DATE: 20010302

                                                                                                                        DOCKET: C35270

 

COURT OF APPEAL FOR ONTARIO

 

MOLDAVER, GOUDGE and SIMMONS JJ.A.

 

BETWEEN:	)
	)
HER MAJESTY THE QUEEN	)	Marlys Edwardh and  John Norris
	)	for the appellants
Respondent	)
	)
- and -	)	Michal Fairburn
	)	for the respondent
CANADIAN BROADCASTING CORPORATION, CTV TELEVISION INC., GLOBAL COMMUNICATIONS LIMITED, ONTV LIMITED, CITY TV, a division of CHUM LIMITED and THE GLOBE AND MAIL, a division of THOMSON CANADA LIMITED	) ) ) ) ) ) )
	)
Appellants	)	Heard:  December 19, 2000

 

 

On appeal from the order of Justice Frank Roberts, dated November 1, 2000.

 

MOLDAVER J.A.:

 

[1]               The appellants are a group of highly reputable media organizations. They appeal from the order of Roberts J., dated November 1, 2000, upholding the validity of search warrants issued by Dobney J. (O.C.J.) on July 11, 2000 and executed at their respective business premises between July 11 and July 14, 2000. The warrants were obtained by the Toronto Police Service in the course of an investigation into a wide range of criminal offences arising out of a demonstration organized by the Ontario Coalition Against Poverty and carried out at Queen's Park and elsewhere in Toronto on June 15, 2000.

 

[2]               The appellants bring this appeal out of a collective concern that the procedures governing the authorization and review of search warrants, which are based on a model of prior ex parte authorization followed by a right of judicial review, fail to provide adequate safeguards to ensure that the media is able to carry out its constitutionally protected role as a gatherer and disseminator of news, free from unwarranted state intrusion.

 

[3]               To that end, the appellants submit that the decision of the Supreme Court of Canada in Canadian Broadcasting Corp. v. New Brunswick (Attorney-General) (1991), 67 C.C.C. (3d) 544 should be revisited. In that case, Cory J., for the majority, identified seven factors that a justice, acting under s. 487 of the Code, must consider before issuing a warrant to search the premises of a news media organization. The primary issue in this appeal is whether that list should be augmented to include an eighth factor. The appellants say that it should. In particular, they submit that when, as in this case, the four circumstances identified below exist, before issuing a search warrant, a justice must afford the media notice and a right to make submissions, failing which, the issuance of a warrant will constitute jurisdictional error:

·        the media is not the target of the search but an innocent third party;

·        the destruction, alteration or concealment of the material sought is not a realistic possibility;

·        there is no urgency in the application; and

·        the media has valid concerns bearing directly on whether the warrant should issue and if so, on what terms and conditions.

 

[4]               The second issue raised by the appellants calls into question the integrity of the affidavit to obtain the warrants (the Information) and specifically, whether the warrants were rendered invalid by reason of the affiant's failure to disclose pertinent information to the issuing justice.

 

[5]               For reasons that follow, I would dismiss the appeal. That said, let me make it clear at the outset that my rejection of the appellants' primary submission is dependent in large measure upon the particular facts and circumstances of this case. These reasons should not be taken as an outright rejection of the concept of inter partes authorization hearings in the context of media searches. Moreover, although I consider the prospect remote in the extreme, I do not foreclose, at least in theory, the possibility that in some instances, the failure on the part of the issuing justice to provide notice could amount to jurisdictional error.

 

[6]               By the same token, I do not want to leave the impression that I consider the traditional model of ex parte applications to be inadequate and in need of change. Indeed,  I am inclined to the view that with the added safeguards enumerated in CBC v. New Brunswick (Attorney-General), supra, the traditional model provides adequate protection to ensure a strong, vibrant and independent media, free to carry out its important role in our society without unwarranted state intrusion.

 

[7]               Bearing in mind what it is the appellants seek to accomplish in this appeal, namely, the addition of an eighth factor to the list of factors a justice must consider before issuing a warrant to search media premises under s. 487 of the Code, I think it would be useful, before summarizing the facts, to set out the seven factors that must now be considered. They are identified by Cory J. in CBC v. New Brunswick (Attorney-General), at pages 560-61:

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

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

(3)              The justice of the peace should 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 that warrant.

