Canadian Broadcasting Corp. v. New Brunswick (Attorney General), [1991] 3 S.C.R. 459
The Canadian Broadcasting Corporation Appellant
v.
The Attorney General for New Brunswick Respondent
and
Canadian Association of Journalists Intervener
Indexed as: Canadian Broadcasting Corp. v. New Brunswick (Attorney General)
File No.: 21827.
1991: May 31; 1991: November 14.
Present: La Forest, L'Heureux‑Dubé, Sopinka, Gonthier, Cory, McLachlin and Stevenson JJ.
on appeal from the court of appeal for new brunswick
Constitutional law ‑‑ Charter of Rights ‑‑ Freedom of the press ‑‑ Search warrants issued for premises of the press -- Alternative sources of information available ‑‑ Affidavit supporting application not indicating other sources of information ‑‑ Whether or not search warrant valid ‑‑ Whether or not Charter right to freedom of the press infringed ‑‑ Canadian Charter of Rights and Freedoms, s. 2(b).
Criminal law ‑‑ Search warrants ‑‑ Premises of the press ‑‑ Alternative sources of information available ‑‑ Affidavit supporting application not indicating other sources of information available ‑‑ Whether or not search warrant valid ‑‑ Whether or not Charter right to freedom of the press infringed ‑‑ Criminal Code, R.S.C., 1985, c. C‑46, ss. 487(1)(b), (d), (e) ‑‑ Canadian Charter of Rights and Freedoms, s. 2(b).
Appellant's reporters videotaped a demonstration during which a company guardhouse was destroyed. Police, including identification specialists, were present. The RCMP sought a search warrant to seize these tapes. The sworn information or affidavit in support of the warrant explained that other sources of information existed but that they either provided insufficient evidence or were unavailable or unwilling to testify. The affidavit did not reveal that police identification experts were present at the scene. A justice of the peace issued a search warrant on the basis of the affidavit. The RCMP and appellant's officials agreed that the videotapes should be placed in a sealed envelope to be held by a judge of the Provincial Court until the outcome of these proceedings.
Appellant successfully brought an application in the Court of Queen's Bench to quash the warrant and to order the return of the seized tapes. The Court of Appeal allowed the Crown's appeal and upheld the issuance of the warrant. At issue here was whether freedom of the press, as protected by s. 2(b) of the Canadian Charter of Rights and Freedoms, requires that a justice of the peace, before issuing a warrant to search media offices, be satisfied that no reasonable alternative source of the information exists.
Held (McLachlin J. dissenting): The appeal should be dismissed.
Per Sopinka, Gonthier, Cory and Stevenson JJ.: Freedom of expression, protected by s. 2(b) of the Charter, does not import any new or additional requirements for the issuance of search warrants. It provides a backdrop against which the reasonableness of the search may be evaluated and requires that careful consideration be given not only to whether a warrant should issue but also to the conditions which might properly be imposed upon any search of media premises.
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. In particular, the justice of the peace must 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. There must be no alternative source of information available or, if there is, reasonable steps must 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.
The factors to be weighed with regard to issuing a warrant to search any premises will vary with the circumstances presented. Two factors -- whether other sources exist, and whether reasonable efforts to obtain information from them have been exhausted and proved unsuccessful -- had been identified in earlier jurisprudence as being necessary to the issuance of a search warrant for press facilities. It is impossible, however, to isolate these two factors from the numerous considerations which bear on assessment of the reasonableness of a search and label them as conditional prerequisites. The essential question is whether, taking into account all the circumstances and viewing them fairly and objectively, it can be said that the search was reasonable.
Less can be said for refusing to make that material available to the police where the media have fulfilled their role by gathering the news and publishing it. Arguments based on the "drying up" of the media's sources of information and on the "chilling effect" on their sources become more difficult to sustain after the information has been released to the public. Should it be necessary, appropriate steps might be taken by the media to have the court determine what protection could properly be obtained.
Section 8 of the Charter protects the overall reasonableness of a search. The potentially damaging effect of a search and seizure upon the freedom and the functioning of the press is highly relevant to the assessment of the reasonableness of the search. Neither s. 2(b) nor s. 8 of the Charter requires that other sources of information be exhausted. Some flexibility in the balancing process must be preserved so that all the factors relevant to the individual case may be taken into consideration and properly weighed.
