Vice Media Canada Inc. v. Ben Makuch, 2018 SCC 53

SUPREME COURT OF CANADA Citation: R. v.

Vice Media Canada Inc., 2018 SCC 53, [2018] 3 S.C.R. 374 Appeal Heard: May 23, 2018 Judgment Rendered: November 30, 2018 Docket: 37574 Between: Vice Media Canada Inc. and Ben Makuch Appellants and Her Majesty The Queen Respondent - and - Attorney General of Ontario, Aboriginal Peoples Television Network, Advocates in Defence of Expression in Media, Canadian Association of Journalists, Canadian Journalists for Free Expression, Canadian Media Guild/Communications Workers of America Canada, Centre for Free Expression, Global News, a Division of Corus Television Limited Partnership, Postmedia Network Inc., Canadian Broadcasting Corporation, Canadian Muslim Lawyers Association, Media Legal Defence Initiative, Reporters Without Borders, Reporters Committee for Freedom of the Press, Media Law Resource Centre, International Press Institute,

Article 19, Pen International, Pen Canada the Canadian Centre of Pen International, Index on Censorship, Committee to Protect Journalists, World Association of Newspapers and News Publishers, International Human Rights Program, British Columbia Civil Liberties Association and Canadian Civil Liberties Association Interveners Coram: Wagner C.J. and Abella, Moldaver, Karakatsanis, Gascon, Côté, Brown, Rowe and Martin JJ. Reasons for Judgment: (paras. 1 to 108) Moldaver J. (Gascon, Côté, Brown and Rowe JJ. concurring) Concurring Reasons: (paras. 109 to 171) Abella J. (Wagner C.J. and Karakatsanis and Martin JJ. concurring)

R. v. Vice Media Canada Inc., 2018 SCC 53, [2018] 3 S.C.R. 374 Vice Media Canada Inc. and Ben Makuch Appellants v.

Her Majesty The Queen Respondent and Attorney General of Ontario, Aboriginal Peoples Television Network, Advocates in Defence of Expression in Media, Canadian Association of Journalists, Canadian Journalists for Free Expression, Canadian Media Guild/Communications Workers of America Canada, Centre for Free Expression, Global News, a Division of Corus Television Limited Partnership, Postmedia Network Inc., Canadian Broadcasting Corporation, Canadian Muslim Lawyers Association, Media Legal Defence Initiative, Reporters Without Borders, Reporters Committee for Freedom of the Press, Media Law Resource Centre, International Press Institute,

Article 19, Pen International, Pen Canada the Canadian Centre of Pen International, Index on Censorship, Committee to Protect Journalists, World Association of Newspapers and News Publishers, International Human Rights Program, British Columbia Civil Liberties Association and Canadian Civil Liberties Association Interveners Indexed as: R. v. Vice Media Canada Inc. 2018 SCC 53 File No.: 37574. 2018: May 23; 2018: November 30.

Present: Wagner C.J. and Abella, Moldaver, Karakatsanis, Gascon, Côté, Brown, Rowe and Martin JJ. on appeal from the court of appeal for ontario Constitutional law — Charter of Rights — Freedom of expression — Media — Framework governing applications by police for search warrants and production orders — Police obtaining ex parte production order compelling media organization and journalist to hand over instant messages exchanged with suspected terrorist — Whether current framework provides adequate protection to media in view of special role it plays in free and democratic society — Whether production order validly issued — Canadian Charter of Rights

and Freedoms, s. 2(b). Criminal law — Production orders — Standard of review — Notice — Police obtaining ex parte production ordercompelling media organization and journalist to hand over instant messages exchanged with suspected terrorist — Standard of reviewapplicable to production and other investigative orders relating to media — Whether presumptive notice requirement should be imposedwhen police seeking production order or search warrant in relation to media — Criminal Code, R.S.C. 1985, c. C-46, s. 487.014.

A media organization and one of its journalists (together, “Vice Media”) wrote and published three news stories in 2014based on exchanges between the journalist and a source, a Canadian man suspected of having joined a terrorist organization in Syria. Thearticles contained statements by the source that, if true, could provide strong evidence implicating him in multiple terrorism offences.The RCMP successfully applied ex parte to the Ontario Court of Justice, under s. 487.014 of the Criminal Code, for an order directingVice Media to produce the screen captures of the messages exchanged with the source.

Rather than producing that material, Vice Mediabrought an application in the Superior Court to quash the order. The reviewing judge dismissed Vice Media’s challenge to the productionorder, holding that it was open to the authorizing judge to conclude that the media’s interest was outweighed by the public interest inobtaining reliable evidence of very serious terrorism offences. The Court of Appeal dismissed Vice Media’s appeal. Held: The appeal should be dismissed. The production order was properly issued and should be upheld.

Per Moldaver, Gascon, Côté, Brown and Rowe JJ.: The framework set out in Canadian Broadcasting Corp. v. Lessard, (SCC), [1991] 3 S.C.R. 421, and its companion case, Canadian Broadcasting Corp. v. New Brunswick (AttorneyGeneral), (SCC), [1991] 3 S.C.R. 459, continues to provide a suitable model for considering applications for searchwarrants and production orders relating to the media and provides adequate protection to the media and the special role it plays inCanadian society.

However, certain aspects of that framework should be refined: its factors should be reorganized; the effect of priorpartial publication of the materials sought should be assessed on a case-by-case basis; and a modified standard of review should beadopted when reviewing an order related to the media that was made ex parte.

The Lessard framework, which seeks to balance the state’s interest in the investigation and prosecution of crime and themedia’s right to privacy in gathering and disseminating the news, sets out nine factors for judges to consider when determining whetherto issue a search warrant relating to the media. These factors should be reorganized to make them easier to apply in practice.

On anapplication for a production order against the media, a four-part analysis should be applied: (1) the authorizing judge must considerwhether to exercise his or her discretion to require notice to the media; (2) all statutory preconditions must be met; (3) the authorizingjudge must balance the state’s interest in the investigation and prosecution of crimes and the media’s right to privacy in gathering anddisseminating the news; and (4) if the authorizing judge decides to exercise his or her discretion to issue the order, he or she shouldconsider imposing conditions to ensure that the media will not be unduly impeded in the publishing and dissemination of the news.

With respect to the first stage of the analysis, a presumptive notice requirement should not be imposed in situations wherethe police are seeking a production order in relation to the media. The traditional model of ex parte applications gives effect to thelanguage of the Criminal Code and to this Court’s decision in R. v. National Post, 2010 SCC 16, [2010] 1 S.C.R. 477. The CriminalCode permits ex parte applications for production orders, subject to the authorizing judge’s overriding discretion to require notice wherehe or she deems appropriate.

Absent urgency or other circumstances that justify proceeding ex parte, the authorizing judge may find itdesirable to require that notice be given to the media, especially if he or she considers that more information is necessary to properlybalance the rights and interests at stake. However, that conclusion is not mandatory. The police should show some evidentiary basis forwhy there is urgency or other circumstances that justify proceeding ex parte; bare assertions will not provide a basis for doing so.

Abroad and unsupported claim that the media is unlikely to cooperate with police or that the media could theoretically put the materialsbeyond the reach of authorities if notice were to be given should not suffice.

In performing the balancing exercise at the third stage of the analysis, the authorizing judge should consider all of thecircumstances, including, but not limited to, the likelihood and extent of any potential chilling effects; the scope of the materials soughtby the police and whether the order sought is narrowly tailored; the likely probative value of the materials; whether there are alternativesources from which the information may reasonably be obtained and, if so, whether the police have made all reasonable efforts to obtainthe information from those sources; the effect of prior partial publication of the materials sought; and more broadly, the vital role that themedia plays in the functioning of a democratic society and the fact that the media will generally be an innocent third party.

The decisionas to whether to grant the order sought is discretionary, and the relative importance of the various factors guiding that discretion willvary from case to case. Although chilling effects cannot be overlooked, they should not be presumed in all cases regardless of thecircumstances; rather, the existence and extent of any potential chilling effects should be assessed on a case-by-case basis. Further, thedistinction between confidential and non-confidential sources should not be erased. Additionally, a strict necessity test for productionorders should not be imposed.

