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IN THE SUPREME COURT OF BRITISH COLUMBIA

Citation: The Vancouver Sun v. British Columbia, 2011 BCSC 1736

Date: 20111216 Docket: S117688

Registry: Vancouver

Between:

The Vancouver Sun, a Division of Postmedia Network Inc., The Province, a Division of Postmedia Network Inc., Global Television, a Division of Shaw

Media Inc., Canadian Broadcasting Corporation, The Globe and Mail, a Division of Bell Media Inc. and CTV Television, a Division of Bell Media Inc.

Petitioners

And

Her Majesty the Queen in Right of British Columbia, Judicial Justice Joseph Chellappan and the City of Vancouver

Respondents

Before: The Honourable Mr. Justice Harris

On Judicial Review of an Order granted from: British Columbia Provincial Court, September 23, 2011, Docket #V0804-2011

Reasons for Judgment

Counsel for the Petitioners: Daniel W. Burnett

Counsel for the Respondent City of Vancouver:

Bronson Toy

Place and Date of Hearing: Vancouver, B.C. December 7 and 8, 2011

Place and Date of Judgment: Vancouver, B.C. December 16, 2011

The Vancouver Sun v. British Columbia

Introduction

[1] The petitioners are six media organizations who seek orders exempting them

from the requirement to produce documents, data or information referred to in six

production orders issued on September 23, 2011 by Judicial Justice J. Chellappan

of the British Columbia Provincial Court. In the alternative, the petitioners seek to

have the orders quashed.

[2] The orders were issued in connection with the police investigation of offences

committed during the course of the Stanley Cup riot which erupted on the evening of

June 15, 2011 when the Vancouver Canucks lost game seven of the Stanley Cup

final to the Boston Bruins.

[3] Each production order is directed to a particular news organization. Each is in

substantially identical terms. Each requires production of digital photographs and/or

digital video files and analogue video taken between 4:00 p.m., June 15, 2011 and

12:30 a.m., June 16, 2011 in the area bound by Thurlow Street, West Hastings

Street, Nelson Street and Pacific Boulevard.

[4] The application for the production orders was supported by an information to

obtain (“ITO”) which alleged that there were reasonable grounds for believing that

the data sought will afford evidence in respect of a number of offences committed in

connection with the riot.

[5] Mr. Burnett, on behalf of the media organizations, conceded at the outset of

the application that valid production orders could be issued in connection with the

police investigation of the riot, but argued that these particular orders were invalid on

multiple grounds and, accordingly, the media should be exempted from compliance

with them or they should be quashed. Mr. Burnett conceded rightly, therefore, that

there is no blanket protection from production to the police by the media of video

recordings and photographs that will afford evidence in respect of the commission of

offences. It is clear that much, but not all, of what is required to be produced records

the commission of offences during the riot.


[6] Mr. Burnett also acknowledged the test I must apply in deciding whether the

production orders should be quashed on an application for the extraordinary remedy

of certiorari. The scope of judicial review of the production orders is narrow. A

reviewing judge does not engage in a de novo analysis nor is he or she permitted to

substitute his or her own opinion in place of the opinion of the issuing judge. The test

is whether there was evidence upon which the issuing justice could

[7] In this case, Mr. Burnett argues that the orders are too broad, both in terms of

time and place, to satisfy the statutory requirement that the photographs and video

footage sought will afford evidence in respect of the commission of offences. The riot

did not begin until the end of the game, at about 7:40 p.m., and was over by about

11:50 p.m. Moreover, he contends, the riot took place in a relatively confined area

and did not spread throughout the entire area covered by the orders. He submits too

that the ITO did not make full and proper disclosure of critical matters the issuing

judicial justice should have considered. The ITO was, therefore, misleading, albeit

unintentionally. Specifically, the judicial justice was provided with case law (a

decision of Chief Justice Esson dealing with search warrants issued after the 1994

Stanley Cup riot) that is no longer good law, especially insofar as it dealt with the

importance of alternative sources of evidence available to the police. By not

providing the correct law, the issuing justice has, in substance, sanctioned the police

abdicating their responsibility to investigate offences and gather evidence to the

media, thereby turning them into an arm of the state.

determine that a

production order should be issued. It is not for the reviewing judge to weigh the

evidence or decide whether the issuing judge should have been satisfied by the ITO.

In the context of production orders against the media, this analysis must take into

account not only the statutory preconditions set out in the Criminal Code, but also

factors relevant to the status and role of the media in a democratic society.

[8] For the reasons that follow, I am compelled to reject these principal

arguments. Essentially, the same arguments about over breadth were considered

and rejected by Mr. Justice Moldaver (as he then was) in upholding a search warrant

issued in connection with riots in Toronto on May 4, 1992. Critical aspects of that


case were approved by Chief Justice Esson in the 1994 Stanley Cup riot case. That

decision, which I have concluded continues to be an accurate statement of the law,

was before the judicial justice when he issued these orders. In my view, given the

evidence in the information to obtain, this is sufficient to establish that the judicial

justice, acting judicially, could be satisfied that there were reasonable grounds to

believe that the material to be produced will afford evidence with respect to the

specific offences identified in the ITO. I am satisfied, moreover, that the ITO was not

misleading in ways that affect the validity of the production orders. Most particularly,

the issue of the availability of alternative sources is extensively canvassed. The

issuing justice had before him the evidence necessary to take into consideration

those factors relating to the status of the media and to exercise his discretion

accordingly. As a reviewing judge, I am not entitled to substitute my view of what

would be an appropriate exercise of discretion for his.

[9] This is not, however, the end of the matter. There are two deficiencies in the

production orders which I have concluded need to be addressed. First, the

production orders do not describe a closed area. This creates an unacceptable

uncertainty about what is required to comply with the order. Second, the production

order incorrectly describes the targets who have to comply with it. These

deficiencies should be corrected.

[10] I turn now to address certain preliminary and procedural matters before

considering the substantive issues argued before me.

Procedural Issues

[11] There are two types of applications before me. First, each petitioner applies

for an exemption from compliance with the production order to which it is subject.

Second, each petitioner applies for judicial review under the Judicial Review Procedure Act, RSBC 1996, c. 241 to quash the order. There are procedural

problems with both sets of applications, although it is agreed that nevertheless I

should determine them on their merits.