(4)              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.

(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.

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

(7)              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.

 

THE FACTS

Events on June 15, 2000

[8]               On June 15, 2000, the Ontario Coalition Against Poverty ("OCAP") held a demonstration to protest the policies of the current Ontario government. The avowed purpose of the demonstration, which began at 12:00 p.m. at Allan Gardens in the City of Toronto, was to march to Queen's Park and once there, to enter and address the Ontario Legislature.

 

[9]               The demonstration was well publicized and the Toronto Police Service had ample advance notice of it. From previous knowledge and experience with OCAP, and bearing in mind the demonstrators' intention to gain unauthorized entry into the Legislature, the Police expected a confrontation.  As a result, extensive security measures were put in place by both the Ontario Legislative Security Personnel and the Toronto Police Service.

 

[10]          The police presence at Queen's Park was very large and well planned. Several hundred officers were present, including members of the mounted unit, the public order unit,  and uniformed and undercover officers. Extensive measures, including the use of two perimeter barricades, were taken to secure the Legislature. In addition, many undercover police officers were equipped with video and still cameras.

 

[11]          By 2:00 p.m., approximately 500 demonstrators had assembled at Queen's Park. Shortly thereafter, violent confrontations began to break out between some of the demonstrators and the police. The confrontations lasted for approximately one and a half hours, after which the demonstrators dispersed from the vicinity of Queen's Park. By this time, a number of demonstrators had already been arrested. Others marched back to Allan Gardens where they reassembled. Further arrests were made at that location.

 

[12]          The demonstration and the ensuing violent confrontations received extensive media coverage. Journalists, still photographers and video camera operators from many local and national news organizations were present and covered the event. All of the appellant television stations broadcast images of the demonstration that evening, while the Globe and Mail published still photographs the next day.

 

The Police Investigation

[13]          As of June 28, 2000, twenty-six people had been arrested for a variety of offences. One individual was released with no charges. The other twenty-five face various charges, including participating in a riot, assault  police, assault with a weapon, possessing a weapon for a purpose dangerous to the public peace and wearing a disguise with intent to commit an indictable offence.

 

[14]          On July 11, 2000 Detective Stephen Irwin of the Toronto Police Service, Intelligence Unit, swore an Information in support of an application to obtain warrants to search the business premises of fourteen news media organizations in the Toronto area, including those of the appellants. The police sought all material relating to the demonstration in the possession of the various media organizations, including that which had been broadcast and published and that which had not.

 

[15]          The material to be searched for and seized in the possession of the television stations was described as follows:

A true, unedited copy of all raw footage videotape, with a "time code burn in window" where possible, that was filmed on Thursday, June 15, 2000 in relation to the Ontario Coalition Against Poverty demonstration that commenced in Allan Gardens, marched to Queen's Park, then returned to Allan Gardens, and disbursed.

 

[16]          The material to be searched for and seized in the possession of the newspapers was described as follows:

A true, unedited copy of all photographs, stored both on photographic film and in electronic form, on Thursday, June 15, 2000 in relation to the Ontario Coalition Against Poverty demonstration that commenced at Allan Gardens, marched to Queen's Park, returned to Allan Gardens, and disbursed.

 

[17]          The search warrants were sought on the basis of Detective Irwin's belief that the media cameras had captured images of individuals involved in criminal acts which police and legislative surveillance had failed to capture; or, if images were otherwise available to the police, then those from the media cameras were of superior quality.

 

[18]          The Information to obtain the warrants is lengthy and very detailed. In it, Detective Irwin refers specifically to the Lessard decision from the Supreme Court of Canada[1] and he went so far as to include as appendix I the relevant passages from that decision which outline the factors that must be considered by a justice under s. 487 of the Code before issuing a warrant to search media premises.

 

[19]          Detective Irwin addressed those factors in considerable detail. In particular, with one possible exception, he disclosed the extensive collection of photographs and video tapes already in the possession of the police. He went on to explain that the material being sought from the various media organizations was needed because in his view, based on the information available to him, as outlined, the images available to the police did not capture all available images and in some instances, they were not of equal quality to the images in the possession of the media.

