Director of Fundamental Freedoms Program
The Supreme Court’s decision in R. v. Vice Media Canada Inc. is not the victory for press freedom that CCLA was hoping for. Indeed, for Vice Media and reporter Ben Makuch, the decision is a blow and requires a reporter to hand over his work product to the police. This outcome is disturbing, and I do fear the chill it could create. At the same time, I do not see the Vice decision as a total defeat for press freedom. I believe there are parts of the decision that could be used to push freedom of the press further in future cases – undoubtedly a good thing.
For many years, our courts have been instructed to balance police investigative needs against the importance of the role of the press and the media’s right to privacy in gathering and reporting on the news. Too often, the balance favours police at the expense of the press. The Court had an opportunity to shift this paradigm by taking a new approach to when and how police investigations can implicate the press. While it declined to change the law fundamentally, the Court’s decision does have some positive aspects and, if they trickle down to lower courts – admittedly, a big “if” – these could be used to shield the media from unreasonable police intrusions in the future.
For example, while the majority of the Court declined to require that the media be given notice in all cases where a production order is sought, it does acknowledge that unless some urgency or circumstances justify proceeding without the media present, it may be desirable to give notice. A modification to the standard that a reviewing court will use when scrutinising a challenged production order bolsters this language. The Court allows for a de novo review (that’s lawyer speak for a wholesale reconsideration) if the media was not given notice and can establish that the court that granted the order was missing information that might have made a difference.
The silver lining in the case is Justice Abella’s concurrence, signed on to by three other members of the Court. Justice Abella explicitly acknowledges that freedom of the press is not merely a corollary of freedom of expression, but has distinct and independent protection in the Charter. The majority did not agree to go that far, but their reasons suggest that is because it was not necessary to do so, not because there is necessarily disagreement on this point.
While last Friday’s decision is disappointing, it involves a case that unfolded before Parliament passed the Journalistic Sources Protection Act. That legislation strengthens protection for the press and should help shift the balance further as cases that interpret it come before the courts. CCLA will continue to advocate for strong protections for the press, to protect both the important work that journalists do and Canadians’ right to know.