Vice Media Canada Inc produces content on a multimedia network of websites, TV channels, films and mobile platforms. During 2014 one of its reporters, Ben Makuch, began communicating with Farah Mohamed Shirdon using an instant text messaging application, Kik messenger. The RCMP believed that Shirdon, raised in Calgary, left Canada in March 2014 to join the Islamic State of Iraq and Syria (ISIS). He was charged with six terrorism offences but not arrested.

Between June and October 2014 Vice Media published three articles written by Makuch based on his communications with Shirdon. On February 13, 2015, Justice Jack Nadelle of the Ontario Court of Justice issued an ex parte production order, on application by the police, under what was then s 487.012 of the Criminal Code. The words ex parte are Latin meaning without notice to Vice Media and Makuch. The production order directed them to produce screen shots of Makuch’s exchanges with Shirdon.

On March 29, 2016, Justice I.A. MacDonnell of the Ontario Superior Court of Justice dismissed an application by Vice Media to set aside the production order in a ruling reported as R v Vice Media Canada Inc, 2016 ONSC 1961. Justice MacDonnell held, at para 43, that there was no alternative source for the screen shots and the communications were not made with an understanding of confidentiality. Shirdon regarded Vice Media and Makuch as “the channels through which he would speak to the whole world.”

On March 22, 2017, a three member panel of the Ontario Court of Appeal dismissed Vice Media’s appeal reported as R v Vice Media Canada Inc, 2017 ONCA 231. Justice David Doherty, writing for himself, Associate Chief Justice Alexandra Hoy and Justice Bradley Miller rejected the appellants’ argument that a “more interventionist standard of review” is required to consider the “added complexities” of cases where the media is the target. Any production order that targets the media, they argued, has a “chilling effect” on its ability to perform its vital role in a democratic society. Sources will be reluctant to provide information even if the information sought is in the public domain and not provided under promise of confidentiality. However, Justice Doherty concluded, at para 23, that the negative impact of the ex parte proceeding is countered by the media’s right to move to revoke a production under Part XV of the Code before the material is handed over to the police.

On November 30, 2018, the Supreme Court of Canada released a split 5-4 judgment dismissing Vice Media’s appeal reported as R v Vice Media Canada Inc, 2018 SCC 53.  The majority opinion by Justice Michael Moldaver, with concurrences by Justices Clement Gascon, Suzanne Cote, Russell Brown and Malcolm Rowe made adjustments to the legal framework governing the issuance of search instruments targeting journalists set out in the leading case of Canadian Broadcasting Corp v Lessard, [1991] 3 SCR 421. The minority opinion of Justice Rosalie Abella, joined by Chief Justice Richard Wagner and Justices Andromache Karakatsanis and Sheilah Martin agreed in the result but would have recognized a free-standing right of “freedom of the press and other media” under s 2(b) of the Charter of Rights distinct from the media’s privacy rights under s 8 of the Charter. The minority opinion is an historical first in Canada.

Justice Moldaver concluded, at para 82, that it was necessary to reorganize the Lessard factors to make them easier to apply in practice. I will condense the new four-part analysis this way:

1. Notice. On an ex parte application, the issuing judge must consider whether to exercise a discretion to require notice to the media.

2. Statutory Preconditions. All statutory preconditions must be met.

3. Balancing. The issuing judge must balance the state’s interest in the investigation and prosecution of crime and the media’s right to privacy in gathering and disseminating the news. Three of the relevant circumstances are: (a) the likelihood and extent of any potential chilling effects; (b) the effect of prior partial publication assessed on a case-by-case basis; and, (c) the vital role the media plays in the functioning of a democratic society and that the media will generally be an innocent third party.

4. Conditions. If an order is granted, the issuing judge should consider imposing conditions to ensure that the media will not be unduly impeded in publishing the news.

An important take-away here is that, as a result of an amendment to the Criminal Code in 2014, combined with the majority opinion in Vice Media, the issuance of a production order under what is now s 487.014 of the Code triggers two procedural options for the media.

(a) Statutory Right of Review

There are two statutory options available. The first option is an application under Part XV of the Code to the issuing judge to revoke or vary the order. I referred to this in the discussion of Justice Doherty’s observations in the Ontario Court of Appeal. As Justice Moldaver said, at para 68, such an application may only succeed if: (a) it would be unreasonable to require the applicant to prepare or produce the document; or, (b) production would disclose information that is privileged or otherwise protected from disclosure. That is simply a restatement of the Code section. The second option is an application for certiorari in the superior court.

(b) Charter s 8 Review

Justice Moldaver recognized, at para 72, that where an ex parte production order is issued against the media, the highly deferential standard of review under s 8 of the Charter established in R v Garofoli, [1990] 2 SCR 1421 may work unfairness in some cases. A modified test should therefore apply. Justice Moldaver put it this way, at para 73:

“[I]f 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.”

The threshold requirement of producing information not before the issuing judge may, for example, be satisfied where the issuing judge was not aware of a confidentiality agreement protecting a source’s identity, unique features in the nature of the journalist-source relationship, evidence that the production order will affect the media in a way that could not have been foreseen or specific evidence concerning chilling effects.

Where, then, does all of this leave us? Let’s turn to what the Vice Media case does not decide. First, the case did not engage the new Journalistic Sources Protection Act, SC 2017, c 22. The facts arose before the statute came into force. Second, the majority held that this was not an appropriate case to recognize that freedom of the press enjoys independent constitutional protection. The appeal could be decided without rethinking s 2(b) of the Charter. Not so, said the minority. There is no reason to avoid giving constitutional content to the words freedom of the press in s 2(b). “The words are clear,” Justice Abella wrote at para 109, “the concerns are real, and the issue is ripe.”

Well, not only is the issue ripe – it is now before the court.

On August 9, 2018, leave to appeal was granted in Denis v Cote, 2018 QCCA 611 on the question whether CBC reporter Marie-Maude Denis must reveal a source that helped her uncover corruption in the Quebec construction sector. Although the appeal does not involve production orders, it will engage the law on journalist-source privilege. On November 20, 2018, the hearing of the appeal was adjourned to the 2019 spring session. (See: Denis v Cote, 2018 CanLII 73607; Court File No.: 38114)