In dismissing a media outlet’s appeal against a production order, the Supreme Court of Canada today refined the legal framework for such production orders without substantially changing it.
Under the Criminal Code, s. 487.014, on an ex parte application, a judge may order a person to produce a copy of the documents in their possession, with certain conditions: there must be reasonable grounds to believe an offence was committed or will be committed; that the document being ordered was in the other person’s possession; and that the document will provide evidence regarding the commission of these offences.
Case law established by the Supreme Court of Canada prior to deciding this case was notably Canadian Broadcasting Corp. v. Lessard,  3 S.C.R. 421, which set out nine factors that judges should consider when asked to make production orders. Lessard was reaffirmed in R. v. National Post, 2010 SCC 16.
This framework “seeks to balance two competing concepts: the state’s interest in the investigation and prosecution of crime and the media’s right to privacy in gathering and disseminating the news,” Justice Michael Moldaver wrote in today’s decision, with justices Clément Gascon, Suzanne Côté, Russell Brown and Malcolm Rowe concurring.
“I am of the view that the Lessard framework continues to provide a suitable model for considering applications for search warrants and production orders relating to the media,” Moldaver wrote, adding that he would “refine certain aspects of that framework.”
First, he said, rather than treating prior partial publication by media as a factor that always militates in favour of granting an order, he would assess the effect of prior partial publication on a case-by-case basis. Currently, applications for production orders are nearly always successful if articles and news stories have already been published in the media.
Second, the standard of review that should be applied when reviewing an order relating to the media that was made ex parte is a modified Garofoli standard (see R. v. Garofoli,  2 S.C.R. 1421); “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.”
Third, the majority said it would “reorganize the Lessard factors to make them easier to apply in practice.”
In 2014, journalist Ben Makuch wrote and Vice Media published three articles based on exchanges between Makuch and a source, a Canadian man suspected of having joined the Islamic State in Syria. The articles contained statements by the source that, if true, could provide evidence implicating him in multiple terrorism offences.
The RCMP successfully applied ex parte to the Ontario Court of Justice, under s. 487.014 of the Criminal Code, for an order directing Vice Media to produce screen captures of the messages exchanged with the source. Vice Media brought an application in Ontario’s Superior Court to quash the order. The reviewing judge dismissed Vice Media’s challenge to the production order, holding that it was open to the authorizing judge to conclude that the media’s interest was outweighed by the public interest in obtaining reliable evidence of very serious terrorism offences.
The Court of Appeal dismissed Vice Media’s appeal.
The majority decided that the framework set out in Lessard, and its companion case in Canadian Broadcasting Corp. v. New Brunswick (Attorney General),  3 S.C.R. 459, provides adequate protection to media. A refined framework is:
- Notice: An authorizing judge must consider whether to exercise their discretion to require notice to the media;
- Statutory preconditions must all be met;
- The authorizing judge must balance the state’s interest in the investigation and prosecution of crimes and the media’s right to privacy in gathering and disseminating the news;
- Judge should consider whether they want to impose conditions on an order to ensure the media will not be unduly impeded in the publishing and dissemination of the news.
Today’s decision erases the the distinction between protecting confidential and non-confidential sources. Vice Media had also asked that a presumption be made of a potential “chilling effect” on the media where applications for production orders are made, but the majority found that although chilling effects cannot be overlooked, they should not be presumed in all cases regardless of the circumstances.
Even where a media outlet receives notice of an application for a production order, “a chilling effect is still a difficult thing to show,” says Paul Schabas of Blake Cassels & Graydon LLP in Toronto, who represented an international coalition of journalistic organizations as interveners in the case, including Media Legal Defence Initiative, Reporters Without Borders, Reporters Committee for Freedom of the Press, Media Law Resource Centre, International Press Institute, Article 19, PEN International and PEN Canada.
“The experience of media is that there are a lot of intangibles in how you get information,” and sources and information should be protected unless the Crown can provide compelling evidence it can’t get the information from anyone else, he told Legal Feeds.
In concurring reasons Justice Rosalie Abella, also writing for Chief Justice Richard Wagner and Justices Andromache Karakatsanis and Sheilah Martin, emphasized the importance of “[a] strong, independent and responsible press [that] 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,” Abella wrote for the concurring minority. “Section 2 (b) of the Charter contains a distinct constitutional press right which protects the media’s core expressive functions — its right to gather and disseminate information for the public benefit without undue interference.”
Authorizing judges must weigh the media’s reasonable expectation of privacy; whether there is a need to target the press at all, since “[t]he media should be the last rather than the first place that authorities look for evidence” (Canadian Broadcasting Corp. v. Manitoba (Attorney General) (2009), 250 C.C.C. (3d) 61 (Man. C.A.), at para. 74); whether the evidence is available from any other source, and if so, whether reasonable steps were taken to obtain it … and whether the proposed order is narrowly tailored to interfere with the media’s rights no more than necessary.
The international coalition had argued that “there’s got to be a showing that the evidence was necessary, not available from any other source, and you’ve canvassed all other alternatives,” Schabas says, which was affirmed in the minority’s reasons.
“I think procedurally the decision has some strong benefits for press freedom,” says Justin Safayeni of Stockwoods LLP in Toronto, who represented a coalition of interveners including the Canadian Association of Journalists and Canadian Journalists for Free Expression, as well as media outlets Global News and Postmedia Network.
“Tthere’s a strong suggestion, though not a requirement, that the media should be given notice [of an application for a production order] at first instance . . . which was not the way it was before.”
The second procedural aspect of importance in the decision is if the order is granted ex parte and, later, “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,” Moldaver wrote.
Today’s decision means that Vice Media must comply with court orders to provide cellphone evidence to the RCMP.
“This is a dark day for press freedom, which is a basic tenet of democracy,” Vice Media said in a statement following release of the decision. “While we’ve lost this battle, nothing can shake our belief that a free press is instrumental to a truthful understanding of the world in which we live. We will continue to foster the power of youth voices to speak that truth.”
However, says Safyeni, “I think the [minority] concurrence . . . opens the door to a new way of looking at some of these issues . . . Looking ahead, it’s a signal that the court is receptive to . . . giving some life and meaning to s. 2(b) of the Charter [which guarantees 'freedom of the press and other media of communication'], which to date have received very little judicial attention.”
Today’s decision “leaves the concurring minority to adopt a tougher test for when production orders should be issued,” he says.
“The concurrence is a very positive step,” agrees Cara Zwibel, director of the Fundamental Freedoms Program for the Canadian Civil Liberties Association, another intervener in the case. “It recognizes freedom of the press as distinct and independent,” guaranteed by s. 2(b) of the Charter.
“Fundamentally, the most important aspect of the Supreme Court’s decision is that the framework seeks to maintain a balance between the public interest in the investigation and prosecution of crime and the freedom of the press, which includes the media’s right to gather and disseminate the news,” Sarah Shaikh, senior counsel for the Public Prosecution Service of Canada in Toronto, said in a statement.