The following factors should be considered in issuing a search warrant for media premises. (1) The requirements of s. 487(1)(b) of the Criminal Code must be met. (2) The justice of the peace should then consider all of the circumstances in determining whether to exercise his or her discretion to issue a warrant and (3) ensure that a delicate 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. The press is truly an innocent third party; this factor is most important 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 a proper exercise of discretion as to whether or not to issue a search warrant. (5) Although not constitutionally required, the affidavit material should ordinarily disclose whether there are alternative sources, and if reasonable and alternative sources exist, whether those sources have been investigated and all reasonable efforts to obtain the information have been exhausted. (6) Dissemination of the information by the media in whole or in part will be a factor favouring the issuance 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. (8) The search warrant may be found to be invalid if, after its issuance, it is found that pertinent information was not disclosed, or (9) if the search is unreasonably conducted.
Section 487 of the Criminal Code 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 premises. The affidavit here met these requirements. The search did not impede the media's news gathering function and did not violate s. 8 notwithstanding any deficiency in the affidavit concerning alternative sources. There was no finding of bad faith with respect to the police affidavit which declared that alternative sources were pursued but proved unsuccessful and there was nothing nefarious in the failure to mention the presence of the identification officers at the scene.
Per La Forest J.: The appeal should be dismissed for the reasons given in Canadian Broadcasting Corp. v. Lessard.
Per L'Heureux-Dubé J.: The appeal should be dismissed for the reasons expressed in Canadian Broadcasting Corp. v. Lessard.
Per McLachlin J. (dissenting): The legal principles set out in Canadian Broadcasting Corp. v. Lessard apply here. The warrant violated the Charter and cannot be upheld. The justice of the peace, in the absence of information as why other sources would not dare to testify or could not be subpoenaed to testify, was not in a position to determine if the issuance of the warrant was really necessary, or whether it was justified given the violation of Charter rights which it entailed.
Cases Cited
By Cory J.
Considered: Re Pacific Press Ltd. and The Queen (1977), 37 C.C.C. (2d) 487; Descôteaux v. Mierzwinski, [1982] 1 S.C.R. 860; Zurcher v. Stanford Daily, 436 U.S. 547 (1978); referred to: Senior v. Holdsworth, Ex parte Independent Television News Ltd., [1976] 1 Q.B. 23; Edmonton Journal v. Alberta (Attorney General), [1989] 2 S.C.R. 1326.
By La Forest J.
Applied: Canadian Broadcasting Corp. v. Lessard, [1991] 3 S.C.R. 000.
By L'Heureux-Dubé J.
Applied: Canadian Broadcasting Corp. v. Lessard, [1991] 3 S.C.R. 000.
By McLachlin J. (dissenting)
Canadian Broadcasting Corp. v. Lessard, [1991] 3 S.C.R. 000.
Statutes and Regulations Cited
Canadian Charter of Rights and Freedoms, ss. 2(b), 8, 24.
Combines Investigation Act, R.S.C. 1970, c. C‑23, s. 41.
Criminal Code, R.S.C. 1970, c. C‑34, s. 443(1)(b), (d), (e) [am. 1985, c. 19, s. 69].
Criminal Code, R.S.C., 1985, c. C-46, s. 487(1)(b), (d), (e) [am. c. 27 (1st Supp.), s. 68].
APPEAL from a judgment of the New Brunswick Court of Appeal (1989), 104 N.B.R. (2d) 1, 261 A.P.R. 1, 68 D.L.R. (4th) 502, 55 C.C.C. (3d) 133, allowing an appeal from a judgment of Daigle J. (1989), 98 N.B.R. (2d) 306, 248 A.P.R. 306. Appeal dismissed, McLachlin J. dissenting.
André G. Richard, Marie‑Philippe Bouchard and Michael Hughes, for the appellant.
Graham J. Sleeth, for the respondent.
Richard G. Dearden and Randall J. Hofley, for the intervener the Canadian Association of Journalists.
//La Forest J.//
The following are the reasons delivered by
La Forest J. -- For the reasons given in Canadian Broadcasting Corp. v. Lessard, [1991] 3 S.C.R. 000, issued concurrently, I would dismiss the appeal.
The following are the reasons delivered by
L'Heureux-Dubé J. -- Having had the benefit of my colleague Justice Cory's opinion, I agree with the result he reaches. I do so, however, for the reasons I expressed in Canadian Broadcasting Corp. v. Lessard, [1991] 3 S.C.R. 000, which substantially conform to those of Angers J.A. in the Court of Appeal. That case was argued at the same time, raises the same issue and judgment was also delivered today.
Accordingly, I would dismiss the appeal.
