CTV v. Attorney General of Canada Date:, 2015 BCPC 65

Citation: CTV v.

Attorney General of Canada Date: 20150319 2015 BCPC 0065 File No: 92614-3 Registry: Port Coquitlam IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF APPLICATION PURSUANT TO SECTIONS 487.015 OF THE CRIMINAL CODE AND IN THE MATTER OF AN ACCIDENT INVOLVING BODILY HARM OR DEATH BY THE ACCUSED, IRWIN RICHARD FRANZ, IN THE CITY OF PORT COQUITLAM, BC ON OR ABOUT 10 SEPTEMBER 2013 IN THE PROVINCE OF BRITISH COLUMBIA BETWEEN CTV, A DIVISION OF BELL MEDIA Applicant and ATTORNEY GENERAL OF CANADA Respondent REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE CRAIG These Reasons for Judgment were corrected by a Corrigendum issued March 30, 2015.

The text of the Corrigendum is appended at the end of these Reasons for Judgment.

Counsel for the Applicant: David A. Crerar Counsel for the Respondent: Keitha Elvin-Jensen Place of Hearing: Port Coquitlam , B.C. Date of Hearing: January 13, 2015 Date of Judgment: March 19, 2015 Introduction [ 1 ] On September 10, 2013, Annie Leung was struck by a motor vehicle as she was crossing a marked crosswalk at the intersection of Mary Hill Road and Pitt Road in Port Coquitlam. The driver of the vehicle that struck Ms. Leung did not remain at the scene. Ms.

Leung later died in the hospital from the injuries sustained. [ 2 ] Through witness information and surveillance video, Coquitlam RCMP were able to identify the vehicle involved in the accident. The driver of the vehicle was identified as Irwin Richard Franz. He ultimately admitted to being involved in the accident in a statement to the police. On July 23, 2014, Mr. Franz was charged with failure to stop at the scene of an accident causing bodily harm or death, contrary to section 252(1.3) (

b) of the Criminal Code . [ 3 ] After police announced on July 24, 2014 that a charge had been laid against Mr. Franz, a number of reporters from the media descended on Mr. Franz’s house. Lisa Rossington, a reporter for CTV, a Division of Bell Media (“CTV”), was first to arrive at the residence and proceeded to conduct an on-camera interview of Mr. Franz. Shortly after Ms. Rossington’s arrival, a CBC news crew arrived and also filmed the interview of Mr. Franz. In the interview, Mr. Franz provided his version of the accident to the reporters.

He gave details of how the accident occurred, denied that it was his fault, and explained why he had not remained at the scene. [ 4 ] Portions of the interview with Mr. Franz were broadcast on television and posted on websites by CTV and CBC news. Mr. Franz was also interviewed by a number of other media organizations, including Global News and the Province newspaper, who also broadcast and published accounts of their interviews. [ 5 ] Constable Ip, an investigator with Coquitlam RCMP, became aware of the interviews of Mr. Franz.

He applied for, and ultimately obtained, production orders directed to CTV, Global and CBC of all original materials, including video recordings, audio recordings and reporter’s notes created during the interviews of Mr. Franz on July 24, 2014. CBC and Global both complied with the orders and provided Cst. Ip with the video recordings of the interviews. [ 6 ] CTV declined to produce the material sought in the production order and has applied for an exemption pursuant to

section 487.015 of the Criminal Code . Legislation [ 7 ] The relevant legislation reads as follows: 487.015

(1) A person named in an order made under

section 487.012 and a financial institution, person or entity named in an order made under

section 487.013 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. … Exemption

(4) The judge may grant the exemption if satisfied that (

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.

