Case information

Criminal law — Evidence — Journalist — Disclosure of journalistic records — Accused applying for production of third-party records from journalist –– How should courts consider the public interest in the “freedom of the press” under subsection 39.1(7)(b)(ii) of the Canada Evidence Act, and weigh whether the public interest in the administration of justice outweighs the public interest in preserving the confidentiality of the source? — Canada Evidence Act, R.S.C. 1985, c. C-5, s. 39.1.

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(PUBLICATION BAN IN CASE) (SEALING ORDER) (CERTAIN INFORMATION NOT AVAILABLE TO THE PUBLIC)

The respondent, Haydn Edmundson, was charged with sexual assault and committing an indecent act arising out of an incident on board of a Canadian naval vessel many years ago. About nine months before the respondent was charged, the applicant, Canadian Broadcasting Corporation (“CBC”), published a story relating to a senior military commander under investigation after being accused of sexually assaulting a subordinate. The story was based on information provided by the complainant and by two unnamed sources. In the respondent’s trial, the main Crown witnesses include X, who may be the unnamed female source mentioned in CBC’s article. The respondent sought production of the notes and records of the interview with CBC if they pertained to X. The issue was whether the journalist source privilege should be overridden in the interests of justice.

Crewe J. of the Ontario Court of Justice found that s. 39.1 of the Canada Evidence Act, R.S.C. 1985, c. C-5, which concerns disclosure of documents issued to journalists that are likely to reveal the identities of confidential sources, did not bar disclosure. Crewe J. made the inference that the unnamed female source was probably X, and applied that inference in considering the balancing exercise under s. 39.1(7), the provision establishing the test a court must apply to determine whether to authorize the disclosure of information. MacLeod J. of the Ontario Superior Court of ustice dismissed CBC’s appeal, finding that Crewe J. did not commit an error of law or alter the applicable test.