The exemption applications

[12] The key statutory provisions governing production orders are found in

ss. 487.012 and 487.015 of the Criminal Code, the relevant portions of which read

as follows:

Production order

487.012 (1) A justice or judge may order a person, other than a person under investigation for an offence referred to in paragraph (3)(a),

(a) to produce documents, or copies of them certified by affidavit to be true copies, or to produce data; or

(b) to prepare a document based on documents or data already in existence and produce it.

. . . . .

Conditions for issuance of order

(3) Before making an order, the justice or judge must be satisfied, on the basis of an ex parte application containing information on oath in writing, that there are reasonable grounds to believe that

(a) an offence against this Act or any other Act of Parliament has been or is suspected to have been committed;

(b) the documents or data will afford evidence respecting the commission of the offence; and

(c) the person who is subject to the order has possession or control of the documents or data.

. . . . .

Power to revoke, renew or vary order

(5) The justice or judge who made the order, or a judge of the same territorial division, may revoke, renew or vary the order on an ex parte application made by the peace officer or public officer named in the order.

. . . . .

Application for exemption

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

Exemption

, for an exemption from the requirement to produce any document, data or information referred to in the order. (Emphasis added)

(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.

[Emphasis added]

[13] At the beginning of the application I asked whether I, as a judge of the

Supreme Court, had the jurisdiction to hear an exemption application because it was

not obvious to me that I was “a judge of the same territorial division as the judge or

justice who issued the order”.

[14] Both counsel agreed that I did have the statutory jurisdiction to hear the

matter. Mr. Toy advised me that it was the considered position of the Crown that I

did have jurisdiction to decide an exemption application in respect of a production

order issued by the Provincial Court of British Columbia, but that the preferred

practice was that in the ordinary course such an application should be made to the

judge who made the original order or, failing that, another judge of that court. He

asked that I make it clear in my reasons that I am not endorsing a practice of

bringing an application for exemptions from a production order in the superior court

at the same time as an application to quash the original order for jurisdictional error,

and that by proceeding to hear this matter I was not setting a precedent.

[15] The word “judge” is not defined in s. 2 of the Criminal Code nor is it defined

for the purpose of Part XV of the Criminal Code. In other parts of the Criminal Code

the word “judge” is defined to mean a “judge of the superior court of criminal

jurisdiction of the province”. “Territorial division” is defined in s. 2. It includes “any

province …or other judicial division or place to which the context applies”.

[16] Given the broad definition of “territorial division”, I accept that I do have the

statutory jurisdiction to decide the exemption applications. I agree, however, with the

following observations of the Manitoba Court of Appeal in Canadian Broadcasting Corp. v. Manitoba, 2009 MBCA 122, beginning at para. 80:


80 Should CBC and CTV here have applied first to the authorizing judge for an exemption rather than having proceeded immediately with an application for certiorari quashing the production orders? Is their application premature, and if so, what is the impact in this case?

81 There are very few cases that have addressed this issue, especially in a case dealing with production orders. Caution should be exercised when looking to cases involving search warrants since there is no equivalent exemption section. The British Columbia Court of Appeal has noted that a party should not resort to an extraordinary remedy such as certiorari where the statute provides that the applicant may return to the judge who issued the order to request an amendment. Thus, in Angel Acres Recreation & Festival Property, the court held that it lacked jurisdiction to entertain the appeal.

82 It seems to me that there is a difference between arguing that a production order is unreasonable because the material is privileged or is not in the possession of the third party and arguing that there were insufficient grounds for issuing the orders at all. In the former, the section provides for an application for an exemption in front of the authorizing judge. In the latter, the Criminal Code provides for a review for jurisdictional error in front of a superior court. However, it must be remembered that, although the search warrant jurisprudence would appear to support the procedure adopted by the media outlets in this case, exemptions are not available to the targets of search warrants. Given the ability of the media outlets to apply for an exemption, it might be that Parliament intended that targets of production orders should have the onus of applying for an exemption and only then, if the target was denied such relief, apply for an extraordinary remedy to a superior court.

83 This matter has been argued on its merits before three levels of court at this point and should be resolved on its merits. I leave for another day the question as to whether a third party subject to a production order should be required to exhaust their remedies by first applying for an exemption before the authorizing judge pursuant to s. 487.015 and only then, if not satisfied, to apply to a superior court for the extraordinary remedy of certiorari. An appeal from that decision could then be taken pursuant to s. 784(1) of the Criminal Code. See R. v. Jobin, [1995] 2 S.C.R. 78. Section 784 provides for an appeal from a decision granting or refusing the relief sought in proceedings taken by way of one of the extraordinary remedies identified in s. 774. See also, Canadian Broadcasting Corp. v. Newfoundland and Labrador, at paras. 15-16.

[17] In this case, given the agreement of the parties to have these issues resolved

expeditiously, I accede to their request that I decide the exemption applications.

Having done that, the jurisdictional foundation is laid to consider whether the original

issuance of the orders involved jurisdictional error and whether they should be

quashed. The fact that I have agreed, with some reluctance, to proceed in this way

should not be taken as endorsing such an approach as a matter of practice. There is


a strong argument that Parliament did intend an applicant to exhaust available

remedies before the issuing judge or court before seeking review for jurisdictional

error. Combining the two matters in one hearing is fraught with risk. One need only

ask how a reviewing judge should deal with the issue of jurisdictional error if he or

she had amended or partially exempted the target of the order.

[18] In response to Mr. Toy’s request, the fact that I am dealing with these matters

does not endorse bringing an exemption application for an order granted by the

Provincial Court in the Supreme Court and I am not setting a precedent by doing so.

The Judicial Review Procedure Act

[19] I agree with the respondent that this application should be treated as an

application for an Extraordinary Remedy under Part XXVI of the Criminal Code (see

ss. 774-784) and the Criminal Rules of the Supreme Court of British Columbia,

Rules 1, 2 and 4. This matter is not properly brought, and I am not dealing with it, as

an application for judicial review under the Judicial Review Procedure Act.

Should the petitioners be exempted from complying with the production orders?

[20] The applications to be exempted from the requirement to produce

photographs and video is based on s. 487.015(4)(b) which reads:

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

(b) it is unreasonable to require the applicant to produce the document, data or information.

[21] The petitioners contend that the same considerations which inform whether

the original production orders ought to have issued are to be used to assess whether

it is unreasonable to require compliance with the order. In this instance, those

factors are that the production orders are “premature, overly broad and capture vast

amounts of material not relevant to any crime; that they fail to account for the special

position of journalists requiring proof of true necessity and absence of alternate

sources”.