 

[20]          Mindful of the need to ensure that the proposed searches be conducted in a reasonable manner, Detective Irwin included a heading in the Information entitled "Conditions for Media". The conditions he proposed, which ultimately found their way into the warrants, served the following four purposes:

·        they ensured that the seizures would be conducted in a manner that would interfere as little as possible with the ongoing operations of the media premises to be searched;

·        they allowed the media to retain possession of the original video tapes and photos being sought;

·        they mandated that the police avoid, to the extent possible, examining any material unconnected with the items being sought;

·        they provided that the materials seized would, upon request by anyone on the premises, be sealed for a period of time pending an application to the Superior Court for judicial review.

 

[21]          The appellants take issue with the fact that in the Information to obtain the warrants, Detective Irwin did not disclose that the police had utilized their Video Service Section, to record off-air, all television coverage of the demonstration broadcast by the major media outlets in Toronto. Let me put this issue to rest now. I acknowledge that Detective Irwin did not specifically state that he had such footage in his possession. However, when the Information is read fairly as a whole, I am satisfied that this fact is implicitly stated and the issuing justice would not have been misled into thinking otherwise.

 

[22]          Apart from that, the only other allegation of non-disclosure relates to Detective Irwin's admitted failure to mention the existence of a security camera system in operation at Queen's Park on June 15, 2000. The amplified record discloses that on July 14, and July 19, 2000, video tapes from that system capturing the demonstration were turned over to the Toronto Police Service. The Information to obtain the warrants makes no mention of these tapes or any efforts on the part of the police to obtain them.

 

Contact Between the Police and Media Organizations

[23]          Immediately after the demonstration, Detective Irwin or one of his colleagues contacted representatives from each of the fourteen media organizations upon which the warrants were ultimately executed. The purpose of the calls was to inform the various organizations that the police would be executing search warrants in the near future. Through these contacts, Detective Irwin confirmed that each organization was in possession of the items to be searched for and seized under the authority of a search warrant.

 

[24]          Several media organizations voiced concerns about the impending search and seizure. For example, on June 16, 2000, Daniel Henry, Senior Legal Counsel for the Canadian Broadcasting Corporation, wrote to Murray Segal, Assistant Deputy Attorney General, Criminal Law Division, requesting an opportunity to appear before the issuing justice if a warrant was sought. Similar correspondence was directed to the Crown or the police by counsel for Global Television, CTV and the Globe and Mail.

 

[25]          Bearing in mind the need to make full and complete disclosure to the issuing justice, Detective Irwin identified the concerns of counsel under a separate heading in the Information entitled "Issues Raised by Counsel Representing Media" and he appended the letters received from counsel. At the same time, he deposed that it was his belief, based on his understanding of s. 487 of the Code and the Supreme Court's decision in Lessard, that "search warrant applications are ex parte and notice need not be given".

 

Evidence of the Impact of Police Searches on the Media

[26]          On the review hearing before Roberts J., the appellants filed twelve affidavits from various media personnel, as well as a professor of journalism, all designed to show the ways in which police searches could impinge upon the values underlying the rights accorded to the press and other media of communication under s. 2(b) of the Charter. In their joint factum, the appellants have summarized the potential harmful effects identified in the affidavits as follows:

·        the use of the media as instruments of the police with a resulting loss of impartiality and credibility;

·        the targeting of media representatives who are in the process of news gathering;

·        impairment of the media's ability to disseminate and preserve news;

·        consequent reduction in the quality of news coverage.

 

[27]          The respondent countered this evidence with an affidavit from Mr. Peter Worthington, a journalist since 1956 and former editor-in-chief of the Toronto Sun. In short, Mr. Worthington expressed the view that the execution of search warrants on the media to seize evidence of videos and photos, like those in this case, poses no threat whatsoever to the safety or independence of the media.

 

RELEVANT LEGISLATION

[28]          Section 487 of the Criminal Code provides in part as follows:

487(1)  A justice who is satisfied by information on oath in Form 1 that there are reasonable grounds to believe that there is in a building, receptacle or place

                                                . . .

