Canadian Appeals Court Says Vice Media Must Turn Over Communications With Source To Law Enforcement

from the putting-the-scare-quotes-back-in-‘free’-press dept

Roughly a year ago, a Canadian court ruled that Vice Media must turn over conversations one of its journalists had with an alleged terrorist to the Royal Canadian Mounted Police. The ruling created a chilling effect, carving a hole in journalistic protections in favor of national security concerns. Not only would it deter journalists from speaking to sources who might, at some point in the future, face criminal charges, but it also would deter sources from speaking to journalists for fear their cover might be blown by law enforcement court orders.

Vice appealed the decision. Unfortunately, there’s no better news awaiting them at the Ontario Court of Appeals. Elizabeth Raymer of Legal Feeds reports the higher court has upheld the previous ruling.

The Court of Appeal for Ontario has upheld a production order requiring a journalist to hand over all his communications with a man charged with terrorism-related offences. Journalist and civil liberties organizations have called the decision a blow to reporters abilities to protect their sources and publish stories in the public interest.

The Appeals Court weighed the competing issues — journalistic protections vs. law enforcement needs — and decided it was a toss-up.

“A free and vigorous press is essential to the proper functioning of a democracy,” Justice David Doherty of the Ontario appellate court acknowledged at the start of his judgment.

“The protection of society from serious criminal activity is equally important to the maintenance of a functioning democracy. Those fundamental societal concerns can come into conflict. When they do, it falls to the court to resolve those conflicts. In this case, claims based on the freedom of the press and those based on effective law enforcement collide at two points.”

But in the event of a tie, the win goes to law enforcement apparently. From the decision [PDF]:

After a careful consideration of the entirety of the record before him, the application judge concluded, at para. 47:

I am satisfied that the ITO set forth a basis upon which, after taking into account the special position of the media, 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 production order.

The reasons of the application judge reveal no misapprehension of the evidence, no failure to consider factors relevant to his assessment, or any other form of extractable legal error. It was reasonable, on this record, to find the balancing of the competing interests favoured making the production order.

Vice’s attempt to quash the production order has been denied. Barring an appeal to the Supreme Court, the RCMP will get their man[‘s communications]… and encroach a bit further on press protections.

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