Law Times

Page 10 January 23, 2017 • Law Times www.lawtimesnews.com Case focuses on journalist's right to privacy BY SHANNON KARI For Law Times A closely watched case involving the right of the media to protect the privacy of its com- munications in the digital age is going to be heard next month by the Ontario Court of Appeal. Vice Media Canada Inc. is appealing a decision by Superior Court Justice Ian MacDonnell that upheld a production or- der requiring the company and reporter Ben Makuch to turn over documents related to com- munications with an alleged homegrown terror suspect. Most of the communication was through Kik Messenger, an in- stant messaging application that is very popular with teenagers in North America. The original court order was sought by the RCMP as part of its investigation into Farah Shirdon, who has been charged in absen- tia with terrorism-related of- fences and whose current where- abouts are unknown. The Court of Appeal ap- proved a large number of inter- veners in the case, which is also about an indefinite publication ban ordered by MacDonnell over most of the details in the Information to Obtain sworn by police. The RCMP is represented by the Public Prosecution Ser- vice of Canada. The interveners include the Ontario Ministry of the Attorney General, a co- alition of media groups, the Canadian Civil Liberties Asso- ciation and the B.C. Civil Liber- ties Association. Iain MacKinnon, the lawyer representing Vice, argues that there are unique considerations for a court to weigh, since it in- volves the media. "Journalists' ability to pursue the truth without fear or repris- al or interference is essential to every facet of Canadian life: to the workings of justice, nation- al security, individual freedoms and government itself," states MacKinnon, in written argu- ments filed with the Court of Appeal. The leading Supreme Court cases involving production or- ders or search warrants issued on the media are 25 years old and that is one of the reasons the Vice appeal is significant, says Andrea Gonsalves, one of the counsel for the media coalition. Important SCC rulings in- clude CBC v. Lessard and CBC v. New Brunswick in 1991. She says a police request for a court to order media to turn over information now could involve significantly more data than what in the past would be a reporter's notes or some tele- vision news video of an incident, she explains. "The old principles need to be analyzed in current times," says Gonsalves, a partner at Stock- woods LLP in Toronto. The court order obtained by the RCMP in 2015 was issued after Makuch wrote three stories based on his communications with Shirdon, who spoke about his involvement with ISIS. In the decision issued by MacDonnell, the judge noted that it is "common ground" that the only material Vice has in its possession is screen captures of Kik Messenger communi- cations. The Superior Court judge stated that it is reasonable that the screen captures "would afford evidence" to police in its investigation of Shirdon. The RCMP request is not seeking metadata (more specif- ic information about the actual data, such as location and date) related to the screen captures. Police want the screen captures to try to show that Shirdon was in Iraq when he communicated with the Vice reporter. Even if police obtain these communications and Shirdon is apprehended and returned to Canada to face trial, it is un- clear if they would be allowed as evidence in a prosecution. A decision in 2014 by Ontario Superior Court Justice Gary Trotter (he was recently elevated to the Court of Appeal) in R v. Andalib-Goortani found that, without access to metadata, a photo found online could not be admissible in a criminal trial since it could not be authen- ticated. In considering whether the media has blanket rights to pro- tect communications or other work product from having to be turned over to the police, Mac- Donnell said it is not a different test than a search of a private residence. Given how much digital in- formation is now generated in any communication, it is im- portant for courts to ensure each time that what police are seek- ing is very specific and that the privacy rights of innocent third parties are not infringed, Gon- salves suggests. "What needs robust con- sideration is the law enforce- ment benefit against how it will impact on the media," she says. The federal Crown had not filed its written submissions for the Feb. 6 hearing at the Court of Appeal at press time. In its written arguments, the Ontario Ministry of the Attor- ney General suggests that the legal tests set out by the Supreme Court in 1991 do not need to be modified. "The Lessard test is princi- pled, comprehensive, f lexible and duly protective of media in- terests," writes Crown attorney Susan Magotiaux. "Complying with a judicial order does not make any cit- izen an agent of the state. The law is entitled to every person's evidence, even when it costs in time, money and personal stress to deliver evidence," writes Mag- otiaux. LT FOCUS Andrea Gonsalves says a police request for a court to order media to turn over infor- mation now could involve significantly more data than in the past. When you are looking for specialized legal counsel, turn to the resource that showcases peer-ranked Canadian legal talent. lexpert.ca/directory 2016 Untitled-5 1 2017-01-17 4:03 PM 7KHXOWLPDWHVRXUFHIRUWRGD\·VOHJDOSURIHVVLRQ Subscribe to Canadian LawyerWRGD\IRURQO\ Each issue of Canadian Lawyer is packed with unbiased in-depth case analyses, valuable strategies, expert insights, and a wealth of information that will allow readers to prepare for cases and effectively manage their practice. The integration of compelling features and columns convey unique perspectives to legal professionals that are both fun and entertaining, which is why Canadian Lawyer is the premier publication for covering the Canadian legal landscape. 2QH

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