Issues [8] CTV relies on s. 487.015(4)(

a) and (

b) as grounds for the exemption. It is accepted that (

c) has no application since thematerial sought is in the control of the applicant. As a result, the issues the court must decide are whether the applicant has proven on abalance of probabilities that: (

a) an order for release of the material would disclose information that is privileged or otherwise protected from disclosure by law; or (

b) it would be unreasonable to require the applicant to provide the material. [9] Before dealing with the issues specifically, it is important to recognize the context in which the exemption is sought. CTVrelies upon the special role of the media in society as the underlying basis for an exemption. There is no dispute that the media plays animportant role in disseminating information to the public and thereby fostering freedom of expression as enshrined in

section 2(

b) of theCanadian Charter of Rights and Freedoms. It is clear that the media should not be used as an investigative arm of the police: CBC v.Lessard (SCC), [1991] 3 SCR 421 at 432 and Thompson Reuters Canada Ltd. v. The Queen, 2013 ONCJ 586 at para.13. [10] The applicant places significant reliance upon the Thompson Reuters decision, with emphasis on the following paragraph: 18 One of the issues raised in the case at bar is whether the exemptions should be interpreted in a manner that recognizes the specialposition of the media in our society. In my view they must be considered through this lens.

As was noted by Binnie J. in R. v. NationalPost, 2010 SCC 16 , [2010] S.C.J. No. 16 "It is important, therefore, to strike the balance between two public interests -- thepublic interest in the suppression of crime and the public interest in the free flow of accurate and pertinent information. Civil societyrequires the former. Democratic institutions and social justice will suffer without the latter".

The only way to give full force and effect tothis sentiment is to balance in the privacy needs of the media when interpreting the exemption provisions. [11] The Thompson Reuters decision also points out, however, that the court’s consideration of whether an exemption should beordered is different from the consideration required by the court in reviewing a production order. 17 It is important to note at the outset that there is a substantial difference between quashing a production order and making afinding that the subject of the Order is exempt from complying with it.

A review of the order requires the Court to assess whether or notthe law has been complied with, in order to determine if the Order was properly issued. A determination as to whether a party is exemptfrom complying with a production order starts with the assumption that the Order itself is valid, but that for one of the articulated reasonsthe Applicant is exempt from complying with its terms. [12] The parties agree that the proper process with respect to the challenge of a production order is as set out in The Vancouver Sunv. British Columbia 2011 BCSC 1736.

The first step in a challenge is an application for an exemption. This application is heard by thejudge who issued the order, or a judge of the same division, in this case the Provincial Court. On the other hand, a party seeking toquash a production order for not having been properly issued must proceed by way of review before a superior court. As such, this courthas no jurisdiction to engage in a review of the order, but is limited to a consideration of whether the applicant has satisfied the court thatit should be exempted from complying with the order for one of the reasons articulated in s. 487.015(4). A.

Is the Material Protected from Disclosure By Law? [13]

Section 487.015(4)(

a) provides that a court may grant an exemption where compliance with the production order would lead tothe disclosure of information that is “privileged or otherwise protected from disclosure by law”.

The applicant does not assert that anyprivilege attaches to the material, but instead relies upon the latter phrase, arguing that the material is “otherwise protected fromdisclosure by law”. [14] Despite agreeing that there is no general “journalism privilege”, and agreeing that the material would not qualify as privilegedunder a case-by-case assessment in accordance with the Wigmore criteria, the applicant argues nevertheless that “confidential and privatecommunications carried out by journalists” are protected from disclosure by law and may only be disclosed in “extraordinarycircumstances” where: (

a) such disclosure is necessary, and (

b) the societal interest in forcing a journalist to provide that information outweighs the harm to the media, and society generally, inforcing its production under penalty of law. [15] I have a number of difficulties accepting this argument.

First, although the applicant claims to not be relying upon anyprivilege, the applicant appears to be attempting to create an expanded definition of privilege over communications carried out byjournalists, without any authority to support this wider application. [16] It is true that Justice Green suggested in Thompson Reuters that an expanded definition of privilege may be applied indetermining an exemption application, to take into account the special role of the media (at para. 25). She also held that the phrase

“otherwise protected by law” had broader application than cases where privilege is asserted. Green, J. did not define what she consideredthe full scope of the phrase, but stated it would include information that is protected from disclosure by statute or the common law. Shedid not, however, expand the definition to the extent that has been suggested by the applicant.

