December 4, 2018
On November 30, 2018, a majority of the judges of the Supreme Court of Canada decided the media doesn’t get any special protection from the issuance of production orders without prior notice (a.k.a. ex parte) – yet. Courts have the authority to issue such production orders under the Criminal Code of Canada as part of a criminal investigation. When a court issues such an order ex parte, the practical effect is that the media doesn’t get to argue against the production order until after it’s been issued. The Court’s decision in R. v. Vice Media Canada Inc. isn’t likely to change anything right now, beyond offering an arguably more straightforward and intuitive analytical test for a judge to decide whether to issue an ex parte production order at all. But in today’s climate of media criticism and “fake news”, the question of whether the media should be singled out as warranting greater protection against the issuance of production orders isn’t going away. The reasons of the majority of the Court’s judges, combined with the strongly-worded reasons of the minority of the Court’s judges, leaves the door wide open to recognizing distinct protection for the media, in a case with the appropriate facts and the benefit of full legal argument on the issue, in the future.
In R. v. Vice Media Canada Inc., a Vice Media journalist exchanged instant messages and reported on his conversations with a Canadian man who became a suspected ISIS terrorist. After Vice Media published the story, R.C.M.P. applied to the court for a production order ex parte to get screenshots of the electronic communications between the journalist and the suspected terrorist. Vice Media didn’t hand over the screenshots or notes and challenged the production order. All nine Supreme Court of Canada judges agreed that in this case, the ex parte production order should stand and there was no reason to set it aside (the decision didn’t take into account the Journalistic Sources Protection Act, which took effect in October 2017, because the facts predate it). But the judges split five to four on a single – and key – point: should media have special protections when a production order is sought against them?
More Media Protection. Four judges supported a “rigorously protective harmonized analysis”, and took the view that the media’s “concerns are real, and the issue is ripe”. Highlighting the media as absolutely integral to a functioning democracy, the minority determined it’s now time to give distinct content to section 2(b) of the Canadian Charter of Rights and Freedom’s protection of “freedom of the press” – and special protection against production orders to the media.
Media is Adequately Protected. The majority of the judges, however, stopped short of recognizing any special and distinct protection for the media pursuant to the Charter because none of the parties fully argued the issue in the proceedings before reaching the Supreme Court. Instead, the majority confirmed the test established 25 years ago in Canadian Broadcasting Corp. v. New Brunswick (Attorney General), and reaffirmed eight years ago in R. v. National Post, still adequately protects media interests: the authorizing judge retains discretion to require notice where deemed appropriate, and police must show some evidentiary basis for the “urgency or other circumstances” to proceed ex parte. However, three aspects of the test require refinement:
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