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Recent Supreme Court of Canada Ruling Weakens Protections For Journalistic Sources

Feb 7 2019

A recent Supreme Court of Canada (SCC) decision sheds light on the question of whether – and to what extent – journalists may be compelled to reveal communications with their sources to assist police investigations.

Background

A Vice Media journalist, Ben Makuch, wrote and published stories on Farah Shirdon, who was suspected of having left Canada to join a terrorist organization.  The stories were based on instant messaging exchanges between Makuch and Shirdon and contained statements that, if true, would provide strong evidence implicating Shirdon in multiple terrorism offences.

As part of its investigation, the RCMP successfully obtained a court order without notice to Vice Media, directing it to produce screenshots of the messages exchanged with Farah Shirdon. Vice Media challenged the disclosure order.

Sufficient Protection

At the heart of the case, the SCC grappled with two principles fundamental to a free and democratic society: the public interest in the investigation and prosecution of crime as opposed to the freedom of the press in gathering and disseminating the news.

In its decision, the SCC decided that the production order should be upheld because the state’s interest in prosecuting alleged crimes outweighed Vice Media’s right to privacy in protecting its sources of information. There were several factors the SCC noted that weighed in favor of upholding the order:

  • The materials sought to be disclosed would not reveal a confidential source as the identity of the accused had already been ascertained;
  • No “off the record” communications would be disclosed; and
  • The source had already willingly publicized his activities and views through Vice Media.

In addition, although the framework for considering disclosure applications relating to the media continued to be a suitable model, the SCC noted that certain refinements were needed.

Ultimately, the SCC proposed a simplified analysis that should be followed on applications against the media for production:

  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 an order, he or she must consider imposing conditions to ensure that the media will not be unduly impeded in publishing the news.

Lingering Questions

The SCC’s decision solidifies the notion that the media’s right to journalistic privilege may be limited in appropriate circumstances by production orders made under the Criminal Code of Canada.

However, the decision is unlikely to conclusively settle the issue of the media’s right to protect sources through journalistic privilege as several issues were not addressed. For example, the SCC declined to address whether freedom of the press should be formally afforded independent constitutional protection under section 2(b) of the Charter of Rights and Freedoms.

Another issue left open by the SCC is the effect of the Journalistic Sources Protection Act, S.C. 2017, c. 22 (JSPA), brought into force October 2017. As this case dealt with facts that arose before the JSPA was brought into force, the Court made its decision based on the common law framework apart from the legislation. Consequently, it is unclear to what extent and how the JSPA and common law framework would interact in present times.

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