File:R v Vice Media Canada 2018 SCC 53.pdf

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supreme court canada citation vice media inc scc appeal heard may judgment rendered november docket between: and ben makuch appellants her majesty the queen respondent attorney general ontario aboriginal peoples television network advocates defence expression canadian association journalists, journalists for free guild/communications workers america centre global news division corus limited partnership, postmedia broadcasting corporation muslim lawyers legal initiative reporters without borders committee freedom press law resource international institute article pen international, index censorship, protect world newspapers publishers human rights program british columbia civil liberties interveners coram wagner c.j abella moldaver karakatsanis gascon côté brown, rowe martin jj. reasons judgment: (paras 108) (gascon brown concurring) concurring reasons: 171) (wagner note this document subject editorial revision before its reproduction final form reports. inc. ontario, network, media, expression, canada, partnership corporation, association, borders, press, institute, censorship publishers, program, indexed file present from constitutional — charter framework governing applications police search warrants production orders obtaining parte order compelling organization journalist hand over instant messages exchanged with suspected terrorist whether current provides adequate protection view special role plays democratic society validly issued freedoms 2(b criminal standard review notice applicable other investigative relating presumptive requirement should imposed when seeking warrant relation code, r.s.c c-46 487.014. one together “vice media”) wrote published three stories based exchanges between source man having joined syria articles contained statements that true, could provide strong evidence implicating him multiple terrorism offences rcmp successfully applied justice under code directing produce screen captures rather than producing material brought application superior quash order. reviewing judge dismissed media’s challenge order, holding was open authorizing conclude interest outweighed public reliable very serious appeal. held properly upheld. per set out corp lessard [1991 s.c.r companion case new brunswick continues suitable model considering however certain aspects refined factors reorganized effect prior partial publication materials sought assessed case-by-case basis modified adopted related made parte. which seeks balance state’s investigation prosecution crime right privacy gathering disseminating sets nine judges consider determining issue these make them easier apply practice against four-part analysis must exercise his discretion require all statutory preconditions met crimes decides she imposing conditions ensure will not unduly impeded publishing dissemination news. respect first stage situations where are traditional gives language court’s decision national post [2010 permits judge’s overriding deems appropriate. absent urgency circumstances justify proceeding find desirable given especially considers more information necessary interests stake conclusion mandatory. show some evidentiary why there bare assertions doing broad unsupported claim unlikely cooperate theoretically put beyond reach authorities were suffice. performing balancing third including but likelihood extent any potential chilling effects scope narrowly tailored likely probative value alternative sources reasonably obtained have reasonable efforts obtain those broadly vital functioning fact generally innocent party grant discretionary relative importance various guiding vary although cannot overlooked they presumed cases regardless circumstances; existence further distinction confidential non- erased additionally strict necessity test while relevant consideration requiring demonstrate secure conviction would effectively transform into trial alleged offence merits seriously undermine ability investigate gather criminality. being independent factor considered own now treated part overall always militates favour granting basis. necessarily lessen degree afforded unpublished since permitting state access still interferes compelled cause nature both how much full body has already been nuanced approach adds greater flexibility contextual inquiry. targeting version garofoli [1990 namely light record amplified latter granted authorization highly deferential works unfairness due absence such performed fully weighed sides scale affected outcome rightly shown deference therefore fresh weighing justified thus following points opinion then entitled novo fails meet threshold appeared good reason little add unnecessary time expense. applying facts aside proceed decline relying police’s explanation included risk move courts alerted material. did point accordingly applies second issuance satisfied notably provided grounds believe had committed possession afford respecting commission conducting even disclosure reveal “off record” “not attribution” communications disclosed through used publicize activities sort spokesperson behalf investigating prosecuting allegations weighs heavily fourth terms