While probative value may be a relevant consideration, requiring the police to demonstrate that aproduction order is necessary to secure a conviction would effectively transform the production order application into a trial of thealleged offence on the merits and would seriously undermine the ability of the police to investigate and gather evidence of potentialcriminality. Rather than being assessed as an independent factor to be considered on its own, prior partial publication of the informationsought should now be treated as part of the overall Lessard balancing exercise.

While prior partial publication was considered in Lessardas a factor that always militates in favour of granting an order, the effect of prior partial publication should now be assessed on acase-by-case basis. Prior partial publication should not necessarily lessen the degree of protection afforded to the unpublished materials,since permitting state access to these materials still interferes with the media’s right to privacy in gathering and disseminating the newsand compelled production of these materials may still cause chilling effects.

In determining the effect of prior partial publication, theauthorizing judge should consider all the circumstances, including the nature of the materials (both published and unpublished) and howmuch of the full body of materials has already been published. This more nuanced approach adds greater flexibility to the Lessardframework and permits a more contextual inquiry. The standard of review to be applied to ex parte production orders targeting the media should be a modified version of thestandard set out in R. v. Garofoli, (SCC), [1990] 2 S.C.R. 1421. The traditional Garofoli approach, namely, whether in

light of the record before the authorizing judge, as amplified on review, the latter could have granted the authorization, is highly deferential and, in some cases, works unfairness due to absence of the media at the authorization stage. In such circumstances, the authorizing judge would have performed the Lessard analysis without having fully weighed both sides of the scale . A decision made without having considered all of the relevant information that could reasonably have affected the outcome cannot rightly be shown deference, and therefore a fresh weighing by the reviewing judge is justified.

Thus, the following test should be applied : if the media points to information not before the authorizing judge that, in the reviewing judge’s opinion, could reasonably have affected the authorizing judge’s decision to issue the order, then the media will be entitled to a de novo review. If, on the other hand, the media fails to meet this threshold requirement, then the traditional Garofoli standard will apply.

Where the media was given notice and appeared before the authorizing judge, there is generally good reason to apply the traditional Garofoli standard on review, since permitting a de novo review may do little more than add unnecessary time and expense. Applying the refined Lessard framework to the facts of this case, the production order should not be set aside. First, it was open to the authorizing judge to proceed ex parte and decline to exercise his discretion to require notice.

The authorizing judge was justified in relying on the police’s explanation for seeking the order ex parte , which included the risk that Vice Media could move the materials beyond the reach of Canadian courts if alerted to the police’s interest in the material. Vice Media did not point to any information not before the authorizing judge that could reasonably have affected the decision to issue the order. Accordingly, the traditional Garofoli standard of review applies. Second, the statutory preconditions for the issuance of a production order were satisfied.

Notably, the evidence of the police provided reasonable grounds to believe that (1) the source had committed certain offences;

(2) Vice Media had in its possession the materials sought; and (3) those materials would afford evidence respecting the commission of the alleged offences. Third, based on the record, it was open to the authorizing judge in conducting the Lessard balancing exercise to conclude that the state’s interest in the investigation and prosecution of crime outweighed the media’s right to privacy in gathering and disseminating the news. Even on a de novo review, the order was properly granted.

Disclosure of the materials sought would not reveal a confidential source; no “off the record” or “not for attribution” communications would be disclosed; there is no alternative source through which the materials sought may be obtained; the source used the media to publicize his activities with a terrorist organization as a sort of spokesperson on its behalf; and the state’s interest in investigating and prosecuting allegations of serious terrorism offences weighs heavily in the balance.

Fourth, the authorizing judge imposed adequate terms in the production order, providing Vice Media with ample time to comply with the order. Vice Media thus had sufficient opportunity to move to have the production order set aside, as it did. I t is neither necessary nor appropriate in this case to formally recognize that freedom of the press enjoys distinct and independent constitutional protection under s. 2(

b) of the Charter . The appeal can readily be disposed of without rethinking s. 2( b ) , and the matter was not fully argued by the parties or considered by the courts below. Finally, this case does not engage the new Journalistic Sources Protection Act because the facts arose before the legislation came into force. Per Wagner C.J. and Abella, Karakatsanis and Martin JJ.: A strong, independent and responsible press ensures that the public’s opinions about its democratic choices are based on accurate and reliable information. This is not a democratic luxury — there can be no democracy without it.

Section 2(

b) of the Charter contains a distinct constitutional press right which protects the media’s core expressive functions — its right to gather and disseminate information for the public benefit without undue interference. The press enjoys this constitutional protection, not only because “freedom of the press and other media” is specifically mentioned in the text of s. 2( b ), but also because of its distinct and independent role. Strong constitutional safeguards against state intrusion are a necessary precondition for the press to perform its essential democratic role effectively.

A vigorous, rigorous, and independent press holds people and institutions to account, uncovers the truth, and informs the public. It further provides the public with the information it needs to engage in informed debate. Given the media’s unique role, the purpose underlying protection for the press in s. 2 (

b) is related to, but separate from, the broader guarantee of freedom of expression. When the state seeks access to information in the hands of the media through a production order, both the press’ s. 2(

b) rights and s. 8 Charter privacy rights are engaged. A rigorously protective harmonized analysis is therefore required. The press’ s. 2(

b) right includes not only the right to transmit news and other information, but also the right to gather this information without undue interference from government.

Section 2( b )’s press and media guarantee includes protection for journalistic work product , such as a reporter’s personal notes, recordings of interviews, or source contact lists. It also includes protecting communications with confidential sources as well as those whose comments are “off the record” or “not for attribution”. And it includes protecting the journalist’s documentation of his or her investigative work . These are the indispensable tools which help the press gather, assess and disseminate information.

This Court previously set out the approach for how s. 8 applies to production orders when the target is the press in Lessard and its companion case, New Brunswick . In these cases, the Court held that there must be a balancing of the constitutional s. 8 privacy rights of the press with the interests of the state in investigating crime. B oth cases were decided on the assumption that although the press had enhanced privacy interests under s. 8, there was no distinct role for the press’ s. 2 (

b) rights. An approach based solely on s. 8 privacy rights is no longer sustainable. Recognizing a distinct press guarantee in s. 2(

b) of the Charter means that the press is no longer just the “backdrop” referred to in New Brunswick . An independent, distinct protection for the press in s. 2 (

b) requires an approach that explicitly addresses those rights, as well as the s. 8 privacy rights. The fact that both constitutional rights for the press are engaged suggests a new harmonized analysis, in which the press’ right to be secure against unreasonable search and seizure as well as its right to be protected from undue interference with legitimate newsgathering activities, are explicitly taken into account. What is now required is a proportionality inquiry showing that the benefit of the state’s interests in obtaining the information outweighs the harmful impact on the press’ constitutionally protected s. 8 and s. 2(

b) rights. Among the considerations to be weighed by authorizing judges are: the media’s reasonable expectation of privacy; whether there is a need to target the press at all; whether the

evidence is available from any other source, and if so, whether reasonable steps were taken to obtain it; and whether the proposed orderis narrowly tailored to interfere with the press’ rights no more than necessary. Generally, the more intrusive the proposed order is on thes. 8 privacy and s. 2(

b) rights of the media, the greater the impact on the press’ ability to gather and publish the news. And, in turn, thegreater the harmful impact on the public’s right to know the fruits of the press’ activities. An obvious collateral impact on the press ofbeing required to comply with a production order is a chilling effect not only on the particular press being targeted, but on the pressgenerally. On the other side of the balance, the more serious the crime under investigation, the more cogent the evidence sought andthe more urgent the investigative need, the stronger the state’s interest will be.

While the cogency of the evidence is a relevantconsideration, an assessment of whether it is necessary for the Crown to obtain a conviction is not required in evaluating the strength ofthe state’s interest. Recognizing that s. 2(

b) requires a more rigorous approach to authorizations against the press compels clarification of someaspects of the jurisprudence, the first being the relevance of prior publication. One of the media’s core functions is the exercise ofdiscretion over what is and is not published, and there is often an expanse of unpublished material behind each published story. Stateaccess to the unpublished portion clearly interferes with both privacy and newsgathering.