//Cory J.//
The judgment of Sopinka, Gonthier, Cory and Stevenson JJ. was delivered by
Cory J. -- This appeal is concerned with the factors that should be taken into account by a justice of the peace when determining whether to issue a warrant to search the premises of a media organization that is not implicated in the crime under investigation. Specifically, the Court must determine whether freedom of the press, as protected by s. 2(b) of the Canadian Charter of Rights and Freedoms, requires that a justice of the peace, before issuing a warrant to search media offices, be satisfied that no reasonable alternative source of the information exists.
Factual Background
In early September of 1988, demonstrations were held in the Kedgewick-St-Quentin regions of New Brunswick to protest the policies of the Fraser Co., a large pulp and paper concern. On September 10, during one of those protests, Molotov cocktails were thrown at a company guardhouse, setting it on fire.
While the police had turned out in force during much of the demonstration, only a handful were present when the guardhouse was ignited. Among the remaining officers were identification specialists. As well, a number of police informers were circulating among the crowd to help identify any wrongdoers. As might be expected, members of the media were on the scene, including reporters of the Canadian Broadcasting Corporation (the CBC) who recorded much of the protest on videotape.
Officer Marcel Ouellette of the Royal Canadian Mounted Police (the RCMP) swore an information in support of an application for a search warrant to seize from the CBC tapes, films and videocassettes recording the events of September 9 and 10, 1988 at St-Quentin. Officer Ouellette described the material to be seized as follows:
. . . tapes, and/or films and/or videocassettes and/or portions of films or videotapes commonly known as "outs" or "out-takes", the latter being portions of tape or videocassette from a lengthier film or videocassette and not subsequently used for transmission by the facility of Radio-Canada . . .
In his information, officer Ouellette explained that while other sources of information existed, they, for various reasons, either provided insufficient evidence or else were unavailable or unwilling to testify. It was set out in this way in the information:
4) THAT all three informants have expressed fear for their own physical safety which I do verily believe is reasonable in the circumstances in view of the high tensions surrounding the disputes with Fraser Inc., such apprehension in the view of your deponent is aptly justified. All three informants live within the area.
. . .
10) THAT as a result of the information conveyed to me by Constables FORTIN and GLADU earlier referred to which I do verily believe I have reasonable grounds to believe that the information contained in the said film or portions thereof will afford relevant evidences for the prosecution of a criminal offence, evidence which would not otherwise be available due to:
(a) The considerable confusion at the scene;
(b)The limited number of R.C.M.P. officers available at the time for identification purposes;
(c)The darkness and general visibility problems at the time preventing easy eye witness identification by the Royal Canadian Mounted Police.
11) THAT alternative sources of information have been exhausted, such as the use of informants as earlier referred to; the informants having made it very clear to your deponent that they do not dare come forward and testify in court of law.
12) THAT despite considerable investigation effort in the area, no eye witnesses are prepared to come forward and describe the events and give evidence against the participants in the attempted and actual criminal activities.
13) THAT as the result of the three paragraphs above, your deponent does have reason to believe and does believe that there are no other means available to the police for obtaining evidences for the proper determination of possible charges.
The information did not reveal that police identification experts were also present at the scene. Relying upon the information of officer Ouellette, a justice of the peace issued the requested search warrant on October 26, 1988. The following day, three RCMP officers attended at the offices of the CBC in Moncton. The officers and officials from the CBC agreed to place the videotapes in question in a sealed envelope to be held by Judge McIntyre of the Provincial Court pending the outcome of these proceedings.
On December 22, 1988, the CBC brought an application to quash the warrant and to order the return of the seized tapes. On April 7, 1989 Daigle J. quashed the warrant. On December 22, 1989 the Court of Appeal allowed the Crown's appeal and upheld the issuance of the warrant.
Judgments Below
Court of Queen's Bench (1989), 98 N.B.R. (2d) 306
Daigle J. found that the information sworn by Ouellette met all of the explicit requirements of s. 487(1)(b) of the Criminal Code, R.S.C., 1985, c. C-46 (formerly s. 443(1)(b)). In his opinion, therefore, in the ordinary case, the information could properly form the basis for a decision authorizing the requested search warrant.
