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Dear Editor: Canada Supreme Court decision on Vice Media bears lessons for T&T’s press freedom

“[Canada Supreme Court Judge] Abella went to great lengths to emphasise the importance of press freedom in her concurring reasons. Her words are worth repeating: 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…

“Strong constitutional safeguards against state intrusion are a necessary precondition for the press to perform its essential democratic role effectively.”

The following Letter to the Editor on press freedom was submitted to Wired868 by Dr Emir Crowne, Attorney-at-Law & Barrister:

Photo: A satirical take on the US media’s relationship with the independent regulator, the FCC (Federal Communications Commission).

On 30 November 2018 the Supreme Court of Canada released their decision in R v Vice Media Canada Inc, 2018 SCC 53 (“Vice Media”). The case examined the constitutional tension between freedom of the press and police search warrants and production orders.

Given the constitutional similarities between Canada and Trinidad & Tobago—at least with respect to entrenched rights—the decision has important implications for the local press and police alike. In this article, I highlight some of those implications.

In Vice Media, the media house in question communicated via Kik with a suspected Islamic State of Iraq and Syria (“ISIS”) sympathiser and supporter, Mr Farah Mohamed Shirdon. Based on those communications Vice Media ran several stories about Mr. Shirdon and his connection to ISIS.

In turn, the Royal Canadian Mounted Police obtained an ex parte production order for the screenshots of Mr Shirdon’s communications with the journalist from Vice Media.

The Supreme Court issued two sets of concurring reasons which upheld the production order. The majority reasons (five judges) were penned by Justice Moldaver, while the concurring minority reasons (4 judges) were penned by Justice Abella.

I shall focus on Justice Abella’s reasons because they are particularly poignant and relevant to our local landscape.

Photo: Attorney general Faris Al-Rawi.

Canada’s Charter of Rights of Freedoms (the “Canadian Charter”)—like the Constitution of Trinidad & Tobago (“Trinidad’s Constitution”)—enshrines certain fundamental rights. Only in very limited circumstances can these rights be limited or infringed.

Sub-section 2 (b) of the Canadian Charter protects “freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication.” Whereas Trinidad’s Constitution is a bit more direct: it specifically enumerates “freedom of the press” as an independently enshrined right (sub-section 4 (k)).

The majority of the Supreme Court in Vice Media declined “to recognize freedom of the press as enjoying distinct and independent constitutional protection under s 2 (b)” whereas the minority concurring opinion saw “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.” (ibid, paragraphs 105 and 109).

This is why the minority concurring opinion is relevant to us. Unlike in Canada where freedom of the press is subsumed within a larger constitutional right concerning thoughts and belief, “freedom of the press” is a distinct constitutional right in Trinidad & Tobago.

Justice Abella went to great lengths to emphasise the importance of press freedom in her concurring reasons. Her words are worth repeating: “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…

“Strong constitutional safeguards against state intrusion are a necessary precondition for the press to perform its essential democratic role effectively. As these reasons seek to demonstrate, s 2 (b) contains a distinct constitutional press right which protects the press’ core expressive functions: its right to gather and disseminate information for the public benefit without undue interference.” (ibid, paragraphs 110 and 112)

Photo: A satirical take on the media.

This is why seemingly innocuous pieces of legislation like cybercrime, data protection and whistleblowing must be scrutinised. The erosion of press freedom is not only unconstitutional, but an attack on democracy itself.

Indeed, as Justice Abella further put it:

“A vigorous, rigorous, and independent press holds people and institutions to account, uncovers the truth, and informs the public. It provides the public with the information it needs to engage in informed debate. In other words, it is the public’s ‘right to know’ that explains and animates the distinct constitutional protection for freedom of the press…

“The right to convey information to the public is fragile unless the press is free to pursue leads, communicate with sources, and assess the information acquired. Newsgathering activities form an ‘integral part of freedom of the press’ because they are an indispensable part of the right and the ability to tell the public the facts and ideas that make up the story…

“Without protection from undue interference in newsgathering, public access to the fruits of the media’s work is diminished, as is the public’s ability to understand, debate and form opinions on the issues of the day, thereby impairing its ability to participate meaningfully in the democratic process.” (ibid, paragraphs 125 and 127)

