Canadian Broadcasting Corp. v. Lessard [1991] 3 S.C.R. 421: - Search warrants issued for premises of the press - Seized videotapes already aired - 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 QUEBEC

Constitutional law - Charter of Rights - Freedom of the press - Search warrants issued for premises of the press - Seized videotapes already aired - 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, ss. 1, 2(b).

Criminal law - Search warrants - Premises of the press - Seized videotapes already aired - 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, ss. 1, 2(b).

A CBC camera crew videotaped a group of people occupying and damaging a post office building and both CBC's English and French language networks aired portions of the videotape. There is no indication that the police were at the scene or were aware of the incident at the time the tape was made. The police sought an authorization from a justice of the peace to search for the videotapes the day after the broadcast. The parties agreed that nothing in the affidavit would permit the justice of the peace to determine if there were an alternative source of information and, if there were such a source, whether reasonable steps had been taken to get the information from that source. Nonetheless, a warrant was granted to enter, search and seize the videotapes at the CBC's head office in Montreal on the basis of the information.
Several tapes were seized and, at the request of CBC officials, were placed in a sealed envelope while the validity of the warrant was contested. To that end, the CBC brought an application for certiorari to quash the search warrant. The Quebec Superior Court dismissed the application but a majority of the Court of Appeal allowed CBC's appeal.

Held (McLachlin J. dissenting): The appeal should be allowed.

Per Sopinka, Gonthier, Cory and Stevenson JJ.: Warrants for the search of any premises constitute a significant intrusion on the privacy of individuals and corporations alike. The privacy interests of individuals in a democratic society must be carefully weighed in a search warrant application against the interests of the state in investigating and prosecuting crimes. This weighing and balancing will vary with the facts on each application. Even after the requirements of s. 487 of the Criminal Code have been met, the process of determining if a search warrant should issue may still be a difficult and complex process. Among commercial premises, the media are entitled to particularly careful consideration, both as to the issuance of a search warrant and as to the conditions that may be attached to a warrant to ensure that any disruption of the gathering and dissemination of news is limited as much as possible. The media are entitled to this special consideration because of the importance of their role in a democratic society.

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.

The crucial factor here was that the media had broadcast portions of the videotape depicting the commission of a crime before the application for the warrant. The failure to set out that there was either no alternative source of information to the police or, if there were, that the information sought could not be obtained from that alternative source, is a basis upon which the justice of the peace could refuse to issue the search warrant. This information should in most cases be placed before the justice of the peace. It is not, however, a constitutionally required condition for the issuance of a search warrant.

The search here was conducted reasonably and did not affect the operations of the news media. There was no indication that the police were at the scene or even aware of the crime when the film was made. It is reasonable to infer that they learned the details of the crime from the broadcast.

All members of the community have an interest in seeing that crimes are investigated and prosecuted and the media might accordingly even consider voluntarily delivering their videotapes to the police. Once the news media have published the gathered information, that information then passes into the public domain. The publication of that information is a very important factor for the justice of the peace to consider. The publication or broadcasting of the information was a sufficiently important factor to enable the justice of the peace to issue the search warrant notwithstanding the failure of the police to explain that there was no alternative source available that would give them the information contained in the videotape.

The failure to set out the lack of alternative sources was simply another factor to be taken into account in assessing the reasonableness of the search. Here, the actual search was conducted reasonably and properly. There was no interference with the operation of the news media, nor was the freedom of the press threatened. The media had already completed their basic function of news gathering and news dissemination and the seizure of the tapes at this stage therefore could not be said to have a chilling effect on the media's sources of news.

Per La Forest J.: As long as they are strictly confined to situations similar to the present case, Cory J.'s reasons were generally agreed with.

Freedom of the press is vital to a free society and comprises the right to disseminate news, information and beliefs. The gathering of information could in many circumstances be seriously inhibited, if government had too ready access to information in the hands of the media. The press should not be turned into an investigative arm of the police. Thus, the fear that the police can easily gain access to a reporter's notes could well hamper the ability of the press to gather information. Barring exigent circumstances, the seizure of a reporter's handwritten notes and "contact book" and items of this nature should only be permitted when it is clear that all reasonable alternative sources have been exhausted.

