The production order issued against Vice Magazine raises concerns about the strength of press freedom in Canada.

Last week, the Ontario Superior Court upheld a production order issued against Vice Media, which required Vice to turn over to law enforcement various communications between its reporter Ben Makuch and an individual under investigation for suspected involvement with a terrorist organization, ISIS (here’s the Vice story on the decision).  Among other matters covered by the application, Vice challenged the production order on the basis that it was unreasonable and overbroad, and argued that issuing the order failed demonstrate adequate regard for press freedom.

In dismissing the application to quash the order (the judgment is here), the Court observed that production orders constitute a “search and seizure” under section 8 of the Charter and are therefore subject to that section’s “reasonableness” requirement (at para 6).  The Court then recited the principles that the courts will consider in determining whether a production order (or other search and seizure) relating to the press is “reasonable”, including the following passages from the Supreme Court of Canada’s decision in Lessard :

For example, a greater degree of privacy may be expected in a home than in commercial premises which may be subject to statutory regulation and inspection.  At the same time, among commercial premises, the media are entitled to particularly careful consideration, both as to the issuance of a search warrant and as to the conditions that may be attached to a warrant to ensure that any disruption of the gathering and dissemination of news is limited as much as possible.  The media are entitled to this special consideration because of the importance of their role in a democratic society.

(…)

The justice of the peace should ensure that a balance is struck between the competing interests of the state in the investigation and prosecution of crimes and the right to privacy of the media in the course of their news gathering and news dissemination.  It must be borne in mind that the media play a vital role in the functioning of a democratic society.  Generally speaking, the news media will not be implicated in the crime under investigation.  They are truly an innocent third party.  This is a particularly important factor to be considered in attempting to strike an appropriate balance, including the consideration of imposing conditions on that warrant.

Thus, the courts have not analysed these types of issues directly under the express guarantee of press freedom in section 2(b), which provides that everyone has the “freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication.”

Rather, media entities have been given “special consideration” in the context of the reasonableness of a search or seizure (see e.g.  Canadian Broadcasting Corp. v. Manitoba (Attorney General) et al., 2009 MBCA 122 at paras 27, 39-40). The discretion possessed by the judge to issue the order must be exercised reasonably, and with the importance of the media in mind.  What this means in practice is not at all clear.

In this case, it did not obviously amount to much by way of additional protection. The Court determined, in effect, that the text messages were useful evidence against the suspect, and that there was no other way to get this evidence than to require the media to provide it. As such, the court upheld the order, on the basis that “the authorizing justice could have determined that the balance between the interests of law enforcement and the media’s right to freedom of expression favoured making the order” (at para 47, emphasis in the original).

While the Court repeatedly notes the importance of press freedom to a democratic society, it is not entirely clear that the special status of media organizations played any significant role in the analysis.  Indeed, the judgment highlights the following provisos:

“Justice Cory [in Lessard] was clear, however, that the special consideration afforded to the media does not import new or additional requirements for the issuance of search warrants or similar orders” (at para 10, emphasis added)

Although it is not a constitutional requirement, the affidavit material should ordinarily disclose whether there are alternative sources from which the information may reasonable be obtained…” (at para 27, quoting from Lessard, emphasis added)

“The decisions of the Supreme Court in the Lessard and New Brunswick [cases] establish that the special position of the media is a factor to be taken into account in considering whether to authorize a search, just as the special position of a home is a factor to be considered, but that special position does not import a new or additional requirements for the issuance of search warrants or similar orders: (at para 53, emphasis added)

I will not purport to comment on the correctness of the ruling as a matter of law or judgment. I will presume for our purposes that it accurately reflects the state of the law, and discuss why I find it unsatisfactory.

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It should be emphasized that the evidence in question – the communications between the suspect and the reporter – was not physical evidence, of the type that would have existed in any event following the commission of a crime.  Nor was the media in this instance an accidental “eye witness” of sorts. The evidence in question only existed because the reporter was doing his job, and essentially created that evidence, with the objective of informing the public.  As such, the issuance of the production order operates in this instance to effectively conscript the media as an investigatory arm of the state.

