Balancing the Freedom of Expression and the Reasonable Expectation of Privacy under the Charter when the State seeks Production Orders against the Media.
Published On: Dec 06,2018
The issuance and compliance with the execution of search warrants and production on the media to reveal information relative to their (confidential) sources is a contentious issue in Canadian criminal jurisprudence. The seminal cases that considered such issues were in Canadian Broadcasting Corp. v. Lessard, 1991 CanLII 49, [1991] 3 S.C.R. 421; and its companion case, Canadian Broadcasting Corp. v. New Brunswick (Attorney General), 1991 CanLII 50, [1991] 3 S.C.R. 459 (collectively referred as the “the ‘CBC Cases’).
Last week, the Supreme Court of Canada rendered it’s decision in Regina v. Vice Media Canada Inc., 2018 SCC 53 (CanLII). The appellants, Vice Media, is a media organization and one of its journalists, wrote and published three (3) articles in 2014 based on exchanges between the journalist and a source, a Canadian man suspected of having joined a terrorist organization in Syria. The Royal Canadian Mounted Police (the “RCMP”) successfully applied ex parte to the Provincial Court, under s.487.014 of the Criminal Code, for an order directing the appellants to produce the screen captures of the messages exchanged with the source. The majority and minority opinions are described below but it is important to note that the new Journalistic Sources Protection Act, S.C. 2017, c.22 was not considered by the Court.
The Majority Opinion
The majority opinion from the SCC stated that the CBC Cases provide a suitable frame-work for execution of production orders and search warrants on the media but refined the test in the following terms stated below. Writing for the majority of the Court, the Honourable Justice Moldaver J. said:
First, rather than treating prior partial publication as a factor that always militates in favour of granting an order, I would assess the effect of prior partial publication on a case-by-case basis. Second, with respect to the standard of review to be applied when reviewing an order relating to the media that was made ex parte, I would adopt a modified Garofoli standard (see R. v. Garofoli, 1990 CanLII 52 (SCC), [1990] 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. Otherwise, the traditional Garofoli standard will apply, meaning that the order may be set aside only if the media can establish that — in light of the record before the authorizing judge, as amplified on review — there was no reasonable basis on which the authorizing judge could have granted the order. Third, I would reorganize the Lessard factors to make them easier to apply in practice.
When reviewing an application for a production order, the Supreme Court provided the following judicial guidance for lower court judges in the following terms at paragraph 82:
[82] Having settled the main jurisprudential issues on appeal, I wish to take this opportunity to reorganize the Lessard factors to make them easier to apply in practice. On an application for a production order against the media, the authorizing judge should apply a four-part analysis:
(1) Notice. First, the authorizing judge must consider whether to exercise his or her discretion to require notice to the media. While the statutory status quo is an ex parte proceeding (see Criminal Code, s. 487.014(1)), the authorizing judge has discretion to require notice where he or she deems appropriate (see National Post, at para. 83; CBC (ONCA), at para. 50). Proceeding ex parte may be appropriate in “cases of urgency or other circumstances” (National Post, at para. 83). However, where, for example, the authorizing judge considers that he or she may not have all the information necessary to properly engage in the analysis described below, this may be an appropriate circumstance in which to require notice.
(2) Statutory Preconditions. Second, all statutory preconditions must be met (Lessard factor 1).
(3) Balancing. Third, 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 (Lessard factor 3). In performing this balancing exercise, which can be accomplished only if the affidavit supporting the application contains sufficient detail (Lessard factor 4), the authorizing judge should consider all of the circumstances (Lessard factor 2). These circumstances may include (but are not limited to):
(a) the likelihood and extent of any potential 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 there are alternative sources from which the information may reasonably be obtained and, if so, whether the police have made all reasonable efforts to obtain the information from those sources (Lessard factor 5);
(e) the effect of prior partial publication, now assessed on a case-by-case basis (Lessard factor 6); and
(f) more broadly, the vital role that the media plays in the functioning of a democratic society and the fact that the media will generally be an innocent third party (Lessard factor 3).
At the end of the day, the decision as to whether to grant the order sought is discretionary (Lessard factor 2), and the relative importance of the various factors guiding that discretion will vary from case to case (see New Brunswick, at p. 478).
