Freedom of the Press in Canada: An Interview with Intervenors in R v Vice Media

Rachel Bryce (2L JD/MGA)

Background

R v Vice Media centers on the issue of freedom of the press and the judicial balancing necessary when freedom of the press conflicts with national security concerns. On November 30, 2018, the Supreme Court of Canada (SCC) ruled unanimously in the Government’s favour, dismissing Vice Media and journalist Ben Makuch’s appeal.

In 2014, Mr. Makuch interviewed and published three stories on Vice Media about Farah Mohamed Shirdon, an alleged member of the Islamic State of Iraq and Syria (ISIS). Subsequently, the Royal Canadian Mounted Police (RCMP) sought a Production Order [“the Order”] ex parte (without providing notice to the implicated party, i.e. Mr. Makuch) for Vice Media to provide the data and all communications between Mr. Makuch and Mr. Shirdon to complement their investigation of Mr. Shirdon for potential involvement with ISIS. The Ontario Court of Justice (OCJ) granted the Order on February 13, 2015. Vice Media appealed the decision to the OCJ, then again to the Ontario Court of Appeal, and finally to the SCC, which issued its decision in the case on November 30, 2018.

The key issue on appeal focused on the administrative framework within which the authorizing judge decided to grant the Order: the Lessard principle. Established in Canadian Broadcasting Corp v Lessard, the principle means to balance “the state’s interest in the investigation and prosecution of crime, and the media’s right of privacy in gathering and reporting the news.”

Vice and Mr. Makuch posited that the Government violated their section 8 right to protection from unreasonable search and seizure and their section 2(b) right to freedom of the press. They, along with the coalitions of intervenors promoting journalists’ rights and freedom of the press, argued that the Lessard principle should be modified to include the “chilling effect on the media” when police seek production orders. The majority opinion defines this effect broadly: “it refers to the stifling or discouragement of the media’s legitimate activities in gathering and disseminating the news for fear of legal repercussions such as compelled disclosure.” Despite this broad definition, Justice Moldaver ruled that any potential chilling effect should be assessed on a case-by-case basis rather than presumed in every case.

The majority concluded that, considering the context -- particularly  that the source was not confidential -- the national security interest in investigating and prosecuting suspected terrorist affiliates easily outweighs the alleged intrusion on press privacy and press freedom. 

Members of the intervenor coalition outside the Supreme Court of Canada during the R v Vice Media procedure. (From left to right) Petra Molnar, IHRP Researcher; Margaux Ewen, North America Director for Reporters Without Borders; Alexandra Ellerbeck, North America Program Coordinator for the Committee to Protect Journalists; and Nick Taylor-Vaisey, then President of the Canadian Association of Journalists. 

Significance

To better understand the significance of this case, I interviewed two intervenors involved in an international coalition of twelve intervenors advocating for reporters’ rights. Margaux Ewen, North America Director for Reporters Without Borders (RSF), is a leading voice on reporters’ rights and freedom of the press. Petra Molnar, Technology and Human Rights Researcher with the International Human Rights Program (IHRP) at the University of Toronto Faculty of Law, consulted the coalition on relevant international law and how it framed the issues of the case.

RSF first began working with locally-based organizations -- Canadian Journalists for Free Expression (CJFE), the Canadian Association of Journalists (CAJ), and the Fédération Professionelle des Journalistes du Québec (FPJQ) -- in a domestic coalition. When Vice Media went forward before the SCC, RSF joined an international coalition led by the Media Legal Defence Initiative to provide further advocacy from interested groups from other common law countries.

To both women, the significance of this case lies in the tenor of the judiciary. Most concerning are the broader implications for press freedom in Canada; the precedent for Government access to journalists’ sources; and the lack of opportunity for journalists to hold the Government accountable. Ms. Molnar connected this to the prevention of journalists from entering and investigating land grabs of Indigenous territory, specifically regarding the development of the Keystone Pipeline. The barring of reporters on the scene raises serious concerns about the state of our democracy and press freedom. Ms. Ewen noted that the Vice Media ruling raises similar systemic issues infringing on journalistic freedom and the ability to report freely to the public, Furthermore, the fact that the materials the police were trying to acquire in Makuch’s case were not necessary in the investigation, as the source in question had been killed and the RCMP was already cooperating with American authorities, suggests that R v Vice Media was designed to establish precedent to which the Government will be able to refer for future use.

Canada’s status as a protector of civil liberties and relative supporter of press freedom -- Canada was 18^th on RSF’s Press Freedom Index in 2017 -- makes this decision a notable deviation from Canada’s stated democratic priorities. In both the majority and the concurring opinions, the “chilling effect” of permitting police authority over unpublished materials is acknowledged. However, the alleged national security interests were deemed more important. Ms. Ewen insisted that “in general, terrorism should never be an excuse to prosecute news providers,” and that “national security should not be an excuse to go against freedom of the press.”

In any case involving civil liberties, Ms. Molnar explained, the state acts as if national security is an untouchable threshold, awarding the state unlimited power and discretion. Serious reflection is required to ensure we are not falling down a slippery slope that allows the bypassing of human rights. Freedom of the press, as with our other constitutionally-protected human rights, cannot be discounted and must continue to be treated as a core part of democracy.

Despite disappointment with the Court’s decision in R v Vice Media, there is hope that these essential democratic rights will be better protected in the future. The Journalistic Sources Protection Act, SC 2017, c 22 – or the federal shield law – assented to in October 2017, amends the Canada Evidence Act and protects the confidentiality of journalistic sources. This Act was not considered in R v Vice Media as it was not enacted when the authorizing judge made his decision. Going forward, journalists may have legislative recourse to protect their confidential sources. In the preamble, the Act stipulates that journalists cannot be forced to disclose information or documentation that may identify a journalistic source unless there is no other reasonable means and the administration of justice interest outweighs the interest in preserving confidentiality of journalistic sources (JSPA, SC 2017, c 22, Preamble). The conditional language suggests that the State may still have means to apply the “untouchable threshold” of national security interests, but the prioritization of journalists’ rights is clearer.

We will see how the Court decides to interpret this shield law when the upcoming case involving Radio Canada journalist Marie-Maude Denis and her investigation of corruption in Quebec is decided by the SCC. Since Ms. Denis’s investigation involved confidential sources, the shield laws may apply and might suggest a different balancing decision than that of R v Vice Media. Ms. Molnar holds that Denis’s case is “an opportunity to see what the Court will do…to clarify [or backslide further].”

As a final note to our conversation, Ms. Ewen highlighted her disappointment with the SCC’s decision in R v Vice Media and strongly held that it is not a decision worthy of Canada or of any respected democracy. She expressed hope that 2019 will give the Government the opportunity to get things right and noted that RSF will be adapting their ranking of Canada on the 2018 Press Freedom Index. If Canada wishes to stay in the top 20 of this Index, they must change the path they appear to be following. Ms. Molnar concluded by noting how easy it is to backslide. She emphasized that “we cannot take freedom of expression for granted.”