Police Investigative Powers and Freedom of the Press: R v Vice Media Inc., 2018 SCC 53.

A prominent tension in democratic societies, including Canada, is the competing interests between police investigative powers and the freedom of the press. In the 2018 Supreme Court of Canada case R v Vice Media Inc., the Court’s ruling demonstrates how the tension can be balanced.

An explanation of the case followed by a review of the analysis demonstrates the current framework for balancing investigative powers of police and the freedom of the press. Moreover, the majorities decision outlines an edited framework of analysis and the minorities decision suggests that the majorities updated analysis may be disregarded in similar future cases reaching the Supreme Court of Canada.

Outline of the Case

In May 2014, Vice Media Inc. journalist Ben Makuch wrote three articles about suspected Canadian ISIS member Farah Mohamed Shirdon. The stories were based on conversations between Mr. Makuch and Mr. Shirdon over a messenger app. The app does not retain conversational history. The only record of the messages is on screen captures that were in the possession of Vice Media Inc.

In February 2015, the RCMP applied to an authorizing judge for a production order to obtain the screen captures. The RCMP did not notify Vice Media Inc. as they did not want the media group to destroy the screen captures. An application for a production order made by one party to a judge in the absence of the other party is known as ex parte production order under s. 487.014 of the Criminal Code. The authorizing judge from Ontario Court of Justice approved the RCMP’s application as Mr. Shirdon was under investigation for multiple terrorist related offences.

Vice Media Inc. brought an action against the order, calling it an “overboard fishing expedition”. The Crown defended the ex parte production order stating that the demands of a terrorist investigation oughtweigh Vice Media Inc.’s rights to freedom of the press. After losing the action at trial and on appeal, Vice Media Inc. appealed to the Supreme Court of Canada. Vice Media Inc. further argued that the police should not be able to obtain a production order ex parte unless their special expression rights are properly considered by the court and if the investigation is legitimately substantiated.

In similar cases, media outlets are often concerned with maintaining the privacy of their sources to avoid a “chilling effect”. Yet, in the present case, the majority and minority agreed that a chilling effect was irrelevant as Mr. Shirdon was not keeping his identity private.

How the Supreme Court Balances the Tension

The five-judge majority decision was written by Justice Moldaver. The judgment acknowledges that the existing framework governing applications for police search warrants is the Lessard framework. The framework was a result of a 1991 case involving the CBC, where the court outlined nine factors to consider. The factors consider relevant statutes, discretion, privacy of the media, and the reasonableness of conduct.

However, Justice Moldaver states that the majority has reorganized the Lessard factors into a four-part analysis for simplification. The four steps are notice, statutory preconditions, balancing, and conditions. Notice refers to the consideration of whether it is appropriate to notify media outlets in the circumstances. Statutory preconditions are the consideration of relevant statutory requirements. Balancing is the most expansive step and includes considerations such as potential for chilling effects, the scope of materials sought, the likely probative value of materials, whether police have exhausted alternatives to obtain materials, and the role of media in a democratic society. Conditions refers to the consideration of whether conditions may be applied to the order to minimize unduly impeding on media.

The majority found that the approval from the authorizing judge from Ontario Court of Justice was consistent with the four-part analysis. The RCMP had a legitimate concern that the screen captures may be compromised if Vice Media Inc. was given notice. The statutory preconditions were met. The importance of the terrorist investigation was found to outweigh the inconvenience to Vice Media Inc. in the balancing step. Finally, the authorizing judge was found to be acting reasonably within their discretion in not applying conditions.

It is important to note that the majority also rejected Vice Media Inc.’s contention that the RCMPs investigation of Mr. Shirdon was insufficiently substantiated to move forward with requesting a production order of the screen captures. Justice Moldaver clarified that police investigations do not have to reach a particular stage in order to be granted a production order as a case can easily turn on even a small amount of evidence.

In summary of the majorities findings, the Lessard framework was edited to simplify the balancing process between interests of police investigative powers and freedom of the press. The majority dismissed Vice Media Inc.’s appeal.

Minority Decision

The minority came to the same conclusion as the majority yet stated that an alternative analysis should be used. On behalf of four judges, Justice Abella wrote the minority judgment.

The minority states that s. 2(b) of the Charter be explicitly acknowledged in the analysis regarding the freedom of the press. Section 2(b) of the Charter includes the right to expression and specifically “freedom of the press and other media of communication”.

Justice Abella writes that freedom of the press includes “the right to transmit news and other information, as well as gather information without undue governmental interference”. Therefore, the minority states that the majorities analysis is incomplete as it fails to uphold freedom of the press as enjoying distinct and independent constitutional protection when balancing the interests of investigative police powers and the media.

Overall, the majority and minority agree that in the present case, balancing police investigative powers with freedom of the press upholds the RCMP’s ex parte production order. Furthermore, the majority has simplified the analysis used to balance competing demands. Yet, the four-judge minority is generally made up of newer justices to the Supreme Court, suggesting that it may only be a relatively brief period of time before the analysis is once again changed.