There has been much made of the role of media as of late, and Canadian news media have not been immune. The debate has even found itself moved inside the courtroom as it relates to VICE Media and a stories it did on the rise of Daesh or the so called “Islamic State” (ISIS).
In 2014 VICE produced a number of stories examining an individual believed to have travelled overseas to join the terrorist organization. In 2015, Justice Nadelle of the Ontario Court of Justice issued a production order pursuant to ss. 487.012 of the Criminal Code (now ss. 487.014), directing VICE to produce documents relating to their communication with the individual. The application was made without prior notice to VICE. The information the police used to obtain the order was then ordered sealed, so nobody could access or review it.
The section grants the police power to obtain documents/data from a person if there are reasonable grounds to believe that:
a) an offence has been or will be committed; and
b) the document or data is in the person’s possession or control and will afford evidence respecting the commission of the offence.
VICE brought an application to quash the order, which has made its way through the courts, recently finding itself before the Ontario Court of Appeal.
The Court noted that even if a justice is satisfied the conditions set out above were met, the justice is not obligated to issue the order. In deciding whether to use such authority the justice will have regard “to the impact of that order on the constitutionally protected rights of the target of the order and the public. The more significant the negative impact, the more cogent must be the grounds for seeking the order.”
The intervenors in this case argued that there ought to be special consideration when evaluating a request against the news media, which would more properly reflect the importance of freedom of the press in contemporary society. The court rejected this argument, stating “[w]hen the state exercises its powers to search and seize, reasonableness is the constitutional litmus test. The place to be searched and the nature of the material to be seized are important considerations in that reasonableness assessment.” The court further declined to put in place a test that would afford news media greater protections under s. 8 of the Constitution than what is enjoyed by regular members of the public.
This case carries with it important policy considerations with respect to the balancing the protection of media with the state’s ability to combat serious criminal activity. There is no doubt it will soon find itself before the Supreme Court of Canada.
Matthew Harmes is an associate at the law firm of Cobb & Jones LLP. For more articles, visit the Library Page at www.cobbjones.ca