THE SUPREME COURT OF CANADA’S VICE MEDIA DECISION: THE GOOD, THE BAD, THE UGLY AND THE QUESTIONS THAT REMAIN.

Posted January 7, 2019
By Justin Safayeni

On November 30, 2018, the Supreme Court of Canada rendered its decision in the closely watched VICE appeal.  The big question at the heart of VICE was simple:  when will courts compel the media to give police material relating to a journalist’s previously published communications with non-confidential sources for the police to use against those sources?  

In analyzing this question, the Supreme Court relied on the so-called Lessard” framework, named after a 1991 decision where police sought search warrants to have media outlets turn over tapes of rioters causing property damage.[1]  More specifically, the outcome in VICE turned on the “balancing” test that forms the core of the Lessard framework.  This balancing test requires that before granting a search warrant or production order targeting material in the hands of the media, courts must assess whether the privacy interests of the media in news-gathering and reporting are outweighed by the interests of law enforcement in investigating and prosecuting crimes.

At first glance, VICE was a loss for the media.  The Court unanimously upheld a production order requiring VICE and one of its journalists, Ben Makuch, to give the RCMP all records relating to Makuch’s communications a non-confidential source.  That source was Mohamad Farah Shirdon, a Canadian man alleged to have joined and assisted ISIS.  Makuch had communicated with Shirdon through the “Kik” messenger application, and had written a number of stories about Shirdon that identified him by name and reproduced most (if not all) of their Kik communications.

But a closer read of the decision reveals a more nuanced picture.  Some aspects of the decision are actually a significant improvement for the interests of free expression and the media’s rights.  Other parts of the decision fall somewhere between moderately and extremely disappointing.  Most intriguing of all is the potential long-term consequence of the four-judge concurring opinion written by Justice Abella, which flexes certain constitutional muscles relating to “freedom of the press” that have long been dormant.  

In short, like many Supreme Court judgments on difficult issues, the decision is a mixed bag. This post aims to highlight some of the high points, low points and open questions that remain in the wake of VICE.

The good:  a better process for challenging production orders and search warrants

For free expression and press freedom advocates, the clearest ‘win’ arising from VICE was what the Court had to say about the process followed by law enforcement in obtaining production orders or search warrants targeting material in the hands of the media.

Prior to VICE, two aspects of this process worked together to effectively stack the deck against media parties that sought to challenge production orders or search warrants.  First, law enforcement could obtain these types of orders ex parte– that is, without the issuing justice having the benefit of evidence or submissions from the media – virtually guaranteeing that they would be obtained.  Second, when the media were served with the order in question and were finally provided an opportunity to try and have it set aside before a different judge, they faced an incredibly onerous hurdle called the “Garofoli” standard of review.  Rather than simply convincing the reviewing judge that the order shouldbe set aside under the Lessard framework, the media had to show the reviewing judge that had the issuing judge seen all of the media’s evidence and arguments, he/she could not have granted the order.  In other words, as long as the reviewing judge was satisfied that the order could have been made by the issuing judge – even if he/she would not have made it themselves – the order would stand.

The VICE decision recognizes that this process “in some cases, works unfairness” and attempts to remedy both of the flaws outlined above, at least to some degree.  

While stopping short of a firm requirement that the media be given notice in every case, the Court strongly suggests that issuing judges should insist on notice “[a]bsent urgency or other circumstances justifying an ex parte proceeding”.  The Court emphasizes that “bare assertions” or “broad and unsupported claim[s]” by law enforcement of urgency or other circumstances won’t suffice (at para 67):

Instead, the police should show some evidentiary basis for why there is “urgency or other circumstances”. In my view, this is essential to ensure the media is not denied the opportunity to make its case before the authorizing judge without good reason. To illustrate, a broad and unsupported claim that the media is unlikely to cooperate with police or that the media could theoretically put the materials beyond the reach of authorities if notice were to be given — which is always a risk to at least some degree — should not suffice.

If these words are taken seriously by law enforcement and issuing judges, then this should result in the media being given notice in most, if not all, such cases from now on.

Where there is no notice, VICE weakens the grip of the Garofoli standard of review.  In the future, as long as the media points the reviewing judge to new information that was not before the issuing judge that “could reasonably have affected” the decision to issue the order in the first place, the Garofoli standard will not apply.  The Court offers some examples of new information that would rise to this level:  confidentiality agreements or agreements to keep communications “off the record” or “not for attribution”; “unique features in the nature of the journalist-source relationship”; evidence that the order will affect the media in a way that could not have been foreseen by the issuing judge; “specific evidence concerning chilling effects”; or alternative sources of information.  In such circumstances, the reviewing judge will assess the order “de novo” or afresh, and determine whether it should be stand or fall without worrying about what the issuing judge did in the first place.  