(b)              anything that there are reasonable grounds to believe will afford evidence with respect to the commission of an offence, or will reveal the whereabouts of a person who is believed to have committed an offence, against this Act or any other Act of Parliament,

 

                                    . . .

 

may at any time issue a warrant authorizing a peace officer or a public officer who has been appointed or designated to administer or enforce a federal or provincial law and whose duties include the enforcement of this Act or any other Act of Parliament and who is named in the warrant

(d)              to search the building, receptacle or place for any such thing and to seize it, and

(e)              subject to any other Act of Parliament, to, as soon as practicable, bring the thing seized before, or make a report in respect thereof to, the justice or some other justice for the same territorial division in accordance with section 489.1.

 

Canadian Charter of Rights and Freedoms

2.                  Everyone has the following fundamental freedoms:

. . .

(b)         freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication;

. . .

8.          Everyone has the right to be secure against unreasonable search or seizure.

 

ANALYSIS

Issue One: Did the issuing justice commit jurisdictional error by proceeding ex parte?

 

[29]          Section 487 of the Code makes no mention of a hearing on notice. Rather, on its face, it appears to contemplate an ex parte procedure in which the issuing justice is required to determine, based on an Information on oath in Form 1, whether a warrant should issue. That said, Ms. Fairburn for the Crown concedes, correctly in my view, that the issuing justice retains a discretion to proceed on notice.

 

[30]          Indirect support for this conclusion is found in R. v. F. (S.) (2000), 141 C.C.C. (3d) 225, a recent decision of this court dealing with s. 487.05(1) of the Code. In summary form, s. 487.05(1) authorizes a provincial court judge "on ex parte application" to issue a warrant to obtain a bodily substance for DNA analysis. One of the issues to be determined was whether, in light of the specific language used, the provision should be interpreted to mean that the issuing judge could only proceed ex parte. On behalf of a unanimous court, Finlayson J.A. rejected that interpretation. Instead, he viewed the language as permissive and concluded that the issuing judge retained a discretion to proceed on notice. Given that s. 487(1) does not speak to the nature of the proceeding, in my view, the case for holding that a residual discretion to proceed on notice lies with the issuing justice under that provision is all the more compelling.

 

[31]          Before Roberts J., the appellants argued that Dobney J. erred in failing to exercise her discretion in favour of a hearing on notice. Roberts J. rejected that argument. In his view, having regard to the Information to obtain the warrants, Dobney J. would have been alive to the request by some of the appellants for a hearing on notice and there was no reason to believe that in refusing their requests, she exercised her discretion improperly. I agree entirely with that conclusion.

 

[32]          Before this court, the appellants have framed the issue somewhat differently. As indicated, it is now their position that in the circumstances of this case, Dobney J., in effect, had no discretion to exercise. Rather, the only course open to her was to provide the affected parties with notice and her failure to do so constituted jurisdictional error, thereby rendering the warrants invalid.

 

[33]          In support of their position, the appellants rely on several unrelated, but in their view analogous authorities from the Supreme Court of Canada that post-date the Court's decisions in CBC v. New Brunswick (Attorney-General) and Lessard. Specifically, they rely on Dagenais v. Canadian Broadcasting Corp. (1994), 94 C.C.C. (3d) 289 (S.C.C.), a case involving common law publication bans in which the Supreme Court held that notice should be given to the media when such bans are sought. (See also CBC v. New Brunswick (Attorney-General) (1996), 110 C.C.C. (3d) 193 (S.C.C.) in which the Court expressed the same view with respect to applications under s. 486 of the Code for an in camera hearing.)

 

[34]          The appellants submit that Dagenais lends support to their position that in proceedings where the rights of the media under s. 2(b) of the Charter are implicated, the media should be given prior notice.

 

[35]          With respect, I think that the analogy is inapt. Unlike applications to obtain search warrants, which have traditionally been conducted in private on an ex parte basis, the cases referred to relate to criminal proceedings in which the principle of openness and the right to attend and report are firmly rooted in common law and now constitutionally enshrined.

