Court of Appeal Decision of the Week
RCMPLAND: Free Press v. Effective Police
Case: R. v. Vice Media Canada Inc., 2017 ONCA 231
Keywords: Free press, law enforcement, production order, journalists, police
Journalist Ben Makuch had been messaging a Calgary man who allegedly left Canada to join ISIS. Makuch wrote three articles about the accused terrorist for Vice Media Canada Inc. Police obtained an ex parte production order requiring the appellants, Vice and Makuch, to hand over background materials used for the stories. Vice and Makuch did not produce the material but instead brought an application to quash or set aside that order and an application to unseal the record the police relied on to obtain the order.
The application judge:
- rejected Vice’s application to quash the production order;
- set aside most of the order sealing the material on which the police relied to obtain the production order; and
- made some of the unredacted information subject to a temporary non-publication order preventing the press from disseminating that information to the public.
Vice appealed. The Ontario Court of Appeal:
- dismissed the appeal from the refusal to quash the production order;
- allowed the appeal as it relates to the sealing order, in part; and
- subject to the parties agreeing on modifications to the non-publication order, dismissed the appeal from that order.
In sum, Makuch has to hand over his correspondence with his source to the RCMP.
Production orders allow the police to obtain documents from individuals not under investigation. In the words of the Court of Appeal, when the media is the subject of a proposed order, extra care must be taken “to avoid compromising – if the police were to compel the media’s information too easily – the unique and important role the media plays in society.” (para. 29)
In this case, the Court was faced with reconciling fundamental societal concerns: freedom of the press and effective law enforcement. While the Court ultimately stuck with the status quo, the decision sets a precedent that will serve as a guide to judges in future production order cases faced with the same issues.
The Court of Appeal’s analysis began with a jurisdictional issue. The Criminal Code does not provide for appeals from orders under s. 487.3(4) (sealing order) or s. 487.0193(4) (revoking or varying the production order). However, the Court found that s. 784(1), which provides for prerogative writ appeals, was broad enough to give the Court jurisdiction.
Next, the Court dealt with the proper standard of review to apply to the review of search warrants and similar investigative tools. Not surprisingly it confirmed that the deferential reasonableness standard was appropriate: “The reviewing court will quash the order only if, having regard to the record before the issuing judge, as augmented by evidence before the reviewing judge, no judge acting reasonably could have concluded that the order should be made.” (para. 20)
Moving to the production orders, Vice argued that allowing police to use journalists to further criminal investigations would have a chilling effect and scare off sources. It also argued the press needs to have access to information that police rely on to obtain court orders. Police argued they need to access information from journalists to effectively investigate serious crimes, but allowing the press to access police information would compromise investigations.
Interveners supporting Vice argued for restructuring the factors to be considered in assessing the reasonableness of a search targeting information in possession of the media. They said the test needed “to more properly reflect the importance of freedom of the press in contemporary society, by more strictly limiting the state’s ability to compel production of information from the media.”
The Court declined to do any restructuring of the factors from Canadian Broadcasting Corp. v. Lessard,  3 S.C.R. 421, Canadian Broadcasting Corp. v. New Brunswick (Attorney General),  3 S.C.R. 459, and R. v. National Post, 2010 SCC 16:
…When the state exercises its powers to search and seize, reasonableness is the constitutional litmus test. The place to be searched and the nature of the material to be seized are important considerations in that reasonableness assessment. The Lessard factors recognize the significance of those considerations. They also recognize that the ultimate assessment is of necessity a fact-specific one. Any attempt to exhaustively enumerate all relevant factors, or to define them narrowly, is doomed to fail. In my view, the present approach provides adequate room for a proper balancing of the important competing interests which must be considered in a case in which the state seeks to compel production of material from the media. (para. 32)
With respect to considering and weighing the factors, the Court adhered to the standard of review and was deferential to the application judge.
In rejecting the arguments from Vice about the chilling effect this practice creates, the Court cited the specific circumstances of the case:
- the absence of any requests for confidentiality from the sources;
- the source was anxious to tell the world about his beliefs and conduct; and
- the journalist had published much of the material sought before the request for the production order.
The Court also rejected the argument that the Crown must show the material sought is essential to the prosecution – it is too early for the Crown to know what it needs to prove its case at trial.
On the sealing order issue, the Court found that the application judge erred in allowing the Crown to redact paragraphs that disclose future investigative steps. These paragraphs, under the heading “Investigative Plan,” contained “obvious” steps that police would take in an investigation.
The Court emphasized that a non-publication order was a viable alternative, in some circumstances, to a full sealing order or an order closing a courtroom to the public:
An order that limits publication of certain information for a fixed time period, while permitting full access to the material or the relevant proceeding, has a less deleterious effect on the open court principle, and associated individual rights, than does an order that effectively locks the courtroom door to the media and the public. (para. 52)
Unlike a sealing order, a properly tailored non-publication order can allow the media to publish material about many aspects of the search warrant materials in question as well as about any non-publication order made. But the Court cautioned that non-publication orders should still not be too easily available as they involve “a significant intrusion upon the open court principle and must be justified by the party seeking it.” (para. 53)
The Court suggested that the non-publication order in the present case be scaled back (by agreement of the parties) as it unnecessarily covered information that would not have a negative impact on fair trial rights, i.e. background information that is readily available to and known to the public.
Overall, the decision sends home the message that application judges have significant discretion when it comes to production orders and that such orders attract significant deference. It’s not the expanded protection the media was hoping for. Instead, journalists will have to be sensitive to the fact that significant weight may be put on how a particular source treated the information they were providing.
Vice announced on March 22, 2017 it was reviewing the decision and preparing an Application for Leave to Appeal to the Supreme Court of Canada.
For the Appellants: Iain MacKinnon (Linden & Associates, Professional Corporation, Toronto)
For the Respondent: Brian Puddington and Sarah Shaikh (Public Prosecution Service of Canada, Toronto)
For the Intervener: The Attorney General of Ontario: Susan Magotiaux (Attorney General of Ontario, Toronto)
For the Intervener: The British Columbia Civil Liberties Association: Andrew MacDonald (Bersenas Jaconsen Chouest Thomson Blackburn LLP, Toronto)
For the Intervener: the Canadian Civil Liberties Association: Brian Radnoff and Christopher Shorey (Lerners LLP, Toronto)
For the Intervener: Coalition of media and journalist organizations: Justin Safayeni (Stockwoods LLP, Toronto)
Posted: Wednesday, March 29, 2017