He went on to hold, however, that the Charter required that further conditions be satisfied when a warrant is sought to search the premises of a media organization. In reaching this conclusion, he relied on the decisions of the British Columbia Supreme Court in Re Pacific Press Ltd. and The Queen (1977), 37 C.C.C. (2d) 487 and of this Court in Descôteaux v. Mierzwinski, [1982] 1 S.C.R. 860, both of which I shall discuss below. Although noting that these decisions pre-dated the Charter, Daigle J. held that the two requirements set out in Pacific Press had to be met in the present case; specifically, he held that the warrant application must show that no alternative source of information was available and if available, that reasonable steps were taken to obtain the information from that source. Daigle J. put his position in this way (at p. 332):
[translation] I am therefore of the opinion that the two conditions stated in Re Pacific Press Ltd. are the minimal standards to be used by a justice of the peace when determining whether to issue a warrant to ensure the protection of the freedom of the press such as enjoyed by Société Radio-Canada in this matter. Therefore, before allowing the search of Radio-Canada offices to find evidence dealing with the commission of offences, the Provincial Court judge, acting within her jurisdiction as provided in s. 443(1)(b), should have, in order not to exceed her jurisdiction, refused to issue the warrant unless she was convinced that no alternative source of obtaining the evidence or information was available, and if available, that reasonable steps had been taken to obtain the information and evidence from that source.
In considering the application of these principles to the present case, Daigle J. expressed his concern that officer Ouellette had failed to refer to the presence of the police identification experts at the scene. Although he found that there was no bad faith on the part of the police, he determined that the warrant should be quashed on the basis that the police had failed to make full disclosure as to possible alternative sources of information.
New Brunswick Court of Appeal (1989), 104 N.B.R. (2d) 1
Angers J.A., for himself and Ayles J.A., held that the only conditions imposed on the issuance of a warrant were those explicitly set out in s. 487 (formerly s. 443) of the Criminal Code.
Angers J.A. expressed the view that in determining whether to issue a warrant, a justice of the peace must consider the nature of the crime alleged, the probative value of the item to be seized, the location of the requested search and the consequences of the search on innocent parties. It was his view that so long as the justice of the peace had considered these factors, it was not essential to review evidence as to the availability of alternative sources. Angers J.A. rejected the contention that the media are entitled to special consideration in this regard and, therefore, concluded that the seizure of the tapes in this case did not violate the freedom of press protected by s. 2(b) of the Charter. He wrote (at p. 15):
[translation] In the instant case, the evidence produced by the respondent only establishes an indirect relationship and I would even say a speculative relationship between the seizure of videocassettes and the drying-up of news sources. At the limit, the argument of the journalist would be that a criminal would not allow himself to be filmed while committing a crime out of fear that the seizure of the film would allow the police to identify him.
Rice J.A. wrote concurring reasons. In his opinion, it is not necessarily incumbent upon the police to provide information concerning the availability of alternative sources, although a justice of the peace would be entitled to refrain from issuing a warrant if the police did not provide this information. Rice J.A. added that, in any event, any concern about a breach of the Charter should be addressed by the justice of the peace and not the reviewing judge.
Relevant Legislation
Section 487 (formerly s. 443) of the Criminal Code provides:
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 is reasonable ground to believe will afford evidence with respect to the commission of an offence against this Act or any other Act or Parliament,
. . .
may at any time issue a warrant under his hand authorizing a person named therein or a peace officer
(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.
Requirements for Obtaining a Search Warrant and the Discretion of the Issuing Officer
Section 487 of the Criminal Code sets out the only requirements which must be met for the issuance of a search warrant. They are but two. It must be demonstrated that reasonable grounds exist to believe 1) that there is in a building, receptacle or place; 2) something that will afford evidence with respect to the commission of an offence against the Code or any other Act of Parliament.
The section, by the use of the word "may", recognizes that the justice of the peace has a discretion to determine whether to issue the warrant. The two decisions referred to above, one by the British Columbia Supreme Court and the other by the Supreme Court of Canada, have discussed the nature of this discretion.
1. Re Pacific Press Ltd. and The Queen
In Pacific Press, supra, journalists had observed individuals picketing and then occupying the premises in which the Restrictive Trade Practices Commission was to hold an inquiry. The obstruction of an inquiry constitutes an offence under s. 41 of the Combines Investigation Act, R.S.C. 1970, c. C-23. Combines Investigation officers contacted the editor of The Vancouver Sun, asking for information as to the identity of the individuals involved in the picketing and occupation. The editor refused to provide this information.
