A closely watched case involving the right of the media to protect the privacy of its communications in the digital age is going to be heard next month by the Ontario Court of Appeal.
Vice Media Canada Inc. is appealing a decision by Superior Court Justice Ian MacDonnell that upheld a production order requiring the company and reporter Ben Makuch to turn over documents related to communications with an alleged homegrown terror suspect. Most of the communication was through Kik Messenger, an instant messaging application that is very popular with teenagers in North America.
The original court order was sought by the RCMP as part of its investigation into Farah Shirdon, who has been charged in absentia with terrorism-related offences and whose current whereabouts are unknown.
The Court of Appeal approved a large number of interveners in the case, which is also about an indefinite publication ban ordered by MacDonnell over most of the details in the Information to Obtain sworn by police.
The RCMP is represented by the Public Prosecution Service of Canada. The interveners include the Ontario Ministry of the Attorney General, a coalition of media groups, the Canadian Civil Liberties Association and the B.C. Civil Liberties Association.
Iain MacKinnon, the lawyer representing Vice, argues that there are unique considerations for a court to weigh, since it involves the media.
“Journalists’ ability to pursue the truth without fear or reprisal or interference is essential to every facet of Canadian life: to the workings of justice, national security, individual freedoms and government itself,” states MacKinnon, in written arguments filed with the Court of Appeal.
The leading Supreme Court cases involving production orders or search warrants issued on the media are 25 years old and that is one of the reasons the Vice appeal is significant, says Andrea Gonsalves, one of the counsel for the media coalition.
Important SCC rulings include CBC v. Lessard and CBC v. New Brunswick in 1991.
She says a police request for a court to order media to turn over information now could involve significantly more data than what in the past would be a reporter’s notes or some television news video of an incident, she explains.
“The old principles need to be analyzed in current times,” says Gonsalves, a partner at Stockwoods LLP in Toronto.
The court order obtained by the RCMP in 2015 was issued after Makuch wrote three stories based on his communications with Shirdon, who spoke about his involvement with ISIS.
In the decision issued by MacDonnell, the judge noted that it is “common ground” that the only material Vice has in its possession is screen captures of Kik Messenger communications. The Superior Court judge stated that it is reasonable that the screen captures “would afford evidence” to police in its investigation of Shirdon.
The RCMP request is not seeking metadata (more specific information about the actual data, such as location and date) related to the screen captures. Police want the screen captures to try to show that Shirdon was in Iraq when he communicated with the Vice reporter.
Even if police obtain these communications and Shirdon is apprehended and returned to Canada to face trial, it is unclear if they would be allowed as evidence in a prosecution. A decision in 2014 by Ontario Superior Court Justice Gary Trotter (he was recently elevated to the Court of Appeal) in R v. Andalib-Goortani found that, without access to metadata, a photo found online could not be admissible in a criminal trial since it could not be authenticated.
In considering whether the media has blanket rights to protect communications or other work product from having to be turned over to the police, MacDonnell said it is not a different test than a search of a private residence.
Given how much digital information is now generated in any communication, it is important for courts to ensure each time that what police are seeking is very specific and that the privacy rights of innocent third parties are not infringed, Gonsalves suggests.
“What needs robust consideration is the law enforcement benefit against how it will impact on the media,” she says.
The federal Crown had not filed its written submissions for the Feb. 6 hearing at the Court of Appeal at press time.
In its written arguments, the Ontario Ministry of the Attorney General suggests that the legal tests set out by the Supreme Court in 1991 do not need to be modified.
“The Lessard test is principled, comprehensive, flexible and duly protective of media interests,” writes Crown attorney Susan Magotiaux.
“Complying with a judicial order does not make any citizen an agent of the state. The law is entitled to every person’s evidence, even when it costs in time, money and personal stress to deliver evidence,” writes Magotiaux.