In considering the constitutional implications of this type of situation, it should be recognized media entities undertaking investigative reporting provide something that is invaluable to a democratic society dependent on an enlightened citizenry: information.  When the media comes to be – and, worse comes to be seen as – a ready source of evidence to be used against those upon who the media reports, it is reasonable to believe that sources and information will dry up.  Sources may be less willing to provide accurate information.  They may be less forthcoming, if they come forward at all.  They may tailor their information to the possibility or probability that their communications will be subsequently used against them in court.  In short, the eager resort to such orders can have a significant “chilling effect” in the collection of information for the purposes of dissemination to the public.

These concerns may be obscured by looking at the issue through the lens of whether the seizure of information was “reasonable” in light of its impact on the “privacy” of the media entities, or even whether it has some impact on freedom of expression, simply because those are not the interests most directly impacted.

Indeed, as Vice’s lawyer pointed out, the “chilling effect” that such orders can produce did not play a meaningful role in the judge’s reasons. To the contrary, the Court found that the production order “was calculated to not disrupt or interfere with the work of either Mr. Makuch or Vice Media” (at para 45).  This seems to miss the underlying argument, which is that the very issuance of the production order – no matter how easily it can be complied with – necessarily obstructs the work of the press.

*****

As I see it, interference with media newsgathering activities is not a problem because the media have some superordinate claim to “privacy”, which is the consideration animating the jurisprudence surrounding section 8.  The types of considerations which make a person’s home particularly inviolable under section 8 are different in kind from those that should form the basis of special protection for the media in the context of a search warrant, subpoena to testify, or production order, and yet they are often both treated as nebulous ‘factors’ on equal footing in a “reasonableness” analysis.

Nor, in my view, does the issue have much to do with the press being an “innocent third party”, which was highlighted in Lessard. While important in their own right, it is not the interests of the media or its employees as such that are of particular constitutional significance in this type of circumstance. Rather, it is the ability of the press to fulfill their vital role in a democratic society, which implicates interests quite different than the rights possessed by each individual to privacy.

I also do not think that “freedom of expression” is the proper constitutional lens through which to view this type of issue. Vice and Mr. Makush were, as far as I know, perfectly free to express themselves, to publish stories relating to the information they obtained, and the production order would have no clear impact on their ability to do so with respect to the information they had gathered.  The core focus of the freedom of expression analysis is typically on when the content of expression is sufficiently harmful to be legitimately curtailed, and when the state can suppress such expressive activities – i.e. , when can the legislature pass a law that prohibits me or you from saying this or that thing, or that otherwise impairs our ability to do so in specific contexts.  The ability of the press to operate relatively unencumbered will undoubtedly further expressive activities, but that is not necessarily the best way to understand the constitutional interest engaged, at least not in every instance.

The point is rather that this type of order can undermine the freedom of the press, which has independent constitutional value.  I have developed these arguments at length in an article, the thesis of which is roughly that “(p)ress freedom has a unique function and plays a distinct role in the constellation of fundamental freedoms, and it deserves to be rescued from its neglected place in our constitutional framework.”

Doing so would not result in the conclusion that such orders should never be granted, given the countervailing societal interest in the investigation and prosecution of criminal offences. However, I think that analytical clarity and transparency would be promoted by attending to the constitutional considerations most directly at stake, and the unique purposes underlying press freedom.

That is, while doctrines that have been built up around the reasonableness of orders which may have an impact on press freedom, and while these typically speak of ensuring that the importance of the media is a “factor” to consider, those analyses can lead to precious little by way of tangible protection for press freedom as a standalone constitutional freedom.  The best way to give proper consideration to the value of press freedom may be to address that issue directly, not to conceive of press freedom as some intangible or amorphous add-on to an analysis grounded in other Charter protected interests, such as freedom of expression or the right to be free from unreasonable search and seizures (which we all enjoy, whether or not we are engaged in press-like activities). Addressing press freedom as a discrete constitutional guarantee would, I think, assist the Courts in focusing on the real constitutional interests at issue – press freedom – and why it is uniquely valuable in our constitutional framework. Whether and to what extent doing so would result in more robust protection for press freedom in any given instance cannot be answered in the abstract, but it would at least ensure we are asking the right questions.