Combines officers then applied for a search warrant in order to obtain the desired information from The Vancouver Sun and The Province, both of which were owned by Pacific Press Limited. The warrants were issued and served the next day. The search was conducted in the area where newspapers were being prepared for publication. Some 77 pieces of paper, a number of handwritten notes and 69 frames of negative film were seized together with a reporter's private "contact book" which contained a list of the names and addresses of people who acted as sources of information for the newspapers. In considering the application of Pacific Press Ltd. to quash the warrant, Nemetz C.J. observed, at p. 489, that "[t]here is little doubt that the search disrupted the operation of the newspapers and delayed the preparation and publication of both newspapers that day."
Nemetz C.J. found that there was a defect in the search warrant for The Province which rendered it invalid. He then addressed the issue of whether, because The Vancouver Sun was a press organization, a justice of the peace could issue a warrant in the absence of proof that no reasonable alternative to the search existed as a means of obtaining the desired evidence. In considering this question, Nemetz C.J. adopted a passage from the judgment of Lord Denning in Senior v. Holdsworth, Ex parte Independent Television News Ltd., [1976] 1 Q.B. 23, which recognizes the news media as occupying a "special position" in relation to search warrants and, in particular, recognizes the difficult and careful balancing required when freedom of the press rights collide with the state interest in investigating and prosecuting crime through the use of search warrants.
Expressing his agreement with this view, Nemetz C.J. concluded at pp. 494-95:
Where, then, does the matter stand in Canada? Counsel for the petitioner submits that Parliament has accorded the free press a special place under the Canadian Bill of Rights. Accordingly, he argues, ss. 1(f) and 2, must be taken into consideration and weighed by the Justice of the Peace before he exercises his judicial discretion to grant the issuance of a search warrant against an organ of the free press of this country. A fortiori, he says, this fact is to be weighed in cases where the premises of the newspaper are not the premises of those persons accused of the crime. I agree with this submission. Furthermore, he submits, it was wrong, in the circumstances, to attempt to render the press an investigative arm of the State when other means of obtaining the names of the persons involved in the melee at the combines hearing may have been available. In particular, counsel points to the fact that many persons other than the newspaper people were in attendance at the combines office on the days in question and the material does not show whether these other people were approached to establish the identity of the participants in the fracas.
The issuing of any search warrant is a serious matter, especially when its issuance against a newspaper may have, as it did, the effect of impeding its publication. To use the words of my distinguished predecessor in United Distillers Ltd. (1948), 88 C.C.C. 338, [1947] 3 D.L.R. 900, the Justice of the Peace "should have reasonable information before him to entitle him to judicially decide whether such warrant should issue or not". In my opinion, no such reasonable information was before him since there was no material to show:
1.whether a reasonable alternative source of obtaining the information was or was not available, and
2.if available, that reasonable steps had been taken to obtain it from that alternative source.
2. Descôteaux v. Mierzwinski
In Descôteaux v. Mierzwinski, supra, this Court considered whether a search which was said to impinge upon solicitor-client privilege was permitted under what is now s. 487 of the Criminal Code. In that case, Mierzwinski had allegedly lied to a lawyer at a legal aid clinic with respect to his finances. At issue was the validity of a search warrant to search the offices of the clinic to find the form upon which Mierzwinski made his financial declaration. Lamer J., as he then was, writing for the Court, found that since it was the financial declaration itself which was alleged to be fraudulent, it was not subject to solicitor-client privilege.
In the course of his reasons, Lamer J. discussed the jurisdiction of a justice of the peace to issue a search warrant and noted that the jurisdiction did not, in any way, depend on the nature of the premises to be searched. That is to say, a search could be authorized of any premises within a residence, lawyer's office or media organization.
Lamer J. observed, however, that a justice of the peace could lose jurisdiction if sufficient protection were not given to the fundamental right of freedom of the press. At pages 889-91, he held:
The justice of the peace, in my view, has the authority, where circumstances warrant, to set out execution procedures in the search warrant; I would even go so far as to say that he has the right to refuse to issue the warrant in special circumstances, such as those found in Re Pacific Press Ltd. and The Queen et al., supra.
That case involved a search of a newspaper office for information gathered by the newspaper staff. Neither the newspaper staff nor the newspaper itself were accused of having been involved in the commission of an offence. In view of the special situation of a newspaper in light of ss. 1(f) and 2 of the Canadian Bill of Rights, R.S.C. 1970, Appendix III, Nemetz C.J. of the British Columbia Supreme Court quashed the search warrant issued by the justice of the peace . . .
. . .
