R v Vice Media Canada Inc 2018 SCC 53
The Supreme Court of Canada dismissed an appeal and upheld an order requiring appellants Vice Media Canada Inc. (Vice) and its journalist Ben Makuch (the appellants) to produce communications with Farah Shirdon, a Canadian man suspected of joining ISIS in Syria. The case questions how to balance the freedom and protection of the press with the state’s criminal investigative responsibilities.
In 2014, Vice published three stories written by Mr Makuch about Mr Shirdon. These stories were based on messages the two men exchanged using the instant messaging mobile app Kik Messenger. Kik Messenger does not store the content of messages on its servers, so the only records of the messages were on the mobile phone handsets of the two men. The articles made clear that Mr Shirdon had made statements that, if true, were strong evidence implicating him in multiple terrorism offenses.
As part of the investigation into Mr Shirdon’s activities, the police sought and obtained an ex parte order directing the appellants to provide screenshots of the messages with Mr Shirdon. The appellants unsuccessfully challenged the order before appealing to the Supreme Court.
Justice Moldaver delivered a majority opinion for the Court, with Justices Gascon, Côté, Brown and Rowe joining. Justice Abella delivered a concurring minority opinion on behalf of herself, Chief Justice Wagner and Justices Karakatsanis and Martin.
The majority dismissed the appeal holding that, on the facts, “the state’s interest in investigating and prosecuting the alleged crimes outweighs the appellants’ right to privacy in gathering and disseminating the news” (at ). The majority made reference to the following factors in dismissing the appeal:
the disclosure not revealing a confidential source or “off the record” communications;
a lack of an alternative source through which the materials could be obtained;
the source having used the media to broadcast his extremist views; and
the state’s interest in investigating and prosecuting alleged crimes.
The court declined to confer discrete constitutional protection on the media from the words “freedom of the press” in s 2(b) of the Canadian Charter of Rights and Freedoms (Charter). This section reads “[e]veryone has the following fundamental freedoms: … freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication”. In declining to recognise this protection, Justice Moldaver wrote that he did “not view this appeal as an appropriate venue in which to formally recognise a distinct and independent constitutional protection for freedom of the press” (at ).
By contrast, the minority argued, at -):
For twenty-five years, this Court has flirted with acknowledging that s 2(b) of the Charter protects independent rights for the media. Unlike the majority, I see no reason to continue to avoid giving distinct constitutional content to the words “freedom of the press” in s 2(b). The words are clear, the concerns are real, and the issue is ripe.
A strong, independent and responsible press ensures that the public’s opinions about its democratic choices are based on accurate and reliable information. This is not a democratic luxury – there can be no democracy without it.
The majority judgment set out guidelines relating to investigative orders and the media.
Guideline one: standard of review to be applied before authorising a production order relating to the media.
Justice Moldaver conducted a review of key precedents dealing with publication orders directed at the media, which established a framework setting out the factors for judges to consider regarding an application for such orders.
Justice Moldaver modified certain aspects of this framework, including requiring that assessment of the effect of prior partial publication be done on a case by case basis and setting out a four part analysis for judges to undertake when considering such applications, being:
whether to exercise their discretion to require notice to the media;
whether all statutory preconditions have been met;
balancing the state’s interest in the investigation and prosecution of crimes and the media’s right to privacy in gathering and disseminating the news through considering a number of factors; and
whether it would be appropriate to impose conditions on the order.
The appellants proposed two further reforms to the framework; first a presumption of a “chilling effect” whenever the state seeks a production order relating to the media. “Chilling effect” was defined broadly at  as “stifling or discouragement of the media’s legitimate activities in gathering and disseminating the news for fear of legal repercussions”. Despite acknowledging that proving the existence and extent of such effect is difficult, the majority declined to adopt this reform. Second, that confidential and non-confidential sources should receive the same treatment when assessing whether to grant a production order. In rejecting these reforms, Justice Moldaver expressed a reluctance to break with precedent.
Guideline two: standard of review to be applied when reviewing a production order relating to the media
The majority formally recognised that the Garofoli standard (R v Garofoli  2 S.C.R. 1421) applies to applications to set aside investigative orders relating to the media, while also recognising that this standard may result in “significant unfairness where … information that could reasonably have affected the decision was not before the authorizing judge” (at ). Consequently the majority modified the standard in circumstances where such an order was made ex parte: “if the media points to information not before the authorizing judge that, in the reviewing judge’s opinion, could reasonably have affected the authorizing judge’s decision to issue the order, then the media will be entitled to a de novo review” (at ).
By contrast, the minority argued that where an ex parte authorisation against a journalist or media company has been made, the press should be entitled to a de novo hearing (at ).
Guideline three: no presumptive notice requirement in circumstances where the police are seeking a production order relating to the media
The Court declined to impose a presumptive notice requirement, citing clear legislative authority for applications to be brought ex parte by certain parties. The majority also cited the decision in National Post as another factor in declining to impose a presumptive notice requirement, again demonstrating reluctance to break with previous decisions of the Court (particularly recent decisions). Justice Moldaver did note however that “the authorizing judge retains discretion as to the timing of when the media will be permitted to present its case” (at ).
The Court recognised the integral role that a free press plays in a democracy. However, despite this acknowledgment the Court was also united in its decision that, on the facts of this case, the state’s interest in investigating criminal activities should be prioritised over the media’s right to operate without state intrusion. Journalists in Canada have described the decision as a major setback for investigative journalism and democracy, arguing that the orders will discourage whistleblowers from turning to journalists.
As the facts in this case arose before Canada’s Journalistic Sources Protection Act S.C. 2017 was in force it remains an open question as to whether this Act will affect the balance struck between these interests.
See the full reasons for decision here.
Rebecca Laban (Senior Associate) and Laura Ryan (Lawyer) at Norton Rose Fulbright