[22] I am unable to accept this submission. The exemption provision is part of a

statutory scheme which begins with the ex parte issuance of an order. The scheme

also includes provisions for revoking, renewing and varying the order. As the

Supreme Court of Canada noted in Tele-Mobile Co. v. Ontario, 2008 SCC 12 at

para. 47, this is not a procedure amenable to an assessment of the cost and burden

of compliance with the order at the time it is issued. The public have civic

responsibilities to assist in maintaining law and order, but “that duty does not,

however, give the state a licence to abusively exploit the public’s civic

responsibilities. That is why the scheme for production orders includes relief in the

form of an exemption where compliance would be “unreasonable” (at para. 52). In

the view of the Supreme Court of Canada, the purpose of the exemption provision is

to provide a remedy “when a judge is satisfied that the burden of compliance is

unreasonable” (at para. 62). The theme that “unreasonableness” relates to the

burden of compliance on the target of the order is reinforced at para. 67 of the

judgment.

[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 a

production order and whether the position of the press and the availability of the

alternative sources were properly disclosed or considered when the production

orders were first issued. These factors are relevant to whether the issuing justice

committed a jurisdictional error in issuing the orders. That is a different question from

whether the petitioners are entitled to a statutory remedy exempting them from the

operation of an order that is otherwise valid. The availability of the remedy

presumes, in my view, the jurisdictional validity of the order.

[24] Had Parliament intended to import into the criteria of “unreasonableness”, for

the purposes of an exemption order, all of the factors that go into an analysis of

whether issuing an order in the first place reasonably took into account all of the

statutory conditions for issuing orders and the factors bearing on the exercise of


discretion, one would have expected a clear statement of that intent. I can find no

such intent in the scheme.

[25] The petitioners did not provide evidence of the financial cost of compliance or

the amount of time that it would take to comply or any other burdens of compliance.

The petitioners have not discharged their acknowledged onus to demonstrate that

complying with the production orders imposes an unreasonable burden on them.

[26] It is in any event, clear that complying with the production orders does not

place an unreasonable burden on the petitioners. Little more is required than

copying data from the petitioners’ computer storage systems to hard drives provided

by the investigators. The fact that the orders require production of all files of video

footage, for example, shot within a certain area between certain times simplifies and

reduces the burden of compliance. Resources do not have to be devoted to viewing

images to identify whether they relate to particular places or incidents within the

defined area. The editing process is simplified. The petitioners remain in possession

of all the files and images; they merely have to provide copies of them. They remain

able to make whatever use they otherwise would have done with the information.

[27] The petitioners have not satisfied me that it is unreasonable to require them

to produce the materials required by the production orders.

Should the production orders be quashed?

[28] It is common ground that the standard of review applicable to production

orders is the same standard applied to the review of search warrants. The question

is whether, based on the record before the authorizing judge, as amplified on review,

the authorizing judge, acting judicially, could have granted the order. This is the test

from R. v. Garofoli, [1990] 2 S.C.R. 1421, (the “Garofoli” test).

[29] Where production orders are sought against the press or the media, that test

is modified to include special factors that take account of the role of the press or

media in a democratic society. These factors are intended to ensure that a proper

balance is struck that respects the media’s right to gather and disseminate


information and news without improper state intrusion and the public interest in the

investigation and prosecution of crime.

[30] The first series of questions, therefore, relate to whether the statutory

conditions for issuing a production order have been satisfied. It is convenient to set

those conditions out again.

(3) Before making an order, the justice or judge must be satisfied, on the basis of an ex parte application containing information on oath in writing, that there are reasonable grounds to believe that

(a) an offence against this Act or any other Act of Parliament has been or is suspected to have been committed;

(b) the documents or data will afford evidence respecting the commission of the offence; and

(c) the person who is subject to the order has possession or control of the documents or data.

[31] The petitioners contend that given the geographic and temporal breadth of

the orders as well as the lack of specific detail connecting what the media filmed and

where they filmed it, these conditions have not been met. An authorizing judge,

acting judicially, could not have issued the orders.

[32] The second series of questions involves giving consideration to the role of the

media. The leading cases are Canadian Broadcasting Corp. v. Lessard, [1991] 3

S.C.R. 421; and Canadian Broadcasting Corp. v. New Brunswick (Attorney General), [1991] 3 S.C.R. 421. The so-called Lessard factors were summarized by Cory J. at

para. 47 of that decision:

a) It is essential that all the requirements set out in Section 487(1)(b) of the Criminal Code for the issuance of a search warrant be met.

(b) Once the statutory conditions have been met the justice should consider all of the circumstances in determining whether to exercise his or her discretion to issue a warrant.

(c) The justice of the peace should then ensure that a balance is struck between the competing interests of the state in the investigation and prosecution of crimes, and the right to privacy of the media in the course of their news gathering and news dissemination. It must be borne in mind that the media play a vital role in the functioning of a democratic society. Generally speaking, the news media will not be implicated in the crime under investigation; they are truly an innocent third party. This is a particularly


important factor to be considered in attempting to strike an appropriate balance, including the consideration of imposing conditions on the warrant.

(d) The affidavit in support of the application must contain sufficient detail to enable the justice of the peace to properly exercise his or her discretion as to the issuance of a search warrant.

(e) Although it is not a constitutional requirement, the affidavit material should ordinarily disclose whether there are alternative sources from which the information may reasonably be obtained and, if there is an alternative source, that it has been investigated and all reasonable efforts to obtain the information have been exhausted.

(f) If the information sought has been disseminated by the media, in whole or in part, this will be a factor which will favour issuing of the search warrant.

(g) If a justice of the peace determines that a warrant should be issued for the search of media premises, consideration should then be given to the imposition of some conditions on its implementation, so that the media organization will not be unduly impeded in the publishing or dissemination of the news.

(h) If, subsequent to the issuing of the warrant, it comes to light the authorities failed to disclose pertinent information that could well have affected the decision to issue the warrant, this may result in a finding that the warrant was invalid.

(i) Similarly, if the search itself is unreasonably conducted, this may render the search invalid.

[33] Critical questions in these applications are the status of the requirement that

the ITO canvass the issue of alternative sources and whether production orders

should be issued only in circumstances of true necessity or as a last and not a first

resort. These issues are particularly important because the petitioners allege that the

ITO was misleading because it misstated the current law by referring to the decision

of Esson C.J.B.C. in the first Stanley Cup riot. That decision is not good law, they

contend, because it wrongly downplays the true importance of alternative sources

and does not reflect the criteria of “true necessity” and “last resort”.