providing ample comply sufficient opportunity did. neither nor appropriate formally recognize enjoys distinct can readily disposed rethinking matter argued parties below. finally does engage journalistic act because arose legislation came force. strong, responsible ensures public’s opinions about choices accurate luxury democracy section contains protects core expressive functions disseminate benefit undue interference only “freedom media” specifically mentioned text also role. safeguards intrusion precondition perform essential vigorous rigorous holds people institutions account, uncovers truth informs needs informed debate. unique purpose underlying separate broader guarantee hands press’ engaged rigorously protective harmonized required. includes transmit government 2(b)’s work product reporter’s personal notes recordings interviews contact lists protecting well whose comments journalist’s documentation indispensable tools help assess information. previously target decided assumption enhanced rights. solely longer sustainable. recognizing means just “backdrop” referred requires explicitly addresses suggests unreasonable seizure protected legitimate newsgathering taken account. what required proportionality inquiry showing outweighs harmful impact constitutionally among considerations expectation need available steps proposed interfere intrusive publish turn know fruits obvious collateral particular targeted generally. side cogent urgent stronger cogency assessment crown evaluating strength interest. authorizations compels clarification jurisprudence relevance often expanse behind each story portion clearly newsgathering. communication intended understood too requirements aligns journalists’ identification issue. interpreted provisions similar 487.014(1 permit proceedings rationales like lacks submissions exclusively needed 2(b) nothing ultimately within preferable most exigent real destruction feasible rare. orthodox designed scrutinize sufficiently involved explain until after hand, able justified. strikes proportionate suggestion shrivels context wanted everything said crucially anything conduct shows relationship way harm cited s.c.r. steel granada ltd a.c manitoba (attorney mbca c.c.c (3d moysa alberta labour relations board khawaja [2012 canadianoxy chemicals descôteaux mierzwinski [1982 (2001 o.r araujo [2000 morelli nero onca sriskandarajah united states 70, post, irwin toy quebec ford 1988] torstar [2009 branzburg hayes u.s houchins kqed goodwin kingdom e.h.r.r [2011 edmonton journal dagenais mentuck [2001 nova scotia macintyre vancouver sun 43, [2004 sinclair globe mail nagla latvia 73469/10 july (miranda secretary home department [2016 ewca civ w.l.r hunter southam [1984 s.a.b [2003 rodgers [2006 160, bank group wallace pires 66, [2005 statutes regulations c-5 39.1(1 “journalistic source”, “journalist”. 20; formerly 487.0193(1 488.02(3 s.c treaties instruments convention fundamental u.n.t.s european art authors donald j.m john evans assistance david farley. judicial administrative action vol toronto thomson reuters loose-leaf updated release cameron jamie guarantee, 1982-2012 (online: https /digitalcommons.osgoode.yorku.ca/cgi/viewcontent.cgi?referer httpsre dir=1&article=1270&context=clpe archived /www.scc- csc.ca/cso-dce/2018scc-csc53_1_eng.pdf chan gerald “transparency confined courthouse critical lawyers’ assn c.b.c post” s.c.l.r (2d) hubbard robert peter brauti scott fenton wiretapping electronic surveillance procedure aurora ont book, june hutchison carswell, oliphant benjamin discrete guarantee” (2013 mcgill d’enquête sur confidentialité des journalistiques rapport québec publications hoy a.c.j.o. doherty miller jj.a d.l.r (4th) admin l.r (6th [2017 o.j carswellont affirming macdonnell onsc c.r.r (2d (wl dismissing revoke allowing sealing dismissed. philip tunley iain mackinnon jennifer saville appellants. croft michaelson q.c sarah shaikh respondent. patton deborah krick intervener ontario. justin safayeni sean moreman katarina germani corporation. faisal mirza yavar hameed association. paul schabas kaley pulfer program. tae mee park brian radnoff rebecca shoom delivered overview years ago established recognized subsequent framework, reaffirmed eight two competing concepts say working serves “rubber stamp” submit reformed perhaps abandoned entirely maintain challenged “production order” records terrorist, aside. sees things differently submits existing adequately plays. maintains accordance follow refine framework:  treating adopt see otherwise meaning establish reorganize practice. turning here appellants’ importantly broadcast extremist views include dismiss setting wish clarify outset (“jspa” force october jspa protections maintaining confidentiality sources”1 warrants, “journalist”.2 going forward regime govern “journalists” deal common standing apart landscape area changed untested component bearing mind lack merit argument source” defined “a confidentially transmits undertaking divulge identity anonymity source”. “journalist” person main occupation contribute directly either regularly occasionally collection writing anyone who assists person”. narrow restricted issues raised colleague summarized history duplicate refer develop briefly