Rather, she applied the criteria set out inthe Wigmore test, while taking into account the special relationship between the reporter, as a professional journalist, and his source. [17] This was consistent with the recognition by the Supreme Court of Canada in R. v. National Post, [2010] SCC 16 that somecommunications between journalists and their sources may be covered by a “case-by-case” privilege. Writing for the majority, Binnie J.noted the expanding role of investigative journalism in providing valuable information to the public and the need to protect the media’srole in ensuring freedom of expression.

These interests must be balanced with the public interest in the administration of justice and theinvestigation of crime. Binnie, J. approved of the Wigmore test for a “case-by-case” privilege as a means of balancing these interests: [55] … Professor Wigmore’s criteria provide a workable structure within which to assess, in light of society’s evolving values, thesometimes-competing interests of free expression and the administration of justice and other values that promote the public interest.

Thiswill provide the necessary flexibility and an opportunity for growth that is essential to the proper function of the common law. [18] In Thompson Reuters, Green, J. held that, even when the broader approach to privilege was applied, the communication at issuein that case was not the type of communication that was intended to be private or protected. On the contrary, the evidence showed thestatement by the reportee was an exculpatory statement meant to garner public support. [19] I would say the same is true with respect to the communication in this case. The evidence shows that Ms. Rossington arrived atMr.

Franz’s doorstep with the camera rolling, clearly for the purpose of public broadcast. Mr. Franz, who would have known full wellthis purpose, chose to take the opportunity to convey his side of the story to the public. There was nothing in these circumstances whichwould suggest any reasonable expectation of privacy. This communication would not survive scrutiny of even the first step in theWigmore test, since it did not originate in confidence, nor was there any expectation that the identity of the informant would not bedisclosed. [20] In argument, the applicant recognizes that Mr.

Franz was not a confidential source, but claims that the unaired portion of theinterview was “private and contains confidential statements of the CTV journalist that reveal her private and proprietary interviewtechniques”. He cites the following paragraph from the decision of La Forest J. in CBC v. Lessard (SCC), [1991] 3 SCR421: 5 In my view, the threat to the freedom of the press that would result from unrestrained searches of certain journalistic material goesbeyond the merely speculative.

I would draw a line, however, between films and photographs of an event and items such as a reporter'spersonal notes, recordings of interviews and source "contact lists". In both this case and the companion New Brunswick case, CanadianBroadcasting Corp. v.

New Brunswick (Attorney General), (SCC), [1991] 3 S.C.R. 459, the only materials seized werevideotapes and photographs of the demonstration. [21] To properly understand these comments, one must also read the paragraph that follows: 6 I find the CBC's argument that there will be a "chilling effect" on newsgathering unpersuasive, in so far as that argument pertainsto films and photographs taken of an event. I think the chill is already there. Absent a promise of confidentiality, no one can reasonablybelieve that there is no danger of identification when he is being captured on film by the press.

When the press is covering an eventunder circumstances such as those in the present case, the very reason for the presence of cameramen is to take film and photographs forthe purpose of broadcasting. While not all of the photographs will get published, there is a very real possibility that someone whocommits a crime in front of the camera will find himself on the evening news or on the front page of a newspaper.

The situation might bedifferent if the press had made an undertaking to edit the film so that no identities would be revealed, or had promised confidentiality.Absent such a promise, however, it should be apparent that a photograph of a demonstrator "caught in the act" of vandalizing a postoffice or factory is precisely the sort of "newsworthy" item that is likely to make it into the paper. [22] In this case, this passage is applicable, not just to the statements made by Mr. Franz, but also to the statements of the CTVjournalist. In the affidavit filed in these proceedings, Ms.

Rossington discloses that when she arrived at Mr. Franz’s house she conducteda camera interview of him. She states that a CBC news crew also arrived at the house and stood beside her crew during most of herinterview. She goes on to state that, since CBC provided its full raw footage of its interview to the police, “I believe that the policealready have full raw footage of the CTV interview as well, on that CBC footage”. Ms.

