Balancing Safety and Freedom of the Press

The state of the media in Canada is increasingly precarious, with several newspaper chains demonstrating indicators of financial difficulty. Reader’s Digest filed for bankruptcy in 2009, and just last year Postmedia merged with Sun, La Presse in Montreal ceased weekday prints, Guelph Mercury went digital only, and the Toronto Star announced layoffs and shutdowns.

Except for some niche news outlets, newspapers might be soon just be a thing of the 20th century.

The biggest casualty in these financial woes is the lack of independent and investigative journalism, given the resources and difficulty in producing this type of content. One exception to this trend would be VICE Media, which started as a print publication in Montreal in 1994, and has rapidly expanded into digital media and broadcasting in the past few years.

One of the best example of VICE’s cutting edge approach would be their 2014 documentary on ISIS, providing unprecedented access and insight into this complicated area of the world through embedded reports. Some touted the piece as a bizarre symbiotic relationship, while others questioned its legality. VICE now has its own legal problems here in Canada, with the Court of Appeal releasing its decision this week in R. v. Vice Media Canada Inc. 

This particular dispute arose from a production order by Justice Nadelle of the Ontario Court of Justice in 2015, under ss. 487.012(1) and (3) of the Criminal Code (currently s. 487.014) to produce documents and data with an individual who was under investigation related to a number of offences, including suspected involvement with ISIS. These materials were used to create a number of articles on VICE in 2014 about this individual, who was originally from Calgary but was believed to have joined ISIS. Some of this individual’s statements may have provided implicit admissions of murder and stated threats of further violence.

This provision under the Code allows police to seek an order to obtain documents and electronic information about an individual, even if they are not under investigation,

(i) an offence has been or will be committed;

(ii) the document or data is in the person’s possession or control; and

(iii) it will afford evidence of the commission of the named offence.

In determining whether to provide this order, a judge can consider the impact of such orders on the public interest, including the role of the media. The Supreme Court of Canada highlighted this role in Canadian Broadcasting Corp. v. New Brunswick,

The media have a vitally important role to play in a democratic society. It is the media that, by gathering and disseminating news, enable members of our society to make an informed assessment of the issues which may significantly affect their lives and well-being.

Justice Mclachlin’s dissent (as she was then) in Canadian Broadcasting Corp. v. Lessard further expounds on how police activity can affect this vital freedom,

The ways in which police search and seizure may impinge on the values underlying freedom of the press are manifest.
First, searches may be physically disruptive and impede efficient and timely publication.
Second, retention of seized material by the police may delay or forestall completing the dissemination of the news.
Third, confidential sources of information may be fearful of speaking to the press, and the press may lose opportunities to cover various events because of fears on the part of participants that press files will be readily available to the authorities.
Fourth, reporters may be deterred from recording and preserving their recollections for future use.
Fifth, the processing of news and its dissemination may be chilled by the prospect that searches will disclose internal editorial deliberations.
Finally, the press may resort to self-censorship to conceal the fact that it possesses information that may be of interest to the police in an effort to protect its sources and its ability to gather news in the future.
All this may adversely impact on the role of the media in furthering the search for truth, community participation and self-fulfillment.

However, the preferred approach, adopted by subsequent cases, was the one laid out by Justice Cory for the majority in that case, which canvassed nine conditions fir a suitable framework,

The justice of the peace should ensure that a balance is struck between the competing interests of the state in the investigation and prosecution of crimes and the right to privacy of the media in the course of their news gathering and news dissemination. It must be borne in mind that the media play a vital role in the functioning of a democratic society. Generally speaking, the news media will not be implicated in the crime under investigation. They are truly an innocent third party. This is a particularly important factor to be considered in attempting to strike an appropriate balance, including the consideration of imposing conditions on that warrant.

The applications by VICE to quash, revoke or vary the production order was dismissed last year by the Superior Court. However, the applications judge did accept that the order sealing the material that the police relied upon for the production order should be set aside, and made a temporary non-publication order that prevented the press from disseminating some of this information to the public.

In particular, VICE had claimed that the order was largely a fishing expedition, the production order was overbroad, and the Information To Obtain (ITO) did not seek a basis to properly balance the interests of the state to investigate a crime and the right of the media under the Charter to gather and disseminate news.

On appeal, the court also refused to quash the production order, but allowed the appeal for the sealing order in part. Justice Doherty opened the decision stating,

[1] A free and vigorous press is essential to the proper functioning of a democracy. The protection of society from serious criminal activity is equally important to the maintenance of a functioning democracy. Those fundamental societal concerns can come into conflict. When they do, it falls to the court to resolve those conflicts…

Justice Doherty rejected the submission that a more interventionist standard should be used by an application judge where the media itself is the target of a warrant or production order,

[22] …The rights at stake when the warrant targets the media cannot, however, be characterized as more worthy of judicial protection than the s. 8 rights routinely engaged on motions to quash search warrants executed at homes and other locations where privacy interests are extremely high.

He also addressed the submission that production orders targeting the media would have a chilling affect, an the probative value of the material that was sought by the production order. In reviewing the application judge’s decision, Justice Doherty found that both were properly considered ab initio.

Because many of these orders are sought before there is even a formal prosecution underway, the Crown may not be in a position to demonstrate the information is essential, and any requirements of necessity would impose on the application judge the role of the prosecutor, in deciding which cases should properly proceed.

Justice Doherty also reviewed the sealing order and the non-publication order under the two-part Dagenais-Mentuck test,

[44] …First, the party must show that the sealing order is necessary to prevent a serious risk to the proper administration of justice because alternative, less intrusive, measures cannot prevent that risk. Second, the party must demonstrate that the benefits of the sealing order outweigh its negative impact on the rights and interests of the parties and the public, including the effects on the right to free expression, the right of the accused to a fair and public trial, and the efficacy of the administration of justice…

There was some concern that the individual for whom the information was being sought would have his trial rights affected through the publication of some of the affidavit information. Because the parties limited their submissions to whether there should or should not be a non-publication order, Justice Doherty allowed the parties to agree which parts of the affidavit should not included, or seek an order to vary.

VICE is expected to appeal to the Supreme Court of Canada. The Canadian Journalists for Free Expression (CJFE) stated,

The ruling fails to recognize the importance of journalistic source protection and threatens the integrity of journalism in Canada, forcing the essential investigative function of the press to be at the disposal of law enforcement. If journalists cannot protect their sources, then the information they provide will dry up, leaving Canadians uninformed and democracy impoverished.

The concern behind this decision is that it could empower law enforcement to seek further orders in the future of media, without any evidentiary background to substantiate a request. This would have a significant impact on the willingness of sources to speak to journalists. Forcing the media to comply with these requests when there does not appear to be any indication that it is linked to current or immediate considerations of public safety might just go too far.

There are important public policy decisions that will need to be made in Canada, both in regards to national security and potentially the use of our tax dollars and soldiers’ lives abroad. Without adequate protection of our already struggling media, those decisions in our democracy simply may not be as well informed. In an era of “fake news” and rhetoric instead of evidence based policy decisions, the need for credible information is even more essential.

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