Need for Greater Protections of Investigative Journalism

On Nov. 21, 2018, Finance Minister Bill Morneau provided the 2018 fiscal update, which includes nearly $600 million in tax credits and incentives over the next 5 years for the media, as well as a temporary tax credit for subscribers to digital news media sites. Non-profit media organizations will be eligible for charitable status and may receive funding from other registered charities.

The role of the media within our legal system is emphasized in our constitution. Though commonly referred to as simply “freedom of speech,” the Charter‘s expressive guarantee under s. 2(b) is slightly more refined as,

freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication;

Justice Lamer, in discussing the role of the media in light of competing interests such as the right to a fair trial, stated in Dagenais v. Canadian Broadcasting Corp.,

A hierarchical approach to rights must be avoided, both when interpreting the Charter and when developing the common law.

This case rejected the common law approach of emphasizing the right to a fair trial over the fundamental freedom of expression rights, and instead the Court adopted a balancing approach.

The protection of diversity of ideas and opinions is fundamental to a free, pluralistic and democratic society, because as McLachlin C.J. indicated in R. v. Sharpe, citing Justice Cardozo in the 1937 American case of Palko v. Connecticut, “Of that freedom one may say that it is the matrix, the indispensable condition, of nearly every other form of freedom.”

Lots has changed since 1937, especially in the financial circumstances of Canadian media. Nicholas Mizera in the Huffpost describes the changes we’ve seen recently,

Over the past decade or two, ownership of Canadian media has dwindled to four major corporations — Bell, Rogers, Telus and Shaw — which now control 70 per cent of the country’s mediascape. This includes a number of Canada’s major print-media joints.

A deal this year between Torstar and Postmedia resulted in the closure of 41 community papers (in favour of concentrating on “primary regions”). Postmedia’s purchase of 175 community papers from Quebecor in 2015 — then an unprecedented consolidation of written media — resulted with the merging of newsrooms in four major cities. And we haven’t seen the last of these moves, not by a long shot.

The exception to the challenges faced by the traditional newspapers is the rise of new, digital reporting such as Vice Media. Although headquartered in New York, it was founded in 1994 in Montreal, with one of its co-founders recently denied entry to Australia due to controversial and allegations of racist statements. The distasteful activities of this one individual notwithstanding, Vice News has received international acclaim, especially for its 2104 documentary, “The Islamic State.” This documentary has been subject of litigation by the government for a s. 487.014 production order, and was recently reviewed by the Supreme Court of Canada in R. v. Vice Media Canada Inc.

The unanimous Court (with a concurring opinion) upheld the framework created in Canadian Broadcasting Corp. v. Lessard1991 CanLII 49 (SCC) and Canadian Broadcasting Corp. v. New Brunswick (Attorney General), thereby rejecting a presumed chilling effect and maintaining the distinctions between confidential and non-confidential sources, as was proposed by the appellants. However, they made some modifications to this framework as summarized at para 4,

• 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. Garofoli1990 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.

In upholding the production order, the Court emphasized the state’s interest in investigating and prosecuting terrorism, and noted that there would not be any confidential sources reveled, no off the record comments would be disclosed, there was no other alternative sources for the information.

The revised framework was organized into a 4-part analysis, found at para 82,

(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.

In maintaining the Lessard framework with these modifications, the Court resisted the critiques from the bar of how the distinct “freedom of the press and other media of communication” has been treated within s. 2(b), which was alluded to by the dissent in Lessard,

By specifically referring to freedom of the press [expressly], s. 2(b) affirms the special position of the press and other media in our society.
[emphasis added]

The rationale for resisting this special position was enunciated by Justice Parrett in Phillips v. Vancouver Sun,

[57] The introductory words are “Everyone has the following fundamental freedoms”. The list which follows these words enumerates fundamental freedoms enjoyed by every citizen of this country. It follows from this that freedom of the press is not a separate and distinct right granted to the media but a means by which each citizen can achieve the constitutionally enshrined “freedom of thought, belief, opinion and expression . . .”. In other words, “freedom of the press” as it is set out in s. 2(b) is the means by which the average citizen exercises his right to be informed, and may thus achieve the first four freedoms listed in s. 2(b).