Rossington then states that she does not want thepolice to listen to her statements, observations or opinions that are contained in the CTV raw footage because they contain “confidential,private, proprietary, and professional techniques and information”. [23] The affidavit of Ethan Faber, the Managing Editor and Assistant News Director for CTV, contains similar statements.

He statesthat a CBC crew was standing right next to the CTV reporter and cameraperson in the interview captured on the CTV raw footage. [24] The material sought in the production order in this case is not of the personal nature as described by La Forest, J. in the passageabove. It does not contain the personal notes, private interviews, or contact sheets of Ms. Rossington. Rather, it is the unaired rawfootage of the on-camera interview. I recognize there is a distinction between camera footage of a crime in progress and footage of aconfession to the crime by a suspect.

But the purpose underlying the recording must be taken into account. Clearly the purpose of theinterview, including the questions and statements of Ms. Rossington, was for public broadcast. [25] In these circumstances, I do not believe that Ms. Rossington had any reasonable expectation of privacy or confidentiality in hercomments during the interview. In my view, this is not the type of communication that is protected from disclosure in the jurisprudence.

The applicant has not provided any authority that supports a protection of interview techniques of a journalist when they are conductedon camera and in the open public for the purpose of broadcast in the media. [26] A further difficulty I have with CTV’s argument that the material is “protected from disclosure by law”, is that it is premisedupon factors that are more properly taken into account in a judicial review of a production order, as opposed to in an exemptionapplication.

With the exception of the Thompson Reuters decision, the authorities relied upon by CTV were in the context ofapplications to quash search warrants or production orders. In its argument, CTV is attempting to have the court import these factors intoan application for an exemption. The argument amounts to a claim that, once the special role of the media and the availability ofalternate sources are taken into account, the production order ought not to be given effect. As noted previously, this Court does not havejurisdiction to review the production order. That is done in Supreme Court: Vancouver Sun v.

British Columbia and CTV v. IIO 2013BCPC 252 , 2013 BCPC 0252 at paragraph 11. [27] As a result, the applicant has not shown that disclosure of the CTV raw footage is privileged or otherwise protected fromdisclosure by law as required in

section 487.015(4)(

a) and an exemption under this subsection would not be appropriate. B. Would it be Unreasonable to Require the Applicant to Provide the Material? [28] CTV also relies upon

section 487.015(4)(

b) of the Criminal Code, arguing that it would be unreasonable to require the applicantto produce the material sought in the production order. This

section was considered by the Supreme Court of Canada in Tele-Mobile Co.v. Ontario, 2008 SCC 12 , [2008] 1 SCR 305. Writing for the Court, Abella, J. confirmed the general “moral” and “social” dutyof members of the public to cooperate with the police in the maintenance of law and order, as set out by Dickson, C.J. in Dedman v. TheQueen, (SCC), [1985] 2 S.C.R. 2, at paragraph 50. That duty, however, does not give the state absolute licence. Theexemption scheme in

section 487.015 allows for relief from compliance with production orders, when compliance would beunreasonable. [29] Abella, J. noted that the determination of what was reasonable or not was a flexible standard, depending on the context of thecase: [67] …What is reasonable will be informed by a variety of factors, including the breadth of the order being sought, the size andeconomic viability of the object of the order, and the extent of the order’s financial impact on the party from whom production issought.

Where the party is a repeated target of production orders, the cumulative impact of multiple orders may also be relevant. [30] It is important to note under this subsection that a court is determining whether forcing compliance with the order would beunreasonable. This relates to the ability of the agency to comply with the order. It does not allow for exemption from a productionorder which was unreasonably made. As noted previously, issues related to whether the order ought to have been made in the first placeare issues for the Supreme Court on an application for review: See Vancouver Sun v.

