Case Summary and Outcome

The Supreme Court of Canada upheld the production order granted against a media house to produce communications between one of its journalists and a suspect in a terrorism investigation. After the Royal Canadian Mounted Police had been granted the production order by the Ontario Court of Justice, the media house appealed to both the Ontario Superior Court of Justice and then the Court of Appeal for Ontario, arguing that the framework which governed the review of the issuance of production orders did not adequately protect the media’s right to privacy under the Canadian Charter of Rights and Freedoms. The Supreme Court ruled that the Ontario Court of Justice had correctly balanced the state’s interest in investigating and prosecuting crime with the media house’s Charter rights, and although it declined to radically overhaul the framework it did reorganize and restate the factors that a court must consider when reviewing the issuance of a production order.

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Facts

In 2014, Ben Makuch, a journalist at Vice Media, a Canadian multimedia news outlet, began communicating with Farah Mohamed Shirdon, an individual suspected of being a member of the Islamic State of Iraq and Syria (ISIS). Makuch published three stories on Vice Media as a result of these communications. Following their publication, the Royal Canadian Mounted Police (RCMP) sought a “Production Order” ex parte (without the other party present) for Vice Media to produce data and communications (including screen captures of the conversations between Makuch and Shirdon) as Shirdon was under investigation for potential involvement with a terrorist organisation. On February 13, 2015, the Ontario Court of Justice granted the order and sealed the law enforcement affidavit, called the Information to Obtain (ITO), which set out the RCMP’s reasons in support of the production order.

Vice Media appealed the decision to the Ontario Superior Court of Justice, which upheld the production order but unsealed portions of the ITO and issued a temporary publication ban to protect against the risks of jury prejudice. Vice Media again appealed the decision. The Court of Appeal for Ontario also upheld the production order but unsealed more of the ITO – specifically the sections detailing the investigative action police would take on receipt of the information requested.

Vice Media then appealed the decision to the Supreme Court of Canada.

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Decision Overview

Justice Moldaver delivered the majority opinion of the Court, joined by Justices Gascon, Côté, Brown, and Rowe. Justice Abella delivered a concurring minority opinion on behalf of herself, Chief Justice Wagner and Justices Karakatsanis and Martin.

The central issue for the Court to determine was whether the existing framework in Canada which governed the review of the granting of a production order struck an appropriate balance between the rights involved. Specifically, the Court was required to determine whether this framework – established in Canadian Broadcasting Corp. v. Lessard [1991] 3 S.C.R. 421 which balances “the state’s interest in the investigation and prosecution of crime, and the media’s right of privacy in gathering and reporting the news” [para. 1] – needed to be reformed.

Vice Media argued that the Lessard principle should be modified to include a “presumed chilling effect on the media” whenever the police sought a production order [para. 25], and that it should remove the distinction between revealing “confidential and non-confidential sources” [para. 33]. Vice Media also submitted that the Court (and a reformed Lessard principle) should acknowledge that a “prior partial publication” of any information implicated in the production order does not negate the media’s right to protect their privacy in respect of the unpublished information [para. 40], and that any court hearing an application for a production order should consider “the prospect of the trial actually taking place and the probative value of the evidence sought” in assessing the state’s security interest claim [para. 46]. Vice Media argued that the production order in the present case did not meet their proposed modified Lessard principle, and so should be set aside.

The Crown argued that the existing framework under Lessard was effective and required a sufficient weighing and balancing of the relevant factors, and that the production order in the present case should be upheld as the issuing Court had employed well-settled legal principles.

The Attorney General submitted that the Lessard principle did not need updating but took no stance on the outcome of the present decision.

Several media and journalist organizations in Canada intervened to make arguments in support of overturning the production order. The intervenors submitted that Courts should always take into account the chilling effect their ruling may have on the media and should always examine the purpose and value of the production order. One intervenor, the British Columbia Civil Liberties Association, submitted that Courts should only authorize production orders where the seriousness and nature of the crimes under investigation, the urgency of the investigation, and the necessity and probative value of the material sought outweigh the public interest in free expression and freedom of the press

The Court examined the Lessard framework in detail to determine whether it provided “adequate protection to the media and the special role it plays in Canadian society” [para. 9]. The Court also referred to the cases of Canadian Broadcasting Corp. v. New Brunswick (Attorney General) [1991] 3 S.C.R. 421 and R v. National Post 2010 SCC 16 and emphasized that the existing framework sought to balance the rights to be free from unreasonable search and seizure, protected by section 8 of the Canadian Charter of Rights and Freedoms (the Charter), and the right to freedom of expression, protected by section 2(b) of the Charter. The Court quoted the Lessard case and noted that “the media are entitled to particularly careful consideration, both as to the issuance of a search warrant and as to the conditions that may be attached to a warrant to ensure that any disruption of the gathering and dissemination of news is limited as much as possible” and that “[t]he media are entitled to this special consideration because of the importance of their role in a democratic society” [para. 14].