Where part or all of a communication with ajournalist was intended or understood to be “off the record”, it too is entitled to protection from disclosure requirements. This aligns withthe need to protect journalists’ source materials even where the identification of a confidential source is not at issue. Finally, this Court has interpreted provisions similar to s. 487.014(1) of the Criminal Code to permit, but not require, exparte proceedings. There are strong rationales for requiring notice to the press in cases like this.

If the authorizing judge lacks evidenceand submissions from the party exclusively in possession of the information needed for the balancing — the innocent media third partywhose s. 2(

b) rights are engaged — there is nothing to balance. While the issue of notice is ultimately a matter within the discretion ofthe authorizing judge, it is highly preferable in most cases to proceed on notice to the media. Where there are exigent circumstances or areal risk of the destruction of evidence, notice may not be feasible, but these cases will be rare. The orthodox approach for reviewing production orders set out in Garofoli was not designed to scrutinize whether s. 2(b)Charter rights were sufficiently protected.

In proceedings where the press is involved, and there has been no notice before theauthorizing judge, the press will not have had the opportunity to explain how the order would interfere with its work until after theauthorization is made. In such cases, the press is entitled to a de novo balancing on the review. If, on the other hand, the press waspresent and able to make its case before the authorizing judge, the more deferential Garofoli approach would be justified. In this case, the production order strikes a proportionate balance between the rights and interests at stake.

The order isnarrowly tailored, targeting only the journalist’s communications with the source, and those communications are not available from anyother source. The suggestion that the production order would interfere with Vice Media’s newsgathering and publication functionsshrivels in a context where the source was not a confidential one and wanted everything he said to be made public. Crucially, there is nosuggestion that anything the source said was intended or understood to be “off the record”. The journalist’s own conduct shows that therelationship was not confidential in any way.

Accordingly, the benefit of the state’s interest in obtaining the messages outweighs anyharm to Vice Media’s rights. Cases Cited By Moldaver J. Modified: Canadian Broadcasting Corp. v. Lessard, (SCC), [1991] 3 S.C.R. 421; Canadian BroadcastingCorp. v. New Brunswick (Attorney General), (SCC), [1991] 3 S.C.R. 459; applied: R. v. Garofoli, (SCC), [1990] 2 S.C.R. 1421; referred to: R. v. National Post, 2010 SCC 16, [2010] 1 S.C.R. 477; British Steel Corp. v. GranadaTelevision Ltd., [1981] A.C. 1096; Canadian Broadcasting Corp. v. Manitoba (Attorney General), 2009 MBCA 122, 250 C.C.C. (3d) 61;Moysa v.

Alberta (Labour Relations Board), (SCC), [1989] 1 S.C.R. 1572; R. v. Khawaja, 2012 SCC 69, [2012] 3S.C.R. 555; CanadianOxy Chemicals Ltd. v. Canada (Attorney General), (SCC), [1999] 1 S.C.R. 743; Descôteaux v.Mierzwinski, (SCC), [1982] 1 S.C.R. 860; R. v. Canadian Broadcasting Corp. (2001), (ON CA), 52O.R. (3d) 757; R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992; R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253; R. v. Nero, 2016 ONCA160, 334 C.C.C. (3d) 148; Sriskandarajah v. United States of America, 2012 SCC 70, [2012] 3 S.C.R. 609. By Abella J. Referred to: R. v. Garofoli, (SCC), [1990] 2 S.C.R. 1421; R. v.

National Post, 2010 SCC 16, [2010] 1S.C.R. 477; Canadian Broadcasting Corp. v. New Brunswick (Attorney General), (SCC), [1991] 3 S.C.R. 459; CanadianBroadcasting Corp. v. New Brunswick (Attorney General), (SCC), [1996] 3 S.C.R. 480; Irwin Toy Ltd. v. Quebec(Attorney General), (SCC), [1989] 1 S.C.R. 927; Ford v. Quebec (Attorney General), (SCC), [1988] 2S.C.R. 712; Grant v. Torstar Corp., 2009 SCC 61, [2009] 3 S.C.R. 640; Branzburg v. Hayes, 408 U.S. 665 (1972); Houchins v. KQED,Inc., 438 U.S. 1 (1978); Goodwin v. United Kingdom (1996), 22 E.H.R.R. 123; Canadian Broadcasting Corp. v.

Lessard, (SCC), [1991] 3 S.C.R. 421; Canadian Broadcasting Corp. v. Canada (Attorney General), 2011 SCC 2, [2011] 1 S.C.R. 19;Edmonton Journal v. Alberta (Attorney General), (SCC), [1989] 2 S.C.R. 1326; Dagenais v. Canadian BroadcastingCorp., (SCC), [1994] 3 S.C.R. 835; R. v. Mentuck, 2001 SCC 76, [2001] 3 S.C.R. 442; Attorney General of Nova Scotiav. MacIntyre, (SCC), [1982] 1 S.C.R. 175; Vancouver Sun (Re), 2004 SCC 43, [2004] 2 S.C.R. 332; R. v. Sinclair, 2010SCC 35, [2010] 2 S.C.R. 310; Globe and Mail v. Canada (Attorney General), 2010 SCC 41, [2010] 2 S.C.R. 592; Nagla v.

Latvia,No. 73469/10, July 16, 2013 (HUDOC); R. (Miranda) v. Secretary of State for the Home Department, [2016] EWCA Civ 6, [2016] 1W.L.R. 1505; Hunter v. Southam Inc., (SCC), [1984] 2 S.C.R. 145; Canadian Broadcasting Corp. v. Manitoba (AttorneyGeneral), 2009 MBCA 122, 250 C.C.C. (3d) 61; CanadianOxy Chemicals Ltd. v. Canada (Attorney General), (SCC),[1999] 1 S.C.R. 743; R. v. S.A.B., 2003 SCC 60, [2003] 2 S.C.R. 678; R. v. Rodgers, 2006 SCC 15, [2006] 1 S.C.R. 554; R. v. Nero, 2016ONCA 160, 334 C.C.C. (3d) 148; R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992; World Bank Group v.

Wallace, 2016 SCC 15, [2016]1 S.C.R. 207; R. v. Pires, 2005 SCC 66, [2005] 3 S.C.R. 343.

Statutes and Regulations Cited Canada Evidence Act, R.S.C. 1985, c. C-5, s. 39.1(1) “journalistic source”, “journalist”. Canadian Charter of Rights and Freedoms, ss. 2(b), 8. Criminal Code, R.S.C. 1985, c. C-46, ss. 83.18, 83.2, 487.014 [ad. 2014, c. 31, s. 20; formerly s. 487.012], 487.0193(1), (4), 488.02(3). Journalistic Sources Protection Act, S.C. 2017, c. 22. Treaties and Other International Instruments Convention for the Protection of Human Rights and Fundamental Freedoms, 213 U.N.T.S. 221 [the European Convention on HumanRights], art. 10. Authors Cited Brown, Donald J. M., and John M.

Evans, with the assistance of David Fairlie. Judicial Review of Administrative Action in Canada,vol. 1. Toronto: Thomson Reuters, 1998 (loose-leaf updated July 2018, release 2). Cameron, Jamie.

Section 2(b)’s Other Fundamental Freedom: The Press Guarantee, 1982-2012 (2013) (online:https://digitalcommons.osgoode.yorku.ca/cgi/viewcontent.cgi?referer=&httpsredir=1&article=1270&context=clpe; archived version:https://www.scc-csc.ca/cso-dce/2018SCC-CSC53_1_eng.pdf). Chan, Gerald. “Transparency Confined to the Courthouse: A Critical Analysis of Criminal Lawyers’ Assn., C.B.C. and National Post”(2011), 54 S.C.L.R. (2d) 169. Hubbard, Robert W., Peter M. Brauti and Scott K. Fenton. Wiretapping and Other Electronic Surveillance: Law and Procedure.

Aurora,Ont.: Canada Law Book, 2000 (loose-leaf updated June 2018, release 58). Hutchison, Scott C., et al. Search and Seizure Law in Canada. Toronto: Carswell, 1991 (loose-leaf updated 2018, release 7). Oliphant, Benjamin. “Freedom of the Press as a Discrete Constitutional Guarantee” (2013), 59 McGill L.J. 283. Quebec. Commission d’enquête sur la protection de la confidentialité des sources journalistiques — Rapport. Québec: Publications duQuébec, 2017.

