CTV v. IIO Date:, 2013 BCPC 252

Citation: CTV v. IIO Date: 20130709 2013 BCPC 0252 File No: 198123 Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF APPLICATIONS PURSUANT TO SECTIONS 487.015(4) AND 487.3(4) OF THE CRIMINAL CODE AND IN THE MATTER OF A FATAL POLICE SHOOTING NEAR STARLIGHT CASINO, NEW WESTMINSTER, BC ON NOVEMBER 8, 2012 Independent Investigations Office File 2012-11-0178 BETWEEN CTV, A DIVISION OF BELL MEDIA Applicant AND INDEPENDENT INVESTIGATIONS OFFICE OF BRITISH COLUMBIA (Richard Rosenthal, Chief Civilian Director) Respondent REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE P. D. GULBRANSEN

Counsel for CTV : David A. Crerar Counsel for IIO : Marian K. Brown Place of Hearing: Surrey , B.C. Date of Hearing: June 7, 2013 Date of Judgment: July 9, 2013 Introduction [ 1 ] On November 8, 2012, a police officer shot and killed an armed man in the parking lot of the Starlight Casino in New Westminster. He had taken a hostage and fired several shots from a semi automatic pistol. He was shot after a standoff of about 3½ hours. [ 2 ] The Independent Investigation Office of British Columbia (IIO) promptly began an investigation of this incident.

The IIO subsequently obtained a production order which directs CTV to produce all of the video footage in its possession relating to the standoff including the shooting itself and subsequent events. [ 3 ] CTV now applies for an order exempting it from the obligation to comply with the production order.

It also applies for an order varying or terminating a sealing order granted at the same time as the production order. [ 4 ] CTV argues that it would be unreasonable to require it to produce this data because the production order was granted in violation of explicit safeguards that the law has provided for media outlets when police make them targets of search warrants or production orders. [ 5 ] CTV further says that there is no evidentiary basis for the sealing order.

That is, the IIO has asserted that permitting public access to the document used to obtain the production order would subvert the interests of justice, but has not proven that assertion. Relevant Provisions of the Criminal Code [ 6 ]

Section 487.015 (1) of the Criminal Code permits a person named as the target of a production order (made under

section 487.012 of the Criminal Code ) to apply to the judge who made the order or a judge of the same territorial division: "… for an exemption from the requirement to produce any document, data or information referred to in the order."

Section 487.015 (4) of the Code permits the judge to grant the exemption if satisfied that: "(

b) it is unreasonable to require the applicant to produce the document, data or information" . (The other two grounds for granting an exemption are not applicable in this case.) [ 7 ]

Section 487.3 (1) of the Criminal Code provides that a judge or justice who issues a production order may also "… make an order prohibiting access to the disclosure of any information relating to the production order if the ends of justice would be subverted by the disclosure of the information or the information might be used for an improper purpose."

Section 487.3 (2) sets out specific grounds upon which a sealing order may be made. In the case at bar, the IIO relies upon the grounds set out in

section 487.3 (2) (a) (

i) and (iv) that disclosure of the information “would compromise the nature and extent of an ongoing investigation and would prejudice the interests of an innocent person.” [ 8 ] A sealing order can only be made if the party seeking the order establishes that the ground relied upon to prohibit public access "outweighs in importance the access to the information." [

Section 487.3 (1) (

b) of the Criminal Code ] An application to terminate or vary a sealing order may be made to the judge who made it or to any judge of the court before which proceedings arising out of the production order may be held. (

Section 487.3

(4) Criminal Code ) Application for Exemption from Production Order [ 9 ] The applicant submits that the word "unreasonable” is a flexible concept and encompasses circumstances where a production order has been issued in contravention of the important legal principles which must be considered before a court can issue such an order. CTV also argues that the word "unreasonable" refers to much more than the financial burden imposed on an entity named in a production order. [ 10 ] CTV's argument that the court should make an exemption order in this case is based on the following ground: 1.

The information to obtain the production order (ITO) does not establish that the video footage from CTV is necessary for the investigation. 2. The limited nature of the CTV footage is such that it will not, realistically, provide evidence of the commission of an offence. 3. The ITO does not disclose whether there were alternative sources for the information sought in the production order. Thus, the IIO is using CTV as a first resort for evidence, rather than a last resort. 4.

The unpublished video footage in the possession of CTV is relevant to its reporting on the ongoing story of the shooting and the subsequent investigation of the shooting by the IIO. 5. The issuance of the production order turns CTV into an "evidence gatherer" for the police and therefore compromises its

neutrality. [11] This argument made by CTV does not point to any evidence which shows that compliance with the production order imposesany significant, let alone onerous burden on it to comply with the order. On the face of it, the order requires CTV to transfer certainvideo data in its possession to a disk and to give that to the IIO.

Rather, all of the arguments that CTV has presented relate to the issue ofwhether the production order should have been granted in the first place. [12] This very argument was rejected by the Supreme Court of BC in Vancouver Sun, a Division of Post-Media Network Inc. vBritish Columbia, [2011] B. C.J. No. 2440.

In that case, six media organizations sought orders exempting them from complying withproduction orders relating to photographs and videos taken during the Stanley Cup riot. (They also applied simultaneously for an orderquashing the production order.) [13] The arguments made by the applicants in that case were very similar to the arguments made in this case by CTV. Harris Jstated [at paragraph 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 the production order and whether theposition of the press and the availability of the alternative sources were properly disclosed or considered when the production orderswere first issued. These factors are relevant to whether the issuing justice committed a jurisdictional error issuing the orders. That is adifferent question from whether the petitioners are entitled to a statutory remedy exempting them from the operation of an order that isotherwise valid.

