R v Vice Media : The Special Role of the Press
When should judges grant police access to a media company’s communications with a source? What if that source is suspected of engaging in terrorist activity? In R v Vice Media Canada Inc., 2018 SCC 53 [Vice] the Supreme Court of Canada (“SCC”) balanced the interests of the media and the state in creating a new legal test for granting production orders against news organizations. The state has an interest in investigating and prosecuting crime, but the media has a unique role to play in a democratic society—making this case an particularly important one in journalism.
Important to note is the fact that the Journalistic Sources Protection Act, SC 2017, c 22 [JSPA] was not engaged by this case.
Ben Makuch, a reporter for news outlet Vice Media (together, “the appellants”), began an online exchange with a man who initially went by a pseudonym. The man was eventually revealed to be Farah Mohamed Shirdon, a Canadian suspected of joining ISIS and engaging in terrorist activities. Mr. Makuch subsequently wrote three articles about Mr. Shirdon, and Vice Media published them. After publication, the RCMP applied ex parte for and obtained a production order requiring the appellants to hand over screen captures of their exchanges with Mr. Shirdon. Notably, Mr. Shirdon did not seem to have any qualms about confidentiality, admitting that he went to Vice Media to “speak to the whole world” (Vice, para 119).
There were four issues in this appeal:
(1) Should the Lessard framework be reformed?
(2) Where the police are seeking a production order relating to the media, should a presumptive notice requirement be imposed?
(3) What is the standard of review to be applied on review of a production order relating to the media?
(4) Should the production order be set aside?” (Vice, para 8)
The Lessard Framework Should Not Be Reformed
In Canadian Broadcasting Corp v Lessard,  3 SCR 421, the police sought and obtained warrants to seize CBC footage of individuals engaged in what seemed to be criminal activity. The SCC accordingly formulated a nine-factor framework for judges to consider when deciding whether or not to issue a production order. In Vice, the appellants argued that the framework was flawed, and proposed four changes.
First, a “chilling effect” should be presumed whenever a production order is sought against the media. Justice Moldaver, writing for the majority in Vice, rejected this claim on the basis that, while there may be a chilling effect in some cases, such a negative effect could not simply be presumed in all cases. He added that the judge authorizing the production order could impose conditions on the police’s access to these materials, and thereby limit the chilling effect on the media.
Second, the appellants argued that the distinction between confidential and non-confidential sources ought to be removed and all sources treated in the same confidential manner. Justice Moldaver replied that “there are good reasons to draw a distinction between confidential and non-confidential sources, as the privacy and other concerns they raise may differ substantially” (Vice, para 34). This distinction is also recognized by Parliament in legislation such as the JSPA.
Third, the appellants argued that prior partial publication should be abandoned as a Lessard factor going forward. Justice Moldaver determined that this, again, was something to be determined on a case-by-case basis. Prior partial publication was already included as one of the nine factors under the Lessard framework. However, Justice Moldaver did find that the placement of this factor in the Lessard framework was flawed. Rather than treating prior partial publication as a separate factor to consider, Justice Moldaver put it under a general balancing to be conducted by judges between the interests of the state and the media.
Finally, the appellants argued that the Lessard framework, acting in its capacity to assist justices in determining the state’s interests, must consider the prospect of an actual trial taking place within a reasonable time, and the probative value of the evidence requested by the warrant. Justice Moldaver deemed the first requirement—the prospect of trial—to be not only irrelevant, but impracticable for the authorizing judges to speculate on. On the second point, Justice Moldaver found that the requirement that the evidence be probative could be relevant, but is too imprecise to be of use, and is thus unnecessary.
Presumptive Notice is Not Required
The appellants argued that the media organization should be given notice upon application for an ex parte production order against it, barring exigent circumstances. Justice Moldaver disagreed with this submission for two reasons. First, s. 487.014(1) of the Criminal Code, RSC 1985, c C-46 [Code], which contain the statutory requirements to grant a production order, has an explicit provision for an ex parte production order. For the majority, this demonstrated Parliamentary intent to limit notice to media companies. S. 487.0193(1) of the Code also provides the option for the media to apply for the Court to modify or revoke an ex parte production order before it is used. Secondly, the SCC has previously stressed the fact of the discretion enjoyed by the authorizing judge to decide whether or not to require the media should be given notice.