APPEAL from a judgment of the Ontario Court of Appeal (Hoy A.C.J.O. and Doherty and Miller JJ.A.), 2017 ONCA 231,137 O.R. (3d) 263, 412 D.L.R. (4th) 531, 352 C.C.C. (3d) 355, 23 Admin. L.R. (6th) 66, [2017] O.J. No. 1431 (QL), 2017 CarswellOnt3901 (WL Can.), affirming in part a decision of MacDonnell J., 2016 ONSC 1961, 352 C.R.R. (2d) 60, [2016] O.J. No. 1597 (QL), 2016CarswellOnt 4901 (WL Can.), dismissing applications to quash, vary or revoke a production order and allowing in part an application toset aside a sealing order. Appeal dismissed. M. Philip Tunley, Iain A. C. MacKinnon and Jennifer P.

Saville, for the appellants. Croft Michaelson, Q.C., and Sarah Shaikh, for the respondent. John Patton and Deborah Krick, for the intervener the Attorney General of Ontario. Justin Safayeni, for the interveners the Aboriginal Peoples Television Network, the Advocates in Defence of Expression inMedia, the Canadian Association of Journalists, the Canadian Journalists for Free Expression, the Canadian MediaGuild/Communications Workers of America Canada, the Centre for Free Expression, Global News, a Division of Corus TelevisionLimited Partnership and Postmedia Network Inc. Sean A.

Moreman and Katarina Germani, for the intervener the Canadian Broadcasting Corporation. Faisal Mirza and Yavar Hameed, for the intervener the Canadian Muslim Lawyers Association. Paul Schabas and Kaley Pulfer, for the interveners the Media Legal Defence Initiative, Reporters Without Borders, theReporters Committee for Freedom of the Press, the Media Law Resource Centre, the International Press Institute,

Article 19, PenInternational, Pen Canada the Canadian Centre of Pen International, the Index on Censorship, the Committee to Protect Journalists, theWorld Association of Newspapers and News Publishers and the International Human Rights Program. Tae Mee Park, for the intervener the British Columbia Civil Liberties Association. Brian N. Radnoff and Rebecca Shoom, for the intervener the Canadian Civil Liberties Association. The judgment of Moldaver, Gascon, Côté, Brown and Rowe JJ. was delivered by Moldaver J. — I. Overview [1] Over 25 years ago, in Canadian Broadcasting Corp. v.

Lessard, (SCC), [1991] 3 S.C.R. 421, andits companion case Canadian Broadcasting Corp. v. New Brunswick (Attorney General), (SCC), [1991] 3 S.C.R. 459,

this Court established a general framework governing applications by the police for search warrants — and, as recognized in subsequentcases, production orders — relating to the media. This framework, reaffirmed just eight years ago in R. v. National Post, 2010 SCC 16,[2010] 1 S.C.R. 477, seeks to balance two competing concepts: the state’s interest in the investigation and prosecution of crime, and themedia’s right to privacy in gathering and disseminating the news. [2] The appellants, a media organization and one of its journalists, say that this framework is not working.

They claimthat, in practice, it serves as nothing more than a “rubber stamp” permitting the police to access materials in the hands of the media. Theysubmit that it must therefore be reformed — perhaps even abandoned entirely — to provide stronger protection for the media and thespecial role it plays in a free and democratic society.

Applying this stronger protection, they maintain that the production orderchallenged in this case (“Production Order”), which requires them to produce records of communications they had with a suspectedterrorist, should be set aside. [3] The respondent, the Crown, sees things differently. It submits that the existing framework adequately protects themedia and the special role it plays.

Further, it maintains that the Production Order was properly issued in accordance with that frameworkand should not be set aside. [4] For reasons that follow, I am of the view that the Lessard framework continues to provide a suitable model forconsidering applications for search warrants and production orders relating to the media.

I would, however, refine certain aspects of thatframework: • First, rather than treating prior partial publication as a factor that always militates in favour of granting an order, I wouldassess the effect of prior partial publication on a case-by-case basis. • Second, with respect to the standard of review to be applied when reviewing an order relating to the media that was madeex parte, I would adopt a modified Garofoli standard (see R. v.

Garofoli, (SCC), [1990] 2 S.C.R. 1421): if the mediapoints to information not before the authorizing judge that, in the reviewing judge’s opinion, could reasonably have affected theauthorizing judge’s decision to issue the order, then the media will be entitled to a de novo review.

Otherwise, the traditional Garofolistandard will apply, meaning that the order may be set aside only if the media can establish that — in light of the record before theauthorizing judge, as amplified on review — there was no reasonable basis on which the authorizing judge could have granted the order. • Third, I would reorganize the Lessard factors to make them easier to apply in practice. [5] Turning to the case at hand, and applying the refined Lessard framework, I would not set aside the ProductionOrder.

Here, the state’s interest in investigating and prosecuting the alleged crimes outweighs the appellants’ right to privacy in gatheringand disseminating the news.

Importantly, disclosure of the materials sought would not reveal a confidential source; no “off the record” or“not for attribution” communications would be disclosed; there is no alternative source through which the materials sought may beobtained; the source used the media to publicize his activities with a terrorist organization and broadcast its extremist views as a sort ofspokesperson on its behalf; and the state’s interest in investigating and prosecuting the alleged crimes — which include serious terrorismoffences — weighs heavily in the balance.

Accordingly, I would dismiss the appeal. [6] Before setting out my reasons, I wish to clarify at the outset that this case does not engage the new JournalisticSources Protection Act, S.C. 2017, c. 22 (“JSPA”), brought into force in October 2017.

Among other things, the JSPA provides enhanced protections for maintaining the confidentiality of a “journalistic source”[1] and sets out a new framework governing applications for search warrants, production orders, and other orders relating to a “journalist”.[2] Although, going forward, this new regime will governproduction orders relating to “journalists”, even where no confidential source is involved, the facts in this case arose before the JSPAwas brought into force, and therefore it does not apply.

Accordingly, these reasons deal with the statutory and common law frameworkstanding separate and apart from the JSPA. Given that the legal landscape in this area has changed and now has a new and untestedstatutory component, and bearing in mind the lack of any real merit to the argument that, on the facts of this case, the Production Ordershould be set aside, I am of the view that we should adopt a narrow approach that is restricted to the issues raised by the parties both hereand in the courts below. II.

Facts [7] My colleague has summarized the relevant facts and judicial history in her reasons, and I see no need to duplicateher efforts. I will refer to the facts only as necessary to develop a particular issue. However, to briefly summarize, Vice Media CanadaInc. (“Vice Media”) is a company that produces stories and content on a number of multimedia platforms.

In 2014, one of its reporters,Ben Makuch (together with Vice Media, the “appellants”), began exchanging with a Canadian man suspected of having joined theIslamic State of Iraq and Syria (“ISIS”), Farah Mohamed Shirdon, through an instant text messaging application, Kik messenger. Basedon these exchanges, Mr. Makuch wrote three news stories and Vice Media published the articles. The RCMP sought and obtained theProduction Order, which directed the appellants to hand over screen captures of Mr. Makuch’s exchanges with Mr. Shirdon.

Theappellants unsuccessfully challenged the Production Order in the courts below and now appeal to this Court. III. Issues [8] This appeal raises four main issues:

(1) Should the Lessard framework be reformed?

(2) Where the police are seeking a production order relating to the media, should a presumptive notice requirement be

imposed?

(3) What is the standard of review to be applied on review of a production order relating to the media?

(4) Should the Production Order be set aside? IV. Analysis A. Should the Lessard Framework Be Reformed? [ 9 ] The main jurisprudential question on appeal can be stated simply: does the Lessard framework provide adequate protection to the media and the special role it plays in Canadian society, or does it need to be reformed or perhaps even abandoned? To answer this question, I consider it necessary to first review the three key precedents that have shaped this area of the law: Lessard , New Brunswick and National Post .