Were the statutory conditions met?

[34] The petitioners point out that the riot, as it is defined in the ITO, began at 7:43

p.m., some three minutes after the Vancouver Canucks lost game seven of the

Stanley Cup finals. It began with the flipping of a car and continued until 11:50 p.m.

when windows at Simon Fraser University’s downtown campus were smashed. In

the interim, multiple criminal acts occurred that were concentrated around certain


principal locations including Sears, London Drugs and the Bay in the area of West

Georgia Street and Granville Street, and the Bank of Montreal, the Canada Post

building and Easy Park, along a three block stretch of West Georgia Street.

[35] Although the ITO identifies the principal locations of the riot, it also refers to

offences committed at other locations throughout a much larger area of the

downtown core, but not in every place covered by the boundaries of the production

orders or at all times covered by them.

[36] The ITO catalogues offences including participating in a riot, mischief, theft,

robbery, assault, arson, break and enter and disguise with intent. The ITO with

attachments runs to over 100 pages. It states that as of September 21, 2011, 270

criminal offences have been identified and each offence can have between 1 and

300 possible suspects. Over 1,100 suspect names have been provided to the police

and 207 suspects were at that time under active investigation. The ITO states that

because of the large number of incidents which are in the process of being identified

and investigated, the large number of people involved and the large number of tips

being provided to the police, it is not possible to include all of the information about

every incident. As a result, the ITO focuses on the main details concerning the

investigation.

[37] The ITO covers incidents that occurred before the riot, as defined, erupted at

7:43 p.m. By 4:00 p.m. the Live Site on West Georgia Street was near capacity. At

4:45 p.m. people were climbing on roof awnings and lamp standards. At 5:00 p.m.

there were about 25 people on the roof of Canada Post. Between 5:00 p.m. and 6:00

p.m. reports continued to come in of sporadic assaults and a person inciting the

crowd. A group of 4 to 5 men wearing bandannas were seen within the Live Site

crowd. At about 6:00 p.m. a police car was damaged and shortly thereafter two

police officers were assaulted. Before 7:00 p.m., there were reports of persons

damaging signs on buildings, burning a flag, and fighting. After 7:00 p.m., but before

the game ended, there were reports of fights involving significant numbers of

protagonists, fires being started, confrontations, assaults, attempted breaking and


entering and crowds beginning to gather after leaving the Live Site. It is clear that

trouble was brewing well before the full scale riot broke out at 7:43 p.m.

[38] The ITO sets out extensive reasons and facts to provide reasonable grounds

to satisfy the issuing justice that the material to be produced would afford evidence

with respect to the commission of criminal offences. Detail was provided of

Constable Hunter’s belief that the media had captured images of individuals involved

in criminal acts which had not been captured by other sources, or if similar images

were otherwise available, those from the media were of superior quality and more

clearly identify the participants. Importantly, Constable Hunter deposed to the effect

that media images are of greater evidentiary value than other images owing to such

matters as resolution of the images and because the provenance of media images is

more readily established.

[39] In summary, the information sought from the media is said to be evidence in

many instances of the commission of offences, but is also relevant to issue of

identification of those involved in committing offences, even where the image of the

person is captured in a different place from where the offence was committed.

Evidence relevant to identification may either inculpate or exculpate a suspect. Part

of the justification for both the time and geographical limits of the production orders

is that images recorded during that time and in that area may assist in identifying

individuals arriving or departing from the scene of the offences.

[40] Mr. Burnett submits that the ITO fails to establish reasonable grounds that the

material sought would contain evidence of the commission of offences. It is obvious,

however, that many of the images do capture the commission of offences. Published

images show the offences being committed. On the strength of the ITO, it is

apparent that the media organizations have unpublished images of those offences

being committed.

[41] Mr. Burnett's real objection is that the production orders compel production

and images that he says are not evidence of the commission of offences because

they are recorded at unspecified locations within a large area of downtown before


and after the riot. He says that the ITO does not adequately connect the specific

images recorded to the offences committed. His argument is that valid search

warrants or production orders recording images of riotous behaviour always connect

specifics of the recordings to the events that constitute the offences.

[42] Essentially, the same argument was made and rejected in R. v. Canadian Broadcasting Corp. (CBC), 77 C.C.C. (3d) 341 (Ont. Ct. J. (Gen. Div.)). That case

involved riots in Toronto that occurred on May 4, 1992. A demonstration was held

outside the United States Consulate. The demonstration moved around various

locations in downtown Toronto. As it did so, some demonstrators caused some

minor vandalism and began throwing rocks. Some two hours after leaving the

Consulate, at 7:10 p.m., a riot broke out and continued until 11:00 p.m.

[43] A search warrant was issued seeking unpublished videos or photographs

depicting the actions of an out of control crowd of persons between 6:30 p.m. and

midnight in a quadrangle of downtown Toronto defined by the intersection of certain

cross streets. The geographical area encompassed is similar in size, although

somewhat larger, to the area involved in these applications.

[44] Mr. Burnett says that the validity of the search warrant in the Toronto riot case

turned on the fact that the images to be produced were linked to the activity of the

crowd in committing offences. I do not share that view.

[45] The argument advanced to quash the warrant was that the information

contemplated nothing more than a "fishing expedition". Mr. Rosenberg, as he then

was, for the media outlets, argued that the fact that the media had been covering the

riotous conduct did not provide a reasonable basis for believing that they had

possession of any evidence in relation to the specified offences. He submitted that

the information to obtain the warrants was completely devoid of any indication that

the photographers or cameraman took pictures or videos of the commission of any

offence. He argued that there was no indication of the photographing of any

particular location or time or event other than a general disturbance over a period of

several hours across a significant area of downtown Toronto. While by chance the


media might have evidence, this was mere speculation and therefore did not meet

the "reasonable grounds" test.

