A case being heard at the Supreme Court of Canada today could be an early indicator of how new Supreme Court Justice Richard Wagner looks at issues of free expression in a matter some suggest could be a landmark case.
“There haven’t been any free expression issues under the new chief justice and so it will be interesting to see what happens,” says Andrew Bernstein, litigation practice group leader at Torys LLP. “It’s one to watch as we might get a sniff of where this particular court is going."
Bernstein says former chief justice Beverley McLachlin was “probably the strongest judicial advocate for free expression in Canadian history.”
“She spoke about it, she wrote judgments about it and she was really a wonderful advocate for free expression, and while it is a very independent court, the chief justice exerts a certain amount of moral influence on the court."
In the Vice case, the SCC will look at whether, if at all, courts assess and weigh probative value and usefulness of material sought by means of production order, in terms of its actual value to criminal investigation or to prosecution of crime? And what standard of review should superior courts apply in reviewing ex parte production orders targeting media to ensure that due consideration and weight is given to Lessard (Canadian Broadcasting Corp. v. Lessard) factors?
In its factum, Vice asserts that “the balancing test from Lessard is not working and its continued use risks further eroding the fundamental rights under s. 2(b) of the Charter.” It goes on to say “recent developments in the law of other jurisdictions suggest that reform by this Court to better protect journalist-source communications is warranted.”
“If the court does what the appellant is urging them to do, which is to reconfigure the balancing test more in favour of the media, then it will be considered a landmark case. If the court just says there has been a test that is in place for 25 years and this is how we apply it, then it will be less of a landmark case,” says Bernstein.
The case goes back to 2014 when reporter Ben Makuch wrote three articles that were published by Vice Media about the involvement of Farah Shirdon, 22, with the terrorist group, the Islamic State of Iraq and Syria, in the Middle East.
The articles were largely based on text message communications between Makuch and Shirdon. The RCMP obtained a production order under s.487.014 of the Criminal Code, directing Vice Media and Makuch to produce documents and data relating to their communications with Shirdon. The issuing judge also directed that all information relating to the application for the production order, including the affidavit sworn in support of the application, should be held under seal pending further court order.
Vice and Makuch brought an application to quash the production order and an application to unseal the record relied on to obtain the order.
In March 2017, the Court of Appeal for Ontario upheld the production order requiring Makuch to hand over his communications with Shirdon, who had been charged with terrorism-related offences. Civil liberties organizations called the decision a blow to the ability of reporters to protect sources and run stories in the public interest.
Vice and interveners, including the Canadian Civil Liberties Association, Canadian Journalists for Free Expression and the CBC, argued that the state’s ability to compel production of information from the media should be more limited; the court disagreed, citing “reasonableness . . . the constitutional litmus test.”
Those interveners, along with the Canadian Muslim Lawyers Association, Aboriginal Peoples Television Network and the Media Legal Defence Initiative, will also appear at the SCC.
Bernstein points out that Vice and the government are “telling a very different story” about how they see orders being dealt with.
“Vice is saying any time the police want an order they get one, and there is not really an effective limiting mechanism. The government is saying that’s not true at all and here are examples of places where you haven’t received these orders.”
There is also an interesting twist in that the U.S. military indicated last fall that Shirdon was killed in a coalition airstrike in Iraq in 2015.
“What makes this case also somewhat unique is there is an open question of whether this individual will ever, if he is still alive, see the inside of a Canadian courtroom,” says Bernstein.