A line should be drawn, however, between films and photographs of an event and items such as a reporter's personal notes, recordings of interviews and source "contact lists". The "`chilling effect' on newsgathering" argument was unpersuasive in so far as it pertained to films and photographs taken of an event because the chill is already there. Absent a promise of confidentiality, no one can reasonably believe that there is no danger of identification when he or she is being captured on film by the press. With respect to films and photographs, the exhaustion of alternative sources should not necessarily be required, unless there has been a guarantee of confidentiality.

The possibility that the police will uncover other confidential sources in the course of searching for the relevant material is too attenuated to add restrictions against searches of press organizations under all circumstances. This concern can probably best be addressed by limiting the warrant to specifically delineated items.

The search here was reasonable under s. 8 of the Charter. There was no violation of s. 2(b) in the specific circumstances of this case, and it was not necessary to speculate about possible infringements resulting from a search in other circumstances. Even given an infringement, the search would be reasonable under s. 1 when the compelling requirements of law enforcement are weighed against the highly tenuous interference with the right. The question whether a search constitutes a reasonable limit under s. 1 is probably not different from the question whether a search is reasonable under s. 8.

Per L'Heureux-Dubé J.: The sole issue in this case concerns the right of the police to obtain a warrant to search the premises of an innocent third party (the CBC) in order to obtain evidence of the commission of a crime. The freedom of the press was not at issue, the more so here since the material sought had already been broadcast on two occasions before the search warrant was issued. These reasons addressed only the specific facts of this case; other sets of circumstances could warrant different considerations. No notion of confidentiality was attached or implied to the object of the search warrant in this case.

Once the conditions set out in s. 487 are met, the justice of the peace has jurisdiction to issue a search warrant to retrieve evidence of the commission of a crime even absent a statement as to the availability of alternative sources. Neither the law nor jurisprudence mandate such a statement even when the premises searched are those of an innocent third party, here a member of the media. A balancing process is neither mandated by s. 487 nor is it practical with regard both to the functions of the justice of the peace and to the burden on those requesting the search warrant.
Notwithstanding its importance, the constitutional protection of the freedom of the press does not go as far as guaranteeing the press special privileges which ordinary citizens, also innocent third parties, would not enjoy in a search for evidence of a crime. The law does not make such a distinction and the Charter does not warrant it. In fact, the press generally does not request special privileges.

Conditions can be imposed by a justice of the peace as to the manner in which a warrant can be executed and, in that regard, particular considerations for the media are quite relevant. These conditions, however, have nothing to do with the jurisdiction of the justice of the peace to issue the warrant once the conditions of s. 487 are established, notwithstanding the fact that the premises to be searched belong to innocent third persons or members of the press. There is no justification to add distinctions or nuances to the text of the Criminal Code based on the nature of the premises to be searched.

Per McLachlin J. (dissenting): Freedom of the press under the Charter must be interpreted in a generous and liberal fashion having regard to the history of the guarantee and focusing on the purpose of the guarantee.
The Charter guarantee is to protect the values underlying freedom of the press, like freedom of expression, and includes the pursuit of truth. Freedom of the press, like freedom of expression, is important to the pursuit of truth, to participation in the community and to individual self-fulfillment. In achieving these means, an effective and free press is dependent on its ability to gather, analyze and disseminate information, independent from any state imposed restrictions on content, form or perspective except those justified under s. 1 of the Charter.

The ways in which police search and seizure may impinge on the values underlying freedom of the press are manifest and can adversely affect the role of the media in furthering the search for truth, community participation and self-fulfillment. It is not every state restriction on the press, however, which infringes s. 2(b). Press activities which are not related to the values fundamental to freedom of the press may not merit Charter protection. The press activity at issue here - gathering and disseminating information about a labour demonstration - was directly related to the furtherance of the values underlying the guarantee of free expression. Such search and seizure accordingly infringes freedom of the press as guaranteed by s. 2(b) of the Charter.

A search and/or seizure on press premises which infringes s. 2(b) can be justified under s. 1 where:

  1. The search/seizure is necessary because there are no alternative sources for the information required;
  2. The importance of the search/seizure outweighs the damage to be caused by the infringement of freedom of the press; and
  3. The warrant ensures that the search/seizure interferes with the press's freedom as little as possible.

Given the seriousness of any violation of freedom of the press, the justice of the peace must be satisfied that the special requirements for the issuance of a warrant of search and seizure against a press agency are clearly established and made out with some particularity.

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