R. v. Vice Media Canada Inc.,2018 SCC 53 Constitutional law — Charter of Rights — Freedom of expression Criminal law — Production orders — Standard of review

On appeal from a judgment of the Ontario Court of Appeal (Hoy A.C.J.O. and Doherty and Miller JJ.A.), 2017 ONCA 231, affirming in part a decision of MacDonnell J., 2016 ONSC 1961

A media organization and one of its journalists (together, "Vice Media") wrote and published three news stories in 2014 based on exchanges between the journalist and a source, a Canadian man suspected of having joined a terrorist organization in Syria. The articles contained statements by the source that, if true, could provide strong evidence implicating him in multiple terrorism offences. The RCMP successfully applied ex parte to the Ontario Court of Justice, under s. 487.014 of the Criminal Code, for an order directing Vice Media to produce the screen captures of the messages exchanged with the source. Rather than producing that material, Vice Media brought an application in the Superior Court to quash the order. The reviewing judge dismissed Vice Media's challenge to the production order, holding that it was open to the authorizing judge to conclude that the media's interest was outweighed by the public interest in obtaining reliable evidence of very serious terrorism offences. The Court of Appeal dismissed Vice Media's appeal.

Held 9-0: The appeal should be dismissed. The production order was properly issued and should be upheld.

Per Moldaver, Gascon, Côté, Brown and Rowe JJ.: The framework set out in Canadian Broadcasting Corp. v. Lessard, [1991] 3 S.C.R. 421, and its companion case, Canadian Broadcasting Corp. v. New Brunswick (Attorney General), [1991] 3 S.C.R. 459, continues to provide a suitable model for considering applications for search warrants and production orders relating to the media and provides adequate protection to the media and the special role it plays in Canadian society. However, certain aspects of that framework should be refined: its factors should be reorganized; the effect of prior partial publication of the materials sought should be assessed on a case‑by‑case basis; and a modified standard of review should be adopted when reviewing an order related to the media that was made ex parte.

The Lessard framework, which seeks to 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, sets out nine factors for judges to consider when determining whether to issue a search warrant relating to the media. These factors should be reorganized to make them easier to apply in practice. On an application for a production order against the media, a four-part analysis should be applied: 1) the authorizing judge must consider whether to exercise his or her discretion to require notice to the media; 2) all statutory preconditions must be met; 3) the authorizing judge must balance the state's interest in the investigation and prosecution of crimes and the media's right to privacy in gathering and disseminating the news; and 4) if the authorizing judge decides to exercise his or her discretion to issue the order, he or she should consider imposing conditions to ensure that the media will not be unduly impeded in the publishing and dissemination of the news.

With respect to the first stage of the analysis, a presumptive notice requirement should not be imposed in situations where the police are seeking a production order in relation to the media. The traditional model of ex parte applications gives effect to the language of the Criminal Code and to this Court's decision in R. v. National Post,2010 SCC 16, [2010] 1 S.C.R. 477. The Criminal Code permits ex parte applications for production orders, subject to the authorizing judge's overriding discretion to require notice where he or she deems appropriate. Absent urgency or other circumstances that justify proceeding ex parte, the authorizing judge may find it desirable to require that notice be given to the media, especially if he or she considers that more information is necessary to properly balance the rights and interests at stake. However, that conclusion is not mandatory. The police should show some evidentiary basis for why there is urgency or other circumstances that justify proceeding ex parte; bare assertions will not provide a basis for doing so. A broad and unsupported claim that the media is unlikely to cooperate with police or that the media could theoretically put the materials beyond the reach of authorities if notice were to be given should not suffice.

In performing the balancing exercise at the third stage of the analysis, the authorizing judge should consider all of the circumstances, including, but not limited to, the likelihood and extent of any potential chilling effects; the scope of the materials sought by the police and whether the order sought is narrowly tailored; the likely probative value of the materials; whether there are alternative sources from which the information may reasonably be obtained and, if so, whether the police have made all reasonable efforts to obtain the information from those sources; the effect of prior partial publication of the materials sought; and more broadly, the vital role that the media plays in the functioning of a democratic society and the fact that the media will generally be an innocent third party. The decision as to whether to grant the order sought is discretionary, and the relative importance of the various factors guiding that discretion will vary from case to case. Although chilling effects cannot be overlooked, they should not be presumed in all cases regardless of the circumstances; rather, the existence and extent of any potential chilling effects should be assessed on a case‑by‑case basis. Further, the distinction between confidential and non-confidential sources should not be erased. Additionally, a strict necessity test for production orders should not be imposed. While probative value may be a relevant consideration, requiring the police to demonstrate that a production order is necessary to secure a conviction would effectively transform the production order application into a trial of the alleged offence on the merits and would seriously undermine the ability of the police to investigate and gather evidence of potential criminality.

