Bad Ad(Vice): On the Supreme Court’s Approach to Press Freedom, Source Protection and State Interests in R. v. Vice Media Canada Inc.

In R v Vice Media Canada Inc, the Supreme Court of Canada found that journalists may have to turn over their records pertaining to a non-confidential source to the state, so that those records can be used to prosecute the source. While all judges of the Court agreed on this conclusion, they differed on the legal framework to be applied. The majority insisted that with minor modifications the existing balancing approach adequately assessed law enforcement and media interests in production order cases. The concurring judges found that a new “harmonized” approach that balances both the privacy interests and the unique constitutionalized protections afforded to “freedom of the press and other media” under s. 2(b) of the Charter was necessary. The authors argue that the majority decision fails to adequately protect the media. Although the majority improves the press’ ability to challenge production orders, its application of those principles raises considerable doubt about the extent of their impact. The majority also neglects to recognize the presumptive “chilling effects” of production orders targeting journalist-source communications. Finally, by adopting a formalistic approach to characterizing the state’s “investigative” interest, the majority tips the balance in the state’s favour. In light of these shortcomings, the authors propose an alternative framework: using the concurring judges’ approach as a starting point, it would appear that most, if not all, production orders issued against the media will result in a s. 2(b) breach. Thus, justifying such orders requires more than just “balancing” interests; it requires a s. 1 justification for rights infringement under the Oakes test. Such an approach recalibrates the test for production orders and search warrants targeting material in the hands of the media, imposes a stricter burden on the state, and respects the unique constitutional protections afforded to the media in light of their role in a free and democratic society.