Production Orders in Investigations Upheld

Are journalists’ notes exempt from regulatory investigators? The Court in Mulgrew v. The Law Society of British Columbia, 2016 BCSC 1279 says no. In an interview with the Vancouver Sun, a lawyer made comments critical of an expert witness in one of the lawyer’s cases. The expert witness sued for defamation and made a complaint to the Law Society. The Law Society appointed an investigator who issued an order to the Vancouver Sun to produce its notes of the interview with the lawyer. The Vancouver Sun challenged the order on various grounds.

The Court held that the authority of regulatory investigators to compel third parties, including journalists, to produce information to assist in an investigation of a complaint resulted in little protection under the Canadian Charter of Rights and Freedoms. The expectation of privacy in these circumstances was minimal, the public interest in regulating lawyers was significant and the procedure permitted the third party to challenge the order before it was enforced. In addition, there was no real restriction on the ability of the journalist to write what they wanted. Thus the legislative provisions appeared to be consistent with the freedom against unreasonable search and seizure, the right to life, liberty and security of the person and the freedom of expression protections of the Charter.

The Court also held that the discretion of the investigator to seek relevant documents for an investigation ought to be given considerable deference, even if there was parallel civil litigation for defamation. However, in this case at least, the investigator had to file evidence justifying the investigatory decisions.

This case does not address fully concerns that might arise if the investigator sought production of confidential sources of the journalist.

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