Subpoena, Search Warrant and Production Order

Mulgrew v The Law Society of British Columbia 2016 BCSC 1279

Production orders were issued following the publication of an article in the Vancouver Sun on July 3, 2012, written by Mr. Mulgrew about Mr. Harding (the “Mulgrew Article”), in his role as counsel for the plaintiff in Walker v. Doe, Vancouver No. M085239 (B.C.S.C.). Walker was a personal injury trial that proceeded before a judge and jury. The presiding judge declared a mistrial following Mr. Harding’s address to the jury. The statements attributed to Mr. Harding in the Vancouver Sun article were critical of Dr. Amrit Toor, an expert witness who testified at the trial on behalf of the defendants. Dr. Toor made a complaint to the Law Society about the conduct of Mr. Harding.

The Law Society designated Kurt Wedel, one of its employees, to investigate the conduct of Thomas Harding, one of its members. In the course of his investigation, and pursuant to s. 26(4)(b), Mr. Wedel issued two orders to Ian Mulgrew and Postmedia Network Inc. d.b.a. The Vancouver Sun (collectively the “petitioners”) to produce information and material in their possession.

Mr. Justice Butler states at para 36:

This Court has on many occasions noted the crucial role that professional orders play in protecting the public interest. As McLachlin J. stated in Rocket v. Royal College of Dental Surgeons of Ontario, 1990 CanLII 121 (SCC), [1990] 2 S.C.R. 232, “[i]t is difficult to overstate the importance in our society of the proper regulation of our learned professions” (p. 249). The importance of monitoring competence and supervising the conduct of professionals stems from the extent to which the public places trust in them.

He goes on to state at paras 71, 72 and 73:

However, as the Law Society argued, I find that the petitioners’ privacy interest is attenuated. The SPO does not seek to obtain, and would not require production of, personal information about Mr. Mulgrew or proprietary corporate information about Postmedia Network Inc. The SPO targets the dealings between Mr. Mulgrew and Mr. Harding as opposed to any broader subject or category of documents or information. The information sought relates to the Mulgrew Article which had already been made public by the time the production orders were issued. In addition, the petitioners knew that Mr. Harding’s comments about Dr. Toor contributed to a mistrial, but nevertheless decided to publish the Mulgrew Article. They would have known that by doing so they may have inserted themselves into a dispute with Dr. Toor, or possibly a regulatory investigation of Mr. Harding. In these circumstances, the petitioners’ expectation of privacy is at the low end of the spectrum.

Contrary to the petitioners’ argument, the fact that they are journalists does not significantly bolster their reasonable expectation of privacy. Mr.Harding was not a confidential source and once the Mulgrew Article was published, much information was in the public domain. Further, the regulation of professions is a compelling objective. As noted by LeBel J. in Pharmascience Inc. v. Binet, 2006 SCC 48 (CanLII) at para. 36, the Court has emphasized the important role that professional regulators play in protecting the public…

There is no doubt that members of the media do have an expectation of privacy in relation to their work product and that courts must be careful to protect s. 2(b) Charter rights. However, the expectation of privacy must be considered in the factual context. Here, the request for documents and information takes place in the context of the regulation of the legal profession. The petitioners face no jeopardy in the investigation and the LPA contains considerable safeguards which protect the confidentiality of the information provided. In all of the circumstances, when the public interest in proper regulation of the legal profession is balanced against the rights of the petitioners as journalists, there is no reason to prefer the petitioners’ rights in a way which would elevate their privacy interests.

He goes on to say, at paras 102, 103, 104 and 105:

In arguing that the SPO fails to proportionately balance s. 2(b) Charter guarantees, the petitioners rely on three decisions, all of which consider situations where search warrants were issued against journalists under the Criminal Code: R. v. Dunphy, [2006] O.J. No. 850 (S.C.J.); Canadian Broadcasting Corp. v. New Brunswick (Attorney General), 1991 CanLII 50 (SCC), [1991] 3 S.C.R. 459; and Canadian Broadcasting Corp. v. Lessard, 1991 CanLII 49 (SCC), [1991] 3 S.C.R. 421. I have already set out above why the SPO does not violate s. 8 of the Charter. In doing so I emphasized that the context of the issuance of the production order under s. 26(4) was far removed from the criminal law. Most of the petitioners’ arguments under this part of the application also miss the mark as they are focused on criminal law search warrants and the balancing that is required in that context. In this regard, I accept the following statement set out in the Law Society’s argument:

Contrary to the Petitioners’ submissions, judicial decisions under Criminal Code provisions authorizing the issuance of warrants are not similar to administrative decisions under LPA s. 26(4). An administrative decision-maker, such as Mr. Wedel, is tasked with fulfilling the objectives of the legislation under which he or she is empowered, albeit with due respect for Charter values. Doré sets out an administrative law framework for reviewing his or her decision, in which deference plays a significant role. By contrast, an authorizing justice under the Criminal Code acts judicially, as an impartial arbiter of whether the evidence meets the requirements for issuing a warrant and as a bulwark for citizens against the potentially overwhelming power of law enforcement.

The petitioners say that the issuance of the SPO engages the guarantees set out in s. 2(b) and the values those guarantees protect. The Law Society says it does not. I need not consider this issue closely. This is because even if the issuance of the SPO does engage s. 2(b), the circumstances of this case are such that Mr. Wedel struck an appropriate proportionate balance between the statutory objective of the LPA and freedom of expression and freedom of the press. This is because the s. 2(b) guarantees are not seriously challenged in the circumstances of this case. It is difficult to see how the SPO could have any impact on the petitioners’ reporting, publishing or gathering of the news.

The petitioners emphasize the comments of Justice McLachlin in Lessard at 453:

… I cannot accept that the fact that a portion of the material seized may have been published negates the chilling effect seizure might have on informants and the press itself.

The circumstances of this case are very different from the context in Lessard and in other criminal cases. Mr. Harding was not, in any sense, a confidential source. The statements in the Mulgrew Article were directly attributed to him. The SPO only compelled production of files and records relating to communications between a journalist and a public source long after the news item had been published. The SPO covered a very limited time period and did not require disclosure of privileged material. When issuing the SPO, Mr. Wedel was required to consider not only the possible impact of the production order on the petitioners’ Charter guarantees, but also the statutory objectives of the LPA, including the protection of the public interest and the need to investigate complaints against members. The communications in question were part of the very conduct that the Law Society was investigating. In these circumstances, the issuance of the SPO did not limit the s. 2(b) Charter guarantees any more than necessary in order to fulfil the statutory objectives.