In analyzing its own jurisprudence in respect of production orders the Court stressed that the right to freedom of expression “serves as a backdrop against which the reasonableness of the search may be evaluated” [para. 15]. It provided a summary of the nine elements that the Lessard framework requires Courts to assess when reviewing the issuance of a warrant: whether the statutory requirements have been met for the issuance of a search warrant; whether all other circumstances had been considered before the judge decided to exercise their discretion to issue a warrant; whether a balance was struck between the state’s interest in investigating crime and the media’s right to privacy, especially as the media “will generally be an innocent party”; whether there was sufficient detail in the affidavit used to support the request for a warrant; whether the affidavit had explained whether there are alternative sources from which the requested information could be obtained; whether the media had disseminated all or only part of the information the state seeks; whether there were conditions the judge could or did impose to limit the warrant’s impact on the media’s ability to publish the news; whether the police had failed to disclose relevant information when requesting the warrant; and whether the search was unreasonably conducted [para. 16]. The Court specifically referred to the National Post case which had held that the protection given to confidentiality of journalistic sources must be assessed on a case-by-case basis as there was no specific class privilege given to the journalist-source confidentiality relationship [para. 22].

In analyzing Vice Media’s argument that there should be a presumption that a production order creates a chilling effect on the media, the Court acknowledged the serious consequences a “chilling effect” can have on the media house’s operations. However, it declined to hold that a chilling effect should be presumed in all cases irrespective of the circumstances, and noted that in cases where there was no involvement of a confidential source a production order may cause no chilling effect. The Court stated that in none of the Lessard, New Brunswick and National Post cases had the Court found there was a presumed chilling effect, and so held that there was “no reason why this Court should depart from its established jurisprudence and recognize a presumed chilling effect in all cases” [para. 29].

The Court also rejected Vice Media’s argument that the distinction between confidential and non-confidential sources in the Lessard framework be removed, and noted that there remained strong reasons for treating confidential and non-confidential sources differently. The Court did stress, however, that the existence of a confidentiality agreement is not the only consideration for a Court to take into account when determining whether a production order should be granted because the specific circumstances should always be considered and that in certain cases “[e]ven where the source of the information sought is non-confidential, compelled production may cause chilling effects, and the impact on the media and the privacy interests at stake may nonetheless be significant” [para. 38].

Vice Media had argued that the Lessard framework should be amended so that the fact that some information had been published prior to the issuance of the production order would not impact the Court’s decision on whether all information should be obtained by the police. The Court accepted the argument, and noted that “[p]rior partial publication should not necessarily lessen the degree of protection afforded to the unpublished materials, since permitting state access to the unpublished materials still interferes with the media’s right to privacy in gathering and disseminating the news … and compelled production of the unpublished materials may still cause chilling effects” [para. 43]. The Court stressed that the privacy of unpublished material is not eradicated simply by publishing other, related information, and held that “the effect of prior partial publication should be assessed on a case-by-case basis” [para. 44]. It added that assessing all circumstances, including the nature of the published and unpublished material, and looking at prior publication as one of the circumstances to be assessed (rather than a factor on its own) is a more nuanced application of the Lessard framework and “adds greater flexibility to the Lessard framework and permits a more contextual inquiry” [para. 44].

The Court rejected Vice Media’s submission that the prospect of a trial should be taken into account by a court in determining whether to grand a production order. The Court held that the production order takes place during the investigation stage of a police inquiry, and so “the prospect of a trial actually taking place is not relevant at this stage of the inquiry” [para. 48], and that, in any event, “it may be difficult — if not impossible — to gauge at this early stage the prospect of a trial actually taking place” [para. 49].

The Court accepted Vice Media’s submission that the probative value of the evidence that would be gathered as a result of the production order is a relevant consideration, but declined to hold, as Vice Media had argued, that a production order should only be granted if the police could demonstrate that the order is “necessary” in order to secure a conviction [para. 57].

The Court rejected Vice Media’s argument that the media should always be informed when a production order is being sought from the specific media house. It referred to the Criminal Code which allows for ex parte applications for production orders and so, in line with its comments in the National Post case, commented that granting Vice Media’s request would amount to rewriting the legislation [para. 61].

