Subpoena, Search Warrant and Production Order

Toronto Star v The Queen 2017 ONSC 1190

On December 28, 2016, the Ontario Court of Justice issued a Production Order pursuant to s. 487.014 of the Criminal Code against the Toronto Star Newspapers Ltd., relating to an interview conducted in November 2015 by Toronto Star reporter Olivia Carville with Matthiew Deiaco.

The accused is charged with human trafficking, assault, kidnapping, and uttering death threats. The video and interview were part of a series of stories the Star did on human trafficking.

Justice Morgan states:

The Toronto Star is not, as its counsel suggests in argument, being used here as an instrument of the state; nor is it being made to disgorge information in the face of a guarantee of confidentiality given to its source. The source, Mr. Deiaco, gave the interview to the newspaper of his own free will and was apparently prepared to have it published. In seeking the Production Order, the police have not exploited the position of the Toronto Star and its reporter in a way that causes a legally recognizable chill on the press: R v National Post, [2010] 1 SCR 477, at paras 89-90.

Morgan J. goes on to state:

The Toronto Star’s affiant, Kevin Donovan, a seasoned and respected journalist, contends that the Production Order may have a “chilling effect” in the sense that it will discourage people from speaking to a reporter “if they know that, regardless of the assurances they received from a reporter, all of the information they provide to the reporter may be given to the police in full, unedited form, and be used to assist in their own prosecution or the prosecution of others.” It is understandable that the media may perceive the responses of potential interviewees this way, and I am certain that Mr. Donovan is stating the genuine belief of an experienced reporter. Indeed, McLachlin J (as she then was) acknowledged this point in her lone dissent in CBC v Lessard, at para 66, where she conceded that “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”.

Morgan J. then say’s:

…As applicant for an order of certiorari, the Toronto Star cannot succeed unless they show there was no reasonable basis to issue the Production Order. As reviewing judge, I am not to engage in a de novo analysis or substitute my own opinion for that of the authorizing justice: R v Sadokov, at paras 83-89.

[36] Having regard to the Lessard factors set out above, I am of the view that the authorizing justice “could have found the issuance of the production order against a media target to be reasonable”: R v Vice Media, at para 13 [emphasis added]. The test for quashing the Production Order has not been met.

Morgan J. concludes by stating:

Finally, I note that the Toronto Star submits that, in the alternative to quashing the Production Order, it be varied pursuant to s. 487.0193(4) of the Criminal Code. That section authorizes a court to revoke or vary a production order if compliance with it would be unreasonable or if it would necessitate the disclosure of privileged information. There is nothing in the record to suggest that either of those circumstances apply to the Production Order in issue here.