Canadian Supreme Court rules Vice News journalist must hand over material relating to communications with source

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Posted on: 
3 Dec 2018

The Canadian Supreme Court has upheld a decision of the lower courts compelling a Vice Media journalist to hand over material relating to communications with his source. In a unanimous decision, the Supreme Court dismissed an appeal from Vice Media Canada Inc. and journalist Ben Makuch against a court order requiring Makuch to hand over communications with a Canadian citizen, accused of terrorism, to the Royal Canadian Mounted Police.

The appeal raised the important question of what test courts should apply when the police seek warrants and production orders against journalists and media organisations. MLDI, as part of an international coalition of twelve organisations active on issues relating to press freedom, media rights, and civil liberties, intervened on this point. The coalition submitted that the test applied by the lower courts in granting the production order failed to adequately take into account the vital role of the press and was out of step with international human rights law.

The coalition proposed a more rigorous test, based on the case law of the European Court of Human Rights and of some states in the United States, and consistent with well-established free expression guarantees contained in international instruments as well as fundamental principles of international law. It argued that a court, when considering an application for a production order, should not only balance the public interest in law enforcement against the privacy rights of the journalist or media outlet, but should also have particular regard to the high public interest in protecting press freedom.

In upholding the granting of the production order, the Supreme Court found that the established test, applied by the lower courts, required refinement and reordering, but that in essence it remains a suitable model when considering applications for production orders relating to the media, and provides adequate protection to the media. The Supreme Court also declined to take the opportunity provided by this case to recognise freedom of the press as enjoying a distinct and independent constitutional protection under the Canadian Constitution.

The decision is a missed opportunity to bring Canadian law into line with other free and democratic states that have recognised compelled disclosure of journalistic material amounts to undue interference with proper journalistic activity and is an unwarranted incursion into the independence of the editorial process. The decision failed to give proper weight to the effect production orders have on the free flow of information between reporters and sources and their potential to undermine the crucial role the press plays in free and democratic societies. In addition, the decision downplays the chilling effect production orders have on the ability of the media to freely obtain information.

MLDI’s Legal Director Padraig Hughes said, “Investigative journalists often obtain vitally important information because sources trust them. The test applied by the Supreme Court in this case fails to adequately protect that information, including communications between journalists and sources, and has the potential to erode trust and deter sources from providing essential information on matters of public interest.”

The Supreme Court decision can be found here

The international coalition’s intervention can be found here (PDF).

You can read more about the case on Vice News - in a number of articles and an editorial comment, as well as on Al Jazeera, BBCCanada's National Observer, and CBC.


MLDI would like to thank Paul Schabas and Kaley Pulfer of Blakes, Cassels & Graydon LLP for their assistance with drafting the intervention.