[46] Mr. Justice Moldaver, as he then was, agreed that the information before him

failed to set out reasonable grounds that the material seized would afford evidence

of persons actually committing the specified offences

The proper interpretation was set out many years ago by Chief Justice McRuer in the case of Re Bell Telephone Company of Canada (1947), 89 C.C.C. 196 (Ont. H.C.). At p. 198, the Chief Justice said:

. Parenthetically, I note, that

that is not the case with the information before me. But Moldaver J. went on to

conclude that this analysis did not accurately reflect the scope of the phrase "will

afford evidence with respect to the commission of an offence". He had this to say:

As I view it, the object and purpose of these sections is to assist the administration of justice by enabling the constable or other properly designated person to go upon the premises indicated for the purpose of procuring things that will in some degree afford evidence of the commission of an alleged crime. It is not necessary that the thing in itself should be evidence of the crime, but it must be something either taken by itself, or in relation to other things, that could be reasonably believed to be evidence of the commission of the crime.

Applying that interpretation to the case at hand, I am satisfied that the information did contain reasonable grounds which could satisfy the issuing judge that the material sought would, not taken by itself but in relation to other things, afford evidence with respect to the commission of at least some of the specified offences. In this regard, it will be remembered that the alleged crimes were committed by persons who made up a portion of the approximate 800 rioters. These crimes occurred at various places within the quadrangle of streets described in the space of about four hours. According to the information, representatives of the applicants were present during the entire period of the rioting. In view of this, I am satisfied that it was open to the issuing judge to believe on reasonable grounds, that some of the photographs or videos would capture at least some of the persons responsible for some of the crimes,

[Emphasis added].

albeit perhaps at locations distant from scene of the actual crime. Many of the victims are of the view that if given the opportunity they would be able to identify the person or persons responsible. In this regard, it is not necessary that the issuing justice or judge be satisfied that identifications will be made but simply that they might be made.

[47] From this, I take it that it was sufficient in that case that unpublished footage

might lead to identification of persons who had committed the specific offences,

even if that footage was recorded at a location distant from the location of the


offence itself. The validity of the search warrant, accordingly, did not turn on the fact

that the information connected the recording of images to specific incidents that

constituted offences. The search warrant encompassed a large area of downtown

Toronto. It was valid because it might support identification of those who committed

the specific offences. This is precisely the situation in the case before me.

[48] It is material that Mr. Justice Moldaver’s judgment in this case was considered

by Chief Justice Esson in the first Stanley Cup riot case in 1994. He said this:

21 While the information set out under oath to the justice of the peace in this case was clearly inadequate, I do not accept the submission of counsel for the petitioners that the standard which must be met in providing detail is that to be found in the information dealt with in H.M.T.Q. v. CBC et al. (1992), 17 C.R. (4th) 198. …

22 The material relied on by the police, in contrast to that in this case, went into staggering detail in setting out the facts as to the 78 separate offences in respect of which the film was sought, and in establishing a link between those offences and the things sought to be seized. A copy of the information and warrant was provided to me as an example of how things should be done. The information runs to 100 pages or so, the warrant to some 25 pages. Like the information, the warrant is impressively organized and impressively detailed. That did not prevent the media from launching an attack upon it. The principal contention apparently was that the information failed to set out grounds upon which the justice of the peace could be satisfied that the material seized would afford evidence of persons actually committing any of the 78 specified offences. Moldaver, J. held that not to be the test. Rather, it was enough that the information contained grounds which could satisfy the issuing judge that the material sought would, not just taken by itself but in relation to other things, afford evidence with respect to the commission of at least some of the specified offences. That, I think, is what the case stands for and is a finding which could be applied directly to this case were it not for the total lack of specificity in the information.

[49] In the case before me the level of detail in the information is similar to what

appears to have been before Moldaver J.: a level of detail that, in the view of Chief

Justice Esson, goes beyond the necessary.

[50] As Major J., for the Supreme Court of Canada, noted in the CanadianOxy Chemicals Ltd. v. Canada (Attorney General), [1999] 1 S.C.R. 743 at para. 15:

On a plain reading, the phrase "evidence with respect to the commission of an offence" is a broad statement, encompassing all materials which might shed light on the circumstances of an event which appears to constitute an


offence. The natural and ordinary meaning of this phrase is that anything relevant or rationally connected to the incident under investigation, the parties involved, and their potential culpability falls within the scope of the warrant.

[51] Finally, as Moldaver J. also noted, a search warrant is not invalidated

because there is uncertainty about whether the material seized will actually produce

evidence of the commission of an offence. In commenting on the scope of what may

be validly seized he said:

I recognise that this approach carries with it a degree of uncertainty. However, in my opinion, the concept of "reasonable grounds to believe" necessarily imports some measure of uncertainty. This was recognised by Lamer J. (as he then was) in the case of Descoteaux et al. v. Mierzwinski et al. (citation omitted), where his Lordship said at p.410:

… After all, searches, while constituting a means of gathering evidence, are also an investigative tool. It will often be difficult to determine definitively the probative value of a particular thing before the police investigation has been completed.

Later, at p.412, Mr Justice Lamer remarked:

As I have already stated, a search warrant is not only a means of gathering evidence but also an investigative tool. Therefore, a determination of what is reasonable in each case will take into account the fact that the search makes it possible not only to seize evidence but also to ascertain that it exists, and even sometimes that the crime was in fact committed and by whom.

[52] I was at first concerned by both the geographic and temporal scope of the

production orders. They struck me as broad. But the question is not whether I would

have approved the orders, but whether the judicial justice, acting judicially, could do

so. On the basis of the authorities I have canvassed, and in light of the evidence in

the information, I am satisfied that the issuing justice, acting judicially, had sufficient

evidence before him to have reasonable grounds to believe that the material to be

produced will afford evidence in respect of the commission of an offence. The

information both disclosed reasonable grounds to believe that the video footage

recorded the commission of actual offences and that video footage recorded

between the hours of 4:00 p.m. and 12:30 a.m. will afford evidence in respect of

identification which is evidence in respect of the commission of an offence. The

information before the justice was not mere speculation and did not merely justify a


“fishing expedition". Accordingly, I conclude that the statutory conditions for the

issuance of the production orders were satisfied.

Do the production orders properly take account of the fact they are directed to the media?

[53] It is common ground that a validly issued production order directed to the

media must take into account the so-called Lessard factors. The issuing justice is

required to exercise a discretion based on those factors. If I conclude that the

issuing justice failed to give adequate or any consideration to a pertinent factor or

the amplified record discloses information that could well have affected the decision

to issue the production orders, but was not before the issuing justice, the production

orders may be invalid.