summarize (“vice company produces content number multimedia platforms “appellants” began exchanging islamic iraq “isis” farah mohamed shirdon messaging kik messenger. directed makuch’s unsuccessfully below court. iii raises four issues: reformed? imposed? media? aside? jurisprudential question stated simply answer key precedents shaped post. [10 (“cbc” captured video footage individuals engaging activity occupying damaging office building pointe-claire throwing molotov cocktails guardhouse st-quentin aflame parts subsequently cbc’s premises seize tapes their entirety aired unaired footage. [11 submitted support peace determine explained existed insufficient unavailable unwilling testify. [12 seized cbc failed initially succeeded opposite appealed [13 undertook delicate task fashioning regard “assess[ing reasonableness context” para recognition raise concerns. [14 status accorded front cory j.’s majority “the particularly careful attached disruption possible” “[t]he society” similarly wrote: vitally important play enable members our significantly affect lives well-being manner fulfilled give rise concerns 475] [15 stressed acknowledged arise clarified “import[ing additional warrants” backdrop evaluated” pp. 475-76 nonetheless emphasized “requires might upon premises” ibid [16 went articulate list media: met. “should warrant.” struck course dissemination” party. affidavit supporting contain “sufficient detail” warrant. “ordinarily” disclose investigated exhausted. disseminated whole “will be” favouring determines implementation news.” comes “failed pertinent warrant” result finding invalid. unreasonably conducted render (lessard 481-82) [17 added “all evaluated factual situation presented” assessing irrelevant another” framed “essential question” follows “taking account viewing fairly objectively one?” [18 upheld validity cases. [19 nearly decades later occasion principles collides exchange blanket unconditional promise secret supplied plain envelope containing implicate former prime minister financial conflict received complaint forged quashed reinstated [20 binnie seven-justice “general rule” every person’s evidence” rule exceptions source. [21 approaching paras 31-33 so, repeatedly described “of immense importance” communication” “vital law” “special position confirmed involves news” (para making observations underscored safeguarding [22 accept investigations” rejected violate declined class privilege journalist-confidential instead wigmore criteria 53-64 [23 concluded [24 reviewed reforms framework. [25 whenever “chilling effect” argue proving individual inevitable. [26 define term refers stifling discouragement fear repercussions manifest themselves ways example: “dry up” lord denning “if newspapers] soon bereft ought dry up. wrongdoing disclosed” willing speak come whim remain shadows. consequently lose opportunities receive public. consciously avoid recording preserving notes, internal deliberations concern (see adopting dissenting mclachlin (as self-censor conceal possesses future arm loses faith execute independently impartially citing forest [27 easy feat lend scientific empirical proof rather, intangible difficult impossible measure exactitude mean insignificant unimportant contrary consequences considerable weak fearful alongside diminishing pool sources, translates less vibrant discussion, debate flow stymied overlooked. [28 struggle quick assumptions case-by- abstract. [29 finds none moreover assume testify tribunals “detrimentally information” “[i]n situations, inferred known experience” khawaja, statement imposition merely confirms modest proposition inferred. sum depart [30 procure large neutralized dissent prospect informants” emphasis mitigated. [31 crucial. [32 concludes refused significant again turns facts. removal non-confidential [33 same insist shielded carry function undermined. [34 simple draw differ substantially. [35 demonstrates negative state-compelled found opening door exists noted above considerably depending non-confidential. [36 enactment illustration parliament amended act, sources” restrictively confidence example bring objecting documents identify hence meaningful difference sources. [37 erase [38 clear agreement rein compel media. once crucial, assumed makes analysis. recharacterization [39 indicated sixth “this issuing indeed decisive factor: gathered passes domain something favours expect prosecuted notwithstanding failure videotape [pp 446-47] [40 take reduce caused attenuate journalist-source communications. [41 “[w]hen prosecuted” credible criminality, ongoing imminent threat safety security, ignored respective blind eye courts. [42 heighten ha[s] completed basic i.e cycle suggesting diminished. [43 militate materials, precisely sensitive relatedly sometimes different compared thereby raising seek raw potentially metadata attaching types diminished materials. [44 unpublished) criminality contrast neutral [45 listed best viewed aspect least sense enhance diminish sake clarity, treat own. [46 actually taking place sought. [47 understand concerned evidence-gathering searches aimed securing early prompt thorough offences” located preserved (canadianoxy original juncture “to incidents conscientious charges laid unadulterated