Director of Fundamental Freedoms Program
A week after Black Friday may render Bleak Friday for press freedom if the Supreme Court of Canada dismisses a major press freedom appeal. In R. v. Vice Media Canada Inc., 2017 ONCA 231, the Ontario Court of Appeal delivered bad news for press freedom. It was a double loss for the media because not only was Vice Media forced to hand over their reporting to the police, but the reporters could not report on the very parts of the police investigation used to justify the conscription of the media into a police investigation. If the police relied upon junk evidence to get the warrant ripping the confidential material out of Vice Media’s hands, Vice Media couldn’t challenge that junk because it was subject to a gag order. In short, police powers were expanded, and press freedom was shrunk.
The Canadian Civil Liberties Association enlisted the legendary litigation firm Lerners LLP to make our arguments before the Supreme Court of Canada, which is expected to release its decision in the case this Friday, November 30th. The case puts the question of protection of journalistic sources at its centre and comes out of reporting done by Vice Media reporter Ben Makuch on Farah Shirdon, a man who is alleged to have left Canada to join the terrorist group ISIS. Makuch had several text message conversations with Shirdon, resulting in Vice’s publication of three stories about him. The RCMP sought and was granted a production order by the Court, requiring Makuch to turn over the conversations with Shirdon.
The court also said that the background material justifying the production order had to be sealed and thus would not be public. Makuch and Vice have challenged the production order, arguing that this kind of journalistic work product must be protected when it involves a confidential source. If sources knew that their communications with journalists could be turned over to the police for investigative purposes, there would be no reason to speak to the press, undermining the public’s right to know. Vice and Makuch also challenged the sealing order and publication ban which applied to effectively shield from public scrutiny the evidence that the state relied upon to get the production order.
CCLA’s focus in the case was on the publication ban and the public’s right to know. We argued that an indefinite publication ban is not appropriate, especially when much of the material subject to the ban is already in the public domain. We also argued that the material used to support the granting of a publication ban must be made public if a sealing order cannot be justified. Public scrutiny of an investigation is critical to an accused’s fair trial rights and has to balance with any allegedly prejudicial effect associated with publishing information from the police investigation.
The Supreme Court’s decision on Friday will be an important one for press freedom in Canada and for the openness of our courts and criminal justice system. Will the Court shrink the space available to journalists to conduct investigations in the public interest, or will it stand up for the rights of Canadians to a free and independent press?
CCLA will be watching.