British Columbia, at para. 22-23, CTV v. IIO atpara. 11 and Thompson Reuters at para. 36. [31] CTV submits that it would be unreasonable to require it to produce the material sought for the following reasons: (

a) The material is not relevant or necessary; (

b) It would impose significant and logistical cost burdens on CTV; (

c) Compliance with the order would lead to a perception that the media is being used to gather evidence for the police, since CTV andother media organizations are facing an increasing amount of production orders from the police; (

d) CTV’s reputation and ability to conduct interviews and gather news is damaged by ordering it to comply with the order; and (

e) The material sought contains confidential statements of the CTV journalist, revealing her private and proprietary interview techniques. [32] I have addressed CTV’s claim to confidentiality of the material in the earlier

section and do not need to repeat my findings here. It is sufficient to say that I do not find this to be a basis for finding that it would be unreasonable to expect CTV to comply with theproduction order. I will address the remaining matters in turn. Relevance and Necessity [33] CTV claims that the material sought in the production order is neither relevant nor necessary. It is argued that, since the policehave already obtained copies of interviews of Mr.

Franz from other organizations, and he has provided a confession to the police, and hehas been charged with the offence, the material is not necessary for the police to obtain. [34] In my view, this argument relates to the issue of whether the production order ought to have been issued in the first place. It isnot a matter that is properly considered in an exemption application: See Vancouver Sun v. British Columbia and CTV v.

IIO2013 BCPC252 , 2013 BCPC 0252 at paragraph 11. [35] In addition, even if this was a proper factor for consideration in an exemption application, I do not agree that the material isirrelevant and unnecessary. It was clear from the evidence filed and the submissions made that there may be information in the CTV rawfootage of the interview of Mr. Franz that was not captured by any of the other media organizations, or otherwise disclosed to the police. This was noted in the Information to Obtain the Production Order filed by Constable Ip and confirmed in the affidavit of Ms. Rossington.

Logistical and Cost Burdens [36] There was no evidence of any significant logistical or financial burden imposed on the applicant to comply with the production

order issued. CTV is simply required to make a copy of the interview of Mr. Franz and any related material produced during the interview. This does not impose an unreasonable burden. [ 37 ] CTV’s argument is directed at the burden of production orders generally on “CTV and other newsrooms”. The affidavit of Ethan Faber refers to the need for editors and journalists to review notes and materials to consider whether the request and demand is inappropriate or overly broad, consult with legal counsel and provide affidavits.

In addition, CTV is required to incur significant legal costs to assess the appropriateness of the order and to challenge orders. It is said this amounts to an unreasonable logistical and financial burden. [ 38 ] This evidence is not, in my view, what a court must take into account in determining whether it would be unreasonable to expect CTV to comply with the production order under s. 487.015(4) (b). The evidence is directed, for the most part, on the burden the applicant assumes when applying for an exemption from compliance with the order, as opposed to the cost of complying with the production order.

While it is entirely within the applicant’s right to seek an exemption from compliance, it is not, in my view, logical for the applicant to then complain that the basis for the exemption is the logistical and financial burden incurred when applying for an exemption. The issue at an exemption hearing is what burden is imposed on the applicant in complying with the production order. [ 39 ] In addition, even if the court were to take into account the logistics and costs incurred by the applicant in seeking an exemption from a production order, I do not believe this is an unreasonable burden. Mr.

Faber deposed that CTV had been served with four production orders from November 2012 to December 2014. Each time, CTV incurred costs and resources to consider the orders. [ 40 ] In contrast to the evidence in this case, in Tele Mobile v. Ontario , the applicant, Telus Mobility complained of substantial costs when it was called upon repeatedly to provide customer information to the police. In 2004 alone, it had responded to 2,823 warrants seeking customer records. The estimated costs for compliance with production orders was between $400,000 and $600,000 per year. [ 41 ] The trial judge in Tele Mobile v.

Ontario found that the applicant had not made out a proper basis for an exemption. In his reasons for judgment, he noted that the nature of the applicant’s business was one of the underlying considerations in determining whether an exemption was appropriate. He held that the applicant “would have or should have been aware that the nature of its business leaves it open for production orders or like procedures” (quoted at para. 69 of SCC decision).

