On November 30, 2018, a majority of the judges of the Supreme Court of Canada decided the media doesn't get any special protection from the issuance of production orders without prior notice (a.k.a. ex parte) – yet. Courts have the authority to issue such production orders under the Criminal Code of Canada as part of a criminal investigation. When a court issues such an order ex parte, the practical effect is that the media doesn't get to argue against the production order until after it's been issued. The Court's decision in R. v. Vice Media Canada Inc. isn't likely to change anything right now, beyond offering an arguably more straightforward and intuitive analytical test for a judge to decide whether to issue an ex parte production order at all. But in today's climate of media criticism and "fake news", the question of whether the media should be singled out as warranting greater protection against the issuance of production orders isn't going away. The reasons of the majority of the Court's judges, combined with the strongly-worded reasons of the minority of the Court's judges, leaves the door wide open to recognizing distinct protection for the media, in a case with the appropriate facts and the benefit of full legal argument on the issue, in the future.
In R. v. Vice Media Canada Inc., a Vice Media journalist exchanged instant messages and reported on his conversations with a Canadian man who became a suspected ISIS terrorist. After Vice Media published the story, R.C.M.P. applied to the court for a production order ex parte to get screenshots of the electronic communications between the journalist and the suspected terrorist. Vice Media didn't hand over the screenshots or notes and challenged the production order. All nine Supreme Court of Canada judges agreed that in this case, the ex parte production order should stand and there was no reason to set it aside (the decision didn't take into account the Journalistic Sources Protection Act, which took effect in October 2017, because the facts predate it). But the judges split five to four on a single – and key – point: should media have special protections when a production order is sought against them?
More Media Protection. Four judges supported a "rigorously protective harmonized analysis", and took the view that the media's "concerns are real, and the issue is ripe". Highlighting the media as absolutely integral to a functioning democracy, the minority determined it's now time to give distinct content to section 2(b) of the Canadian Charter of Rights and Freedom's protection of "freedom of the press" – and special protection against production orders to the media.
Media is Adequately Protected. The majority of the judges, however, stopped short of recognizing any special and distinct protection for the media pursuant to the Charter because none of the parties fully argued the issue in the proceedings before reaching the Supreme Court. Instead, the majority confirmed the test established 25 years ago in Canadian Broadcasting Corp. v. New Brunswick (Attorney General), and reaffirmed eight years ago in R. v. National Post, still adequately protects media interests: the authorizing judge retains discretion to require notice where deemed appropriate, and police must show some evidentiary basis for the "urgency or other circumstances" to proceed ex parte. However, three aspects of the test require refinement:
- Prior Partial Publication. Formerly, prior partial publication always favoured granting an ex parte production order; now, the effect of prior partial publication should be assessed on a case-by-case basis.
- Modified "Garafoli" Standard. A judge's standard of review of an ex parte order relating to media requires adjustment. The traditional "Garafoli standard" will still apply where there was notice to the media of the application for the order: the reviewing judge can set aside an order where there was no reasonable basis for it. But in the future, a "modified" Garafoli standard will apply where there was an order made ex parte: the media is entitled to a new hearing where it can provide information that was not before the authorizing judge and that could reasonably have affected decision to make the order. Examples of such information include: a journalist-source confidentiality agreement; specific (not general) evidence of a chilling effect; and evidence the production order will affect the media, such as by preventing or delaying publication or compromising an investigation in a way the issuing judge didn't foresee. Reviewing judges should bear in mind the special consideration for the media's vital role in a free and democratic society, and the balance of state interest to investigate/prosecute crimes and media's right to privacy in fathering and disseminating the news.
- Simplified Analytical
Framework. The analytical framework for a reviewing judge
to assess an ex parte production order requires simplification and
reorganization, from nine factors to consider to a four-part
analysis:
- Consider whether to exercise discretion to require notice to the media.
- Ensure the party seeking the production order satisfied the Criminal Code of Canada's preconditions for issuance of a production order to law enforcement.
- Balance the state's interest in crime investigation or prosecution with the media's right to privacy in gathering and disseminating the news, including these considerations: any chilling effects of granting the production order; the scope of the materials sought to be produced; the probative value of the materials sought to be produced in the investigation or prosecution; the effect of prior partial publication; whether there are any alternative sources for the information sought to be produced; and the generally vital role of media in a democracy.
- If the judge decides to issue the order, determine any conditions that should be attached to ensure the order doesn't unduly impede media.
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