It could be advanced that the two conditions set out by Nemetz C.J. should be met before a warrant is issued whenever a search is sought to be conducted, under 443(1)(b), of premises occupied by an innocent third party which are not alleged by the information to be connected in any way with the crime. It is not necessary for purposes of this appeal to decide that point. It is sufficient to say that in situations such as the one in Re Pacific Press Ltd., where the search would interfere with rights as fundamental as freedom of the press, and, as in the case at bar, a lawyer's client's right to confidentiality, the justice of the peace may and should refuse to issue the warrant if these two conditions have not been met, lest he exceeds the jurisdiction he had ab initio. [Emphasis added.]
From this I take it that if the failure to meet these two conditions would interfere with the freedom of the press, this could result in a loss of jurisdiction. Such a failure would not necessarily result in an automatic loss of jurisdiction. It must not be forgotten that in the Pacific Press case, the search significantly interfered with the operations of the newspaper resulting in a delay in publication of the news. Today that same situation would require a Court to take into consideration ss. 8 and 24 of the Charter.
The decisions in both Descôteaux and Pacific Press recognized that a justice of the peace has a discretion to determine whether to issue a search warrant. In exercising this discretion, a balance must be struck between the interests of the state in investigating and prosecuting crime and the privacy interests of the individual or body whose premises the state wishes to search. Both cases indicate that a proper balancing of these interests must involve a consideration of the effects of the search on both the ability of the police to proceed with their investigation and the ability of those being searched to carry out their functions.
In Pacific Press, the search disrupted the operation of a corporation which was not implicated in the crime being investigated and delayed the publication of its newspaper. These factors weighed heavily in the determination that the search warrant was not valid. Perhaps the only circumstance which could have counterbalanced and outweighed the serious interference with the operations of the media organization was a demonstrated necessity to obtain the information. This necessity could have been demonstrated by establishing that:
1.no other reasonable alternative source of obtaining the information was available, or
2.if an alternative source were available, that reasonable steps had been taken to obtain the information from the alternative source and that they had been proved unsuccessful.
Because these two factors were not demonstrated on the information placed before the justice of the peace, Nemetz C.J., on balancing all of the factors involved, held that the search warrant should be quashed.
The balancing of interests is essential to the entire process involved in the issuance of search warrants. As Lamer J. noted in Descôteaux, the various interests must not only be considered in determining whether a warrant should be issued, but also in determining the form the warrant should take. He wrote at p. 891:
Moreover, even if the conditions are met, the justice of the peace must set out procedures for the execution of the warrant that reconcile protection of the interests this right is seeking to promote with protection of those the search power is seeking to promote, and limit the breach of this fundamental right to what is strictly inevitable. [Emphasis in original.]
The Constitutional Protection of Freedom of Expression
Any search of premises is certain to be disquieting and upsetting. The invasion of privacy rights which a search entails is an important concern for all members of a democratic society. Some searches are obviously more intrusive and upsetting than others. For example, the search of a residence is likely to have graver consequences than a search of commercial premises which may be subject to statutory regulation and inspection. Because of its intrusive nature, a warrant to search any premises must only be issued when a justice of the peace is satisfied that all the statutory requirements have been met. In those situations where all the statutory pre-requisites have been established, the justice of the peace should still consider all of the circumstances in determining whether to exercise his or her discretion to issue a warrant. It is not a step that can be taken lightly. This is particularly true when a warrant is sought to search the offices of a news media organization, where the consequences are likely to be disruptive of the media's role of gathering and publishing news.
The media have a vitally important role to play in a democratic society. It is the media that, by gathering and disseminating news, enable members of our society to make an informed assessment of the issues which may significantly affect their lives and well-being. The special significance of the work of the media was recognized by this Court in Edmonton Journal v. Alberta (Attorney General), [1989] 2 S.C.R. 1326, at pp. 1339-40. The importance of that role and the manner in which it must be fulfilled give rise to special concerns when a warrant is sought to search media premises.
The constitutional protection of freedom of expression afforded by s. 2(b) of the Charter does not, however, import any new or additional requirements for the issuance of search warrants. What it does is provide a backdrop against which the reasonableness of the search may be evaluated. It requires that careful consideration be given not only to whether a warrant should issue but also to the conditions which might properly be imposed upon any search of media premises.
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. 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.
The balancing of interests is always a difficult and delicate task. In this case, for example, the throwing of Molotov cocktails at a building not only damaged the property but constituted a potential threat to the lives and safety of others. The investigation of a serious and violent crime was of importance to the state. Further, in light of the ongoing demonstrations, some urgency in conducting the search must be recognized. On the other hand, the objects sought to be seized were the product of the research and investigation of a media organization. It was important that the continuing work of the media should not be unduly impeded.
