer privilege absolute

In a judgment released October 11th, the Supreme Court of Canada weighed the interest protected by the informer privilege against the interest in open courts. An 8 – 1 majority held that informer privilege is an absolute bar on the disclosure of an informer’s identity subject only to the innocence at stake exception.

The majority strongly affirmed the mandatory character of the informer privilege. Writing for the majority, Bastarache J. said:

The informer privilege rule is mandatory (subject only to the “innocence at stake” exception). To permit trial judges wide discretion in determining whether to protect informer privilege would undermine the purposes of the rule. Part of the rationale for a mandatory informer privilege rule is that it encourages would-be informers to come forward and report on crimes, safe in the knowledge that their identity will be protected. A rule that gave trial judges the power to decide on an ad hoc basis whether to protect informer privilege would create a significant disincentive for would-be informers to come forward, thereby eviscerating the usefulness of informer privilege and dealing a great blow to police investigations.

Despite this forceful position, the majority did leave open the possibility that the rule might be the subject of a Charter challenge. It was disinclined, however, to embark on a constitutional analysis in the circumstances because the appeal was of a discretionary order.

The core of the majority judgement is directed at how the judiciary should operationalize the privilege, for even though the privilege must always be respected it is clear that a judge also has a duty to apply it in a manner that minimally impairs the open court principle. The majority recognized that meeting this duty can be challenging for judges because the parties will frequently consent to an in camera process.

In recommending a model process to assist judges in meeting this challenge, the majority held that:

  • a judge can appoint an amicus curiae for the limited purpose of addressing whether the evidence supports the conclusion that a person is a confidential informer
  • the media does not have standing to address this question
  • the media may have standing after the privilege has been established in a second hearing to address the issue of minimal intrusion
  • members of the media should be provided with notice rather than be hand picked
  • whether notice to the media is given is a matter of the judge’s discretion
  • the media should not be provided with identifying information and, more generally, should only be provided with information essential to making an argument

LeBel J. was the lone dissenter. Unlike the majority he framed the contest as between a constitutionally-protected principle (open courts) and a judge made rule that promotes the administration of justice (the informer privilege). He held that an absolute rule was not warranted because the privilege is not an end in and of itself. He also suggested that the majority should have embarked upon a constitutional analysis even though a Charter challenge to the common law rule was not formally made. Given the qualifier made by the majority, LeBel J. may some day get another chance to make his point.

Named Person v. Vancouver Sun, 2007 SCC 43.