(4) Conditions. Fourth, if the authorizing judge decides to exercise his or her discretion to issue the order, he or she should consider imposing conditions on the order to ensure that the media will not be unduly impeded in the publishing and dissemination of the news (Lessard factor 7). The authorizing judge may also see fit to order that the materials be sealed for a period pending review.
[83] As explained above at para. 73, if the order is granted ex parte and is later challenged by the media, the standard of review is determined by applying the following test: 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. If, on the other hand, the media fails to meet this threshold requirement, then the traditional Garofoli standard will apply, meaning that the production order may be set aside only if the media can establish that — in light of the record before the authorizing judge, as amplified on review — there was no reasonable basis on which the authorizing judge could have granted the order.
Ultimately, the Supreme Court of Canada found that is it was (a) open to the authorizing judge to proceed ex parte and decline to exercise his discretion to require notice; (b) the statutory preconditions for the production order were satisfied. This is because the Information to Obtain (the “ITO”) provided reasonable grounds to believe that (i) the source of Vice Media had committed certain offences; (ii) the appellants, Vice Media, had in their possession the materials sought by the RCMP; and (iii) finally those materials would afford evidence respecting the commission of the alleged offences.
Additionally, it was open to the authorizing judge, in conducting the balancing exercise as proposed in the CBC Cases, to conclude that the state’s interest in investigating and prosecuting the alleged crimes outweighed the media’s right to privacy in gathering and disseminating the news. What is more, the Court opined that even on a de novo review, the production order was properly granted. They came to this opinion because the SCC felt that the disclosure of the materials sought would not reveal a confidential source. Particularly, no “off the record” information or “not for attribution” communications would be disclosed. Unlike the Regina v. National Post, [2010] 1 SCR 477, 2010 SCC 16 (CanLII) case, “this is not a case in which compliance with the order would result in a confidential source’s identity being revealed.”
In furthering the balancing exercise, there was no alternative source through which the materials sought may be obtained; the source used the media to publicize his activities with a terrorist organization as a sort of spokesperson on its behalf; and the state’s interest in investigating and prosecuting the alleged crimes weighed heavily in the balance. Finally, the authorizing judge imposed adequate terms in the production order.
In terms of the constitutional arguments posited based submissions made under Section 2 of the Charter, the majority further held that it was neither necessary nor appropriate in this case to formally recognize that freedom of the press enjoys distinct and independent constitutional protection under s.2(b) of the Charter. The majority also noted that the case did not attract the new Journalistic Sources Protection Act, S.C. 2017, c.22, because the facts arose before the legislation came into force. Thus, it will be interesting to see future challenges, on similar facts, to the Court under the Journalist Sources Protect Act that arises from facts that post-dates its implementation. It appears that the Court avoided this issue when the minority opinion stated in Obiter Dicta: “None of its provisions, however, was at issue before us. As a result, these reasons have intentionally avoided addressing or applying any of them.”
The Minority Opinion
There was a strong dissenting opinion from Justice Abella who wrote for the four-member minority. The minority judgement would have held that s.2(b) of the Charter “contains a distinct constitutional press right which protects the press’ core expressive functions — its right to gather and disseminate information for the public benefit without undue interference”.
Justice Abella eloquently states:
[111] This case explores the border between vigorous protection for the press and the state’s ability to investigate crime by seeking information from the press. There are, as a result, two provisions of the Canadian Charter of Rights and Freedoms at issue in this appeal. One is s. 8, which protects a reasonable expectation of privacy. The other is s. 2(b), which protects “freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication”.
[112] Strong constitutional safeguards against state intrusion are a necessary precondition for the press to perform its essential democratic role effectively. As these reasons seek to demonstrate, s. 2(b) contains a distinct constitutional press right which protects the press’ core expressive functions — its right to gather and disseminate information for the public benefit without undue interference. When the state seeks access to information in the hands of the media through a production order, both the media’s s. 2(b) rights and s. 8 privacy rights are engaged. A rigorously protective harmonized analysis is therefore required.
However, after engaging in the application of the facts, minority opinion would have dismissed the appeal on the basis that “the production order strikes a proportionate balance between the rights and interests at stake”; and the “…benefit of the state’s interest in obtaining the messages outweighs any harm to Vice Media’s rights.”
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