On March 22, 2017, the Ontario Court of Appeal released its highly anticipated decision in R v Vice Media Canada Inc., 2017 ONCA 231. In this case, which pitted freedom of the press against the state’s interest in effective law enforcement and the prosecution of crimes, the Court of Appeal upheld a production order requiring Vice Media to hand private communications between one of its reporters and an alleged terrorist over to the RCMP.
In 2014, Ben Makuch, a reporter for Vice Media, used a mobile instant messaging application called Kik Messenger to communicate with an alleged terrorist, Farah Shirdon, who was believed to have left Canada to join ISIS in the Middle East. These communications between Makuch and Shirdon formed the basis of three articles published by Vice Media which, among other things, discussed Shirdon’s involvement with ISIS and specific threats he made against Canada.
As a result of these articles, the police applied for and obtained an ex parte production order under the Criminal Code. The production order directed Vice Media to provide the police with all documents and data related to communications with the alleged terrorist, including screen captures of the Kik conversations.
Both the production order and the law enforcement affidavit (the “Information to Obtain” or “ITO”) used to obtain the production order were sealed pending further order of the court. At the time the production order was issued, criminal investigations were ongoing. Shirdon has since been charged with six terrorism-related offences.
Vice Media refused to disclose the private communications and challenged the production order before the Ontario Superior Court.
Vice Media also applied to unseal the ITO. Ultimately, the Superior Court upheld the production order, emphasizing the strong public interest in the investigation and prosecution of terrorism-related allegations and the importance of the communications in proving the charges against Shirdon.
The Superior Court also largely unsealed the ITO, but then placed a publication ban over much of it, on the basis that this was required to protect Shirdon’s fair trial rights. Vice Media appealed.
Court of Appeal Decision
In assessing whether the production order was appropriate under the Criminal Code, the Court of Appeal was forced to weigh the competing interests in play.
The police argued that the Kik conversations were crucial in proving serious criminal charges against Shirdon, whereas Vice Media (as well as other intervening media and civil rights groups) opposed the production order, arguing that it violated the media’s freedom to express themselves and communicate without government interference.
Although the Court of Appeal recognized the media’s constitutional right to freedom of expression and acknowledged that special considerations must be given to the media as a result of the vital role the media plays in a democratic society, the Court ultimately held that the following circumstances weighed in favour of a production order in this case:
- the documents sought provided the best and most reliable evidence
- the same quality of evidence could not be obtained from another source
- the alleged terrorist had not requested that the communications be kept confidential, but rather wanted to share his beliefs with the world
- most of the information sought was already available to the public through the articles published by Vice Media
- the information could provide important evidence in support of serious criminal charges
Further, the Court of Appeal upheld the publication ban over most of the ITO, but unsealed the police’s investigative plan which it described as “self-evident.”
This decision highlights the conflict between the media’s right to privacy and the efficient investigation and prosecution of criminal offences by the Crown.
The media has criticized the decision, arguing that it erodes the freedom of the press in Canada and fails to recognize the importance of journalistic source protection.
The media maintains that permitting production orders against the media will have a “chilling effect” and compromise journalists’ ability to track down stories, as sources may be reluctant to speak with the media if such communications can be used against them for criminal investigations.
In contrast, law enforcement welcomes the Court of Appeal’s decision, arguing that production orders are necessary in some circumstances in order for law enforcement to investigate and prosecute terrorism-related allegations.
They argue that without the ability to obtain production orders in similar circumstances, national security may be compromised.
Since the release of the Court of Appeal’s ruling, Vice Media has publicly stated that it plans to appeal this decision to the Supreme Court of Canada. Journalists, law enforcement and lawmakers across the country will continue to watch with interest.