The factors to be weighed with regard to issuing a warrant to search any premises will vary with the circumstances presented. This is as true of searches of media offices as of any other premises. It seems to me, however, that where the media have fulfilled their role by gathering the news and publishing it, there would seem to be less to be said for refusing to make that material available to the police. At that point, the media have given to the public, by way of picture or print, evidence of the commission of a crime. The media, like any good citizen, should not be unduly opposed to disclosing to the police the evidence they have gathered with regard to that crime.
For example, if a private citizen took pictures of a crime being committed and posted those pictures on a public notice board, the public could quite properly expect that those pictures and the negatives would, upon request, be delivered to the police. This is so as it is in the best interests of all members of the community to see that crimes are investigated and prosecuted. Should the private citizen fail to do so, the police would be expected to take steps to obtain a warrant to search the citizen's premises for the negatives and copies of the photographs. Once the media have published the information, the same principles might well apply to them.
The media argue that the issuance of a search warrant would have the effect of "drying up" their sources of information. In my view, that argument is seriously weakened once the media have placed the information in the public domain. They can then no longer say, in effect, "I know that a crime was committed; I have relevant information that could assist in its investigation and prosecution, but I'm not going to assist you towards that end". Once the information has been made public, it becomes difficult to contend there would be a "chilling effect" on the media sources if that information were also disclosed to the police. At that point, it is unlikely that the police would want more than the videotape itself. With the tape in their possession, the police would usually have no interest in identifying the media's informant whose tip led to the making of the film. Should it be necessary, appropriate steps might be taken by the media to have the court determine what protection could properly be obtained. The police themselves might very well be interested in protecting the identity of a media informant in many cases.
Counsel for the CBC submits that the two factors referred to in Pacific Press should, pursuant to s. 2(b) and s. 8 of the Charter, be made mandatory conditions for the issuance of any warrant for the search of premises of media organizations. In essence, the CBC submits that these two factors ought to be separated from all others that have to be considered in determining the reasonableness of a search. It is said that they should be made constitutional prerequisites of any search of media offices, where the media are not implicated in the crime under investigation.
In my view, the assessment of the reasonableness of a search cannot be said to rest only upon these two factors. Rather all factors should be evaluated in light of the particular factual situation presented. The factors which may be vital in assessing the reasonableness of one search may be irrelevant in another. Simply stated, it is impossible to isolate two factors from the numerous considerations which bear on assessment of the reasonableness of a search and label them as conditional prerequisites. The essential question can be put in this way: taking into account all the circumstances and viewing them fairly and objectively can it be said that the search was a reasonable one?
It is the overall reasonableness of a search which is protected by s. 8 of the Charter. Certainly the potentially damaging effect of a search and seizure upon the freedom and the functioning of the press is highly relevant to the assessment of the reasonableness of the search. Yet neither s. 2(b) nor s. 8 of the Charter requires that the two factors set out in Pacific Press must always be met in order for a search to be permissible and constitutionally valid. It is essential that flexibility in the balancing process be preserved so that all the factors relevant to the individual case may be taken into consideration and properly weighed.
I am supported in this conclusion by the reasoning of the Supreme Court of the United States. Once again, I recognize that the utmost care must be taken in considering American authorities. There are significant differences in the wording of the constitutional provisions pertaining to freedom of expression. There are differences in the history and traditions of the two countries. I recognize that American authorities can never be applied automatically as solutions to Canadian problems. Nevertheless, it is always helpful to review the careful consideration and learning which has been applied to this very problem.
AMENDMENT I
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
In Zurcher v. Stanford Daily, 436 U.S. 547 (1978), the police searched the offices of the Stanford Daily and seized several photographs which the newspaper had published showing certain individuals assaulting police officers. In this case, it was clear that there was an alternative source of information available to the police. Despite this, the search warrant was issued. On appeal, the newspaper argued that the search threatened the constitutionally protected freedom of the press. White J. delivering the opinion of the majority of summarized the newspaper's position this way at p. 563:
The general submission is that searches of newspaper offices for evidence of crime reasonably believed to be on the premises will seriously threaten the ability of the press to gather, analyze, and disseminate news.
In essence, the newspaper argued that a search warrant could never issue against a press organization where a subpoena could be used to obtain the information sought by the police. In support of its position, the newspaper employed arguments very similar to those advanced by CBC in the present case.