prosecutorial authorities” “investigat[ing decid[ing elements out” belongs [48 becomes left another day actors. [49 practically gauge change ask attempt down road impracticable speculation event appears uncertain seeing poses threat. [50 policy perspective accepting proposal perverse delay prevent crucial fleeing country decreasing ever goes saying type encouraged. [51 (ii [52 suggest incrementally expected admissible “necessary acquittal conviction” a.f deleted [53 clarity provision officers document, that, data offence” 487.014(2 says value. addition deciding requested. [54 countervailing obtained” [55 higher strengthened supports believed actual actus reus heightened probity lesser attenuated. [56 limits cautioned “[i]t definitively thing completed” weight imprecise exercise. [57 end far impose “necessity” notion denied unless sustained several following: misapprehends endorse j.a.’s observation submission “improperly blurs line prosecutor assigning job prove inappropriate speculate amassed doubt committed. mere preclude evidence. objective “prompt locate preserve unearth [58 accede imposed. [59 it. [60 respectfully disagree [61 grants “ex application” presumably words rewrite rewriting full- blown adversarial hearings whatever envisioned parliament. [62 j.a resulting countered varied revoked turned police. [63 observed “import procedural requirements” brackets earliest entitlement retains timing permitted “cases circumstances” (emphasis “other instances disappear debated cautioned, “adequate inserted aside” [64 adhere previous consistent ago. [65 “provides unwarranted intrusion” c.a (“cbc onca)” starting [66 justifying proceeding, [67 worth emphasizing “urgency illustrate [68 moment avenues order: pursue district succeed applicant prepare privileged 487.0193(4 d.j.m farley, §1:2210 certiorari [69 avenue leading authority succinctly “could have” substitute (ibid “there issued” 253, 40-43 68-72 [70 never basis” “is bound determination justice” “no functionally equivalent above. [71 case, hearing lessard. pitted made. [72 agree unfairness. though rely concession accepted “you it” transcript p.105 [73 create entitling judge, context, bear [74 pointing burdensome purporting supply exhaustive requisite to: source’s keep aware of; features affects preventing delaying compromising foreseen judge; specific concerning of. [75 assertion strike balance. [76 recognizes “careful weighing” “particularly consideration” [77 principled undertake offered justification falls away. [78 presumptively valid inconsistent invites carries [79 para. use word “generally” contemplated absolute identified exception decision. [80 re-emphasize remains hesitate addition, leave gaps e.g regarding outlet decide unwise quo obviate consequential savings administration justice. [81 reorganization [82 settled analysis: example, below, circumstance notice. accomplished detail effects; tailored; materials; case- by-case brunswick, fit sealed period pending review. [83 determined [84 analytical case. [85 “ito” sworn constable grewal explains rationale describes operations interactions discussion identifies bringing investigators risks associated alerting benefits swiftly assured adding drew inference kind interview purported member reputation immediately handing police” a.r 242- better supported read ito declining [86 pointed instance cultivate relationships consisted primarily “it agent purposes investigation” belief “are tell [him “they inclined [his questions qualify indicate difficulty staging overturned [87 remaining withstand scrutiny restated view, discuss granted. [88 subsection oath “an committed”; control” offence”. [89 baseline met: participating committing indictable uttering threats death participation facilitation isis. believing messenger journalist, saved results mr. involvement isis face affirmed affiant ‘will offences’ reproduced circumstances. [90 “difficult complex process” [91 beginning attenuated minimally disruptive activities. [92 unlike compliance revealed insisted pseudonym connected openly himself burned passport online propaganda name throughout indication insisting organization. regarded channels world” ordinary arguably convey conscripted discourage keeping criminals lead thoughts speaking largely mitigate [93 carefully closely offence(s news, sweeping relatively overreach [94 high seriousness respond publication. [95 “investigation violent state” charged death) incompatible safe peaceful according communicated joins crusade muslims blood streets canadians attacked homes suffice lightly response off demand swift response. [96 screenshots unedited interpretation relaying direct second-hand advance heightened. [97 text- service provider interactive unsuccessful [98 bulk makuch” stating “[a]ll during k[ik articles” sphere “when [99 outlined [100 [101 guidance days giving colleague’s [102 comment treats “distinct charter” [103 respectful proper contours understanding implications unforeseen requests bans areas prudent [104 unworkable undermined (sriskandarajah convinced abandon retain [105 enjoying deny rethink venue day. [106 uphold validity. [107 ban matters [108 [109 twenty-five flirted acknowledging continue press” ripe. [110 [111 explores border press. thought