How do police detect crimes? Like us, the police do not see many crimes taking place when they are walking or driving around. They become aware of crimes when people report them. They occasionally detect crimes online.
Some people communicate with journalists to publicize their criminal activities to the world. These are often riveting human interest stories and celebrated journalistic scoops. In those cases, it would be very easy for the police to descend and demand the journalists disgorge every jot and tittle of the crimes about which they have written or spoken. In this way, the journalist – whose interests and objectives differ from the police – could frequently and involuntarily be conscripted into law enforcement duty.
On one hand, we have the constitutional freedom of the press and freedom from reasonable search and seizure. On the other hand, there is a compelling public interest in detecting, investigating and prosecuting crimes. This article is about when, and how, the police can require the press to give up their journalistic secrets in aid of law enforcement.
The Vice Media Case
Far from serving as a “rubber stamp” allowing police access to media records, applications for production orders and search warrants in terrorism investigations remain highly dependent upon the facts and judicial discretion in each case. Vice Media began as a print publication in Montreal in 1994. It rapidly expanded into digital media and broadcasting and now produces stories and content on multimedia platforms. In 2014, Ben Makuch, a Vice Media journalist, was in contact with a Canadian (originally from Calgary), Farah Mohamed Shirdon, regarding his involvement with the terrorist Islamic State of Iraq and Syria (ISIS) organization. Makuch wrote, and Vice Media published, three news stories based on exchanges between them in a 2014 documentary. The articles contained statements by Shirdon that, if true, implicated him in numerous criminal offences.
The Royal Canadian Mounted Police successfully applied for a production order to obtain and seize screen captures of the conversations with Shirdon that were in the possession and control of Vice Media. Rather than turning over that evidence, Vice Media applied to court to quash the order. The matter eventually landed in the Supreme Court of Canada.
On November 30, 2018, a unanimous Supreme Court of Canada issued its decision in R v Vice Media Inc. which will support law enforcement officials in criminal investigations and prosecutions. Police can apply to judges, without giving notice to the party holding the evidence, for an order to obtain the content of communications involving suspected criminals. These orders compel journalists and media organizations to produce such texts, emails and other communications from criminals.
The Court tweaked its 1991 Lessard framework, so that now, on application for a production order against a media organization, this four-part analysis will be applied:
- the police may apply directly without the media’s knowledge (ex parte) for production orders as permitted by the Criminal Code, subject to the authorizing judge’s overriding discretion to require notice to the media organization where deemed appropriate;
- all statutory preconditions must be met. Essentially, the police must have reasonable grounds to believe the source has: committed certain offences; the target media organization has in its possession the materials sought; and those materials afford evidence respecting the commission of the alleged offences;
- the authorizing judge must balance the state’s interest in the investigation and prosecution of crimes and the media’s right to privacy in gathering and disseminating the news; and
- the authorizing judge should consider imposing conditions, such as ample time to comply with the order, to ensure the media outlet will not be unduly impeded in the publishing and dissemination of the news.
Production orders to obtain evidence of crimes from media outlets will hang on the critical third stage balancing analysis. Authorizing judges will weigh all circumstances, including any potential chilling effects; the scope of materials sought by police, the order’s narrow tailoring, probative value of evidence sought, any alternative sources of the information and whether the police have made all reasonable efforts to obtain the information from those sources, and the effect of prior partial publication of the materials sought.
The Supreme Court noted that the criminal suspect in this case was actually using Vice Media as his spokesperson to publicize his actions. He was not guaranteed confidentiality by Vice Media. The production order would not reveal a confidential source. No “off the record” or “not for attribution” communications were in play. There was no alternative source from which this evidence could have been obtained.
Far from serving as a “rubber stamp” allowing police access to media records, applications for production orders and search warrants in terrorism investigations remain highly dependent upon the facts and judicial discretion in each case. In Vice Media, the Supreme Court of Canada affirmed and simplified the Lessard framework to adequately protect the special role in society played by media organizations, which are generally innocent, commercial third parties to criminal law enforcement.
In this case, the suspected terrorist’s text messages would not reveal a confidential source and there was no alternative source through which the materials could be obtained. The suspect used the media as a form of spokesperson to publicize his ISIS activities and broadcast its extremist views. The state’s interest in investigating and prosecuting crimes weighed more heavily in the balance.
Judges authorizing search warrants and production orders must remember the vital role the media play in a democratic society. While this production order was upheld, there are clear signs it will get more difficult to compel evidence from the media in the future. Federal legislation, the Journalistic Sources Protection Act, was enacted in Canada in 2017 after this case arose. It provided enhanced protections for maintaining the confidentiality of “journalistic sources” and set out a new process governing applications for search warrants, production orders and other orders relating to a “journalist,” even where no confidential source is involved.
Note also the strong concurring judgment of the four-judge minority in the Vice Media case. Although these judges agreed to the production order on the facts of this case, they would have formally carved out a distinct and independent constitutional right protecting the media’s core expressive functions — its right to gather and disseminate information for the public benefit without undue state interference — under section 2(b) of the Canadian Charter of Rights and Freedoms. If this approach to strengthen media autonomy takes hold, law enforcement’s use of journalists for evidence gathering will become much more complicated in the future.
The press is a struggling industry in transition, mostly to consolidate and reduce. Investigative journalism is expensive content to generate. Vice Media’s independent, cutting-edge approach of obtaining unprecedented access and embedding reports may diminish the more it is used as an instrument of law enforcement.
The Canadian Journalists for Free Expression decried “forcing the essential investigative function of the press to be at the disposal of law enforcement.” It added: “If journalists cannot protect their sources, then the information they provide will dry up, leaving Canadians uninformed and democracy impoverished.”