R v Vice Media Canada Inc 2018 SCC 53

First, the Court strongly suggests (but does not require) that the media be given notice before the police seek these kinds of orders, unless the police establish a good reason, on proper evidence, why notice would be problematic.

Second, if no notice is given, then when the media are finally able to challenge theex part order, they are not necessarily stuck with the highly deferential Garofoli standard of review.

That standard requires an ex parte order to be upheld by a reviewing court as long as it “could have” been made. Practically speaking, this tilted the analysis firmly in favour of upholding the order and made it a real challenge to get production orders overturned.

The move away from Garofoli is a big deal. The Court says that so long as the media can provide evidence that “could reasonably have affected” the initial decision, they get a fresh de novo hearing — without any deference to the original decision to make the order.

The central substantive question before the Court was how to balance the media’s interests in gathering/reporting the news with the state’s interest in investigating/prosecuting crimes — and whether this balance favours requiring the journalist’s records to be produced.

On the “media” side of the equation, the big issue is whether requiring a journalist to disclose records of published material with a non-confidential source produces a “chilling effect” on news-gathering (e.g. by discouraging other sources to speak with journalists).

It was argued that while a more severe chilling effect may exist for production orders or search warrants that would identify confidential sources or require handing over unpublished material, a chilling effect also arises whenever a journalist is required to hand over documents to the police *for the very purpose of prosecuting the journalist’s source* — regardless of confidentiality or prior publication.

The Court downplayed this concern, going no further than to say that it “could arguably raise some concern over potential chilling effects” (para 92). Essentially, the Court relied on the fact that the source here was not confidential and the material had been published.

The Court did recognize the dangers of the chilling effect, the difficulty of proving it exists, and the importance of taking it into account in the balancing analysis. The Court also made it clear that just because some material from a source was published does not mean that turning over all of the related material from that source is automatically immune from causing a chilling effect. This language is potentially helpful for future cases involving confidential sources or unpublished material.

On the other side of the equation, the appellant and several interveners argued that the state’s interest in the records are low: since the source was likely never going to be tried (he is likely dead, or at least in parts unknown), why would the prosecution need this?

The Court rejected this argument, finding that there was still significant “investigative” value to the information. This argument would be easier to understand if the records were being sought in order to try and identify the perpetrator of a crime but in this case, where the identity is known — and the person has actually been charged — the “investigative” value can be very limited.

The most interesting (and perhaps consequential in the long-term) aspect of the decision may be from the four-judge concurring opinion, written by Abella J. The concurring judges reach the same result as the majority, but they do so in a very different way.

In particular they recognize and adopt a constitutional analysis based on “freedom of the press” — language in s. 2(b) of the Charter that, to this point, has received scant judicial attention.

The media’s interests to date have instead been analyzed under the more general framework of “freedom of expression”. For whatever reason, courts have not seized on “freedom of the press” when deciding these cases.

Abella J’s opinion may signal a shift. And the difference isn’t simply academic. For the concurring judges, it leads them to adopt a more “rigorous” framework for the granting of these orders (although, again, they reach the same result as the majority).

It will be interesting to see whether cases involving the media’s free expression interests start to get analyzed as “freedom of the press” issues rather than more generic “freedom of expression” issues and whether this will offer better protections to members of the press. It is important to note that the majority doesn’t foreclose the possibility of giving life to “freedom of the press”, but merely emphasizes that it was not argued or necessary to decide this case.

As summarized by Justin Safayeni, Stockwoods LLP.