Should reporters be deputies for the police?

A ruling by the Manitoba Court of Appeal this week has some important lessons for police and the media, and the troubling tendency on the part of police agencies to use media to further their investigations.

Five years ago, police forces were given a new tool called the production order. Though it bears some similarities to a search warrant, a production order can compel someone who is not the subject of an investigation to turn over documents and video tape to the police.

When a media outlet is served with a production order, a series of important questions touching on freedom of the press are raised. These can be particularly vexing when it comes to investigative journalism, but the principles involved are important for all types of reporting.

In April 2008, RCMP were attempting to arrest Terrence Yellowback following an alleged assault in God's River, Manitoba. Police allege he charged an officer with a weapon, at which point he was shot in the hip.

The weapon turned out to be a table leg. When the officer realized Yellowback wasn't brandishing a gun, she resorted to her Taser to immobilize him.

Later that month, the Manto Sipi Cree Nation called a press conference to criticize RCMP for its decision to investigate the circumstances of the shooting itself. Yellowback also spoke at the press conference, calling for an independent inquiry into the shooting. The press conference was covered widely in the media.

Instead of responding to the call for an independent inquiry, the RCMP decided to ratchet up its own investigation. Police were granted an ex parte hearing before a provincial court judge. The judge issued production orders which would force CBC, CTV, Global and APTN to turn over all their videotaped material from the press conference and the one-on-one interviews that followed.

And everything about these production orders was to remain a secret. Here is the provision as it applied to the CBC:

Canadian Broadcasting Corporation and any employee, servant or agent shall not directly or indirectly disclose or permit disclosure of the content, existence or operation of this order, in any manner, or to any person except as may be necessary for the purposes of compliance with its terms or obtaining the advice or assistance of legal counsel unless otherwise ordered by a Court of competent jurisdiction.

Two other media outlets, Global Winnipeg and APTN, complied with the production orders and turned over their tape to the police. But RCMP still insisted the other stations do the same, hoping they would get additional information from interviews that might appear on the tapes.

The law creating production orders came into force in 2004. Unlike search warrants, they can force people who aren't under investigation to produce documents, or even to prepare documents based on data already in existence, where those materials might pertain to the commission of a crime.

Failing to comply with a production order carries a fine of up to $250,000, or a six-month jail term.

CBC and CTV refused to comply with the orders and took the matter to court, where Justice Glenn Joyal of Manitoba Court of Queen's Bench quashed the orders. He ruled that the production orders constituted an unreasonable search of a media organization pursuant to section 8 of the Canadian Charter of Rights and Freedoms.

The Attorney General of Manitoba and Canada both appealed that decision to the Manitoba Court of Appeal. Earlier this week, the appeal court upheld Justice Joyal's judgment and dismissed the government's appeals.

The original judge's ruling said the RCMP knew about the press conference in advance and could have tried to attend if it wanted to, but chose not to. Instead, it tried to deputize the media after the fact, and use them as part of its investigative machinery.

"Production orders against the media casually given can have a chilling effect on the appearance of independence and on future actions of members of the public and the press," the appeal court ruled. "There may be a resulting loss of credibility and appearance of impartiality."