 

[36]          Looked at contextually, I see a world of difference between depriving the media of notice in criminal proceedings, where openness has traditionally been the rule, not the exception, and where a publication ban or an in camera order will have a direct and immediate impact on the media's ability to gather and disseminate news in a timely fashion, if at all; and depriving the media of notice of an investigatory proceeding that has traditionally been conducted in private on an ex parte basis and which contains built-in safeguards designed to protect and preserve the media's ability to carry out its important function. This is especially so in cases like the one at hand, where the material being sought is similar to that already published by the media and where there is no suggestion that it emanates from a confidential source or is otherwise the product of media research or investigation.

 

[37]          Secondly, the appellants rely on cases such as R. v. O'Connor (1995), 103 C.C.C. (3d) 1 (S.C.C.), R. v. Mills (1999), 139 C.C.C. (3d) 321 (S.C.C.) as well as the statutory scheme in ss. 278.1 to 278.9 of the Code in support of their position. In essence, they submit that because notice must be given to third party complainants or witnesses when a non-state actor is attempting to seek access to personal records that may, and often do contain confidential information, notice should also be given to the media when the state is seeking photos and videos of a public and publicized event.

 

[38]          Again, in my view, the analogy is inapt especially in the context of this case. Apart from the nature of the material being sought, in one case private and in the other predominantly public, it is important to recognize that in the case of complainants and witnesses, if notice is not provided at the outset and the private information is disclosed to non-state actors or the public at large, the harm cannot be undone on review. This is very different from situations like the one at hand, where, under the terms of the warrant, the media is entitled to request that the seized material be sealed and is then given the opportunity on review to amplify the record and to make submissions before the state actors gain meaningful access to the material.

 

[39]          In sum, having particular regard to the facts and circumstances of this case, I am of the view that the link the appellants seek to draw from authorities that post-date Lessard and CBC v. New Brunswick (Attorney-General) is tenuous at best and unhelpful in resolving the issue at hand.

 

[40]          The appellants also rely on various statutory schemes in the United States and Great Britain which provide the media, in certain circumstances, with a right to be heard from the outset when the state seeks material in its possession. Once again, I find these references to be of little assistance.

 

[41]          The situation in the United States is by no means uniform and many states employ the same model as the one traditionally used in Canada. Significantly, if regard is to be had to the American experience, it must be emphasized that in Zurcher v. The Stanford Daily, (1978) 436 U.S. 547, the United States Supreme Court, in a case similar to the one at hand, specifically rejected the media's argument that it had a constitutional right to a hearing on notice. Instead, Justice White, for the majority, endorsed as constitutionally permissible a model of prior ex parte judicial authorization similar to the traditional model used in this country.

 

[42]          As for the experience in Great Britain, suffice it to say that in circumstances similar to those at hand, where the material in question consists of videos and photos of public and publicized events, prior notice or not, the police have invariably succeeded in obtaining the material sought. Admittedly, that is not a full answer to the argument put forward by the appellants. It does, however, bring me back to the focal point of this appeal, namely, whether in the particular circumstances of this case, the issuing justice committed jurisdictional error by failing to provide the media with notice and a right to be heard on the application for the search warrants.

 

[43]          Given my rejection of the appellants' arguments to this point, to conclude that Dobney J. committed such an error, I would first have to be satisfied that there is some other basis for distinguishing Lessard and CBC v. New Brunswick (Attorney-General) from the present case. Failing that, I would have to be persuaded of the possibility raised by the appellants that the majority in those cases simply failed to consider the issue of inter partes authorization hearings.

 

[44]          Commencing with the first possibility, the appellants rely on the record, as amplified before Roberts J., to distinguish this case from the two earlier Supreme Court decisions. In particular, they point to the extensive affidavit evidence from various media personnel which identifies the short and long term harmful effects that police search and seizure can have on the media's ability to fulfill its constitutionally protected function. For convenience, the alleged harmful effects are repeated:

·        the use of the media as instruments of the police with a resulting loss of impartiality and credibility;

·        the targeting of media representatives who are in the process of news gathering;

·        impairment of the media's ability to disseminate and preserve news;

·        consequent reduction in the quality of news coverage.

 

[45]          With respect, I am of the view that the affidavit evidence upon which the appellants rely adds nothing to what was considered by the Supreme Court in the earlier cases. One need only refer to the dissenting reasons of McLachlin J. (as she then was) in Lessard to realize this.

