A Fair and Balanced Judgment on a Pressing Subpoena

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Ashley Joannou is currently the editor of Yukon News, but her time as a reporter has proved an important item in territorial news. On October 28, 2016, Ms. Joannou published an interview with former Liberal candidate for Whitehorse Centre Tamara Goeppel, who was at that time under investigation by Yukon’s elections office for an alleged violation of the Elections Act. The allegations concerned non-compliance with the Elections Act regarding proxy voting, which entails delegating one’s authority as a citizen to vote to someone else.

Further investigation led to charges being laid by the RCMP against Ms. Goeppel for “aiding or abetting persons in making proxy applications that were not in accordance with Section 106 of the (Yukon Elections) Act.” Crown counsel issued a subpoena to Ms. Joannou, requiring her to appear as a witness in Ms. Goeppel’s trial to verify the statements Ms. Goeppel made in Ms. Joannou’s article from October 28.

Ms. Joannou applied for the subpoena to be quashed on August 27, 2018, the day Ms. Goeppel’s trial in the Territorial Court was to start. Justice J.Z. Vertes of the Yukon Supreme Court delivered a concise judgment out of necessity, quashing the subpoena. Justice Vertes relied on both principle and statute in his reasons, which are worth briefly discussing.

According to Section 698(1) of the Criminal Code, a subpoena may be issued “where a person is likely to give material evidence.” Justice Vertes found that the Justice of the Peace who issued the subpoena did not attempt to establish whether Ms. Joannou would give any material evidence, and that the Crown did not inform him or her of this. The onus, Justice Vertes states, is on the party seeking the subpoena to establish that the issuance would meet the standard of Section 698 of the Criminal Code.

Justice Vertes suggested a high threshold for subpoenas of the press, emphasizing what he calls “the special circumstances of the media and the competing societal interests of freedom of the press and the need to investigate and prosecute crimes.” The lack of evidence provided to the Justice of the Peace for both the materiality of the evidence and the lack of consideration of alternative sources (such as people named in the story itself aware of the same circumstances) proved fatal to the subpoena in Justice Vertes’ reasoning. Another aspect to consider is whether the testimony sought by the subpoena could prove or disprove a fact. Ms. Joannou’s article, Justice Vertes states, concerns Ms. Goeppel’s opinions and “general comments made by others,” not material facts. With this established, Justice Vertes found it unnecessary to the Crown’s case and unreasonable overall to issue Ms. Joannou the subpoena. It was quashed on these grounds.

Ms. Joannou’s testimony proved unnecessary to the Crown’s case against Ms. Goeppel, as Justice Vertes stated. Ms. Goeppel pleaded guilty on the second day of her trial. In all regards here, justice was done.

This blog post was written by a CCLA-PBSC RightsWatch student. Views expressed do not necessarily reflect the views of the CCLA or PBSC.