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Media’s Rights Upheld as Production Order Denied
Published in the March 2006 issue of Litigation Notes - View Article
An Ontario court has released an important media law decision regarding the section of the Criminal Code (Canada) that permits a peace officer to apply for an order requiring persons not under investigation (i.e. a reporter) to produce materials that the peace officer believes will afford evidence of a crime. As this case demonstrates, this section can be used against journalists when their work product is necessary for the investigation of a crime.
In this case, the Crown brought an application seeking an order requiring Bill Dunphy, a newspaper reporter for the Hamilton Spectator, to produce notes of his interviews with Paul Gravelle, whom the Hamilton police believed to be the head of a criminal organization composed mainly of family members.
The Crown believed that the interview notes would afford evidence respecting the murders of Fred and Lynne Gilbank in 1998. Ms. Gilbank was a criminal lawyer representing William Smith on drug charges. The Hamilton police believed Mr. Smith was working for Mr. Gravelle when he was arrested for importing 18.3 kilograms of cannabis resin into Canada.
During Mr. Smith’s trial, he was identified as a confidential police informant on several other charges, including charges against Mr. Gravelle’s brother and Mr. Gravelle’s former girlfriend. He was placed in witness protection, and shortly afterwards, two other brothers of Mr. Gravelle’s and Mr. Gravelle’s son were charged with drug offences.
Ms. Gilbank and her husband were subsequently shot to death in their home, and it was the Crown’s theory that, being unable to target Mr. Smith, the Gravelle criminal organization instead killed his lawyer in order to intimidate other potential informers. Two men were charged with these murders – Mr. Gravelle was not charged.
Mr. Dunphy interviewed Mr. Gravelle and wrote several articles containing excerpts of these interviews which were published in the Hamilton Spectator, beginning in March 2001. The articles did contain information about the murders and the drug prosecutions that the Crown considered to be the motivation for the murders.
Mr. Gravelle consistently denied any involvement in the murders, although on several occasions he approached the police, claiming to know the identity of the murderer. Mr. Gravelle offered to give the police this information in exchange for having drug charges against him and his son dropped.
The Hamilton police interviewed Mr. Dunphy in January 2005 regarding an article published on January 11, 2005. Mr. Dunphy advised the police that the article contained all of the information available to him regarding the murders. Nevertheless, he refused to produce his notes, claiming journalist privilege.
This was the first case to consider s. 487.012 of the Criminal Code, which allows the Crown to apply for a “production order” from the court. While the Crown may bring an ex parte application under this section, in this case the Crown agreed that the application should be brought on notice, in order that the journalist could be represented and could claim privilege over the items required to be produced.
The Court established that such an application would have to meet the same standard established for search warrants, namely that of “credibly-based probability”. It determined that the issues to be answered were: 1) whether the information established reasonable grounds to believe that the notes would afford evidence respecting the commission of the offence, 2) if so, whether the information was privileged or otherwise protected and 3) if the order is justified, what the proper limitations on the scope of the order would be.
The Court considered the following factors in coming to its decision: (i) the interest of the state in prosecuting crime must be balanced against “the right to privacy of the media in the course of their news gathering”; (ii) any alternate sources of the information sought must be disclosed to the court; and (iii) whether the information sought has been disseminated by the media in whole or in part.
The Court noted that Mr. Dunphy had indicated that all relevant information had already been reported in the articles. It found that the Crown’s only argument to the contrary was that Mr. Dunphy might not be alive to the relevance of some of the information in the notes, as he did not have all of the information that the police had. The Court found that the suggestion amounted to a fishing expedition when the Crown could produce no actual evidence of this.
The Court found that, as Mr. Dunphy had stated that there was nothing more in the notes that did not appear in his articles, this was actually a factor that would favour the granting of a production order. However, it also found that there was an alternate source from whom the information sought could be obtained, namely Mr. Gravelle himself. The Court held that, although the police might not find him trustworthy, any information he might have given Mr. Dunphy would be similarly untrustworthy. The police had not exhausted their attempts to gain the information from Mr. Gravelle directly, and had not attempted to get his consent to producing the information contained in the interview notes.
The Court went on to find that, if it had decided to order production of the notes, the request for all notes over a four year period was far too broad, and any order would have been limited to only those interview notes on the occasions where the interview information was used in the articles published.
In the end, the Court dismissed the Crown’s application, refusing to set the “prosecutorial interest of the state” over the interests of the media and noting the importance of protecting “the media’s vital role in the functioning of a democratic society.”
R. v. Dunphy [2006] O.J. No. 850 (S.C.J.)