 

[46]          In Lessard, McLachlin J. expressed the view that the search of media premises in circumstances akin to those at hand amounts to an infringement of the rights guaranteed to the media under s. 2(b) of the Charter. As the following passage at pp. 539-40 of her reasons indicate, in coming to this conclusion she placed considerable emphasis on the harmful effects, both short and long term, that police search and seizure can have on the media's ability to perform its constitutionally protected function:

            The ways in which police search and seizure may impinge on the values underlying freedom of the press are manifest. First, searches may be physically disruptive and impede efficient and timely publication. Secondly, retention of seized material by the police may delay or forestall completing the dissemination of the news. Thirdly, confidential sources of information may be fearful of speaking to the press, and the press may lose opportunities to cover various events because of fears on the part of participants that press files will be readily available to the authorities. Fourthly, reporters may be deterred from recording and preserving their recollections for future use. Fifthly, the processing of news and its dissemination may be chilled by the prospect that searches will disclose internal editorial deliberations. Finally, the press may resort to self-censorship to conceal the fact that it possesses information that may be of interest to the police in an effort to protect its sources and its ability to gather news in the future.  All this may adversely impact on the role of the media in furthering the search for truth, community participation and self-fulfillment.

 

[47]          In my view, the harmful effects identified by McLachlin J. are virtually identical to those relied upon by the appellants in support of their submission that had the majority in Lessard been aware of them, they might have required mandatory inter partes hearings in certain circumstances. To accept that submission, I would have to assume that the majority did not read McLachlin J.'s dissenting opinion, a proposition that I reject out of hand.

 

[48]          The same applies to the alternate position put forward by the appellants, namely, that the majority in the earlier cases may simply have failed to consider the added safeguard of inter partes hearings. Once again, in my view, McLachlin J.'s dissenting opinion in Lessard forecloses that possibility. After concluding that the searches like the one at hand violate the rights guaranteed to the media under s. 2(b) of the Charter, McLachlin J. turned her attention to s. 1 of the Charter and identified the conditions that must be met to justify the issuance of a warrant to search and seize materials from media premises. In the context of that analysis, at p. 542 she stated:

            The requirement that the infringement go no further than is necessary to achieve the desired object demands like particularity. The justice should cast the warrant in terms which reduce as far as possible the effects of the infringement. Matters such as timing, specificity of the items to be seized, and conditions protecting the identity  of informants may fall to be considered, as may the manner in which the warrant is to be executed. For example, where there is no reason to believe the press will destroy the material or refuse to surrender it, it might be reasonable for the warrant to require that the information be surrendered rather than allowing the police to search the premises and seize the materials. (This appears to be a common practice at present.)

In some cases a justice concerned to minimize impact or concerned as to whether the warrant should issue at all may wish to receive representations from the press organ in question, especially in circumstances where the need for the suspected evidence is not particularly urgent and there is no reason to suspect that the evidence in question will be concealed or destroyed. (Emphasis added)

 

[49]          The emphasized portion is instructive for two reasons. First, it puts to rest the notion that the majority may have failed to consider the possibility of inter partes hearings. Second, and perhaps of greater significance, it points out that even if one starts from the premise that in certain circumstances, the search of media premises constitutes a s. 2(b) infringement and must be justified, something the majority did not accept, the failure on the part of the issuing justice to provide notice will not necessarily constitute jurisdictional error. To the contrary, McLachlin J. went no further than to state that the issuing justice retains a discretion to provide notice.

 

[50]          In sum, nothing in Lessard or CBC v. New Brunswick (Attorney-General) leads me to believe that the majority envisaged the need for inter partes hearings in circumstances like those in the present case. Indeed, I read the majority as implicitly eschewing the notion. In the last analysis, the most that can be said is that the issuing justice retains a discretion to provide notice. In this case, Dobney J. chose not to provide notice and I see no basis for interfering with her decision.

 

[51]          Before leaving this issue, I wish to comment briefly on the overarching concern that underlies the appellants' dissatisfaction with the traditional model of ex parte authorization followed by judicial review.

 

[52]          The appellants concede that on the review hearing before Roberts J., they were entitled to and did lead all the evidence they would have led before the issuing justice had notice been provided. They further agree that had they received notice, the submissions before the issuing justice would not have differed from those made to Roberts J. on the review hearing.