Rather than being assessed as an independent factor to be considered on its own, prior partial publication of the information sought should now be treated as part of the overall Lessard balancing exercise. While prior partial publication was considered in Lessard as a factor that always militates in favour of granting an order, the effect of prior partial publication should now be assessed on a case‑by‑case basis. Prior partial publication should not necessarily lessen the degree of protection afforded to the unpublished materials, since permitting state access to these materials still interferes with the media's right to privacy in gathering and disseminating the news and compelled production of these materials may still cause chilling effects. In determining the effect of prior partial publication, the authorizing judge should consider all the circumstances, including the nature of the materials (both published and unpublished) and how much of the full body of materials has already been published. This more nuanced approach adds greater flexibility to the Lessard framework and permits a more contextual inquiry.

The standard of review to be applied to ex parte production orders targeting the media should be a modified version of the standard set out in R. v. Garofoli, [1990] 2 S.C.R. 1421. The traditional Garofoli approach, namely, whether in light of the record before the authorizing judge, as amplified on review, the latter could have granted the authorization, is highly deferential and, in some cases, works unfairness due to absence of the media at the authorization stage. In such circumstances, the authorizing judge would have performed the Lessard analysis without having fully weighed both sides of the scale. A decision made without having considered all of the relevant information that could reasonably have affected the outcome cannot rightly be shown deference, and therefore a fresh weighing by the reviewing judge is justified. Thus, the following test should be applied: if 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. Where the media was given notice and appeared before the authorizing judge, there is generally good reason to apply the traditional Garofoli standard on review, since permitting a de novo review may do little more than add unnecessary time and expense.

Applying the refined Lessard framework to the facts of this case, the production order should not be set aside. First, it was open to the authorizing judge to proceed ex parte and decline to exercise his discretion to require notice. The authorizing judge was justified in relying on the police's explanation for seeking the order ex parte, which included the risk that Vice Media could move the materials beyond the reach of Canadian courts if alerted to the police's interest in the material. Vice Media did not point to any information not before the authorizing judge that could reasonably have affected the decision to issue the order. Accordingly, the traditional Garofoli standard of review applies. Second, the statutory preconditions for the issuance of a production order were satisfied. Notably, the evidence of the police provided reasonable grounds to believe that 1) the source had committed certain offences; 2) Vice Media had in its possession the materials sought; and 3) those materials would afford evidence respecting the commission of the alleged offences. Third, based on the record, it was open to the authorizing judge in conducting the Lessard balancing exercise to conclude that the state's interest in the investigation and prosecution of crime outweighed the media's right to privacy in gathering and disseminating the news. Even on a de novo review, the order was properly granted. Disclosure of the materials sought would not reveal a confidential source; no "off the record" or "not for attribution" communications would be disclosed; there is no alternative source through which the materials sought may be obtained; the source used the media to publicize his activities with a terrorist organization as a sort of spokesperson on its behalf; and the state's interest in investigating and prosecuting allegations of serious terrorism offences weighs heavily in the balance. Fourth, the authorizing judge imposed adequate terms in the production order, providing Vice Media with ample time to comply with the order. Vice Media thus had sufficient opportunity to move to have the production order set aside, as it did.

It is neither necessary nor appropriate in this case to formally recognize that freedom of the press enjoys distinct and independent constitutional protection under s. 2 (b) of the Charter . The appeal can readily be disposed of without rethinking s. 2 (b), and the matter was not fully argued by the parties or considered by the courts below.

Finally, this case does not engage the new Journalistic Sources Protection Act because the facts arose before the legislationcame into force.

Per Wagner C.J. and Abella, Karakatsanis and Martin JJ.: A strong, independent and responsible press ensures that the public's opinions about its democratic choices are based on accurate and reliable information. This is not a democratic luxury — there can be no democracy without it. Section 2 (b) of the Charter contains a distinct constitutional press right which protects the media's core expressive functions — its right to gather and disseminate information for the public benefit without undue interference. The press enjoys this constitutional protection, not only because "freedom of the press and other media" is specifically mentioned in the text of s. 2 (b), but also because of its distinct and independent role.

Strong constitutional safeguards against state intrusion are a necessary precondition for the press to perform its essential democratic role effectively. A vigorous, rigorous, and independent press holds people and institutions to account, uncovers the truth, and informs the public. It further provides the public with the information it needs to engage in informed debate.

Given the media's unique role, the purpose underlying protection for the press in s. 2 (b) is related to, but separate from, the broader guarantee of freedom of expression. When the state seeks access to information in the hands of the media through a production order, both the press' s. 2 (b) rights and s. 8 Charter privacy rights are engaged. A rigorously protective harmonized analysis is therefore required.

