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Daniel Urbas is a lawyer with Woods & Partners. His practice focuses on media law, intellectual property, e-commerce and litigation. He can be reached at

The contents of Publishing Law should not be construed as legal advice offered by Masthead or Mr. Urbas. Readers should consult their own lawyers before acting.

Column for July 2001

Criteria for Issuing Search Warrants: Part 2

In last month's column, I reviewed search and seizure warrants issued against the media and how those warrants can disrupt the media's newsgathering function. This month, I review what the Courts look for when deciding whether or not to issue the search warrants.

CBC v. Lessard lists a variety of criteria which must be evaluated when determining whether a search warrant should be issued.

1) It is essential that all the requirements set out in s. 487(1)(b) of the Criminal Code for the issuance of a search warrant be met.

2) Once the statutory conditions have been met, the justice of the peace should consider all of the circumstances in determining whether to exercise his or her discretion to issue a warrant.

3) The justice of the peace should ensure that a 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 newsgathering and new dissemination. It must be borne in mind that the media play a vital role in the functioning of a democratic society. Generally speaking, the news media will not be implicated in the crime under investigation. They are truly an innocent third party. This is a particularly important factor to be considered 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 the justice of the peace to properly exercise his or her discretion as to the issuance of a search warrant.

5) Although it is not a constitutional requirement, the affidavit material should ordinarily disclose whether there are alternative sources from which the information may reasonably be obtained and, if there is an alternative source, that it has been investigated and all reasonable efforts to obtain the information have been exhausted.

6) If the information sought has been disseminated by the media in whole or in part, this will be a factor which will favour the issuing 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, so that the media organization will not be unduly impeded in the publishing or dissemination of the news.

8) If, subsequent to the issuing of a search warrant, it comes to light the authorities failed to disclose pertinent information that could well have affected the decision to issue the warrant, this may result in a finding that the warrant was invalid.

9) Similarly, if the search itself is unreasonably conducted, this may render the search invalid. (underlining added)

Review of the search and seizure

The media have not been content to accept the current two-step process (see Part One from last month for a fuller description of the two-step process), and have challenged the two-step process. As recently as March 2001, the Ontario Court of Appeal in R. v. CBC upheld the existing two-step process of ex parte authorizations followed by judicial review. (A complete copy of the decision is available in electronic format at
. A print version is reported at (2001), 52 Ontario Reports (3d) 757). In R. v. CBC, print and broadcast media objected to the search and seizure of their respective business premises for video images generated by the media during a demonstration on June 15, 2000. The demonstration was organized by the Ontario Coalition Against Poverty and carried out at Queen's Park.

The print and broadcast media in R. v. CBC asked the Court to revisit the criteria set out in CBC v. Lessard and add an additional factor. In particular, the media submitted unsuccessfully that before issuing a search warrant, a justice of the peace must give the media prior notice and a right to make submissions, failing which the issuance of the search warrant would be irregular and void. In effect, the media asked that a search warrant no longer be issued in the absence of the media.

The Ontario Court of Appeal disagreed and applied CBC v. Lessard . The Court did note that the judicial review process applied after the warrant has been issued and that a somewhat higher standard of review existed in order to overturn a justice of the peace's decision to issue a warrant, but the Court declined to decide whether or not the standard of judicial review should be enlarged.

In R. v. CBC, the police did have prior notice of the demonstration in issue and did have access to alternative sources of images. Despite this, the police nonetheless successfully applied for a copy of the media's images. The police were successful because the images available to the police did not capture all available images and were not always of equal quality to the media's images.

Magazines and search warrants

In CBC v. Lessard and in R. v. CBC, the Court dealt with video images already broadcast by the media. The reasoning applies equally to photographs. Recently, a National Post photographer had his photos seized because the photographs contained numerous clear images of protesters at a riot in June. In that case the photos had already been published in part and the unselected photos would assist in identifying the wrongdoers.
In CBC v. Lessard, one of the judges expressly drew a further distinction between (a) films and photographs of an event and (b) reporters' personal notes, recordings of interviews and contact lists. Access to the latter group of documents could undermine the ability of the press to gather information and might create many of the "chilling effects" on newsgathering noted by Madam Justice McLachlin. However, the majority in CBC v. Lessard relied in part on the fact that the media had already broadcast portions of the videotape recording the vandalism. The majority was therefore influenced by the argument that the media had already completed its basic function of newsgathering and news dissemination and the seizure of the video tapes would not have a chilling effect on the media newsgathering. There was no issue of seizing any reporters' personal notes, recordings of interviews and contact lists

The distinction between having used and not-yet-used media materials may well be important when a seizure occurs at a magazine. Unlike video images, a magazine's editorial notes are not broadcast and reflect the editorial process. Seizure of any photographs and notes would cause many of the negative effects noted by Madam Justice McLachlin. Unlike daily newspapers and television networks which focus on generating and communicating daily news reports, magazines consistently have longer research and publication time lines and their news gathering function spans a longer time.

It is true that daily newspapers do invest in in-depth features and ongoing coverage of key events and may suffer disruptions and delays if the editorial material is removed. However, a magazine's work in progress is often not fully performed until the next monthly or quarterly issue. A magazine's editorial files are therefore accessible in pre-publication format for longer periods of time than breaking news items and this makes the magazines vulnerable to having their press function interrupted. As a result, a search and seizure at a magazine would likely disrupt or delay the magazine's publication because it would occur before the magazine has a chance to use the material in a future issue. Faced with a seizure, at the review stage, a magazine might focus on the fact that the seized information consists of editorial materials which have yet to be communicated to the public. The magazine may well ask the Courts to quash the seizure or impose additional conditions on any use of the materials by police.