Police Demanding Evidence from Journalists: The Vice Media Case.

• Author: Bowal, Peter
• Position: Columns: Famous Cases

Introduction

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

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.

Decision

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...