(1) Lessard , New Brunswick and National Post [ 10 ] In both Lessard and New Brunswick , Canadian Broadcasting Corporation (“CBC”) reporters captured video footage of individuals engaging in what appeared to be criminal activity: in Lessard , occupying and damaging a post office building in Pointe- Claire, Quebec; in New Brunswick , throwing Molotov cocktails at a guardhouse in St-Quentin, New Brunswick, setting it aflame. Parts of the footage were broadcast on television.

The police subsequently applied for search warrants permitting them to search CBC’s premises and seize the tapes in their entirety — both aired and unaired footage. [ 11 ] In Lessard , the information to obtain submitted in support of the application contained nothing from which the authorizing justice of the peace could determine whether there was an alternative source of information, and if so, whether the police had taken reasonable steps to obtain the information from that source.

In the information in New Brunswick , the police explained that while alternative sources existed, they either provided insufficient evidence or were unavailable or unwilling to testify. [ 12 ] In both cases, the search warrants were granted and the tapes seized. CBC then applied to have the warrants set aside. In Lessard , CBC failed initially but succeeded on appeal. In New Brunswick , it was the opposite.

The parties then appealed to this Court. [ 13 ] This Court undertook the delicate task of fashioning a framework for determining whether an application for a search warrant relating to the media should be granted, having regard to both the right to be free from unreasonable search or seizure under s. 8 of the Canadian Charter of Rights and Freedoms and the guarantee of freedom of expression under s. 2( b ) — that is, a framework for “assess[ing] s. 8 reasonableness in a s. 2(

b) context” ( National Post , at para. 79 ). Underlying this framework is the recognition that the media plays a special role in a free and democratic society and as such, investigative orders relating to the media raise unique concerns. [ 14 ] In both Lessard and New Brunswick , the special status accorded to the media was front and centre in Cory J.’s majority reasons.

In Lessard , he stated that “the media are entitled to particularly careful consideration, both as to the issuance of a search warrant and as to the conditions that may be attached to a warrant to ensure that any disruption of the gathering and dissemination of news is limited as much as possible” and that “[t]he media are entitled to this special consideration because of the importance of their role in a democratic society” (p. 444). Similarly, in New Brunswick , he wrote: The media have a vitally important role to play in a democratic society.

It is the media that, by gathering and disseminating news, enable members of our society to make an informed assessment of the issues which may significantly affect their lives and well-being. . . .

The importance of that role and the manner in which it must be fulfilled give rise to special concerns when a warrant is sought to search media premises. [p. 475] [ 15 ] But while he stressed the vital importance of the media and acknowledged the special concerns that arise when a warrant to search media premises is sought, Cory J. clarified that rather than “import[ing] any new or additional requirements for the issuance of search warrants”, the constitutional protection of freedom of expression afforded by s. 2(

b) serves as “a backdrop against which the reasonableness of the search may be evaluated” ( New Brunswick , at pp. 475-76). He nonetheless emphasized that the constitutional protection afforded to freedom of expression “requires that careful consideration be given not only to whether a warrant should issue but also to the conditions which might properly be imposed upon any search of media premises” ( ibid. , at p. 476). [ 16 ] Justice Cory went on to articulate a list of nine factors for judges to consider when determining whether to issue a search warrant relating to the media:

(1) All statutory requirements for the issuance of the search warrant must be met.

(2) If all statutory requirements have been met, then the authorizing judge “should consider all of the circumstances in determining whether to exercise his or her discretion to issue [the] warrant”.

(3) The authorizing judge “should ensure that a balance is struck between the competing interests of the state in the investigation and prosecution of crimes and the right to privacy of the media in the course of their news gathering and news dissemination”, bearing in mind that “the media play a vital role in the functioning of a democratic society” and that the media will generally be an innocent third party.

(4) The affidavit supporting the application must contain “sufficient detail” to enable the authorizing judge to properly exercise his or her discretion as to whether to issue the warrant.

(5) Although it is not a constitutional requirement, the affidavit should “ordinarily” disclose whether there are alternative sources from which the information may reasonably be obtained and, if so, that those sources have been investigated and all reasonable efforts to obtain the information from those sources have been exhausted.

(6) If the information sought has been disseminated by the media in whole or in part, then this “will be” a factor favouring the issuance of the warrant.

(7) If the authorizing judge determines that a warrant should be issued, then he or she should consider imposing conditions on its implementation so that the media “will not be unduly impeded in the publishing or dissemination of the news”.

(8) If it comes to light after the warrant is issued that the police “failed to disclose pertinent information that could well have affected the decision to issue the warrant”, then this may result in a finding that the warrant was invalid.

(9) If the search was unreasonably conducted, then this may render the search invalid. ( Lessard , at p. 445; New Brunswick , at pp. 481-82) [ 17 ] Justice Cory added that “all factors should be evaluated in light of the particular factual situation presented” and “[t]he factors which may be vital in assessing the reasonableness of one search may be irrelevant in another” ( New Brunswick , at p. 478).

He framed the “essential question” as follows: “taking into account all the circumstances and viewing them fairly and objectively can it be said that the search was a reasonable one?” ( ibid. ). [ 18 ] Applying this framework, the majority upheld the validity of the search warrants in both cases. [ 19 ] Nearly two decades later, in National Post , this Court had further occasion to consider the principles to be applied when the state’s interest in investigating and prosecuting crime collides with the media’s s. 8 rights in a s. 2 (

b) context. There, in exchange for a blanket, unconditional promise of confidentiality, a secret source supplied a journalist at the National Post with a plain brown envelope containing a document said to implicate a former Canadian prime minister in a financial conflict of interest. Having received a complaint that the document was forged, the RCMP applied for a search warrant and an assistance order permitting them to search the premises of the National Post and seize the document and the envelope in which it was contained.

Although the search warrant and assistance order were initially granted, they were later quashed by the reviewing judge, only to be reinstated by the Ontario Court of Appeal. [ 20 ] On further appeal to this Court, Binnie J., writing for a seven-justice majority, set out the “general rule” when it comes to search and seizure: “[t]he public has the right to every person’s evidence” ( National Post , para. 1 ). That rule, of course, has its exceptions.

In particular, the issue before the Court was to determine the circumstances in which the courts will respect a promise of confidentiality given by a journalist to a source. [ 21 ] In approaching this issue, Binnie J. reaffirmed and applied the principles set out in Lessard and New Brunswick (see paras. 31-33, 79, 82 and 87). In doing so, he repeatedly emphasized the vital importance of the media and its special role in society.

He described the public interest in freedom of expression as being “of immense importance” (para. 5); stated that “freedom of the press and other media of communication” is “vital in a society based on the rule of law” (para. 26); and recognized the “special position of the media” (para. 64). He also confirmed that “freedom to publish the news necessarily involves a freedom to gather the news” (para. 33).

In making these observations, he confirmed and underscored s. 2 ( b )’s role in safeguarding the media’s freedom to gather and publish the news. [ 22 ] Justice Binnie acknowledged that “the law should and does accept that in some situations the public interest in protecting [a] secret source from disclosure outweighs other competing public interests — including criminal investigations” (para. 34). However, he rejected the argument that a judicial order compelling disclosure of a confidential source would generally violate s. 2 ( b ) (para. 41).

He also declined to recognize a class privilege protecting the journalist-confidential source relationship. Instead, he held that journalist-confidential source privilege should be assessed on a case-by-case basis, applying the Wigmore criteria (see paras. 53-64). [ 23 ] Considering these criteria, he concluded that no such privilege could be established on the facts. In the result, the majority upheld the validity of the search warrant and assistance order. [ 24 ] Having reviewed the key precedents, I will now turn to the appellants’ proposed reforms to the Lessard framework.

(2) Appellants’ Proposed Reforms to Lessard Framework

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a) Presumed Chilling Effect [25] The appellants submit that whenever the state seeks a production order relating to the media, a “chilling effect”should be presumed.

They argue that the media should not be put to the task of proving, in each individual case, that the order wouldhave a chilling effect, for such an effect is, they say, inevitable. [26] In this context, I would define the term “chilling effect” fairly broadly: it refers to the stifling or discouragement ofthe media’s legitimate activities in gathering and disseminating the news for fear of legal repercussions such as compelled disclosure.These effects may manifest themselves in a number of ways — for example: • Confidential sources may “dry up”. As Lord Denning wrote in British Steel Corp. v.