 

[53]          To this extent, the appellants take no issue with the review process that forms part of the traditional model. Their difficulty lies with the test to be applied by the reviewing justice in determining whether a search warrant has or has not been validly issued. That test, they submit, is overly restrictive because it does not permit the reviewing justice to engage in a de novo hearing. Rather, the reviewing judge is simply entitled to consider the record before the issuing justice, as amplified on review, in order to decide whether the issuing justice could have granted the authorization. If that question is answered in the affirmative, then even if the reviewing judge would not have issued the warrant in the first instance, he or she cannot interfere.

 

[54]          Although I appreciate the concern raised by the appellants, in the context of this case, I am inclined to think that the existing regime provides adequate protection to the media. On judicial review, as Cory J. observed at p. 554 of CBC v. New Brunswick (Attorney-General), the judge is required to consider all of the facts and circumstances, including those identified in the amplified record, against the backdrop of s. 8 of the Charter, with a view to determining whether the issuance of the warrant constituted jurisdictional error. In the case of the media, as Cory J. explained at pp. 560-61, apart from satisfying the statutory preconditions in s. 487 of the Code, special conditions apply when a warrant is sought to search media premises. While more will be said about this in the context of the second ground of appeal, for the moment, suffice it to say that in deciding whether a warrant to search media premises should issue and if so, upon what conditions, the issuing justice must weigh a number of factors, including the effects of the search and seizure on the media's ability to fulfill its function as a news gatherer and news disseminator. If the reviewing judge concludes that the issuing justice, in exercising his or her discretion, failed to give adequate or any consideration to a pertinent factor and/or the amplified record discloses information that was not before the issuing justice and that could well have affected the decision to issue the warrant, this may result in a finding that the warrant was invalid and should not have been issued.

 

[55]          Although such a regime may not provide perfect protection to members of the media, I am inclined to think that it provides adequate protection in circumstances such as those in the present case[2].

 

[56]          But even if I am wrong in this and the review hearing should be conducted on a de novo basis when the media is involved as an innocent third party, for reasons that follow, I am satisfied that on the facts of this case, the result would necessarily have been the same. That leads me to the second issue.

Issue Two: Were the warrants rendered invalid by reason of the informant's failure to include a possible alternative source for the material sought?

 

[57]          It is common ground that in the Information to obtain the warrant, Detective Irwin failed to disclose the existence of a security camera system in operation at Queen's Park on June 15, 2000. The appellants submit that he was required to disclose this information to the issuing justice and had he done so, the warrants may not have issued.

 

[58]          Roberts J. addressed this issue in his reasons as follows:

It is said by the applicants that the full disclosure of alternate sources of information was not made and that therefore the warrant should be quashed.

 

I disagree. Full disclosure was made of the cameras available to the police through their own photographers and also of one of the two security systems in the vicinity of Queen's Park. Although it would have been better to disclose the second security system source, the failure to do so is not fatal. I hold that it was reasonable for Madam Justice Dobney to have decided that new and compelling evidence would be found in the films taken by the media from different vantage points and different perspectives.

 

[59]          Like Roberts J., I accept that it would have been preferable had Detective Irwin disclosed the second security system. That said, I am satisfied that in the circumstances, his failure to do so was not fatal.

 

[60]          The facts and circumstances of this case are very similar to those in CBC v. New Brunswick (Attorney-General). That case involved a criminal investigation arising out of a public demonstration protesting the policies of a large pulp and paper company in New Brunswick. During the protest, several protestors threw molotov cocktails at the company's guardhouse, setting it on fire. At the time of the incident, a number of police officers were on scene, including identification specialists. A camera crew from the CBC videotaped the event, portions of which were later broadcast.

 

[61]          In an effort to obtain the portions of the CBC video tape that had not been broadcast, the police swore out an Information which failed to include the fact that police identification experts were present at the scene. The warrant issued and the police seized and sealed the video tapes pending a review hearing.

 

[62]          On review, Doyle J. quashed the warrant on the basis that the police had failed to make full disclosure as to possible alternative sources of information. That decision was overturned by the New Brunswick Court of Appeal and on further appeal to the Supreme Court of Canada, the warrant was found to have been validly issued.