Abella J. saw no basis for interfering with this conclusion (para. 70). [ 42 ] I recognize that, in the case before me, the applicant, as a media organization, has a more protected constitutional and societal role than that of a telecommunications company. It is, nevertheless, not unreasonable for the media to expect that the police will have an interest in material obtained by the media that relates to a criminal offence. Because of that expectation, journalists have adopted practices and procedures to enable them to maintain the privacy and confidentiality of information they gather.

However, the information at issue in the case as bar was not of that nature. None of these practices were engaged by the reporter in this case. Similar to the circumstances in the Lessard case, “the very reason for the presence of cameramen [was] to take film and photographs for the purpose of broadcasting” (from para. 6 of Lessard quoted earlier).

Increased Use of Production Orders on the Media & Harm to CTV’s Reputation [ 43 ] As earlier noted, I believe many of the arguments raised by the applicant that focus on the special role of the media are matters that relate to the issue of whether the production order ought to have been issued in the first place. They do not relate to the question of whether forcing compliance with the production order in this case would be unreasonable.

Arguments about the increasing use of the media to gather evidence, the chilling effect of production orders, and the hindrance on the media’s abilities are all matters that must be taken into account by the judge when exercising his or her discretion in determining whether to issue the order. Questioning whether these factors were properly taken into account is something that ought to be raised at a review hearing in Supreme Court to determine whether it was reasonable for the judge to have issued the production order. Similar arguments were rejected in Vancouver Sun v. British Columbia , CTV v.

IIO , and Thompson Reuters for not being proper considerations in an exemption application. [ 44 ] However, even if these matters were proper considerations at an exemption application, they do not, in my view, demonstrate that it would be unreasonable for CTV to comply with the production order in this case. [ 45 ] In his affidavit, Ethan Faber deposed that the police were using production orders on an increasing basis as a means of relying on news organizations to gather evidence for them. The applicant relied upon the fact that CTV had been issued four production orders for information in a two year period.

In addition, Mr. Faber was informed that CBC Vancouver had been served with two production orders since 2012. It was argued that this is another indication that it would be unreasonable to order CTV to comply with the production order. [ 46 ] I do not believe that the production order in this case can be properly characterized as the police using CTV to gather evidence on its behalf. This was not a case of the investigators knowing Mr. Franz was going to give an interview, but choosing not to attend knowing they could rely upon the media to gather the information, as was the case in CBC v.

Manitoba (Attorney General) 2009 MBCA 122 . In fact, it was clear from Cst. Ip`s affidavit that he learned of the press interviews of Mr. Franz only after portions of the interviews were broadcast on television and the internet. After reviewing the broadcasts, Constable Ip believed there was information in the CTV footage that was relevant to the police investigation. It was in this context that he applied for the production order. It was not a situation of Cst.

Ip expecting the media to gather evidence from the police, but a situation of the police gathering evidence already obtained by the media for its own purposes. [ 47 ] In addition, on the evidence before me, I do not believe it could be said that four production orders on one media organization and two on another imposes an unreasonable burden on the media. [ 48 ] I also do not believe that production orders of the nature involved in this case harm the reputation of the media, or have any chilling effect of the ability of the media to perform its role in society.

There was no expectation of privacy or confidentiality in the circumstances of the interview of Mr. Franz. The reasons of Cory, J. in CBC v. Lessard apply with equal force to the circumstances of this case:

53 … 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. [ 49 ] As a result, the applicant has not shown that it would be unreasonable to require CTV to produce the material sought in the production order. Conclusion [ 50 ] For the foregoing reasons, the application for an exemption under

section 487.015(4)(

a) and (

b) is dismissed. ____________________________ The Honourable Judge B. Craig Provincial Court of British Columbia CORRIGENDUM - Released March 30, 2015 [1] In my Reasons for Judgment dated March 19, 2015, the Respondent on the Style of Cause page should be “ATTORNEY GENERAL OF CANADA”. [2] Further, the header should read as “CTV v. Attorney General of Canada”. [3] My Reasons for Judgment are amended accordingly and the corrected Reasons for Judgment are filed with this Corrigendum.