The Supreme Court Of Canada Rules On Production Orders And Sets The Stage For Journalist Source Privilege Debate

The Supreme Court of Canada (SCC) recently changed the legal landscape on the media's ability to contest production orders that implicate journalists' sources.

The facts in R v Vice Media Inc., 2018 SCC 53 (Vice Media) involve a savvy journalist, an unsympathetic source, and the SCC's unanimous decision to uphold the production order. The court split 5-4 in its reasons, diverging in recognizing the importance of freedom of the press in the Canadian Charter of Rights and Freedoms (Charter).

Vice Media published news stories written by journalist Ben Makuch based on text message exchanges with a Canadian suspected of joining ISIS in Syria. The police applied ex parte (without notifying Vice Media) for a production order, demanding that Makuch and Vice Media hand over the text message screen shots to police for their investigation. The production order was granted, and Vice Media unsuccessfully applied to vacate the order in the Ontario lower courts.

The majority of the court made minor changes to the common law relating to journalist source privilege and tweaked the legal framework for judges to follow when deciding whether to grant a production order against journalists. The minority—for the first time—recognized that section 2(b) of the Charter, which says “freedom of the press and other media”, has a distinct constitutional guarantee for the press. This is historically significant because courts have previously refused to acknowledge a specific right for the media.

Although the majority's decision represents the current law in Canada, the minority's decision will enable the media to bolster its arsenal in future court cases, in its continuing effort to slowly chip away at the law's reluctance to recognize a special status for journalists and the essential role they play in a democracy.

The majority decision: current law in Canada

The majority's decision, written by Justice Moldaver, makes two significant changes to the law.

The first significant change reorganized the Lessard factors judges must consider when deciding whether to issue a production order:

Notice: the judge must first decide whether to require notice to the media or whether it can proceed on an ex parte basis; Statutory Preconditions: all statutory preconditions must be met by the police (outlined in s 487.014(2) of the Criminal Code) requiring police to show reasonable grounds an offence has or will be committed, a document/data is in a person's possession or...