Civil Litigation

Pearn doubts SCC ruling in media case can be halted

By Rob Lamberti, AdvocateDaily.com Contributor

Fredericton litigator Matthew Pearn doubts a last-ditch legal effort to halt a Supreme Court of Canada (SCC) ruling ordering a media outlet and a reporter to surrender material to the RCMP will succeed.

The new action on behalf of the organization and its reporter argues that because the target of the RCMP probe is most likely dead, "the production order is no longer legally enforceable.''

But Pearn, an associate with Foster & Company, says that issue was dealt with in the Nov. 30 Supreme Court ruling which granted the RCMP request and ordered the news outlet to turn over materials relating to three stories about a man charged in absentia with terror-related offences.

The Canadian Press reported that the journalist used an app to interview the 22-year-old man, who claimed he was in Iraq. Police received court permission in 2015 to access those conversations.

"Without the certainty of his death, I doubt this will go further than this initial application," says Pearn, a former journalist himself. "The Supreme Court was aware of this circumstance and issued its order despite it.

"I expect the SCC ruling from the November hearing will be upheld," he tells AdvocateDaily.com.

The issue raises questions about future rulings in similar-fact cases because the adoption of the Journalistic Source Protection Act after the events in this case and amendments to the Criminal Code "reset the balance," Pearn says.

"Media privacy rights were acknowledged as being the next big thing," he says. "Privacy rights across the board are of interest to people watching the courts for intrusion upon inclusion and other privacy torts.

"You can see that it's coming, and the media has been acknowledged as one of those entities that is entitled to a sphere of privacy in order to do what is considered an important function to democracy."

Pearn notes the SCC decision written by Justice Rosalie Abella was "hopeful for the future. She spent much time writing about it and re-emphasizing that the court is supposed to be the last, not the first, place for police powers to look for information."

In the future, Pearn says the media will most likely be able to make arguments while an application is being sought, rather than finding out they hadn't been invited to a hearing where an ex parte decision was made.

"I think it's specific to media," he says. "The court looked at the test of these ex parte motions and they said — in the context of journalism — that police may choose to make these applications, but if they do, they're inviting a lower standard of deference to the decision when a reviewing judge is brought in by the media to challenge the release of information."

Pearn says if there is a serious criminal investigation and no other reasonable ways for police to get to the evidence they require, especially if there was prior publication, "then they're likely to get it."

He says at issue in the media outlet case is the fact that the man wanted on terror-related offences was identified as the source in the articles and police were seeking information that may identify his location.

"This wasn't a whistleblower or a confidential source, and it's one where there is no one left to protect — save for the principle of shielding the media from police intrusion," Pearn says. "Instead, this is someone who is likely dead and who held his name out for attribution. The full content of the conversation wasn't published, so the police wanted more information beyond what was disclosed."

He says Abella's concurring minority decision emphasizes the privacy rights of the media "and on a different day, you may have a different 5-4 decision protecting a confidential source. But the facts in this case — and before the legislative changes — leave us without that certainty.

"If it were today, I think the importance of privacy for the media to carry out its important democratic function might get a majority position for protecting a confidential source," Pearn says.

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