R. v. Vice Media Canada Inc. 2018 SCC 53

Supreme Court of Canada Decision: R. v. Vice Media Canada Inc.

Citation: R. v. Vice Media Canada Inc., 2018 SCC 53
Decision Date: November 30, 2018
Neutral Citation: 2018 SCC 53
Docket: 37574

Breakdown of the Decision:

• Majority Opinion: Justice Michael Moldaver (Justices Gascon, Côté, Brown, and Rowe agreed)
• Concurring Opinion: Justice Rosalie Silberman Abella (Chief Justice Wagner and Justices Karakatsanis and Martin agreed)

Case Background:

• Incident: In 2014, Vice Media Canada published stories about a Canadian man who claimed to be a member of the Islamic State terrorist group in Syria. The stories were based on instant messaging conversations between the man and a Vice journalist. Police sought copies of these conversations to investigate potential criminal activities.
• Legal Action: Police obtained a production order from a judge, compelling Vice Media to provide the conversations. The order was granted in an ex parte hearing (without Vice Media’s knowledge) to prevent potential relocation of the evidence outside Canadian jurisdiction.

Key Legal Issues:

• The validity and reasonableness of the production order.
• The balance between society’s interest in prosecuting crimes and the media’s rights under the Charter of Rights and Freedoms.
• The appropriateness of ex parte hearings in the context of media search warrants and production orders.

Supreme Court’s Decision:

Majority Opinion:

• Justice Moldaver: Delivered the majority judgment, dismissing the appeal and upholding the production order.

1. Reasonableness of Original Judge’s Decision:

• The original judge’s decision to issue the production order had a reasonable basis. The necessity of the information for the investigation outweighed the media’s right to protect their sources in this context.

2. Ex Parte Hearings:

• The majority acknowledged the importance of ex parte hearings in certain situations but emphasized that media should have an opportunity to challenge production orders post-issuance if new relevant information arises.
• The rules for media search warrants and production orders were tweaked, not overhauled. If a warrant or order is granted ex parte, the media should be able to present arguments that could affect the original decision. A reviewing judge should then reassess the whole decision from the start.

3. Balancing Interests:

• Judges must balance the societal interest in investigating crimes against the media’s rights. Conditions listed in the Criminal Code must be met, including the likelihood of a crime being committed, the possession of the required information, and its relevance as evidence.

4. Journalistic Sources Protection Act:

• The new Journalistic Sources Protection Act, enacted in 2017, did not apply to this case since the events occurred before the Act came into force.

Concurring Opinion:

• Justice Abella: Agreed with the dismissal of the appeal but proposed a new test for production orders, recognizing independent Charter rights for the press. Chief Justice Wagner and Justices Karakatsanis and Martin agreed with this view, advocating for a more robust protection of journalistic sources under the Charter.

The Supreme Court of Canada upheld the production order requiring Vice Media to provide police with the instant messaging conversations related to their published stories about a claimed Islamic State member. The decision reaffirmed the balance between the media’s right to gather news and the necessity of police investigations in matters of public safety and criminal justice. The Court also provided guidance on how production orders involving media should be handled, emphasizing the need for careful judicial consideration and the potential for media to challenge ex parte orders post-issuance.