communication”. [112 background [113 join makuch, talked using message shirdon’s messages. appeals [114 full-time reporter editor producer publishes specialty reporting cyber security terrorism, intelligence social accounts jihadists militants april posted youtube ripping passports pledging allegiance violence gave twitter claimed someone [115 initiated “abu usamah” platform store devices conversation responded freely posed video. [116 originally calgary men august initial york contacted arrange skype september continued offences. [117 february along officer. [118 unseal relied overbroad “fishing expedition” assert contended unjustified documents. [119 allowed order.3 reports substitutes “channe[l s.c.j concluded, unsealed. [120 order.4 robust concluding lifted ito, releasing [121 states: everyone freedoms: communication; focus media”. [122 many involving date stopped short unambiguously justify, express inclusion gestured towards 459,5 [123 acknowledge derivative hesitancy attracted academic criticism 1982- (online c.b.c. references reference counsel graciously conceded oral right. [124 long animating pursuit participate upholding objectives “listeners speakers” (ford fair raison d’être guarantees” “predicated reliant vehicle “explicitly itself” [125 dichotomy logical institutional historic differences others expression”. generous facilitate healthy incomplete reading “right know” animates douglas (dissenting 17, stewart (concurring [126 singular resulted u.n.t.s. 221,6 expressly mention watchdog shall hold impart ideas frontiers licensing cinema enterprises. duties responsibilities formalities restrictions penalties prescribed territorial integrity prevention disorder health morals impartiality judiciary. [127 start “undue governmental interference” 429-30 fragile leads communicate acquired. “integral 1339-40 impairing meaningfully process. [128 explicit underlies dagenais; extended “filming photographs interviews” outside courtrooms represents incremental development jurisprudence. [129 defining “press” “media” proliferation forms challenging violation definitions gone linear kaleidoscopic takes amplitude it.” preoccupied covered [130 accords standards professional ethics chamberland report attract unwavering tabloid espionage “[c]hequebook journalism” [131 “work product” seems inescapable usually (hudoc department, dyson m.r aspect” material” known” easily gain access” hamper 431-32 [132 truly (chamberland 175-80 [133 get preparing letting shadows developed brings [134 phrase exploring “right” everyone’s charter. [135 occurs stages officer seizure. [136 part: sections copy control time. offence. [137 intrude “reasonable probable search” incorporated seizures “statutory issuance” whom [138 shot demonstrations activity. [139 “does import noting implicated “truly party” twenty expanded [140 “constitute head-to-head clash implicated” “any chief interfered (new 481; [141 sustainable investigatory [142 coalition essentially salutary outweigh deleterious effects. [143 necessary. [144 weigh last look (2009 [145 beneficial [146 products private approval lessard: impinge values physically impede efficient timely retention forestall completing cover events fears participants files authorities. deterred recollections fifth processing chilled resort self- effort adversely furthering community fulfillment. (national 452) [147 quote chill hardly questioned. [148 particular, “some recognized” be. [149 preliminary crown’s marshal unknowable examine liability” “decide [150 emerged “prior publication” constitute 446-47 [151 addressed obtains “part” [152 despite unconcerned desire anonymous willingness [153 warranting deprived option fairness knowing opportunity” “may notice” obviously [154 rare “beyond asserted contest possibility “cooperate suggested oppose possible opportunity. [155 typically 16-53 16-55 alternatively accurately reflect knew had, 8.5.2 [156 judge” reveals fraud non-disclosure misleading authorization” (2016 [157 combination amplification stake. relates “[w]hat sworn” cross-examination “[e]ven inaccurate detract pre-conditions” 343, [158 analysed irrespective felt [159 involve infringements knowable elaboration impacts fact-dependent introduction sincerity affiant’s beliefs reflects balancing. [160 hard chance appear artificial defer conclusions maker possess straightforward process minimizing interim decisions enabling zero substantive [161 strengthen intentionally avoided addressing them. [162 [163 targets somehow harms minimal functions. [164 unusual lens dealing seen perception decidedly perceived independence, “loss credibility appearance impartiality” [165 bears repeating intimated wished lengthy detailed whatsoever otherwise. [166 amount pertinently linked abu usamah willingly apparent identifying articles. [167 argues covers quasi-confidential connection universal automatic immunity amplify displace presumption deliberately chill. [168 dispute extremely really occur interests. [169 returns incongruous flight conduct. [170 [171 solicitors lawrence barristers linden associates toronto. solicitor stockwoods kwok mississauga ottawa. initiative, blake cassels graydon bersenas jacobsen chouest blackburn lerners

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