R. v. Baltovich (Finkle Subpoena)
From Ad IDEM / CMLA
June 28, 2007
The most relevant passages of the judgment are excerpted below:
 It logically follows that, in some manner or other, the issuer must be satisfied that the proposed witness is likely to give material evidence in the proceedings in which his or her attendance is sought. It falls to the party who seeks the subpoena to establish the conditions precedent to its issuance.
 To hem applicants for subpoenas into a particular form of information to satisfy the requirements of section 698(1) seems at once inconsistent with the terms of the provision and inimical to the best interests of the administration of justice. Excessive formality would ensure form triumphs over substance and serve no useful purpose. That said, simply to attend with a list of names and addresses and expect subpoenas on demand reduces the requirement of section 698(1) “is likely to give material evidence” to a mere shibboleth.
 At bottom, what is required is information on the basis of which the issuer can conclude that the proposed witness is likely to give material evidence in the proceedings in which the witness’s attendance is to be compelled.
 When the issuance of a subpoena is challenged, it is inadequate for the party proposing to call the witness, in this case the prosecutor, to respond with a mere allegation that the proposed witness can give material evidence. More is required. And that more is to establish that the proposed witness is likely, or said another way, would probably have evidence material to the issues raised to give.
 The investigative procedures authorized by a search warrant or production order are invoked by police agencies, with or without prosecutorial advice and assistance, to obtain real evidence, things including documents, not testimony. Where the statutory conditions to the issuance of the warrant or order have been met, the justice or judge must consider all the circumstances in determining whether to exercise his or her discretion to issue the warrant or grant the production order. Among the circumstances that fall to be considered where the premises to be searched or the person or organization ordered to produce documents is a media outlet or journalist are the availability of alternate sources from which the information may reasonably be obtained, and whether what is sought has already been disseminated by the media or journalist affected.
 As it seems to me, a reasonable case may be made for the application of similar considerations where the process invoked is a subpoena duces tecum, at the very least where its principal purpose seems to be to obtain things not testimony. After all, like sections 487(1) and 487.012(1), section 698(1) is dressed in discretionary language.
 It is uncontroversial that, where alternative methods of obtaining evidence are available, the party who seeks the evidence may generally choose the means to achieve that end. At the same time, however, courts should be chary of manifest circumventions of traditional methods of acquiring evidence, especially those that avoid adherence to established constitutional principle. A subpoena duces tecum ought not to be used to avoid the scrutiny associated with other methods of acquisition.
 The issuing authority was told nothing about the relevance of alternative sources of the information sought by subpoena, much less about any efforts made to obtain the information from alternative sources. While not dispositive of issuance, such disclosure would inform the exercise of the statutory discretion of the issuer. The issuer was aware that the information sought was already in the public domain.
 The standard that the issuing authority was to apply was not whether Derek Finkle could give material evidence. And it was not whether Derek Finkle had documents that could be of assistance to the prosecution at Robert Baltovich’s trial. The test that the issuing authority was bound to apply on the basis of Detective Wilkinson’s say so, was whether Derek Finkle was likely to give material evidence at Robert Baltovich’s trial. The material presented must establish this probability, not a mere possibility.  A further concern is the near breathtaking sweep of the materials to be brought along. No effort seems to have been made to limit the carry-on.
 The subpoena issued on April 30, 2007 amounts to a fishing expedition under a colourable licence issued without authority. Fishing season is closed. The subpoena is quashed.
Submitted by: Iain MacKinnon