Granada Television Ltd., [1981] A.C.1096, “if [newspapers] were compelled to disclose their sources, they would soon be bereft of information which they ought to have.Their sources would dry up. Wrongdoing would not be disclosed” (p. 1129).

If sources who are willing to speak out only on aconfidential basis come to fear that their identity may be disclosed at the whim of the state, then they will remain in the shadows.Consequently, the media will lose opportunities to receive and disseminate important information to the public. • Journalists may consciously avoid recording and preserving their notes, contact lists, internal deliberations, and other workproduct out of a concern that any such recordings may find their way into the hands of the police (see National Post, at para. 78,adopting the dissenting reasons of McLachlin J. (as she then was) on this point in Lessard, at p. 452). • The media may self-censor in order to conceal the fact that it possesses information of interest to the police, with a view toprotecting its sources and preserving its ability to gather information in the future (ibid.). • The public may come to view the media as an arm of the state such that the public loses faith in the media’s ability toexecute its functions independently and impartially (see Canadian Broadcasting Corp. v.

Manitoba (Attorney General), 2009 MBCA122, 250 C.C.C. (3d) 61, at para. 74, citing New Brunswick, p. 474; Lessard, at p. 432, per La Forest J., concurring). This lack of faith inthe media may in turn undermine its ability to gather and disseminate the news. [27] Proving the existence and extent of such effects is, of course, no easy feat. Chilling effects do not lend themselves toscientific or empirical proof. Rather, they are intangible in nature and difficult — if not impossible — to measure with exactitude. Butthat does not mean they are insignificant or unimportant.

To the contrary, to the extent that chilling effects do arise, their consequencescan be considerable: a weak and fearful press, alongside a diminishing pool of sources, translates into a less informed, less open, and lessvibrant society in which discussion, debate, and the flow of information are stymied. Thus, concerns over potential chilling effectscannot be overlooked. [28] However, with respect, I struggle to see why a chilling effect should be presumed in all cases, regardless of thecircumstances. The law is not quick to make assumptions without a basis in the evidence in the particular case.

And while the evidencemay often support a concern over potential chilling effects, in my view, the existence and extent of any potential chilling effects shouldbe assessed on a case-by-case basis, not simply presumed in the abstract. [29] The conclusion that chilling effects should not be simply presumed without regard to the particular circumstancesfinds ample support in this Court’s jurisprudence. In none of Lessard, New Brunswick or National Post did this Court see reason torecognize a presumed chilling effect.

Moreover, even before those cases were decided, this Court declined to assume, in the absence ofevidence, that compelling journalists to testify before tribunals will necessarily cause sources to “dry up” (see British Steel Corp.) orotherwise “detrimentally affect journalists’ ability to gather information” (Moysa v. Alberta (Labour Relations Board), (SCC), [1989] 1 S.C.R. 1572, at p. 1581). Further, while this Court has held that “[i]n some situations, a chilling effect can be inferredfrom known facts and experience” (R. v.

Khawaja, 2012 SCC 69, [2012] 3 S.C.R. 555, at para. 79), this statement does not support theimposition of a presumed chilling effect. Rather, it merely confirms the more modest proposition that, in some situations, a chilling effectcan — not must — be inferred.

In sum, I see no reason why this Court should depart from its established jurisprudence and recognize apresumed chilling effect in all cases. [30] I would add that in cases where the police are seeking information that the media did not procure through a promiseof confidentiality and has already published in large measure, as was the case in Lessard and New Brunswick, the order may cause littleto no chilling effect. And to the extent there is a risk that some potential chilling effects may arise, those potential effects may beneutralized through the imposition of conditions on the order.

In her dissent in Lessard, McLachlin J. described chilling effects as beingthe result of “the prospect of seizure of press material in future cases without the imposition of conditions to protect press freedom andthe identity of informants” (p. 453 (emphasis added)). Thus, where appropriate conditions are imposed, the concern over potentialchilling effects may be sufficiently mitigated. [31] For these reasons, in my view, there is no basis for recognizing a presumed chilling effect whenever the state seeks aproduction order relating to the media.

Instead, the existence and extent of any potential chilling effect should be assessed on a case-by-case basis. As is often said, context is crucial. [32] With this in mind, if the authorizing judge concludes, based on the record, that the order sought would likely have achilling effect, then that finding should be considered in determining whether, in light of all the circumstances, the order should berefused, or if granted, what conditions should be included. In some cases, the existence and extent of potential chilling effects may be asignificant factor in the analysis. In other cases, it may not.

Again, each case turns on its own unique facts.

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b) Removal of Distinction Between Confidential and Non-Confidential Sources [ 33 ] The appellants argue that confidential sources and non-confidential sources should be treated the same under the Lessard framework.

They maintain that if sources must insist on confidentiality to have their communications shielded from access at will by the state, then the ability of the media to carry out its function will be seriously undermined. [ 34 ] The simple answer to the appellants’ argument is that there are good reasons to draw a distinction between confidential and non-confidential sources, as the privacy and other concerns they raise may differ substantially. [ 35 ] This Court’s jurisprudence demonstrates that confidential sources raise unique considerations.

Most notably, in National Post , the potential negative effects of permitting state-compelled disclosure of confidential sources were found to be so compelling as to justify opening the door to journalist-confidential source privilege on a case-by-case basis. No such privilege exists between journalists and non-confidential sources (see National Post , at para. 56 ).

Moreover, as noted above, the potential chilling effects that may result from permitting state-compelled disclosure of information may differ considerably depending on whether the source of the information is confidential or non-confidential. [ 36 ] The enactment of the JSPA , to which I have previously referred, serves as a further illustration of the important distinction between confidential and non-confidential sources. Through that legislation, among other things, Parliament amended the Criminal Code, R.S.C. 1985, c. C-46, and the Canada Evidence Act , R.S.C. 1985, c.

C-5, to provide enhanced protections for maintaining the confidentiality of a “journalistic source”, a term restrictively defined as a source who transmits information in confidence and whose anonymity is essential to the relationship with the journalist. For example, under s. 488.02(3) of the Criminal Code , a “journalist” may bring an application objecting to the disclosure of documents seized under a search warrant or production order on the basis that they identify or are likely to identify a “journalistic source”.

Hence, Parliament too has acknowledged that there is a meaningful difference between confidential and non-confidential sources. [ 37 ] Accordingly, I would not erase the distinction between confidential and non-confidential sources. [ 38 ] To be clear, however, the absence of a confidentiality agreement does not give the state free rein to compel production of materials in the hands of the media. Even where the source of the information sought is non-confidential, compelled production may cause chilling effects, and the impact on the media and the privacy interests at stake may nonetheless be significant.

But once again, context is crucial, and it should not be assumed that the existence or absence of a confidentiality agreement makes no difference in the analysis. (

c) Recharacterization of Effect of Prior Partial Publication [ 39 ] As indicated, the sixth Lessard factor provides that if the information sought has been disseminated by the media in whole or in part, then “this will be a factor which will favour the issuing of the search warrant” ( Lessard , at p. 445; New Brunswick , at p. 481 (emphasis added)). Indeed, in Lessard , Cory J. treated prior partial publication as a decisive factor: . . . once the news media have published the gathered information, that information then passes into the public domain.

The publication of that information is a very important factor for the justice of the peace to consider. This is something that favours the issuing of a search warrant. When a crime has been committed and evidence of that crime has been published, society has every right to expect that it will be investigated and, if appropriate, prosecuted.

Here, the publication or broadcasting of the information was a factor of sufficient importance to enable the justice of the peace to exercise his discretion and issue the search warrant notwithstanding the failure of the police to explain that there was no alternative source available that would give them the information contained in the videotape. [pp. 446-47] [ 40 ] The appellants take issue with the state of the law on prior partial publication.

They maintain that prior partial publication does nothing to reduce the chilling effects caused by compelling disclosure of the unpublished materials, nor does it attenuate the media’s interests in the unpublished materials, particularly when those materials are journalist-source communications. [ 41 ] I accept that “[w]hen a crime has been committed and evidence of that crime has been published, society has every right to expect that it will be investigated and, if appropriate, prosecuted” ( Lessard , at p. 447).