These changes in approaching the notice requirement and the standard of review mark significant improvements in the process for media to challenge production orders and search warrants.  But their application on the facts of VICE case is cause for some concern.  

The Court found that the absence of notice in VICE was justified because the material before the issuing judge “identifies a risk that once alerted to the police’s interest in the material, the appellants could move the materials beyond the reach of Canadian courts” and “states that there was no basis on which to be assured that the appellants would cooperate with the police”.  These kind of vague concerns would seem to fall squarely within the category of the “bare assertions” that the Court explained would be insufficient to justify proceeding ex parte.  Yet the Court goes no further than to offer a tepid acknowledgment that the explanation “could have been stronger and better supported”, while ultimately upholding the issuing judge’s decision not to require notice.

Perhaps even more concerning is the Court’s approach to the kind of information that “could reasonably have affected” the issuing judge’s decision.  Before the reviewing judge, the appellants had filed affidavit evidence from Makuch – which the Crown did not challenge by way of cross-examination – explicitly addressing how the requirement to turn over material to the RCMP would harm his ability to his job.  The Makuch affidavit included the following statements:

Even for non-confidential sources, it is critical for my work that individuals do not view me as an agent of the police or that the information they provide me will be used for purposes of a police investigation… Before I published any stories about them, I spent more than a year monitoring and researching the social media networks and accounts of militants and jihadists in order to understand how they operate and who they are. It took a significant amount of time and effort for me to build trust and relationships with many of my sources in these networks before they would speak with me.  I do not believe that they would have spoken to me if they knew that my notes or interviews would be provided to police for purposes of a criminal investigation, including Shirdon.  Other individuals that I contacted did not agree to be interviewed for the purposes of my stories.  [Emphasis added].

All of this sworn testimony was new to the reviewing judge.  And it goes directly to how the order in question will affect the media’s ability to gather and report news, which is a key consideration under the Lessard balancing analysis.  Remarkably, however, the Supreme Court declares that it is not information that “could reasonably have affected” the issuing judge’s decision because it was “too general” in nature.  As such, the Court concludes that the traditional Garofoli standard was properly applied in this case. 

In summary, when it comes to actually applying the modified (and improved) process for challenging production orders and search warrants, the Court still appears willing to entertain somewhat vague concerns by law enforcement to justify proceeding without notice, while holding the media to a relatively high standard for the type of information that will warrant departing from the Garofoli standard of review.  

The bad:  no chilling effect where order seeks published material from identified source

A major focus of argument by the appellants and supporting intervenors in VICE was that the Supreme Court should recognize a presumption that search warrants or production orders targeting communications between media/journalists and their sources, for use against those sources, creates “chilling effects” that hurt the ability of the media to gather and report the news. Such chilling effects include sources of news “drying up”, journalists avoiding recording and preserving their notes and contact lists, and the media resorting to self-censorship to conceal the fact that it possesses information of interest to law enforcement.  

In one of the more disappointing aspects of the VICE ruling, the Court refused to recognize any such presumptive chilling effect. Instead, the Court explained that “the existence and extent of any potential chilling effects should be assessed on a case-by-case basis” based on the evidence.  Yet, as the Court acknowledged, proving a chilling effect can be a “difficult, if not impossible” task, even though its harmful consequences can be “considerable” (at para 27).  In short, the Court seems content to leave the media without the benefit of presuming harm, in a situation where the nature of that harm may make it impossible to prove, and the harm itself is significant.  

As a practical matter, this situation is less of a concern in cases involving the identity of confidential sources or information that was not intended for publication.  Reading VICE as a whole, the decision suggests that in such cases evidence of the circumstances of a particular journalist-source communication or relationship will likely be sufficient, rather than evidence linking disclosure of such a communication to any chilling effects.  For example, if it could be proven that a journalist’s source was confidential or that the material in question was not intended for publication, then this would likely be enough to ground a finding that production would result in a chilling effect – without any additional evidence of that chilling effect.  If this is indeed what the Court intended, then it would have been far more straightforward (and preferable) to simply state that a chilling effect will be presumed for confidential sources or material that was not intended for publication. 

The absence of a presumption becomes more problematic when it comes to proving a chilling effect in cases where the source is not confidential and where communications with the source have been published, but where the records are being sought for use against the source himself/herself.  In other words, in situations with facts similar to those of the VICE case.