Accordingly, the Court set out the amended Lessard factors which must now be taken into account by a court when faced with reviewing a production order issued against a media house. The first aspect to consider is whether the Court should have or did notify the media about the application (and so allow its participation in the proceedings), based on the urgency of the application and whether the Court believed it did or did not have all the necessary information before it. The Court must then determine whether the statutory preconditions had been met for a search warrant. The main issue for the Court is in balancing the state’s interests to investigating and prosecuting crime with the media’s interest to privacy, and here the Court must take into account the likelihood of chilling effects, the scope of the materials sought and whether the order is sufficiently tailored, the likely probative value of the material, whether there are alternative sources of the sought-after material, the effect of prior partial publication in the specific case, and the Court must consider the vital role of the media in a democracy [para. 82]. The Court stressed that under the reorganized factors, the issuing Court is entitled to attach conditions to the production order.

Applying the reorganized standard to the present case the Court held that the lower court was correct in accepting the application ex parte and accepted that the statutory requirements for the issuance of a warrant had been met. The Court stressed that Shirdon had never sought confidentiality from Vice Media, and held that there were no chilling effects that could be experienced as a result of the production order. It added that the production order was narrowly tailored and so did not unduly interfere with Vice Media’s activities. The Court emphasized that the state’s interest in investigating and prosecuting crime were high in the present case as Shirdon’s offences were serious and demanded “a swift and committed response” [para. 95]. It added that the material sought by the police was of a high probative value and that there was no other source through which the information could be obtained. The Court also stated that Makuch had included all the information he had obtained from Shirdon in his published articles, which militated in favor of the production order. The Court concluded that the “balancing exercise favors the issuance of the Production Order” [para. 100].

The concurring minority judgment focused on the protection given to the media by the Charter, and commented that the present case should have been seen as an opportunity to recognize that the press enjoys “distinct and independent constitutional protection” [para. 123]. This judgment provides a thorough analysis of Canadian and international jurisprudence on the importance of the freedom of the press, and noted that the Supreme Court had repeatedly stressed the media’s importance in the country but had “stopped short of openly and unambiguously giving distinct and independent meaning to the guarantee of ‘freedom of the press and other media’” in section 2(b) of the Charter [para. 122]. It added that “[t]he purpose underlying protection for the press is related to, but distinct from, the broader guarantee of freedom of expression” [para. 125].

The minority judgment stressed the link between press freedom and the achievement of the public’s right to know and noted that the protections given by section 2(b) of the Charter to “facilitate the healthy functioning of our democracy are “incomplete if s. 2(b) is viewed only as an individual right to freedom of expression, reading out protection of ‘freedom of the press’” [para. 125]. It referred to the European Court of Human Rights decision in Goodwin v. United Kingdom (1996) 22 E.H.R.R. 123 which had read a distinct press right into article 10 of the European Convention on Human Rights (which protects the right to freedom of expression).

The minority added that “[t]he right to convey information to the public is fragile unless the press is free to pursue leads, communicate with sources, and assess the information acquired” and that “[w]ithout protection from undue interference in newsgathering, public access to the fruits of the media’s work is diminished, as is the public’s ability to understand, debate and form opinions on the issues of the day, thereby impairing its ability to participate meaningfully in the democratic process” [para. 127].

With reference to the Canadian jurisprudence which had extended section 2(b) to protect the right of the press to access court proceedings and to film and conduct interviews outside courtrooms, the minority noted that “broader protection of the press’ newsgathering activities represents a logical and incremental development of the jurisprudence” [para. 128]. The minority characterized the question before the Court in the present case as being “[i]s the current legal framework, developed before a distinct Charter right for the press was recognized, sufficiently respectful of the media’s enhanced status?” [para. 133].

The judgment also differed from the majority in its balancing inquiring, commenting that “[w]hat is at issue here, however, is not the state’s ‘right’ to everyone’s evidence, it is everyone’s right to be secure against unreasonable search and seizure and the media’s right to freedom of the press” [para. 134]. This led the minority to state that recognizing a distinct press freedom right within section 2(b) would mean that “[r]ather than being simply a balance between the constitutional privacy rights of the press and the state’s interest in investigating crime, it is now a balance between the state’s investigatory interest and both the media’s s. 8 privacy rights and its s. 2(b) media rights” [para. 141].

The minority stated, like the majority, that “the production order strikes a proportionate balance between the rights and interests at stake” [para. 162].

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