Canadian Broadcasting Corp. v. New Brunswick (Attorney General)  3 S.C.R. 459: - 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
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.
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