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Canada’s Supreme Court Declines to Change Test for Media Production Orders

By Paul Schabas and Kaley Pulfer

The Supreme Court of Canada has confirmed that production orders against the media will continue to be assessed based on a vague, discretionary test. In a much-awaited decision in R. v. Vice Media Canada Inc., the Supreme Court upheld an order that Vice journalist Ben Makuch, had to turn over to police online instant messages and metadata between him and Farah Shirdon, a Canadian man who traveled abroad to join ISIS.

Those messages had formed the basis for a series of articles published by Vice in 2014. The Royal Canadian Mounted Police (the "RCMP") argued they were relevant to terrorism charges laid against Shirdon in Canada in 2015. Those charges include participating in the activities of a terrorist group and uttering threats of death for a terrorist group.

The RCMP obtained an ex parte order requiring Makuch to produce the messages, which was upheld by courts in Ontario. Vice appealed to the SCC, arguing that the test for granting search warrants and production orders against media established in a 1991 decision, CBC v Lessard, was vague, involved too much discretion, and allowed courts to simply rubber stamp police requests for production orders against the media.

While the facts of the case (i.e., no confidential source or promise of confidentiality, publication of the messages had occurred, the gravity of the charges involved) made a successful appeal unlikely, media organizations and other champions of free expression had hoped that the SCC would at least revisit the problematic Lessard test, which simply lists a number of factors an issuing judge should consider in exercising discretion without any mandatory requirements beyond those required for a search warrant. Ultimately, the SCC unanimously upheld the production order but split 5 to 4 on the substance of the test to be applied in such cases.

While the majority upheld the Lessard test, they streamlined it into a four-part analysis:

(a) consider whether law enforcement has provided evidence to justify proceeding without notice to the media (a welcome, albeit, still inadequate change to the routine practice of obtaining production orders on an ex parte basis);

(b) confirm that all statutory preconditions (i.e., Criminal Code provisions for granting a search warrant) are met;

(c) balance the state's interest in investigating and prosecuting crimes and the media's right to privacy in gathering and disseminating the news, in light of all the circumstances, including the likelihood and extent of any potential chilling effects; the likely probative value of the materials (although Crown must not show evidence is "necessary" to secure a conviction); whether alternative sources for the material exist and reasonable efforts have been made to obtain it from those sources; the effect of prior partial publication; and, more broadly, the vital role of the media (usually an innocent third party) in the functioning of a democratic society; and

(d) if granted, consider imposing conditions on the order to ensure the media is not unduly impeded in publishing and disseminating the news.

The majority, in a nod to media concerns, noted that the absence of a confidentiality agreement "does not give the state free rein to compel production of materials in the hands of the media" and that prior publication will not necessarily weigh in favour of granting the order, particularly where the police are seeking access to unpublished materials. They recognized that in such situations, compelled production may create a chilling effect. Still, the majority stuck with earlier jurisprudence that s. 2(b) of the Canadian Charter of Rights and Freedoms, which protects "freedom of...expression, including freedom of the press and other method of communication", serves only as a backdrop against which the reasonableness of a production order may be evaluated. The majority declined to consider whether freedom of the press constitutes an independent and distinct constitutional protection that must weigh in the balance.

The four concurring judges upheld the production order, but would have abandoned the Lessard test. The minority held that under section 2(b) of the Charter the press enjoys distinct and independent constitutional protection, separate from freedom of expression more generally. To that end, the concurring judges would have required a "rigorously protective harmonized analysis" for production orders, balancing the state's interest in investigating and prosecuting crime against the media's constitutionally protected rights of freedom of the press and privacy.

Relevant considerations would include the media's reasonable expectation of privacy, whether there is a need to target media at all, and whether the proposed order is sufficiently narrow so as to interfere with the media's rights no more than necessary. Under this approach, the more the state seeks to access confidential or off-the-record communications or journalists' private notes, the greater the harm to the media's privacy rights and the public's right to know. On the other hand, the state's interest will be stronger where the crime being investigated is serious, the evidence being sought is cogent, and the investigative need is urgent.

The minority's approach is more in line with, but still falls short of, protections elsewhere, which recognize distinct press rights and require a showing of necessity including having exhausted all alternative sources, and with robust Canadian free expression jurisprudence in other contexts involving media rights, such as publication bans and sealing orders.

Implications

Ultimately, the impact of the decision may be minimal. The case had facts favouring law enforcement interests. It did not involve confidential sources, which are now protected by the federal Journalistic Sources Protection Act which was enacted in 2017. Still, the result is disappointing in failing to provide more protection to the media and clarity as to when such orders should be made.

Vice's battle continues, however, as it is now seeking to have the production order stayed on the basis that Shirdon is dead, having been killed in Syria - something which had not been confirmed until 2017, two years after the production order was issued.

Paul Schabas and Kaley Pulfer are lawyers with Blakes Cassels & Graydon LLP in Toronto. Blakes acted for an international coalition of interveners on the Vice appeal, including the Media Legal Defence Initiative, Reporters Without Borders, Reporters Committee for Freedom of the Press, Media Law Resource Center, International Press Institute, Article 19, Pen International, Pen Canada the Canadian Centre of International, Index on Censorship, Committee to Protect Journalists, World Association of Newspapers and News Publishers, International Human Rights Program.

 
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