Here, the Court’s reference to the need to provide “evidence” of a chilling effect on a case-by-case basis must be taken to mean something more than merely evidence of the circumstances of the communication or relationship between journalist and source, or the purpose for which the communication is being sought.  In VICE, for example, there was no question that Shirdon was a source for Makuch’s stories, or that the Kik messenger records were being sought by the RCMP for use against Shirdon.  Yet the Court clearly needed something more in the way of evidence to be convinced that this kind of situation would give rise to a chilling effect.  Put differently, the Court was looking for some kind of evidentiary link between the circumstances of the case and a chilling effect; it was not prepared to presume that such a link exists.

This is a disappointing result on one of the key issues before the Court.  One would have thought that it was no great leap of faith to accept that if the media is forced to turn over records of its communications with sources for use against those sources – regardless of whether their identities or the communications in question have been published – then that will make it harder for sources to come forward in the future.  

The Court’s ultimate handling of this issue is even more troubling when one considers that evidence of a chilling effect waspart of the record.  As discussed above, Makuch provided an affidavit outlining the chilling effect that such an order would have on his ability to gather and report similar stories.  Yet in its discussion of the Lessardbalancing analysis, the Court completely ignores Makuch’s evidence of a chilling effect.  This is a critical oversight.  In the end, the Court goes no further than to say that the production order “could arguably raise some concerns over potential chilling effects” but that such concerns are “largely mitigated” by the fact that the source was not confidential and that his communications with Makuch were published (at para 92). Given this weak tentative characterization of the media’s interests in this case, it is not surprising that those of law enforcement carried the day.

It is important to note that the Court does not totally shut the door on the possibility that a chilling effect could arise from the compelled production of non-confidential information (see paras 38).  But the Court’s skepticism that such a chill could exist in the circumstances of the VICE case, combined with its failure to grapple with the nature of Makuch’s evidence or to provide any insight into what kind of evidence of a chilling effect is expected, leaves considerable doubt as to whether this possibility will ever be recognized by lower courts.

The ugly:  a very lenient approach to law enforcement’s “investigative” interests

For many, the most disappointing aspect of the VICE decision is the Court’s approach to weighing law enforcement’s interests in the Lessard “balancing” analysis.  

After Shirdon had already been identified as the person who sent the communications to Makuch and charged with terrorism-related offences, the RCMP argued that it required the Kik messenger records because those records constituted the “best evidence” of Shirdon committing certain terrorism-related offences.  VICE’s position was that since Shirdon’s whereabouts were unknown, the prospect of a trial taking place was remote (at best), and the records were being sought for no practical purpose.  (Reports from the U.S. military, which were not before the Supreme Court, suggest Shirdon was actually killed in 2015.)

The Supreme Court sided entirely with the RCMP on this point, holding that “the prospect of a trial actually taking place is not relevant at this stage of the inquiry” because the focus is on “investigation and evidence-gathering” rather than “securing a conviction in court”.

This characterization reflects an unduly formalistic approach that ignores the reality of what purpose is being served by the records in this case.  Unlike Lessard (where police said they required the media’s video of rioters to identify those who had caused damage) or R v National Post (where police wanted the media to produce a document and an envelope to see if they could identify the sender through fingerprints or DNA testing)[2], the RCMP in this case did notrequire records from VICE or Makuch to identify Shirdon or even to charge him. All of that had occurred before the RCMP sought a production order. Moreover, the contents of the records the RCMP were seeking had already been largely, if not entirely, published.  

Against this backdrop, the investigative value of the records – in terms of investigating whether certain offences have been committed and by whom – was and remains virtually non-existent.  The true value of obtaining the records can only be to gather and preserve evidence for Shirdon’s eventual trial.  As the reviewing judge put it, the RCMP was seeking evidence that “provided the best and most reliable evidence of what Shirdon said”.  This kind of evidence-gathering-for-trial purpose is very different from the (true) investigative purpose being served by the orders at issue in Lessard and National Post.

Once it is recognized that the purpose of the order is to gather and preserve evidence for trial rather than investigate the occurrence or perpetrators of a crime, then the probability of a trial occurring becomes an obviously relevant consideration in the Lessard balancing analysis.  This is not to say that courts should be forced to handicap the odds of a trial in every case where police seek a production order or search warrant against the media.  However, in circumstances where the prospect of a trial is highly unlikely – for example, because a suspect cannot be apprehended or is believed to be dead – then courts ought to have the discretion to find that an attempt to force the media to turn over records is, at the very least, premature.  Having declared the prospect of a trial occurring “not relevant” to the analysis, the Supreme Court has all but eliminated this practical and pragmatic solution from the toolkit of issuing and reviewing courts.