[54] Here the petitioners complain that the information misstated the applicable

law by relying on the decision of Chief Justice Esson and by failing properly to

demonstrate that the material sought was truly necessary and had been sought as a

last resort. In particular, the petitioners say the issuing justice must have been

misled about the significance of "alternative sources". Much of this argument turns

on whether Chief Justice Esson misstated the law in respect of alternative sources

or whether his statements are no longer good law.

[55] The ITO contained the following two paragraphs dealing directly with Chief

Justice Esson’s decision and the relevance of alternative sources:

94 On June 20, 2011 BURNETT sent me an e-mail with a link to the case of Canadian Broadcasting Corp. v. British Columbia,(citation omitted) [see Exhibit 5]. I have read that case and noted the factors that should be considered by a Justice of the Peace on an application to obtain a search warrant. It should be noted that I am requesting a Production Order, and thus the police would not be searching any media premise. I am also requesting certified true and accurate copies of the video footage and photographs in the original format, therefore the media outlets would retain the originals. By not searching the premise, and only requesting certified true and accurate copies, the police would not be impeded or interfering with the media outlet publishing or disseminating the news.

96 Another factor, to be considered by a Justice of the Peace, is the availability of alternate sources from which the information may be obtained and the efforts the police have taken to obtain these alternate sources of


information. I believe that the issue of alternate sources has been addressed in the section titled Alternate Sources above. I note that in the case of Canadian Broadcast Corp v. British Columbia, (citation omitted) there is no constitutional requirement for the police to show alternative sources have been exhausted.

[56] In his decision, Chief Justice Esson applied the Lessard factors which had

been stipulated by the Supreme Court of Canada. The decision quotes Cory J.’s

statement on behalf of the majority of the Supreme Court of Canada regarding

alternative sources. That statement is the following:

(5) Although it is not a constitutional requirement, the affidavit material should ordinarily disclose whether there are alternative sources from which the information may reasonably be obtained and, if there is an alternative source, that it has been investigated and all reasonable efforts to obtain the information have been exhausted.

[57] In this case, I can see no material difference between what is stated in

para. 96 of the information and the statement of principle of the Supreme Court of

Canada set out in the judgment.

[58] Chief Justice Esson went further, however, in discussing the relevance of

alternative sources in different circumstances. He observed that on the facts before

him there was no need to raise the subject of alternative sources. He said this:

In my view, there was no need to raise the subject of alternative sources which first came into our law in the decision of Nemetz, C.J.S.C. (later C.J.B.C.) in Re Pacific Press Ltd. and the Queen (1977), 37 C.C.C. (2d) 487. It was there held that no warrant should have issued to authorize a search of the pressrooms of Pacific Press without that condition being met. That conclusion, which may have been obiter because other more conventional grounds were found, was said to follow from the Bill of Rights and a judgment of Lord Denning. In that case, the warrant covered such things as the handwritten notes of reporters and a reporter's "contact book". But these petitions relate only to videotapes and still photographs of matters which occurred in public places

In the Lessard and New Brunswick cases, the matter of alternative sources was not raised before the justice of the peace and yet, in each case, the validity of the warrant was upheld. In each of those cases, the material sought to be seized was exactly of the kind involved here and the events being investigated were similar in kind, i.e. public disturbances. The ground of decision in the judgment of Cory, J. appears in this paragraph at p. 535:

.

The failure to set out the lack of alternative sources was simply another factor to be taken into account in assessing the reasonableness of the search.


Here, the actual search was conducted reasonably and properly. 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.

There are other passages in the judgment of the majority which make it clear that the court did not consider the matter of alternative sources to be one which had to be considered in such circumstances. La Forest, J. said at p. 523:

In my view, the threat to the freedom of the press that would result from unrestrained searches of certain journalistic material goes beyond the merely speculative. I would draw a line, however, between films and photographs of an event and items such as a reporter's personal notes, recordings of interviews and source "contact lists". In both this case and the companion New Brunswick case, Canadian Broadcasting Corp. v. New Brunswick . . . the only materials seized were video tapes and photographs of the demonstration.

I find the C.B.C.'s argument that there will be a "chilling effect" on newsgathering unpersuasive, in so far as that argument pertains to films and photographs taken of an event. I think the chill is already there. Absent a promise of confidentiality, no one can reasonably believe that there is no danger of identification when he is being captured on film by the press. When the press is covering an event under circumstances such as those in the present case, the very reason for the presence of cameramen is to take film and photographs for the purpose of broadcasting. While not all of the photographs will get published, there is a very real possibility that someone who commits a crime in front of the camera will find himself on the evening news or on the front page of a newspaper.

[Emphasis Added]

[59] Contrary to the submissions of the petitioners, Chief Justice Esson did not

downplay or ignore the importance of alternative sources as a factor to be taken into

account in assessing the validity of a search warrant. Chief Justice Esson analysed

the reasoning of the Supreme Court of Canada in order to identify those

circumstances in which the existence of alternative sources play a material role in

the exercise of a discretion to issue a search warrant. Chief Justice Esson did not

ignore Pacific Press, he simply found it inapplicable to the particular facts before

him. In reaching that conclusion he applied the rationale of the alternative sources

principle explained by the Supreme Court of Canada. I cannot see that he made any

mistake in doing so.


[60] There is no doubt that the principles set out in Pacific Press are part of the

law and are engaged in circumstances where what may be in issue are matters such

as confidential sources, informant privilege, direct interference with the capacity of

the news media to fulfil its function, such as, for example, by seizing journalistic work

product in a way that prevents the media producing stories and disseminating news.

None of these factors are in play here. There is no search. All originals of the

material remain with the petitioners. The petitioners are free from any interference to

continue to make whatever use they wish of the material in their possession,

material which has merely been copied and provided to the police.

[61] Indeed, the factual circumstances that led the Supreme Court of Canada to

uphold the warrants in the two cases before it, even though the issue of alternative

sources had not been canvassed when the search warrants were issued, and that

led Chief Justice Esson to conclude there was no need to raise the issue of

alternative sources in the warrant before him, are applicable in this case. The

production orders are film and photographs of an event, there is no search, the

media retain the originals, and so on.

[62] The cases cited to me as authority for the proposition that Chief Justice

Esson’s decision is no longer good law deal with very different circumstances.

[63] Nothing in Canadian Broadcasting Corp. v. Manitoba (Attorney General), 2009 MBCA 122 supports an argument that the Lessard factors have been changed

or modified so as either to alter the relevance of "alternative sources" or to introduce

a doctrine of true necessity or last resort. To the contrary, that case simply applies

the Lessard factors to the particular circumstances of that case; circumstances very

different from the case before me.

