Winnipeg journalist must hand over interview with father of man accused in mass shooting: judge

A Manitoba judge is standing by a decision ordering a Winnipeg reporter to hand over to police the full, unedited interview he did with the father of a man accused in connection with a mass shooting.

CityNews reporter Morgan Modjeski must give city police access to the raw footage of an on-camera interview he conducted with Randolph "Chummy" Fagnan in the aftermath of the 2023 shooting at a rooming house in Winnipeg's West Broadway neighbourhood, Court of King's Bench Justice Gerald Chartier wrote in a decision issued Wednesday.

The journalist had challenged the order in court earlier this year, with his lawyer arguing the reporter's refusal to hand over the tape would be covered by laws protecting journalistic sources.

Wednesday's decision said Modjeski's argument that granting police access would hurt his ability to gain the trust of sources did not apply, because Fagnan was not a confidential source.

The order to turn over the interview "will authorize the least interference with the journalist's right to privacy in gathering and disseminating information," the judge wrote.

"There is no confidential source to protect, and portions of the interview have already been made public by the media."

Iain MacKinnon, who represented Modjeski, said granting police access through court orders could become a "slippery slope," turning media into an investigative arm for the state and harming journalists' credibility, impartiality and independence.

He says he was disappointed by the decision, but not surprised.

"When [cases involve] footage … that doesn't involve a confidential source, courts will typically and often allow the police to have access to that, as long as they can meet a certain, fairly low threshold of relevance," MacKinnon told CBC Thursday, arguing it shouldn't be that easy for police to get access to a journalist's material.

"The more cases that allow this to happen, perhaps the more likely the police will use journalists as an investigative tool," he said.

"The concern is that this becomes a more routine part of the investigative process for police when they're investigating crimes."

The federal Journalistic Sources Protection Act allows journalists to refuse to disclose information or documents identifying sources, unless that information can't be obtained any other way.

Any order must consider whether public interest in the administration of justice outweighs the public interest in preserving the confidentiality of a source, and the journalist's right to privacy, the legislation says.

Tape relevant to investigation: judge

Four people were shot dead and another one was taken to hospital in critical condition after a shooting at a home on Langside Street, just south of Sara Avenue, on Nov. 26, 2023.

Jamie Felix, who was 32 when he was arrested a few days later, was charged with four counts of second-degree murder and one count of attempted murder.

Modjeski said in an affidavit Felix's father told him in the interview his son had epilepsy, and his seizures "left him confused and disorientated."

A Winnipeg police detective's affidavit said the homicide unit had tried to interview Fagnan themselves, but he refused to give a statement.

Chartier said there is "no doubt" Felix's state of mind is relevant to the case, and he's satisfied the information Fagnan provided in the CityNews interview can't be reasonably obtained any other way.

But MacKinnon said sometimes, "people … want to talk to journalists but they don't want to talk to the police, and that's their prerogative."

"People [may not talk] to journalists as much if they know that everything they say to a journalist could just end up going to the police."

The lawyer said all the information relevant to the case was in the parts of the interview that were broadcast, and that police will likely be "disappointed" with the raw tape.

The matter had been in the courts for more than a year. Rogers Media Inc., Modjeski's employer, had successfully fought two previous production orders, but said in January it no longer objected to the order. Modjeski paid for this last court challenge out of pocket.

"I think this is the end of the road. It's really hard to appeal these type of rulings," MacKinnon said. "It would be an even more uphill battle than the original hearing was."