VICE journalist privilege case heads to Supreme Court

By Justin Ling December 1, 20171 December 2017

VICE journalist privilege case heads to Supreme Court

 

The Supreme Court will hear arguments in a case that promises to redefine the parameters of press freedom.

The top court granted leave for appeal in R v. Vice Media on Thursday, which paves the way for what could be the most important ruling for press freedom since R. v. National Post in 2010.

The top court’s decision to wade into the case may spell a willingness to move the goalposts on how police can obtain information from journalists.

What’s the case about?

In 2015, an Ontario court signed off on an RCMP production order, ordering Vice and its reporter Ben Makuch to surrender all his notes and communications with Farah Mohamed Shirdon, a Canadian believed to have travelled to the Islamic State, as well as any communications internally at Vice regarding several interviews with Shidon.

The U.S-based media company, which also has offices in Canada, fought the production order, arguing that, if the courts allow journalists and media organizations to become appendages for police investigations, it could severely weaken freedom of the press in Canada.

What has the Supreme Court said in the past?

In National Post, the Supreme Court laid out the current state of law on the protection of journalists’ sources. In that case, a reporter from the newspaper obtained confidential documents from an anonymous source. The Prime Minister’s Office, at the time, alleged they were forgeries, and police filed to have the source unmasked.

While journalist-source privilege had long been established as a general principle, the 2010 case was the most fulsome test put forward by the Supreme Court — even then, it wasn’t absolutely.

“The scope of the privilege will depend, as does its very existence, on a case-by-case analysis, and may be total or partial,” the majority court ruled.

In that case, the court didn’t go too far beyond the issue of unmasking sources. Vice’s case is more narrow: Shirdon’s identity was not a secret. The communications between he and Makuch, while potentially useful for the RCMP’s investigation, would not have breached his privilege, at least not as it was set out in National Post.

So what could this case mean?

While Vice might not be invoking the same level of privilege asserted by the National Post — which ultimately lost its appeal, and was ordered to hand over the source’s identity — it is asserting that the production order isn’t strictly necessary.

Vice contends that, should the RCMP need evidence that Shirdon swore to launch attacks against the West (as he did in interviews), they could simply rely on their media reports.

There has been a litany of cases in recent years, ones where police have been found to be surveilling journalists or where the Crown has slapped reporters with production orders. Those cases do not rise to the seriousness of the crimes being alleged in National Post — which revolved around a story that could have implicated the prime minister in fraud — but which nevertheless go to the heart of journalists’ independence from government interference.

The Supreme Court may well be interested in providing another marker to help lower courts figure out how to deal with the case-by-case nature of journalistic privilege.

And yet there’s another curveball in the case: Bill S-231.

Legislated privilege

Last month, the Senate public bill received royal assent, amending the Canada Evidence Act and the Criminal Code to provide statutory exemptions for journalists. The language of the act may well have stopped the warrant filed against Vice.

The law now forbids a court from approving a production order or warrant, where it “relates to a journalist’s communications or an object, document or data relating to or in the possession of a journalist,” unless there is no other way to obtain that information and that the public interest in prosecution “outweighs the journalist’s right to privacy in gathering and disseminating information.”

The law further puts limits on when the court can require journalist to reveal their sources.

The court’s decision to weigh in on the matter no doubt indicates that it is both willing to update its language from National Post, but it may well also be a chance for the justices to fill in some blanks left by the new law

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