However, the State has a countervailing interest in investigating crime; the importance of which cannot be diminished. In examining whether a production order or search warrant should be issued for media documents, communications and/or equipment Justice Abella indicated that the Court must enter a “proportionality inquiry”—namely, whether the “salutary effects of the production order outweigh the deleterious effects.” (ibid, paragraph 142)

Photo: A satirical take on the media.
(Copyright Glasbergen.com)

Interestingly, the minority of the Court held that two constitutional rights were engaged, the freedom of the press provision, alongside section 8 of the Canadian Charter—which entrenches the “right to be secure against unreasonable search or seizure”—but which the Court considered to be the “privacy rights” of the press (ibid, paragraphs 112, 139, 141 and 145).

A similar such privacy right is also entrenched in Trinidad’s Constitution and covers the “right of the individual to respect for his private and family life” (sub-section 4 (c)).

According to Justice Abella the fact that two entrenched rights are triggered, plays heavily into the proportionality analysis in deciding whether or not to issue the production order or search warrant. According to her:

“A harmonized approach means that among the considerations authorizing judges would weigh are: the media’s reasonable expectation of privacy; whether there is a need to target the press at all, since ‘[t]he media should be the last rather than the first place that authorities look for evidence’; whether the evidence is available from any other source, and if so, whether reasonable steps were taken to obtain it; and whether the proposed order is narrowly tailored to interfere with the media’s rights no more than necessary.

“[…] An obvious collateral impact on the press of being required to comply with a production order is a chilling effect not only on the particular press being targeted, but on the press generally. The extent of the chill may vary from case to case, but its existence can hardly be questioned.” (ibid, paragraphs 144 and 147) (internal citations omitted)

Justice Abella also took issue with the ex parte nature of production orders and search warrants involving the media—an ex parte proceeding is one where the responding party has neither been notified nor is present; and is usually justified on the basis of urgency, or where destruction or removal of property or monies are likely.

Photo: A journalist types her story.

Although a majority of the Court saw nothing intrinsically wrong with ex parte production orders involving the media, that very majority also did not view the case as triggering two distinct constitutional rights.

Justice Abella, on the other hand, noted that there: “are strong rationales for providing notice to the press in cases like this. If the authorizing judge lacks evidence and submissions from the party exclusively in possession of the information needed for the balancing—the innocent media third party whose [constitutionally protected] rights are engaged—then there is nothing to balance. And the authorizing judge would have no way of knowing some highly relevant facts, such as the nature of the relationship between a source and a journalist.” (ibid, paragraph 153)

Given the fact that Trinidad’s Constitution specifically enumerates freedom of the press as a distinct, entrenched right, the issuance of a search warrant or production order against the local media would indeed trigger two constitutionally protected rights in Trinidad & Tobago (press freedom and privacy). Justice Abella’s reasoning should, therefore, have greater sway among the local judiciary in any such analysis in my respectful view.

In the end, both concurring opinions of the Court held the production order to be constitutionally valid. According to the Court, Mr Shirdon was never a confidential source. In fact, he wanted his identity to be known. As Justice Abella put it:

“It bears repeating that Mr Shirdon was not a confidential source, or even one who so much as intimated that he wished Mr Makuch to conceal his identity. On the contrary, he went to Mr Makuch with the express purpose of broadcasting his extremist views to the public.

“Crucially, Mr Makuch’s lengthy, detailed affidavit contains no suggestion whatsoever that anything Mr Shirdon said was intended or understood to be ‘off the record’, and Vice Media has never argued otherwise.” (ibid, paragraph 165)

Photo: A reporter on the job.

That a free and independent media underpins our democracy is often lost on readers as mere hyperbole. But it is the truth. A vibrant and independent media is vital to our ability to make informed decisions, especially in a society marred by corruption, nepotism and indifference.

All too often, however, personal dislike of certain journalists is extrapolated to cover the entire profession. This must stop.

No more than a surgeon who negligently kills a patient represents their entire profession, so too the work of journalists—as a whole—must not be characterised by a few missteps in a sea of otherwise responsible reporting; reporting that is essential to our democracy and collective good governance.

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