I just finished reading The Honourable Mr. Justice Watt’s decision regarding two subpoena issued against Derek Finkle. Essentially, after the Court of Appeals for Ontario ordered a new trial for Robert Baltovich, the prosecution decided that Derek Finkle’s book, No Claim to Mercy, a journalistic “true crime” investigation into Mr. Baltovich’s conviction of killing his girlfriend, Elizabeth Bain, would provide some sort of new evidence to the assist them in the re-conviction on Mr. Baltovich.

Now, considering that subpoenas duces tecum command “attendance for the purpose of giving evidence” (according to the Honourable Mr. Justice Watt), and direct the subpoenaed to bring whatever was described on the face of the subpoena, the issuer of the subpoena has to be fairly certain that what the subpoena describes is not only relevant, but — especially in this case — cannot be derived elsewhere. (Interestingly enough, the criminal code does not make any distinction between types of subpoenas, though the courts recognise two that I know of.)

In Mr. Finkle’s case, the police, or more specifically Detective Robert Wilkinson, simple sent a subpoena compelling production of written materials used in the creation of Mr. Finkle’s book. Later, it was joined by a second subpoena (issued by the same clerk, incidentally), compelling production of recorded materials and the like.

This is a bit strange. Actually, quite strange. First, the subpoena is remarkably sweeping. Second, Derek Finkle is unlikely to be called as a material witness for the prosecution. Third, there are other mechanisms in place for production of documents, all of which require explanations under oath. Fourth, the subpoenaed material could reasonably considered hearsay, making them inadmissible as evidence. Fifth, Mr. Finkle is a journalist, and as such is afforded special constitutional consideration.

Why did the police decide to issue a wide-ranging subpoena? As far as I can tell, Det. Wilkinson decided to do so simply because it was easier. A Document Production order, for instance, has a strong burden of proof against the issuer, and requires a statement under oath. A subpoena does not. And from Justice Watt’s statement, the subpoena was issued by a clerk without proper consideration, which the issuing office is required to undertake before a subpoena is issued. In effect, it was a boilerplate steam-roller of a subpoena, requested, approved, and issued without a whole lot of thought on the part of anyone involved.

But this is what got me. I find the last section of Justice Watt’s statement at once humorous and indignant — not to mention right on the money. In quashing the second subpoena, having already quashed the first, he said in section 95:

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.

I don’t like to be a cheerleader, but rebuking police overstepping their authority, safeguarding freedom of the press, and firing off a witty sound bite in the closing? Niiiiiiice.