[58] Freedom of the press, in this light, does not extend to the press a greater right than that extended to any citizen, for it is the right of the citizen on which it is founded…

[emphasis in the original]

The effect of this has been highlighted by Benjamin Oliphant in the McGill Law Journal, where he proposes a purposive approach towards the interpretation of press freedom,

Canadian courts have tended to treat the term as one of the Charter’s few superfluities: a freedom that is protected largely if not exclusively through freedom of expression writ large…

The assumption that freedom of the press means no more than the availability of freedom of expression to the press renders the press freedom clause effectively vapid and tautological.

While jurists and scholars have argued that the US First Amendment — which prohibits abridgement of “freedom of speech, or of the press” — merely intended to protect individuals in their “right to print what they will as well as to utter it,” such an interpretation is unappealing in the Canadian context where freedom of expression covers both spoken and written expression (and much else). Thus, even a plain reading of section 2(b) implies that press freedom entails something more than the extension of freedom of expression to reporters.

Oliphant proposes a 3-part test for applying the freedom of the press in a distinct fashion from other aspects of s. 2(b):

  1. Was the claimant engaged in newsgathering for the purposes of publication?
  2. Was the newsgathering conducted in a way that is not inherently harmful? and
  3. Does the newsgathering activity in question generally serve the values underlying press freedom by furthering the public interest?

This analysis, and the need for a distinct and independent constitutional protection for freedom of the press, was the focus of the concurrent decision in Vice Media.

Although Justice Abella’s decision also dismissed the appeal and concluded that the state’s interest in obtaining the information outweighed the expression rights of the press here, she criticized the s. 2(b) jurisprudence as failing to properly analyze the approach for reviewing a production order against the press. Media involvement post-authorization on an ex parte basis only results in a setting aside under the Garofoli approach, and not a fresh balancing based on new evidence.

This approach is inherently flawed, as it is impossible to have a proportionate balancing when highly relevant information possessed exclusively by the media is never used on the initial application. Deference to an authorizing judge who has never had any evidence from the media fails to properly protect s. 2(b) rights, as even the existence of fraud, non-disclosure, misleading evidence and new evidence may not be sufficient to dislodge the initial ex parte authorization.

The flaws in the approach for a general production order are most relevant where there are s. 8 interests at stake. The majority refused to engage in this aspect, as it wasn’t directly before the court given the lack of any promise of confidentiality by the Vice Media reporter.

In R. v. National Post, the majority adopted and expanded on the dissent in Lessard when evaluating the s. 8 interests. The formal statutory requirements under ss. 487.01 and 487.02 of the Code are insufficient to evaluate warrants and assistance orders against the media, specifically because of their special position in society.

This means that the application of the pre-Vice Media framework in Lessard allowed police to use their powers of search and seizure to interfere with the privacy and freedom of the press in a manner that provides undue discretion to justices of the peace absent a standard of reasonableness necessary for the context and interests involved. Search warrants were routinely issued for fishing expeditions, even with factual deficiencies in the information, and where there the evidence presented to an issuing judge was nothing more than speculation.

National Post left open a possibility of Wigmore-style case-by-case privilege to be asserted, which emerged to following year in Globe and Mail v. Canada (Attorney General). Despite reliance on s. 9 of the Quebec Charter of Human Rights and Freedoms to create a class-based privilege for journalistic sources,

[37] More importantly, journalism is not a profession of the type that professional secrecy traditionally purports to protect. Professor Ducharme has described the two criteria that must be satisfied before a professional will be made subject to professional secrecy:

[TRANSLATION] First, there must be a law that imposes an obligation of silence on an individual and, second, that obligation must be rooted in a helping relationship. In our view, only members of professional orders governed by the Professional Code meet this twofold condition. [Emphasis added.]

(L’administration de la preuve (3rd ed. 2001), at p. 94)

The second criterion is an important one: that the obligation of silence be rooted in a relationship where the beneficiary of the privilege seeks out the professional for personal help or assistance. In other words, the obligation of confidentiality is [TRANSLATION] “in the exclusive interest of the person who disclosed [the information], and in the context of a helping relationship” (Ducharme, at p. 97). Given this emphasis on “helping relationship”, and the fact that some 45 professions are already by law subject to s. 9, Ducharme suggests that [TRANSLATION] “no member of any other profession would meet this twofold condition” (p. 97).

