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Appellate, Civil Litigation

Radnoff: SCC decision not 'all doom and gloom' for journalists

Media outlets should be pleased in principle with a Supreme Court of Canada decision even though it forced the journalist at the centre of the case to hand over his materials to police, Toronto commercial litigator and appellate counsel Brian Radnoff tells AdvocateDaily.com.

A 5-4 majority of the nation’s top court ruled that the existing test for issuing search warrants and production orders against journalists should stand, with some refinement, upholding an Ontario Court of Appeal judgment ordering a reporter to turn over messages he exchanged with a Canadian citizen allegedly involved with ISIS.  

“It is unfortunate for the publication and the journalist in the immediate case because they are required to provide this information to police,” concedes Radnoff, a partner with Dickinson Wright LLP. “But in the bigger picture, it’s actually a pretty good decision for the media. There are lots of positive comments in the decision about the free press, and the reformulation of the test will be helpful to members of the media.”

The case has its roots in articles published in 2014 by the journalist, based largely on communications he had with a Calgary man who had left the country for Turkey earlier that year and later appeared in ISIS propaganda videos.

As part of its investigation into allegations the man had participated in terrorist activity and made death threats, the RCMP obtained an ex parte production order for the journalist’s notes.

The publication's application to quash the order was dismissed by an Ontario Superior Court judge, whose decision was in turn upheld by the province’s appeal court.

Writing for the majority, Supreme Court Justice Michael Moldaver dismissed the appeal, finding “the state’s interest in investigating and prosecuting the alleged crimes outweighs the appellants’ right to privacy in gathering and disseminating the news.”

Moldaver endorsed the framework for granting such orders laid out in a landmark 1991 case, also decided by the Supreme Court, though he added that it should be refined, reorganizing the factors to be considered, and allowing for an assessment of the effect of prior partial publication on a case-by-case basis.

In addition, the majority decision modified the standard of review for ex parte orders, entitling media outlets to a de novo review if they can identify information not heard by the authorizing judge that might have changed the result. In addition, the police are required to justify, with evidence, proceeding ex parte. Otherwise, the production order should be sought on notice to the media.

“The test has been reformulated in a way that is much more media-friendly,” says Radnoff, who acted on behalf of the intervenor, the Canadian Civil Liberties Association, before the SCC.

In a statement to the media, the Canadian Association of Journalists said the SCC made the wrong call.

“This ruling is a serious setback for press freedom in Canada. It creates a chill for anyone who wants to speak truth to power or expose government wrongdoing,” the statement reads.

But Radnoff says it’s “not all doom and gloom” for media companies.

“I don’t think there will be a chilling effect in practice,” he adds.

It should be of some solace that if Moldaver’s reformulated test had been in effect back in 2014, Radnoff says it’s unlikely the RCMP would have sought this order without first notifying the media.

“That would have put them in a much more advantageous position to resist the application, and the result may very well have been different,” Radnoff says.

He says the minority decision, written by Justice Rosalie Abella, should be even more encouraging to journalists.

Although the minority judges would still have authorized the production order against the publication, their ruling contained the court’s first express acknowledgement of independent protection for the media contained in s. 2(b) of the Charter.

“Unlike the majority, I see no reason to continue to avoid giving distinct constitutional content to the words 'freedom of the press' in s. 2(b). The words are clear, the concerns are real, and the issue is ripe,” Abella wrote. “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.”

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