White J. for the majority rejected the newspaper's argument. In his view, the interests sought to be protected by the newspaper could adequately be protected by the requirement of reasonableness. At page 565, he wrote:
They [the framers of the American Constitution] nevertheless did not forbid warrants where the press was involved, did not require special showings that subpoenas would be impractical, and did not insist that the owner of the place to be searched, if connected with the press, must be shown to be implicated in the offense being investigated. Further, the prior cases do no more than insist that the courts apply the warrant requirements with particular exactitude when First Amendment interests would be endangered by the search. As we see it, no more than this is required where the warrant requested is for the seizure of criminal evidence reasonably believed to be on the premises occupied by a newspaper. Properly administered, the preconditions for a warrant -- probable cause, specificity with respect to the place to be searched and the things to be seized, and overall reasonableness -- should afford sufficient protection against the harms that are assertedly threatened by warrants for searching newspaper offices.
Thus it is clear that, in the United States, despite the constitutional protection provided to the press, a warrant may be issued for the search of media premises even though alternative sources of information are available to the police.
Summary of Factors to be Considered on the Issuance of a Search Warrant and Review of a Search Warrant
It may be helpful to summarize the factors to be considered by a justice of the peace on an application to obtain a warrant to search the premises of a news media organization together with those factors which may be pertinent to a court reviewing the issuance of a search warrant.
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.
8) If, subsequent to the issuing of a search 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.
9) Similarly, if the search itself is unreasonably conducted, this may render the search invalid.
Application of These Principles to This Case
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 alternative sources. But, in the alternative, officer Ouellette declared in his information that all reasonable sources of the information sought had been pursued but none were available. In this regard it is of considerable significance that there was a specific finding that there was no bad faith involved on the part of the police.
In light of this finding, it is safe to accept the information as one sworn in good faith. It follows that there is nothing nefarious in the failure to mention the presence at the scene of the identification officers. That same finding makes it appropriate to assume that these officers could not be considered an alternative source of information. If they could, the police would surely prefer to use their own witnesses and photographs or videotapes in the preparation of their cases. In any event, the finding that there was no bad faith is of critical importance to my conclusions.
Ouellette's information, therefore, directly addressed the concerns expressed by Nemetz C.J. in Pacific Press in declaring that no alternative sources of information were available. It must be assumed that the identification officers who were present at the scene could not be of assistance.
It would have been preferable if the presence of police identification officers at the scene had been set out in the information, together with the explanation as to why the officers were unable to supply the information sought by the police. However, as I have said, it must be assumed that the information was drawn and presented in good faith. This can be the only conclusion to be drawn, in light of the finding of Daigle J. that there was no bad faith involved on the part of the police. The statement that "there [were] no other means available to the police for obtaining evidence" must be accepted at face value. That statement should be taken as a short form of saying that the evidence sought was not available from the identification officers. While the police were required to provide an accurate description of the relevant facts, they were not obliged to describe every minute step taken in the course of the investigation. In sum, the information provided the justice of the peace with sufficient evidence to issue a search warrant. There is nothing in the record to indicate that the justice of the peace improperly exercised her discretion. In the circumstances, it should be accepted that the warrant was validly issued.
Disposition
In the result, the appeal should be dismissed.
//McLachlin J.//
The following are the reasons delivered by
McLachlin J. (dissenting) -- In the companion case, Canadian Broadcasting Corp. v. Lessard, [1991] 3 S.C.R. 000, I set out my view of the legal principles applicable to this type of case. Those principles lead me to the conclusion that the warrant in this case violated the Canadian Charter of Rights and Freedoms and cannot be upheld.
The affidavit in the case at bar indicated that there were no alternative sources of information which could be used in a court of law, since the other sources of information available to the police "do not dare come forward and testify in [a] court of law." No reasons for the reluctance of these witnesses was given. There is no suggestion that the witnesses in question could not have been subpoenaed to testify. It may be that they feared censure by fellow trade-union members if they testified against them. But we do not know. In the absence of such information, the justice of the peace was not in a position to determine if the issuance of the warrant was really necessary, or whether it was justified, given the violation of Charter rights which it entailed.
I would allow the appeal.
Appeal dismissed, McLachlin J. dissenting.
Solicitors for the appellant: Stewart McKelvey Stirling Scales, Moncton.
Solicitor for the respondent: The Attorney General for New Brunswick, Fredericton.
Solicitors for the intervener: Gowling, Strathy & Henderson, Ottawa.