The Supreme Court of Canada Rules On Production Orders and Sets the Stage for Journalist Source Privilege Debate

by Lawson Lundell LLP
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The Supreme Court of Canada (SCC) recently changed the legal landscape on the media’s ability to contest production orders that implicate journalists’ sources.  

The facts in R v Vice Media Inc., 2018 SCC 53 (Vice Media) involve a savvy journalist, an unsympathetic source, and the SCC’s unanimous decision to uphold the production order. The court split 5-4 in its reasons, diverging in recognizing the importance of freedom of the press in the Canadian Charter of Rights and Freedoms (Charter). 

Vice Media published news stories written by journalist Ben Makuch based on text message exchanges with a Canadian suspected of joining ISIS in Syria. The police applied ex parte (without notifying Vice Media) for a production order, demanding that Makuch and Vice Media hand over the text message screen shots to police for their investigation. The production order was granted, and Vice Media unsuccessfully applied to vacate the order in the Ontario lower courts.  

The majority of the court made minor changes to the common law relating to journalist source privilege and tweaked the legal framework for judges to follow when deciding whether to grant a production order against journalists. The minority—for the first time—recognized that section 2(b) of the Charter, which says freedom of the press and other media”, has a distinct constitutional guarantee for the press. This is historically significant because courts have previously refused to acknowledge a specific right for the media. 

Although the majority’s decision represents the current law in Canada, the minority’s decision will enable the media to bolster its arsenal in future court cases, in its continuing effort to slowly chip away at the law’s reluctance to recognize a special status for journalists and the essential role they play in a democracy.  

The majority decision: current law in Canada 

The majority’s decision, written by Justice Moldaver, makes two significant changes to the law. 

The first significant change reorganized the Lessard factors judges must consider when deciding whether to issue a production order:

  1. Notice: the judge must first decide whether to require notice to the media or whether it can proceed on an ex parte basis;
  2. Statutory Preconditions: all statutory preconditions must be met by the police (outlined in s 487.014(2) of the Criminal Code) requiring police to show reasonable grounds an offence has or will be committed, a document/data is in a person’s possession or control, and will afford evidence respecting the commission of an offence);
  3. Balancing: the judge must balance the state’s interest in investigating and prosecuting crimes with the media’s right to privacy in gathering and disseminating news, requiring a detailed affidavit of supporting evidence, and considering all the circumstances, which are not limited and may include:

a. The likelihood and extent of chilling effects;

b. The scope of the materials sought and whether the order sought is narrowly tailored;

c. The likely probative value of the materials;

d. Whether the police can obtain the information from alternative sources and whether the police made all reasonable efforts to do so;

e. The effect of prior publication assessed on a case by case basis; and

f. Considering the vital role media plays in democracy and the fact that the media is generally an innocent third party.

4. Conditions: if the authorizing judge issues the order, they should consider  issuing conditions to ensure the media won’t be unduly hindered in publishing news, and may decide to seal the materials pending review.

Of note, the majority refused to recognize a specific Charter right for the media, and instead limited the media’s constitutional rights to privacy.

The second change was to the standard of review that a judge must use while reviewing the authorizing judge’s decision to issue a production order. Since it is common for the police to apply for production orders on an ex parte basis, the media is unable to present its arguments at the initial hearing. Only once the media receives the production order from the police demanding that it hand over certain records, does the media apply to vacate the production order. The reviewing judge historically had to apply the deferential Garfoli standard, requiring the media to prove that there was no reasonable basis for the authorizing judge to have granted the production order.  

The SCC changed the standard of review in limited circumstances:  if the production order occurred in an ex parte hearing and the media produces additional information that was not before the authorizing judge that in the opinion of the reviewing judge could have affected the order, then the media is entitled to a de novo review. A de novo review allows the court to re-do the hearing with the media’s presence. If, on the other hand, the media does not point to additional information, or the reviewing judge decides that the additional information would not have affected the authorizing judge’s decision, than the reviewing judge must review the order on the highly deferential Garfoli standard.

It is therefore advisable that the media, in bringing an application to quash a production order, submit additional information that was not before the authorizing judge, in order to get a de novo review. New information can include the existence of a confidentiality agreement, evidence of a unique journalist-source relationship, evidence the order will prevent or delay publication or compromise an investigation, or specific evidence of chilling effects.

The minority: battle over s 2(b) and rights of the media 

Although the majority recognized the importance of the media to democracy, it refused to give specific meaning to the words “freedom of the press and other media” in s 2(b) of the Charter. In contrast, the minority judgment, written by Justice Abella, cut through the law’s floundering around the issue and declared that the media has specific Charter protection. In recognizing that the Charter protects the media’s specific role in society—pursuing the truth and animating society’s ability to participate in democracy—the minority set the stage for future courts to recognize the media’s specific Charter rights. The minority rejected the modified Lessard framework and instead declared that a proportionality inquiry was essential: the authorizing judge must decide if the salutary effects of the production order outweigh the deleterious effects. The police’s investigatory interest must be balanced with the media’s right to be free from search and seizure and right to be protected from undue influence in newsgathering.  In terms of the standard of review, the minority held that if the original application was made on an ex parte basis, the media is entitled to a de novo hearing on review, regardless of whether there is any relevant new information. This will ensure that the judge can properly balance the constitutional rights at stake.

Although the justices differed significantly in their interpretation of the issues at stake, all 9 justices upheld the production order, mainly on the basis that the source was not confidential and sought to use the media to broadcast his extremist views.

Setting the stage for ruling on the Journalistic Sources Protection Act

Perhaps the most interesting aspect of the case is one on which the SCC didn’t rule. In 2017, the Journalistic Sources Protection Act (JSPA) was passed, amending the Canada Evidence Act and the Criminal Code, by creating enhanced legal protections for journalists to protect their sources. Since the facts in R v Vice Media took place before the JSPA came into force, the SCC specifically declined to consider the effect the JSPA would have had on the facts in Vice Media. As a result, although the court’s decision in this case has slightly changed the legal landscape surrounding a journalist’s ability to contest a production order, it more aptly acted as a harbinger for future debate between the SCC judges and further refinement of the law. Vice Media has set the stage for the court to address the increasing tensions between the police’s ability to investigate crime and the media’s ability to protect its work and sources in pursuit of investigating matters in the public interest.

We won’t have to wait long for a decision. 

The SCC has granted leave to hear Marie-Maude Denis v. Marc-Yvan Côté, and will decide the issue of whether Radio-Canada reporter Marie-Maude Denis must reveal sources that helped her uncover the corruption scandal in Quebec involving politicians, fundraisers and construction firms that led to fraud charges against a number of politicians, including Quebec’s former deputy premier: leave to appeal 2018 QCCA 611, 2018 CanLII 73607. Although this case does not directly address production orders, this will be the first time the SCC will rule on the JSPA and clarify and establish the law on journalist source privilege going forward. 

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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