[38] The relationship between journalists and their sources is not one that would often result in such a “helping relationship”. What is more, the legislature has not seen fit to include journalists in the list of professions subject to professional secrecy. It has spoken, and done so clearly.

The absence of journalists from the Professional Code was therefore fatal to this claim, and the ascendancy of online journalism makes the likelihood of the further professionalization of journalism unlikely. Distinctions between the freedom of the press and freedom of individuals under s. 2(b) are further blurred in this online modern context.

But the Globe case was also distinguishable on the basis that it was a civil (i.e. not criminal) claim involving testimonial compulsion in the Sponsorship Scandal, and also had to figure out how to reconcile Quebec’s civil (i.e. not common) law tradition. These contextual differences allowed the majority to provide more of a source-protective interpretation of the Wigmore standard.

Geoffrey Stone challenges the assumption in the Hofstra Law Review that the lack of journalistic privilege is without cost to the justice system,

Assume a particular source will not disclose confidential information to a reporter in the absence of a privilege. If there is no privilege, the source will not reveal the information, the reporter will not be able to publish the information, the reporter will not be called to testify before the grand jury, and the grand jury will not learn the source’s identity. Thus, in this situation, the absence of the privilege will deprive the grand jury of the exact same evidence as the privilege. But at least with the privilege, the public and law enforcement will gain access to the underlying information through the newspaper report. In this situation, the privilege is costless to the legal system, and at the same time provides significant benefits both to law enforcement and the public.

Because the sources that are most likely to get in trouble with authorities are also the ones that have the information that is most valuable to the public, Stone notes that the absence of a privilege is most likely to chill the most valuable disclosures. Simon Kupi interprets this factor in the University of Toronto Faculty of Law Review as the basis for the Court’s decision in Globe, where news coverage of the federal sponsorship scandal had a significant impact on the governing party’s fall from power.

The challenge here is that the type of information in Vice Media, especially because of its importance to national security and public policy, is that much more vital to protect. Accurate source information on these subjects are the basis for important policies relating to immigration, law enforcement, and even the justifications for armed conflict abroad.

The misinformation about these national security concerns not only leads to poor policy decisions, but can be claimed as one of the factors behind the rise of xenophobia, intolerance, and hatred in Canada. This week, Statistics Canada released a report that indicated that police-reported hate crimes have reached an all-time high in Canada, with the most significant increases found in Muslim (+207%), Black (+84%) and Jewish (+41%) populations. The majorities of the increases are found in Ontario and Quebec, who have both turned to right-wing governments in part based on media misinformation around national security.

These concerns only become more significant with diminishing editorial control in lean online media channels, and the near-evaporation of true investigative journalism when traditional media agencies are facing budgetary constraints.

Another significant concern about the impact of the Vice Media decision is how it is interpreted in light of Canadian business’ obligations under GDPR.

A Romanian investigatory journalism publication called the RISE Project, which focuses on corruption in their local politics, and has expressed objection to the use of the Romanian Data Protection Authority (ANSPDCP) to request information related to the allegations of corruption. The requested information includes the manner that RISE informed the subjects of Article 13 and 14 of GDPR. In other words, a government-related agency is using GDPR in a manner which could create a significant chill by attempting to identify whistleblowers against corruption.

Could the same mechanisms be used to squelch reporting on Canadian stories, albeit through a European-based scheme? The question of how – and if – GDPR would apply in Canada remains hotly debated. The European Data Protection Board (EDPB) has just published its Draft Guidelines on the territorial scope of GDPR on Nov. 29, 2018. The Draft Guidelines explore whether the branches of a company, even if based in Canada, could be considered as an establishment within the European Union based on the nature of the economic activities they carry out.

Without a distinct press guarantee under s. 2(b) of the Charter means that the new online media that the government is attempting to support does not enjoy protection from undue interference with legitimate newsgathering activities. If the intent of these tax measures are to promote simple fluff pieces, or enable online media to scrape or duplicate content from other established media companies, they may succeed, but have little effect on the underlying democratic principles behind the freedom of the press.

If however the government does want to support more robust and informed discussions of public policy, greater source protection and fostering a culture of more investigative journalism is really what is needed. Only then can the freedom of the press give meaning to the values of seeking and attaining truth, participation in social and political decision-making, and individual self-fulfillment and human flourishing.

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