Open questions:  impact of VICE in post-JSPA era, and a newly invigorated “freedom of the press”?

An important quirk of the VICE case is that although the Supreme Court decision was issued after Parliament passed the Journalistic Sources Protection Act (“JSPA”), the case itself was not decided pursuant to the JSPA.  This is because the actual underlying court order was made several years before the JSPA came into effect, and the JSPA is not retroactive.  

Future search warrants and production orders targeting the media will be decided under the JSPA.  (If the RCMP applied for the very same production order that was at issue in VICE today, then the process and test for granting of that order would be subject to the JSPA.)  It remains uncertain the extent to which VICE will influence the exercise of determining whether to grant orders under the JSPA.  The Court took pains to note that it was adopting a “narrow approach” in VICE, and that it was not purporting to interpret or apply the terms of the JSPA.  

Notwithstanding these disclaimers, there is good reason to expect that VICE will continue to have a major impact in the post-JSPA era. Since the JSPA was largely intended to codify certain aspects of the existing common law regime developed in Lessard and subsequent cases (up to and including VICE), many of the key phrases in the JSPA are drawn from that body of jurisprudence.  Most notably, before any production order or search warrant is issued, the JSPA requires that “the public interest in the investigation and prosecution of a criminal offence outweighs the journalist’s right to privacy in gathering and disseminating information” (Criminal Code, s. 488.01(3)(b)).  This is almost a verbatim reproduction of the Lessard balancing test that is the central focus of the Supreme Court’s comments in VICE.

We may get some clues as to the force of VICE in interpreting the JSPA in early 2019, when the Court will hear an appeal arising under the JSPA – albeit under a different set of provisions (those relating to the Canada Evidence Act rather than the production order and search warrant provisions of the Criminal Code).[3]

Another open question is the long-term impact of the four-judge concurring opinion in VICE, written by Justice Abella.  These four judges reach the same result as the five-judge majority (led by Justice Moldaver), but by a different path.  Rather than frame the media’s interests as a general “freedom of expression” matter – as was done in Lessard and in other Supreme Court cases – the concurring judges recognize, for the first time, that attempts by police to compel production of material in the hands of the media engage the distinct protection in section 2(b) of the Charter for “freedom of the press and other media of communication”.  As Justice Abella explains (at para 123): 

Why not openly acknowledge that freedom of the press is not a derivative right? It enjoys distinct and independent constitutional protection under s. 2(b) of the Charter, not only because it is specifically mentioned in the text of s. 2(b), but also because of its distinct and independent role. Prior judicial hesitancy to recognize such a right has attracted considerable academic criticism. Based on the clear text and purpose of s. 2(b), even Crown counsel graciously conceded in oral argument before this Court that “freedom of the press” is a distinct constitutionally protected right.

It is hard to predict whether or when this new constitutional approach to the media’s rights in these types of cases will take root.  Importantly, however, the majority opinion does not foreclose the possibility of adopting such an approach, with Justice Moldaver merely writing that “rethink[ing] s. 2(b)” was “not fully argued by the parties or considered by the courts below” and was not necessary to resolve the appeal.  If a future appeal is properly framed, raises the “freedom of the press” issue and convinces even one member of the VICE majority to adopt Justice Abella’s approach, then this will mark a foundational shift in how the media’s rights are conceptualized in Canadian constitutional law.

What would be the practical impact of giving life to the long-dormant constitutional protection for “freedom of the press”?  For the concurring judges in VICE, it led them to adopt a more stringent formulation for when the media should be given notice and for when it would be appropriate to compel the media to produce records to the police, particularly in cases involving confidential sources or information that has not been published.  The concurring judges also recognized a presumptive chilling effect whenever police seek material in the hands of the media (at para 167).  None of this made a difference on the facts in VICE, but it may well have made a difference in other cases.

Viewing the media’s rights through the specific lens of a constitutional protection for “freedom of the press” could have broader impacts as well.  The media’s section 2(b) interests play a role in everything from “media access” cases (where the media seek access to view or publish court records) to developments in the common law of defamation.  In the long-run, then, the most consequential aspect of VICE may well lie in the constitutional seeds planted by the concurring judges, rather than the actual judgment rendered by the Court on the facts before it.  Time will tell.

 

[1]CBC v Lessard, [1991] 3 SCR 421

[2]R v National Post, [2010] 1 SCR 477

[3]Marie-Maude Denis v Marc-Yvan Cote(Supreme Court of Canada File No. 38114)