The press' s. 2 (b) right includes not only the right to transmit news and other information, but also the right to gather this information without undue interference from government. Section 2 (b)'s press and media guarantee includes protection for journalistic work product, such as a reporter's personal notes, recordings of interviews, or source contact lists. It also includes protecting communications with confidential sources as well as those whose comments are "off the record" or "not for attribution". And it includes protecting the journalist's documentation of his or her investigative work. These are the indispensable tools which help the press gather, assess and disseminate information.

This Court previously set out the approach for how s. 8 applies to production orders when the target is the press in Lessard and its companion case, New Brunswick. In these cases, the Court held that there must be a balancing of the constitutional s. 8 privacy rights of the press with the interests of the state in investigating crime. Both cases were decided on the assumption that although the press had enhanced privacy interests under s. 8 , there was no distinct role for the press' s. 2 (b) rights.

An approach based solely on s. 8 privacy rights is no longer sustainable. Recognizing a distinct press guarantee in s. 2 (b) of the Charter means that the press is no longer just the "backdrop" referred to in New Brunswick. An independent, distinct protection for the press in s. 2 (b) requires an approach that explicitly addresses those rights, as well as the s. 8 privacy rights. The fact that both constitutional rights for the press are engaged suggests a new harmonized analysis, in which the press' right to be secure against unreasonable search and seizure as well as its right to be protected from undue interference with legitimate newsgathering activities, are explicitly taken into account.

What is now required is a proportionality inquiry showing that the benefit of the state's interests in obtaining the information outweighs the harmful impact on the press' constitutionally protected s. 8 and s. 2 (b) rights. Among the considerations to be weighed by authorizing judges are: the media's reasonable expectation of privacy; whether there is a need to target the press at all; whether the evidence is available from any other source, and if so, whether reasonable steps were taken to obtain it; and whether the proposed order is narrowly tailored to interfere with the press' rights no more than necessary. Generally, the more intrusive the proposed order is on the s. 8 privacy and s. 2 (b) rights of the media, the greater the impact on the press' ability to gather and publish the news. And, in turn, the greater the harmful impact on the public's right to know the fruits of the press' activities. An obvious collateral impact on the press of being required to comply with a production order is a chilling effect not only on the particular press being targeted, but on the press generally.

On the other side of the balance, the more serious the crime under investigation, the more cogent the evidence sought and the more urgent the investigative need, the stronger the state's interest will be. While the cogency of the evidence is a relevant consideration, an assessment of whether it is necessary for the Crown to obtain a conviction is not required in evaluating the strength of the state's interest.

Recognizing that s. 2 (b) requires a more rigorous approach to authorizations against the press compels clarification of some aspects of the jurisprudence, the first being the relevance of prior publication. One of the media's core functions is the exercise of discretion over what is and is not published, and there is often an expanse of unpublished material behind each published story. State access to the unpublished portion clearly interferes with both privacy and newsgathering. Where part or all of a communication with a journalist was intended or understood to be "off the record", it too is entitled to protection from disclosure requirements. This aligns with the need to protect journalists' source materials even where the identification of a confidential source is not at issue.

Finally, this Court has interpreted provisions similar to s. 487.014(1) of the Criminal Code to permit, but not require, ex parte proceedings. There are strong rationales for requiring notice to the press in cases like this. If the authorizing judge lacks evidence and submissions from the party exclusively in possession of the information needed for the balancing — the innocent media third party whose s. 2 (b) rights are engaged — there is nothing to balance. While the issue of notice is ultimately a matter within the discretion of the authorizing judge, it is highly preferable in most cases to proceed on notice to the media. Where there are exigent circumstances or a real risk of the destruction of evidence, notice may not be feasible, but these cases will be rare.

The orthodox approach for reviewing production orders set out in Garofoli was not designed to scrutinize whether s. 2 (b) Charter rights were sufficiently protected. In proceedings where the press is involved, and there has been no notice before the authorizing judge, the press will not have had the opportunity to explain how the order would interfere with its work until after the authorization is made. In such cases, the press is entitled to a de novo balancing on the review. If, on the other hand, the press was present and able to make its case before the authorizing judge, the more deferential Garofoli approach would be justified.

In this case, the production order strikes a proportionate balance between the rights and interests at stake. The order is narrowly tailored, targeting only the journalist's communications with the source, and those communications are not available from any other source. The suggestion that the production order would interfere with Vice Media's newsgathering and publication functions shrivels in a context where the source was not a confidential one and wanted everything he said to be made public. Crucially, there is no suggestion that anything the source said was intended or understood to be "off the record". The journalist's own conduct shows that the relationship was not confidential in any way. Accordingly, the benefit of the state's interest in obtaining the messages outweighs any harm to Vice Media's rights. Reasons for Judgment: Moldaver J. (Gascon, Côté, Brown and Rowe JJ. concurring)

Concurring Reasons: Abella J. (Wagner C.J. and Karakatsanis and Martin JJ. concurring)

Neutral Citation: 2018 SCC 53 Docket Number: 37574 https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/17398/index.do