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BCCLA reacts to Ontario Court of Appeal’s Decision on Compelling Information from the Press

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TORONTO – Yesterday, March 22, 2017, the Ontario Court of Appeal issued its decision in Vice Media Canada Inc. et al v. Canada.  The case considered a court order made under s. 487.014 of the Criminal Code requiring Vice Media Canada Inc. and its news reporter Ben Makuch to provide certain information to the police.

In its oral argument, the BCCLA argued that a judge making an order to compel information from a journalist must determine whether the information sought from the journalist will be of real value to an investigation of a relatively serious crime. Police should not seek information from media outlets when investigating minor offences, or where the evidence is not critical to the investigation.

Additionally, the BCCLA argued that a judge considering whether to issue an order compelling information from a journalist must consider the chilling effect on the media’s role that will result from granting the order.

The Court of Appeal upheld the court order requiring Vice Media Canada Inc. and its reporter to provide certain information to the police. The Court of Appeal declined to restructure the legal test for making such orders, finding that the existing law adequately balanced the competing interests at stake. The Court also found that the judge that made the order had implicitly considered the chilling effect the order might have on press freedom.

Caily DiPuma, Acting Litigation Director of the BCCLA: “Freedom of the press is foundational to our democracy and must be strongly protected. We had hoped the Court of Appeal would reframe the legal test to require express consideration of the chilling effect on freedom of the press. We remain concerned that if orders compelling journalists to provide information became commonplace, there would be a serious risk that journalists will begin altering their practices in a way that results in less openness and transparency, harming the public’s right to free expression and the free flow of ideas of information”.

The BCCLA is represented by Tae Mee Park and Andrew W. MacDonald of Bersenas Jacobsen Chouest Thomson Blackburn LLP.

Our argument is available here.

What: Ontario Court of Appeal issued its decision in Vice Media Canada Inc. et al v. Canada

When: March 22, 2017.

Where: Court of Appeal of Ontario (Toronto, Ontario)

Who: Caily DiPuma, BCCLA Acting Litigation Director, available for comment in Vancouver, B.C.