The availability of the remedy presumes, in my view, the jurisdictional validity of the order. [14] At paragraph 24 the learned judge went on to state: Had Parliament intended to import into the criteria of “unreasonableness" for the purposes of an exemption order, all the factors that gointo an analysis of whether issuing an order in the first place reasonably took into account all of the statutory conditions for issuingorders and the factors bearing on the exercise of discretion, one would have expected a clear statement of that intent.

I can find no suchintent in the scheme. [15] I can see no difference in the nature of the arguments made by CTV and the arguments made by the applicants in VancouverSun, supra. In any event, I am bound by that decision. [16] The application by CTV for an exemption order is therefore dismissed. Application to Terminate or Vary the Sealing Order [17] Search warrants, production orders, and the Informations upon which they were issued are presumptively open to public access.

The party seeking to restrict or prohibit public access (usually the crown) bears the burden of providing evidence which justifies suchrestrictions. Toronto Star Newspapers LTD v Ontario 2005 SCC 41 , 253 DLR (4th) 577. In that case, the Supreme Court ofCanada stated at paragraph 4: Public access will be barred only when the appropriate court in the exercise of its discretion concludes that disclosure would subvert theends of justice or unduly restrict its proper administration. [18] A party seeking to restrict public access to legal proceedings must provide cogent evidence justifying the application.

Theevidence must be specific and amount to more than "… a generalized assertion of a possible disadvantage to an ongoing investigation." Toronto Star, supra, at paragraph 9, the ground relied upon "… must not just be asserted in the abstract; it must be supported byparticularized grounds related to the investigation that is said to be imperilled." Toronto Star, supra, at paragraph 23. [19] The essential mandate of the IIO is to investigate cases in which police officers apparently have caused death or serious injury toother persons.

The IIO has entered into a Memorandum of Understanding Respecting Investigations with all of the police organizationsin British Columbia. This memorandum sets out rules governing the conduct of officers who are involved in or witness such incidents. Those officers who have apparently caused the death or serious injury are referred to as "subject officers".

Officers who were merelypresent when the incident occurred are referred to as "witness officers". [20] Clause 15.1 of that document directs that officers involved in or present during an incident "shall not communicate theiraccounts or recollections of the incident directly or indirectly to anyone other than an IIO investigator" (with certain exceptions that arerelevant here).

Clause 15.2 of the document directs that a senior officer, not involved or present during the incident must "direct allinvolved officers not to communicate their accounts or recollections of the incident directly or indirectly to anyone other than an IIOinvestigator" (with certain exceptions which are not relevant in this case). [21] In the case at bar, investigators for the IIO have interviewed all of the witness officers who were present when the shootingoccurred. They have yet to interview any of the subject officers.

The IIO submits that providing public access to the ITO wouldcompromise the nature and extent of an ongoing investigation because it might adversely affect the quality or integrity of the statementswhich the subject officers may give to the IIO investigators. [22] That is, the IIO suggests that one or more of the subject officers might read the contents of the ITO before giving a statement. They may not read it themselves, but may receive information from someone who has read it and who in turn summarizes the contentsfor the subject officers.

Such conduct would, of course, be contrary to the Memorandum of Understanding. [23] This ground advanced by the IIO amounts to a generalized assertion that there could be a disadvantage to the investigation. Italso assumes that one or more of the subject officers could disregard his or her duty by deliberately accessing the accounts given by otherwitnesses. Although they would not be speaking directly to other witnesses, by accessing the witness accounts set out in the ITO, theywould clearly be in violation of the spirit of the restrictions placed on subject officers in the Memorandum of Understanding.

[ 24 ] This assumption could prove true, but how likely is it? Any officer who deliberately accessed the accounts of other witnesses contained in the ITO, before giving a statement to an investigator with the IIO, would commit a very serious breach of his/her duty. There is no evidence that any of the officers who were present at this incident have attempted to communicate with each other about their recollections of the event.

In fact, it is appropriate to assume that all of the officers involved in this case will comply with the requirements of the Memorandum of Understanding. [ 25 ] Undoubtedly, it would be better for the investigation if the IIO could ensure that it was not even remotely possible that any statements given by the subject officers could be tainted by access to the contents of the ITO. That advantage to the investigation however, does not outweigh in importance the general right of the public to access to legal proceedings. [ 26 ] A very similar proposition advanced by the police was rejected in Toronto Star, supra.

In that case, the Supreme Court upheld the Ontario Court of Appeal's rejection of the assertion by the investigators that "… witnesses could be fixed with information from sources other than their personal knowledge" , if the contents of the ITO became public. The Court quoted from the decision of Doherty J.A. in the Court of Appeal in which he characterized this ground as an assertion that "the police might have an advantage in questioning some individuals if those individuals [are] unaware of the details of the police investigation" . Doherty J.A. further referred to the Supreme Court's decision in R. v.

Mentuck , [2011] 3 SCR 442 which emphasized "that access to court documents cannot be denied solely for the purpose of giving law enforcement officers an investigative advantage." Rather, the party seeking to bar public access must "allege a serious and specific risk to the integrity of the criminal investigation." [ 27 ] The ground argued by the IIO in this case is essentially the same as the ground put forward by the police in Toronto Star , supra.

The IIO has not established that there is any realistic specific risk to the integrity of the ongoing investigation. [ 28 ] The second ground put forward by the IIO, that the identity of the subject officers should be protected has merit. They are properly described as innocent persons. They have not been charged with any offences in relation to the incident and may never be.

That issue however can be addressed by having the ITO edited by blacking out the names of those officers. [ 29 ] The sealing order is therefore varied to provide that the names of the subject officers be blacked out to protect their identities. Otherwise the ITO must be made available for public access. ____________________________________ The Honourable Judge P. D. Gulbransen Provincial Court of British Columbia