“A free and vigorous press is essential to the proper functioning of a democracy,” Justice David Doherty of the Ontario appellate court acknowledged at the start of his judgment.
“The protection of society from serious criminal activity is equally important to the maintenance of a functioning democracy. Those fundamental societal concerns can come into conflict. When they do, it falls to the court to resolve those conflicts. In this case, claims based on the freedom of the press and those based on effective law enforcement collide at two points.”
In R. v. Vice Media Canada Inc. those two points were, first, a production order obtained by the RCMP requiring production from Vice Media of the communications materials between reporter Ben Makuch and a source, Farah Shirdon. The communications arose from a story Makuch wrote in 2014 about Shirdon joining to fight with the terrorist group Daesh, also known as Islamic State of Iraq and the Levant. Shirdon is believed to have left Canada in 2014 and was subsequently charged with six offences in absentia.
“The appellants argue that the production order undermines their role as the eyes and ears of the community by effectively conscripting them into the ranks of law enforcement,” the court noted. “The police respond that they need the information referred to in the production order to effectively investigate serious crimes.”
The second point of collision was the attempt by the appellants, Vice Media, to gain access to the information the police had relied on to obtain the production order. The appellants argued that the press must have access to information on which police rely to obtain coercive court orders; the police responded that such access would compromise the investigation of serious crimes.
The applications judge rejected the appellants’ application to quash the production order, and placed a temporary non-publication order on the unredacted information in the police material, which had been under a sealing order. The appellate court found that some information should remain redacted where it named an individual, but that other information should be made public.
The appellants and their interveners, including the Canadian Civil Liberties Association, Canadian Journalists for Free Expression and the CBC, argued the state’s ability to compel production of information from the media should be more strictly limited; the appellate court disagreed, calling “reasonableness … the constitutional litmus test.”
The application judge had concluded that the same quality of evidence against Shirdon was not available from any other source than Vice Media’s reporter, and the material sought, in the form of screen captures of text messages, provided the best evidence of what Shirdon said, which favoured making the production order.
Also a factor in this case, as the Public Prosecution Service of Canada commented by email, was that it did not involve a confidential journalistic source. “As the Court of Appeal noted, there was an absence of any requests for confidentiality, and Mr. Shirdon was ‘anxious to tell the world about his beliefs and conduct.’ ”
Iain MacKinnon, a partner at Linden & Associates in Toronto, who represents Vice Media, told Legal Feeds that complicated the case for the media outlet. “That made it a more difficult argument for us; for a confidential source, courts … may be more sympathetic in preventing police from seizing material.”
But, says MacKinnon, in this case “we’re not trying to protect a source; we’re trying to protect a larger principle of journalists not being an easy target for police seizure.
“My concern would be that police may use search orders and production orders more frequently against journalists. It may cause people to be wary in speaking to journalists if they know that anything they say, any material may have to be handed over to police. People sometimes speak to journalists because they don’t want to talk to the police. They may not want to expose themselves to potential harm, danger, or be identifiable, [or] they may not want to get involved in a criminal prosecution as a witness.”
The Canadian Civil Liberties Association said in a statement that it “remains concerned about the impact this ruling will have on freedom of the press in Canada, particularly in the contemporary climate. For instance, while we welcome Quebec’s recent decision to strike a provincial Commission of Inquiry on the Protection of the Confidentiality of Journalistic Sources, the many reports of police surveillance of journalists in Quebec that gave rise to the Commission are a reminder that Canada still faces substantial challenges in its efforts to protect a free and independent press.”
MacKinnon says his biggest concern “ is the potential chilling effect: people maybe not wanting to talk to the media, and the risk that [production orders] may become a more common tool … for police to get information”; he likewise notes incidents in Quebec of police wiretapping journalists’ phones. “This is another example of police using journalists to further their investigations.”
MacKinnon says that he has no formal instructions yet to appeal the decision to the Supreme Court of Canada, though Vice Media has suggested it intends to do that in public comments.
And whether the decision of Ontario’s highest court has a “chilling effect” on the media or more demands for production orders remains to be seen, though the Public Prosecution Service of Canada noted that “the following quotation from the decision of the Court of Appeal appears to be of significance: ‘.. when a proposed production order targets the media, the court must exercise its discretion with care, to avoid compromising — if the police were to compel the media’s information too easily — the unique and important role the media plays in society.’”