In my view, the publication of materials that raise serious and credible concerns over potential criminality, particularly where there is an ongoing or imminent threat to safety and security, cannot be ignored in weighing the state and the media’s respective interests. Neither the police nor Canadian society should turn a blind eye to such materials. Nor should the courts. [ 42 ] Moreover, not only may prior partial publication heighten the state’s interests in the unpublished materials, but in some circumstances it may also attenuate the media’s interests in those materials.

For example, where “[t]he media ha[s] already completed their basic function of news gathering and news dissemination” ( Lessard , at p. 447) — i.e., the news cycle is over — this may be a factor suggesting that the media’s interests in the unpublished materials have been diminished. [ 43 ] However, I cannot accept that prior partial publication will always militate in favour of granting the order.

Prior partial publication should not necessarily lessen the degree of protection afforded to the unpublished materials, since permitting state access to the unpublished materials still interferes with the media’s right to privacy in gathering and disseminating the news (see Lessard , at p. 453, per McLachlin J., dissenting), and compelled production of the unpublished materials may still cause chilling effects. In fact, in some cases, the media may well have decided not to disseminate the unpublished materials precisely because they are particularly sensitive.

Relatedly, the unpublished materials will sometimes be of a different nature as compared to the published materials, thereby raising different privacy concerns. For example, the state may seek disclosure of the raw communications between journalist and source (potentially including related metadata) or a journalist’s personal notes or contact lists. The important privacy interests attaching to those types of materials are not necessarily diminished through publication of a news

article based on or otherwise related to those materials. [ 44 ] Accordingly, I am of the view that the effect of prior partial publication should be assessed on a case-by-case basis.

In determining the effect of prior partial publication in any particular case, the authorizing judge should consider all the circumstances,including the nature of the materials (both published and unpublished) and how much of the full body of materials has already beenpublished.

Where, for example, the published materials raise serious and credible concerns over potential criminality, the disclosure ofthe unpublished materials would not reveal a confidential source or disclose “off the record” or “not for attribution” communications,and much of the materials have already been published, prior partial publication may militate in favour of granting the order. All of theseconditions were present in Lessard and New Brunswick. By contrast, where only some or none of these conditions are present, the effectof prior partial publication may be more neutral.

In my view, this more nuanced approach to prior partial publication adds greaterflexibility to the Lessard framework and permits a more contextual inquiry. [45] Finally, I am of the view that although it is listed as an independent factor under the Lessard framework, prior partialpublication is best viewed as an aspect of the Lessard balancing test, at least in the sense that prior partial publication may enhance thestate’s interest in investigating and prosecuting alleged crime and may diminish the media’s interests in the unpublished materials.

Forthe sake of clarity, therefore, I would simply treat prior partial publication as part of the overall balancing exercise, rather than anindependent factor to be considered on its own. (

d) State’s Interests — Prospect of Trial and Probative Value of Evidence [46] The appellants argue that in assessing the state’s interests under the third factor of the Lessard framework, theauthorizing judge should consider (1) the prospect of a trial actually taking place; and (2) the probative value of the evidence sought. (

i) Prospect of Trial [47] First, with respect to the prospect of a trial actually taking place, it is important to understand that what we areconcerned with here is the investigation and evidence-gathering stage. Searches performed at this stage are aimed at investigating andgathering evidence of potential criminality, not at proving allegations and securing a conviction in court.

At this early stage, “the publicinterest requires prompt and thorough investigation of potential offences”, and as such “all relevant information and evidence should belocated and preserved as soon as possible” (CanadianOxy Chemicals Ltd. v. Canada (Attorney General), (SCC), [1999]1 S.C.R. 743, at para. 19 (emphasis in original)). The function of the police at this juncture is “to investigate incidents which might becriminal, make a conscientious and informed decision as to whether charges should be laid, and then present the full and unadulteratedfacts to the prosecutorial authorities” (para. 22).

This function does not include “investigat[ing] and decid[ing] whether the essentialelements of an offence are made out”; that role belongs to the courts (ibid.). [48] Once the nature and purpose of the investigation and evidence-gathering stage is properly understood, it becomesclear that the prospect of a trial actually taking place is not relevant at this stage of the inquiry.

Put simply, the prospect of a trial is aconcern left for another day and for a different set of actors. [49] Further, and more practically, it may be difficult — if not impossible — to gauge at this early stage the prospect of atrial actually taking place. Much can change in the course of investigating and prosecuting alleged crime. To ask judges at such an earlystage to attempt to assess the prospect of a trial actually taking place down the road would be impracticable and would requireauthorizing judges to engage in speculation.

And in any event, even where it appears uncertain — or even unlikely — that a trial willactually take place, society still has an interest in seeing crime investigated, particularly where it is ongoing or poses a future threat. [50] Finally, from a policy perspective, the consequences of accepting the appellants’ proposal would be perverse. Itwould enable a suspected criminal to delay or even prevent the police from securing crucial authorizations permitting them to carry outtheir investigation by, for example, fleeing the country and thereby decreasing the likelihood of a trial ever taking place.

It goes withoutsaying that this type of conduct must not be encouraged. [51] Therefore, I am of the view that the prospect of a trial actually taking place is not a relevant factor in determiningwhether to grant a production order in relation to the media. (ii) Probative Value of Materials Sought [52] Second, the appellants maintain that in determining whether to grant a production order relating to the media,authorizing judges should consider the probative value of the materials sought.

They then go further and suggest that this probative valueshould be considered incrementally against the materials that are, or could reasonably be expected to be, available and admissible at trial.They submit that a court should grant a production order relating to the media only where the materials sought are “necessary . . . in thesense of making the difference between acquittal and conviction” (A.F., at para. 117 (emphasis deleted)). [53] For the sake of clarity, I note that s. 487.014 (formerly s. 487.012) of the Criminal Code, the provision permittingpeace officers and public officers to apply for an order requiring a person who is not under investigation to produce a document, requiresthat the court be satisfied that there are reasonable grounds to believe that, among other things, the document or data sought “will affordevidence respecting the commission of the offence” (s. 487.014(2)).

It says nothing of probative value.

Therefore, the question iswhether, in addition to this statutory requirement, there is — or should be — a common law rule requiring authorizing judges to considerthe probative value of the materials sought in deciding whether to exercise their discretion to grant the order requested. [54] In National Post, this Court stated that in weighing the public interest in protecting the journalist-confidential sourcerelationship in question against countervailing public interests such as the investigation of a particular crime, courts should consider,among other things, “the probative value of the evidence sought to be obtained” (para. 61).

In light of this clear recognition, I see noreason why the probative value of the materials sought would not similarly be considered by authorizing judges in determining whetherto exercise their discretion to make a production order in relation to the media. [55] Accordingly, where the materials sought can reasonably be expected to have a higher degree of probative value, thecase in favour of granting the order is strengthened. Our jurisprudence supports this proposition.

For example, in Lessard and NewBrunswick, the footage was believed to show the actual commission of criminal offences, thereby having obvious probative value. In

National Post, the materials sought had even higher potential probative value: they were alleged to form the very actus reus of a criminaloffence (para. 77). In these circumstances, the state’s interests in the materials are heightened, and the probity of the materials soughtweighs more heavily in the balance. By contrast, where the materials sought can reasonably be expected to be of lesser probative value,the state’s interests in the materials may be attenuated. [56] That said, the assessment of probative value has its limits.

This Court has cautioned that “[i]t will often be difficult todetermine definitively the probative value of a particular thing before the police investigation has been completed” (Descôteaux v.Mierzwinski, (SCC), [1982] 1 S.C.R. 860, at p. 889). It is therefore important not to place undue weight on theassessment of likely probative value, as it may be an imprecise and uncertain exercise. [57] In the end, while probative value may be a relevant consideration in applying the Lessard framework, I would not goso far as to impose the appellants’ proposed “necessity” test.

The notion that the police should be denied a production order unless theycan demonstrate that the order is necessary to secure a conviction cannot be sustained for several reasons, including the following: • First, it misapprehends the role of authorizing judges.