 

[63]          In his reasons on behalf of the majority, Cory J. recognized the significance of the role of the media in our society and he concluded that special concerns must be addressed when a warrant is sought to search media premises. He went on, however, to observe that the constitutional guarantee afforded to the media in s. 2(b) of the Charter does not import any new or additional requirements for the issuance of search warrants involving media premises. Rather, it provided a backdrop against which the reasonableness of the search was to be evaluated. In particular, it required that careful consideration be given not only to whether a warrant should issue but also the conditions that might properly be imposed upon a search of media premises. At pp. 560-61, Cory J. summarized the factors that a justice must consider before issuing a warrant to search media premises. Those factors are found at paragraph 7 above and need not be repeated, except for the fifth factor, which I consider to be of singular importance to the issue at hand:

(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.

 

[64]          This factor is important because although Cory J. notes that the Information to obtain the warrant should ordinarily disclose whether alternate sources exist from which the information may reasonably be obtained, he was clear that this did not reach the level of a constitutional requirement. At pp. 556-57, in the passage reproduced below, Cory J., at least indirectly, identified the circumstances in which the failure to disclose alternate sources might well be fatal to the validity of the warrant:

Whether the search of a media office can be considered reasonable will depend on a number of factors including the nature of the objects to be seized, the manner in which the search is to be conducted and the degree of urgency of the search. It is of particular importance that the justice of the peace consider the effects of the search and seizure on the ability of the particular media organization in question to fulfil its function as a news gatherer and news disseminator. If a search will impede the media from fulfilling these functions and the impediments cannot reasonably be controlled through the imposition of conditions on the execution of the search warrant, then a warrant should only be issued where a compelling state interest is demonstrated. This might be accomplished by satisfying the two factors set out by Nemetz C.J.B.C. in Pacific Press: namely, that there is no alternative source of information available or, if there is, that reasonable steps have been taken to obtain the information from that source. Alternatively, the search might be justified on the grounds of the gravity of the offence under investigation and the urgent need to obtain the evidence expected to be revealed by the search. (Emphasis added)

 

[65]          I read this passage to mean that the failure to disclose alternate sources will only be potentially fatal in circumstances where the search warrant will impede the media from fulfilling its function 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.

 

[66]          In his analysis, Cory J. thoroughly considered the facts and circumstances surrounding the impugned search with a view to determining whether it impeded the media in its function. In doing so, he took into account all of the possible short and long term effects that searches of this nature might have on the ability of the media to perform its constitutionally protected function. Given that the facts and circumstances of that case are very similar to those in the present case, I am of the view that Cory J.'s statement at p. 561 of his reasons is dispositive of the issue raised by the appellants:

The Criminal Code, by means of s. 487, does no more than require that a justice of the peace, before issuing a search warrant, be satisfied that there are reasonable grounds to believe that something which will afford evidence with respect to the commission of a crime will be found in the described building, receptacle or place. In the present case, Officer Ouellette's information was sufficient to meet these requirements. There is no evidence in this case that the search impeded the media in their function of gathering and disseminating the news. In these circumstances, the search was a reasonable one under s. 8 of the Charter, notwithstanding any deficiencies in the information with respect to alternate sources. (Emphasis added)

 

[67]          Even if I am wrong in this, I am of the view that it is fanciful to think that the issuing justice might not have authorized the warrants had she been aware of the missing information. I say this because there is no basis to infer, let alone conclude, that the images obtained from the second security system could realistically have been of the same or better quality than the images captured by the media personnel on scene. That being so, it follows that the second security system could not reasonably be characterized as an alternate source for the material being sought.

 

CONCLUSION

[68]          The appellants have failed to make out a case that the issuing justice committed jurisdictional error in failing to provide the media with notice. They have also failed to persuade me that the warrants were rendered invalid by reason of Detective Irwin's failure to disclose the second security camera system. Accordingly I would dismiss the appeal.

 

 

Signed:           "M. Moldaver J.A."

 

                        "I agree  "S.T. Goudge J.A."

 

                        "I agree J. Simmons"

 

 

RELEASED: MARCH 2, 2001