[64] In that case, a production order sought the original audio and video

recordings of a press conference held for the purpose of criticising the police’s ability

to investigate itself. It also sought subsequent interviews. The police were aware that

the news conference was to be held, but did not attend it, and did not disclose that

fact to the issuing justice. The case turned on a failure to disclose and a conclusion


that in the circumstances of that case a failure to disclose alternative sources

prevented a proper exercise of a discretion to issue the order. The court noted that

this was not a case in which:

... a photographer or a cameraman was present at the scene of the crime and where the interests of justice required that the contemporaneous photograph or video recordings of the actual criminal act be obtained. (at para. 65).

[65] The Court of Appeal also noted that the reviewing judge who had quashed

the production order had recognised that the proof of the insufficiency of alternative

sources was not a pre-requisite. It was merely one more element affecting the

evaluation of the judicial exercise of the authorising judge’s discretion.

[66] Mr. Burnett's position is also not assisted by Globe and Mail v. Canada (Attorney General), 2010 SCC 41. That case involved the disclosure of confidential

journalist sources and the existence of a journalist source privilege. The case does

not purport to alter, modify or supplant Lessard. The facts which engaged the court

in Globe and Mail do not arise in the case before me. The case does not introduce a

requirement of “true necessity” or “last resort” into the law governing the discretion to

issue production orders.

[67] The law on alternative sources is accurately stated in R. v. Canadian Broadcasting Corp. (2001), 52 O.R. (3d) 757 (Ont. C.A.), where Moldaver J.A. (as

he then was) summarised the position for the court in the following terms:

65 …(t)he failure to disclose alternate sources will only be potentially fatal in circumstances where the search warrant will impede the media from fulfilling its functions as a news gatherer and disseminator and the impediments cannot reasonably be controlled through the imposition of conditions on the execution of the search warrant.

[68] It is apparent that complying with these production orders is inherently less

intrusive than a search, originals of all material remain with the petitioners, and

nothing interferes with the media's continuing capacity to use that material to report

on a continuing news story.


[69] Finally, in R. v. Meigs, 2003 BCSC 1816, MacKenzie J. (as she then was)

said this:

[55] I reject the argument that Dagenais v. Canadian Broadcasting Corp., [1994] 3 S.C.R. 835 and R. v. Mentuck (2001), 205 D.L.R. (4th) 512 (S.C.C.) have changed these principles; those cases addressed publication bans and not search warrants of media premises. They are not relevant to this case.

[70] I am bound by that decision.

[71] It follows from this analysis that Constable Hunter did not inadvertently

mislead the issuing justice in her references to the relevance of alternative sources

or her reference to the decision of Chief Justice Esson. The issuing justice’s

attention was properly drawn to the relevant factors he was to consider. The

information provided evidence dealing with each Lessard factor.

[72] The information drew the attention of the issuing justice to the section of the

information that dealt extensively and in considerable detail with the existence of

alternative sources. I can see nothing that was misleading in what was said at the

time, and I think it is apparent that the justice would have been aware on a plain

reading of the information that information, tips and images and video were

continuing to be received and alternative sources were continuing to develop. I find

that the information complied with the requirements of providing evidence about

alternative sources and the other Lessard factors. The information that the issuing

justice needed in order to be able to exercise his discretion judicially was fully and

fairly before him.

[73] Lastly, I am persuaded that much of the evidence referred to as alternative

sources, is not truly an alternative source. Much of the video footage and

photographs ordered to be produced undoubtedly records individuals committing

criminal offences. It is contemporaneous evidence of the commission of those

offences. Other footage or photographs of the same incident will have been taken

from different angles and be of a different quality from the media recordings. There

are also problems of provenance with the other images provided to the police. Media

footage may be the only footage from which an identification of the perpetrators can


be made. It may, for example, be the only footage clearly showing someone's face.

Alternatively, media footage may be the only footage from which identification can

occur if a perpetrator is masked while committing the offence but is recorded

unmasked at another time and place. It may also be a means to demonstrate that

someone has mistakenly been suspected of committing an offence.

Was the information misleading in other ways?

[74] The petitioners criticize Constable Hunter for using the following formulaic

phrase when describing the evidence sought from the various petitioners:

I spoke with "X" of "Y” and was advised that "Y” has video footage, both broadcast and non-broadcast, and photographs/ images of the riot and other offences that are available and can be provided by “Y”.

[75] Mr. Faber, of CTV Television, filed an affidavit in which he contests the

accuracy of that statement. He says:

That paragraph does not accurately reflect my conversation with Detective Hunter. I merely told her we had unpublished video from the evening in question, but I did not say it depicts offences. I also made no statement to the effect that CTV was gathering still images during the riot. Our conversation merely included the general observation that CTV camera operators were gathering video on the night of the riot.

[76] In response, Constable Hunter deposed as follows:

I made notes of a phone conversation I had with [Mr. Faber] on June 20, 2011. I noted that CTV had raw footage from CTV photographers that recorded video, which I took to mean that CTV also had still photographs. As to whether or not the unpublished video from the evening in question depicted offences, I believe that the video would have depicted offences as the conversation was about the riot and that CTV had camera people and reporters out gathering video footage that night.

[77] Mr. Burnett submits that this inaccurate statement in the information goes to

the very heart of whether there are reasonable grounds to believe that the

petitioners have material that will provide evidence in respect of the commission of

an offence. He says the evidence is misleading and is sufficient to invalidate the

production order.


[78] I do not agree. Constable Hunter's mistake about whether CTV had still

photographs in addition to video footage is, in the circumstances, a trivial error that

does not undermine the fact that CTV has a considerable amount of published and

unpublished images depicting the events in question. In my view, the statement that

CTV has published and unpublished video of the offences is a conclusionary and

synoptic statement based on an inference, which is hardly an unreasonable one to

draw, given that CTV had filmed the rioting and that the rioting involved the

commission of criminal offences. No doubt the statement in the information could

have been more carefully worded. Constable Hunter could have said that she was

told that CTV was shooting video footage, some of which had been published, of

events of that night. It was unnecessary to suggest that Mr. Faber had

acknowledged that the footage captured the commission of offences, although it is

perfectly obvious from what was published that the footage did indeed capture the

commission of offences. I find it difficult to accept, however, that the issuing justice

could have been in any way misled by the statement she made. The information is

replete with detail of events, some of which had been broadcast, from which the

conclusion can be drawn, without referring to Constable Hunter's statement, that

CTV, for example, was in possession of both published and unpublished footage

recording the commission of offences.