The Standard of Review on a Production Order
Justice Moldaver stated that there are two methods by which to challenge a production order. The first method is to pursue a statutory right of review in which the authorizing judge (or another judge in the same judicial district) may revoke or modify the order “only if the reviewing judge is satisfied that (a) it would be unreasonable in the circumstances to require the applicant to prepare or produce the document or (b) production of the document would disclose information that is privileged or otherwise protected from disclosure by law” (Vice, para 68 citing s. 487.0193(4) of the Code).
Alternatively (and provided that the authorizing judge was not a member of a superior court), a party can challenge a production order by applying for certiorari in a superior court. In this case, the standard of review comes from R v Garofoli,  2 SCR 1421, which states that the reviewing judge can only determine whether the authorizing judge had all the evidence necessary to make a decision about the production order, but not change the order. The appellants argued that while the Garofoli standard may be appropriate generally, it is far too deferential a standard for production orders relating to the media, as the media will often not have the opportunity to present the evidence necessary for the authorizing judge to properly balance the interests of the media versus the interests of the state.
In response, Justice Moldaver recommended a “modified Garofoli test;” if (and only if) the media can show the reviewing judge that there was some specific evidence that, had it been presented before the authorizing judge in an ex parte decision, could reasonably have affected the outcome of the decision, then the media is entitled to a de novo review of the decision. Otherwise, the traditional Garofoli standard will apply, and the production order will only be set aside if the media can establish that, based on the evidence before the authorizing judge, there was no reasonable basis for the order to be issued.
Re-organizing the Lessard Framework
Having already briefly proposed a change in his discussion of the first issue ( bringing the third factor of the Lessard framework under a broader “balancing” stage), Justice Moldaver went on to suggest an easier four-stage analysis to replace the nine factors of the Lessard framework:
• Notice: The authorizing judge must first decide whether or not to give the media notice regarding the production order;
• Statutory preconditions: The authorizing judge must be satisfied that “(1) “an offence has been or will be committed”; (2) “the document or data is in the person’s possession or control”; and (3) the document or data “will afford evidence respecting the commission of the offence” (Vice, para 88);
• Balancing: The authorizing judge must thoroughly consider and weigh the state’s interests in investigating and prosecuting crimes with the media’s right to privacy in gathering and disseminating the news; and
• Conditions: Finally, the authorizing judge should consider imposing conditions upon the production order to avoid undue impairment on the media’s ability to disseminate the news.
In the end, Justice Moldaver determined that the state’s interests in investigating and prosecuting Mr. Shirdon’s alleged terrorist activities were fairly judged as overriding Vice Media’s right to privacy ex parte. Using the Lessard framework, the majority found that the production order satisfied the statutory preconditions, the request was narrowly tailored to avoid undue impairment on Vice and since the materials did not come from a confidential source, there was little chilling effect. Other factors also tipped the scale in the police’s favour. The alleged crime was severe, the information requested was clearly important for the police and there was no other recourse to obtain it, and the relevant material had already been partially published. The authorizing judge also gave the appellants sufficient time (60 days) to respond to the production order. The Lessard framework was thus satisfied, and the appellants did not fulfill the requirements of the modified Garofoli test or the traditional Garofoli standard. Ultimately, the production order remained unchanged.
Justice Abella, writing concurring reasons on behalf of herself and three other justices, felt that Vice provided the SCC the opportunity to iterate the freedom of the press as distinctively protected under section 2(b) of the Charter. Justice Abella argued that this was the best way to ensure the press’s special role as providing information to the public, since “[t]he right to convey information to the public is fragile unless the press is free to pursue leads, communicate with sources, and assess the information acquired” (Vice, para 127). Justice Moldaver for the majority felt that it was unnecessary to address the Charter argument. In the end, this was less a case about the media’s Charter rights than a balancing exercise between media versus the state.