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Evidence - Privilege - Journalistic. Toronto Star Newspapers Limited v. Cavey
In Toronto Star Newspapers Limited v. Cavey (Ont CA, 2023) the Court of Appeal considered an appeal by a newspaper and a journalist who had been denied a "writ of certiorari to quash the subpoena" in relation to a defendant's CCC 278.3 [O'Connor] third-party disclosure application seeking "production of any notes or recordings" from the journalist's interview with a suspected victim:[3] On May 19, 2023 Mr. Cavey sought a subpoena against the Toronto Star via Form 16.1, as required by s. 278.3(5) of the Criminal Code in advance of a stage one hearing pursuant to R. v. Mills, 1999 CanLII 637 (SCC), [1999] 3 S.C.R. 668. In support of that subpoena request, he submitted the affidavit of a student-at-law with exhibits, a notice of application, and a factum – his complete s. 278.3 application record. A judge of the Ontario Court of Justice issued a subpoena on May 24, 2023. That subpoena requires the appellants to deposit copies of any notes, recordings, or other documents generated during the course of Ms. Bocknek’s interview with R.T. in a sealed package at the Ontario Court of Justice in Hamilton; however, the subpoena provides for an exception: the appellants “are not required to provide the things specified to any person or to discuss their contents with any person unless and until ordered by the court to do so.” Further, if, as here, the document is a “record,” then the appellants “are not required to bring it with you until a determination is made in accordance with [ss. 278.1-278.91] as to whether and to what extent it should be produced.”
[4] The Toronto Star and Ms. Bocknek applied to the Superior Court of Justice for a writ of certiorari to quash the subpoena. On July 26, 2023 Goodman J. (“the application judge”) declined to grant that extraordinary remedy. The appellants now appeal that decision to this Court.
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[6] We accept that the appellants, as third parties to Mr. Cavey’s trial, had the right to seek relief before the application judge by way of certiorari, since they had no statutory right to an interlocutory appeal. We also agree that the scope of certiorari available to the appellants is broader than that available to Mr. Cavey or the Crown. Parties to a criminal proceeding can only seek certiorari for errors of jurisdiction, but third parties, such as the appellants in this case, may also seek review for errors of law that are apparent on the face of the record. However, the order being reviewed must have a final and conclusive character vis-à-vis the third party: R. v. Awashish, 2018 SCC 45, [2018] 3 S.C.R. 87, at para. 12; and R. v. Primeau, 1995 CanLII 143 (SCC), [1995] 2 S.C.R. 60, at para. 12.
[7] The appellants assert that the issuance of the subpoena demonstrates errors of law on the face of the record, since the purposes for which Mr. Cavey seeks the records are impermissible under the s. 278 regime, and since the records are subject to journalistic privilege under s. 39.1 of the Canada Evidence Act, 1985, c. C-5. The appellants assert that the application judge should have exercised his discretion to grant certiorari, because these errors were patently obvious and he erred by failing to grapple with them.
[8] We are not persuaded by the appellants’ submissions. To begin, the application judge recognized that certiorari is a discretionary remedy. In this case, the application judge refused to grant the relief sought because, in his view, the trial judge was well placed to determine the crux of the appellants’ objection: that they were being “forced” to participate in a third-party records hearing that threatened the journalist-source relationship. He further held that the trial judge was in the best position to determine the likely relevance of the records and the intersection of journalistic privilege in the context of the s. 278 application, especially given the full record that will be before the trial judge. Indeed, the appellants have standing under s. 278 to assert their privacy interest in the records and their claim to journalistic privilege. They will have a full opportunity to make submissions on the issues before the trial judge.
[9] This court can only interfere with a discretionary decision not to grant certiorari where an application judge fails to give weight to all relevant considerations, rests on an error in principle, or is plainly wrong: Bessette v. British Columbia (Attorney General), 2019 SCC 31, [2019] 2 S.C.R. 533, at para. 35. The application judge considered all the arguments put forth by the appellants to quash the subpoena, and his reasons not to exercise his discretion reveal no errors in principle. We see no basis to interfere with his exercise of discretion.
[10] Nor do we accept the appellants’ argument that the application judge’s decision can be read as effectively removing the procedural safeguard of certiorari for third parties to challenge the issuance of subpoenas in the context of s. 278 hearings. The application judge recognized that the purpose of a subpoena duces tecum is not the discovery of documents from third parties. His decision reflects a careful consideration of the fact that alternative procedural protections exist which can protect the appellants’ legitimate interests without fragmenting Mr. Cavey’s criminal trial. In the specific circumstances of this case, he saw nothing that would warrant the immediate granting of an extraordinary, prerogative remedy: R. v. Johnson (1991), 1991 CanLII 7174 (ON CA), 3 O.R. (3d) 49 (C.A.), at pp. 53-54. We see nothing in the application judge’s reasons that would suggest third parties are prohibited from applying for certiorari to quash subpoenas in future cases.
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