[79] I find that any misstatement or inaccuracy in respect of this matter is not

sufficient to invalidate the production orders.

Are the production orders invalid because they do not describe a defined area to which they apply?

[80] The production orders define the area to which they apply by reference to four

streets. The mistaken claim is that the streets intersect, forming a defined and

bounded area. In fact, Pacific Boulevard and West Hastings Street do not intersect.

At the closest point they are about four blocks apart. For a distance they run more or

less parallel before Pacific Boulevard turns away from Hastings Street and becomes

Quebec Street. West Hasting Street is connected to Pacific Boulevard by Abbott

Street.


[81] The ITO did contain an exhibit which superimposed the area of riot related

incidents on a street map of downtown Vancouver. The problem is that the area of

riot related incidents is not mapped accurately onto West Hastings Street at the

southeast corner of the area, nor does it follow Abbott Street to the point where it

intersects with West Hastings Street. In any event, the exhibit is not part of the

production orders.

[82] The unfortunate effect of this, no doubt inadvertent error, is that the area to

which the production order applies is not described with sufficient certainty that a

person who is obliged to comply with the order can know what must be produced if

recordings were made in the vicinity of Abbott Street or further east.

[83] It is a general principle of the law of search warrants that a search warrant is

invalid if it does not enable one from the mere reading of it to know what premises it

authorises to search. It seems to me that that principle is applicable to production

orders. Someone who is required to produce information gathered within a certain

area is entitled to know from a mere reading of the production order what area is

governed by it. With the order as it now stands, this is impossible.

[84] The production order provisions of the Criminal Code, contemplate that the

orders may be varied on an ex parte application by the peace officer named in the

order to the judge who made the order, or a judge of the same territorial division.

Although, given what I concluded about my jurisdiction to grant an exemption order, I

may have the jurisdiction to vary the order so as to define a bounded geographical

area to which it applies, I do not consider that it would be appropriate for me to do

so. In any event, there is no such application before me. I have no doubt that this

deficiency in the production orders can and should be remedied.

[85] The uncertainty about the area to which the production orders apply compels

me to quash them, but without prejudice to the right of the peace officer to apply for

a variation of the orders to correct the mistake.


Are the production orders invalid because they improperly name the media organizations?

[86] Although no one is in any doubt about the media organizations to which these

production orders apply, the petitioners rely on the fact that the orders, in a number

of cases, have not properly identified the corporate entities subject to them. For

example, one order is directed to the Vancouver Sun Newspaper. There is no such

person or entity. The Vancouver Sun is a division of Postmedia Network Inc.

[87] I was treated to an interesting argument about whether these deficiencies

mattered or could be rectified by reading in or reading out words in the description of

the media organizations.

[88] I have decided that it is unnecessary, and perhaps unwise, to decide this

question. This issue should be considered in the context of an application where it

may be determinative of the ultimate validity of a production order. If an application

will have to be made to vary the existing orders to deal with the area to which they

apply, then that application should also vary the orders to correct the name of the

media organizations to which the individual orders apply.

Conclusion

[89] If the production orders had defined the area to which they applied by

referring to, for example, Abbott Street, and if they had properly named the media

organizations, I would have held them to be valid and I would have dismissed both

the applications for exemption orders and to quash them.

[90] I find myself, therefore, in substantially the same position that Chief Justice

Esson found himself in respect of the first Stanley Cup riot. Chief Justice Esson

quashed that search warrant because it did not meet the statutory conditions for a

search warrant. He went on to say this:

All counsel agree that, if the warrants are quashed, there is no reason why fresh warrants should not issue on better material. Some may ask: what is the point of all this, and what public interest is being served by this expensive exercise? If there is a point, it can only be the one much pressed by counsel for the media, i.e. that it must be brought home to the police that search


warrants are serious business and that an application must be made in strict compliance with the law. There is some merit in that. In many cases, the material sought will by its nature be more sensitive (and thus entitled to more protection against seizure) than pictures of what went on in the streets. There is no significant public interest requiring protection to the media outlets against giving access to such pictures. On the other side of the question, however, there is a public interest in effective investigation. That interest will be best served by the police doing it right the first time----in some cases, there can be no second chance.

… It may be that the media, having struck this blow for keeping the practice pure, will now have regard to the observations of Cory, J. and consider whether the interests of justice would best be served by providing voluntary access to whatever is in the envelopes.

[91] The observations of Cory J. he referred to were these from Lessard at

para. 51:

It must be remembered that all members of the community have an interest in seeing that crimes are investigated and prosecuted. In a situation such as this, the media might even consider voluntarily delivering their video tapes to the police. For example, if the tapes depicted a murder being committed and means of identifying the killer, would the media seek to withhold the tapes on the grounds that to release them would have a chilling effect on their sources and thus interfere with freedom of the press? I trust that such a position would not be taken.

[92] As Chief Justice Esson remarked, the example given is an extreme one, but it

is, as he noted, highly likely that the video footage in the possession of the media

organizations shows crimes being committed and affords potential means of

identifying some of the culprits. Allowing the police to view this material does not in

the circumstances of this case interfere with the media’s capacity to disseminate

information or provide the news. It does not interfere with their ability to gather and

use information. It does not deprive them of access to any material or the capacity to

continue to report on a developing news story. It does not require the disclosure of

confidential sources or confidential work product. It does not turn the media into an

investigative arm of the state and there is no serious argument to be mounted in this

case that the police deputised gathering evidence to the media.

[93] The statements of principle I have just quoted are of high authority and I am

required to give effect to them.


[94] I repeat my earlier observation. My task as a reviewing judge is to determine

only whether the issuing justice, acting judicially, could have issued these production

orders having regard both to the statutory conditions and the factors that must be

taken into account in exercising the discretion to do so when the media are affected.

I am not to substitute my opinion for his. I am satisfied that in all respects, except the

failure to identify a defined geographical area and the possible deficiency with

respect to the names of the media organizations, the issuing justice, acting judicially,

could have issued these orders.

[95] Accordingly, for the limited reasons given, the applications to quash the

production orders are granted. The applications for exemptions, therefore, are

technically moot. They would, however, have been dismissed on their merits if I had

upheld the validity of production orders.

“Harris J.”

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