On this point, I would endorse Doherty J.A.’s observation in thecourt below that the appellants’ submission “improperly blurs the line between judge and prosecutor by assigning judges the job ofdeciding whether the prosecution has sufficient evidence to prove its case without access to the information in the hands of the media”(2017 ONCA 231, 137 O.R. (3d) 263, at para. 41). • Second, in a different sense, it would effectively transform the production order application into a trial of the allegedoffence on the merits.

In my view, it would be both inappropriate and impracticable to require the authorizing judge to speculate aboutwhether the police have amassed sufficient evidence to prove beyond a reasonable doubt that an offence has been committed. • Third, the mere fact that other evidence — even similar evidence — is available should not preclude the police fromgathering further evidence.

Again, the objective at the investigation and evidence-gathering stage is to conduct a “prompt and thoroughinvestigation of potential offences” and to locate and preserve “all relevant information and evidence . . . as soon as possible”(CanadianOxy, at para. 19 (emphasis in original)).

Indeed, at this stage, “[i]t is important that an investigation unearth as much evidenceas possible” (para. 24 (emphasis added)). • Fourth, imposing a test of strict necessity would seriously undermine the ability of the police to investigate and gatherevidence of potential criminality. [58] Thus, while the probative value of the materials sought may be considered in weighing the state’s interest in theinvestigation and prosecution of crime against the media’s right to privacy in gathering and disseminating the news, I would not accedeto the appellants’ submission that a strict necessity test should be imposed.

B. Where the Police Are Seeking a Production Order Relating to the Media, Should a Presumptive Notice Requirement BeImposed? [59] The appellants ask that this Court impose a rule to the effect that, absent exigent circumstances, the media must begiven notice of an application for a production order relating to it. [60] I respectfully disagree that we should impose such a requirement. As I will explain, the proposed requirement cannotbe sustained in light of (1) the clear language of the Criminal Code; and (2) this Court’s decision in National Post.

(1) Criminal Code [61] First, the Criminal Code provision authorizing the type of production order issued in this case, s. 487.014(1), grantspeace officers and public officers the ability to bring an “ex parte application” for a production order. Parliament presumably used thesewords for a reason, and they ought to be given effect. With respect, imposing a presumptive notice requirement absent exigentcircumstances would effectively rewrite the legislation. One of the consequences of this rewriting would be to transform productionorder applications relating to the media into full-blown adversarial hearings.

Whatever the merits of that approach, it is not the oneenvisioned by Parliament. [62] I would add, as Doherty J.A. did in the court below (para. 23), that the negative impact on the media resulting fromthe ex parte proceeding model is countered, at least to some degree, by the media’s right under s. 487.0193(1) of the Criminal Code toapply to court to have the production order varied or revoked before the materials are turned over to the police.

(2) National Post [63] Second, in National Post, a majority of this Court rejected the argument that where the police are seeking a searchwarrant relating to the media, the media must be given notice. Justice Binnie observed that a majority of the Court in New Brunswickheld that the special position of the media did not “import any new or additional [procedural] requirements” (para. 82, citing NewBrunswick, at p. 475 (text in brackets added by Binnie J.)).

He stated that although the media should be given the opportunity to presentits case against the warrant at the earliest opportunity, it enjoys no entitlement to notice. Rather, the authorizing judge retains discretionas to the timing of when the media will be permitted to present its case, and it may be appropriate to proceed ex parte in “cases ofurgency or other circumstances” (para. 83 (emphasis added)). These “other circumstances” may include instances where, for example,proceeding ex parte would help ensure the evidence does not disappear while the merits of the warrant are debated (ibid.). Justice Binnie

cautioned, however, that where the authorizing judge does proceed ex parte, “adequate terms must be inserted in any warrant to protectthe special position of the media, and to permit the media ample time and opportunity to point out why, on the facts, the warrant shouldbe set aside” (para. 84). [64] I am of the view that we should adhere to our previous decision in National Post. It is consistent with the ex partemodel provided for in the Criminal Code, and I see no compelling reason to depart from a decision of the Court issued only eight yearsago.

(3) Conclusion [65] I would not impose a presumptive notice requirement in situations where the police are seeking a production order inrelation to the media. In my view, the traditional model of ex parte applications for production orders “provides adequate protection toensure a strong, vibrant and independent media, free to carry out its important role in our society without unwarranted state intrusion” (R.v. Canadian Broadcasting Corp. (2001), (ON CA), 52 O.R. (3d) 757 (C.A.), at para. 6) (“CBC (ONCA)”).

I wouldtherefore give effect to the language of the Criminal Code and to this Court’s decision in National Post: as a starting proposition, there isno notice requirement where the police are seeking a production order relating to the media.

Instead, the Criminal Code permits peaceofficers and public officers to bring an ex parte application for a production order (s. 487.014(1)), subject to the authorizing judge’soverriding discretion to require notice where he or she deems appropriate (see National Post, at para. 83; CBC (ONCA), at para. 50). [66] Absent urgency or other circumstances justifying an ex parte proceeding, the authorizing judge may well find itdesirable to require that notice be given to the media (see National Post, at para. 83), especially if he or she considers that moreinformation is necessary to properly balance the rights and interests at stake.

That conclusion, however, is not mandatory. [67] It is worth emphasizing that bare assertions in the affidavit submitted in support of the application for a productionorder will not provide a basis for proceeding ex parte. Instead, the police should show some evidentiary basis for why there is “urgencyor other circumstances”. In my view, this is essential to ensure the media is not denied the opportunity to make its case before theauthorizing judge without good reason.

To illustrate, a broad and unsupported claim that the media is unlikely to cooperate with police orthat the media could theoretically put the materials beyond the reach of authorities if notice were to be given — which is always a risk toat least some degree — should not suffice. C. What Is the Standard of Review to Be Applied on Review of a Production Order Relating to the Media? [68] Setting aside the JSPA for the moment, there are two main avenues through which a person subject to a productionorder may challenge the order: • First, the person may pursue a statutory right of review.

A person required to produce a document under s. 487.014 of theCriminal Code may bring an application under s. 487.0193(1) to the justice or judge who made the order, or to a judge in the judicialdistrict where the order was made, to revoke or vary the order. Such an application may succeed only if the reviewing judge is satisfiedthat (

a) it would be unreasonable in the circumstances to require the applicant to prepare or produce the document or (

b) production ofthe document would disclose information that is privileged or otherwise protected from disclosure by law (s. 487.0193(4)). • Second, provided the order was not made by a justice of a superior court (see D. J. M. Brown and J. M. Evans, with theassistance of D. Fairlie, Judicial Review of Administrative Action in Canada (loose-leaf), vol. 1, at §1:2210), the person may file anapplication for certiorari in a superior court. [69] With respect to this second avenue, Garofoli is the leading authority on the standard of review.

Put succinctly, thestandard to be applied is whether — in light of the record before the authorizing judge, as amplified on review — the authorizing judge“could have” granted the authorization (p. 1452). The reviewing judge is not entitled to substitute his or her view for that of theauthorizing judge (ibid.). Instead, the reviewing judge is restricted to determining whether “there was reliable evidence that mightreasonably be believed on the basis of which the authorization could have issued” (R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992, atpara. 54 (emphasis deleted); see also R. v.

Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253, at paras. 40-43; R. v. Nero, 2016 ONCA 160, 334C.C.C. (3d) 148, at paras. 68-72). [70] Although this Court has never explicitly indicated that the Garofoli standard applies on an application to set aside aproduction or other investigative order relating to the media, Binnie J. in National Post stated that the standard is whether “there was noreasonable basis” for the order, and the reviewing judge “is generally bound . . . to afford a measure of deference to the determination ofthe issuing justice” (para. 80).

In my view, the “no reasonable basis” standard is functionally equivalent to the Garofoli standarddescribed above. [71] The appellants submit that although the Garofoli standard may be an appropriate one to apply when reviewingproduction orders generally, it is far too deferential when applied to production orders relating to the media. This is the case, they say,because the production order will generally have been made ex parte, and therefore the authorizing judge would not have had the benefitof hearing the media’s case when balancing the rights and interests at stake as required by Lessard.

Consequently, unless the media isentitled to a de novo review, it will have been denied the opportunity to have its interests pitted against those of the state in determiningwhether the order should be made, not merely whether it could have been made. [72] I agree that where the production order was made against the media ex parte, the highly deferential Garofolistandard may,

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