December 18, 2013
Edmonton Journal v Canada (Justice) 2013 ABPC 356

The Edmonton Journal applied to the court for access to an ITO that was relied upon in the ex parte application for a Production Order, to enable it to consider whether to apply to quash the Production Order. It offered to enter into confidentiality arrangements to permit one officer of the Applicant and counsel for the Applicant to review the ITO.

The Respondents objected to the release of the ITO at all. The Respondents had earlier brought an ex parte application for a Production Order pursuant to Section 487.012 of the Criminal Code of Canada requiring the Applicant to produce specified documents and videos and for a Sealing Order sealing the file. The Orders had been granted by the Court.

The Applicant relied on Canadian Broadcasting Corp. v. Manitoba (Attorney General), 2009 MBCA 122, in which the MBCA found that the authorizing judge must consider factors additional to statutory factors prior to exercising their discretion to grant a Production Order when the target of the Production Order is a media outlet.

The Respondent argued that the decision in Canadian Broadcasting Corp. v. Manitoba (Attorney General) and related authorities have no application in this case because the Production Order is sought in the context of an ongoing investigation and the Court has issued a Sealing Order.

Justice Dixon states:

The Applicant is seeking a limited exception to the Sealing Order granted by this Court for the purpose of considering whether to bring an application to quash the Production Order requiring it to produce specified documents and videos. It brings this application given its special status as a media organization and the vitally important role media organizations play in a democracy.

Dixon J. goes on to state:

It is clear this Court must consider special factors in granting a Production Order against a media organization…the administration of justice is always best served through fully illuminated and informed debate within the arena of the courtroom, particularly given the nature of the issues which will be raised, should the Applicant choose to challenge the Production Order.

Citing the need for a flexible and contextual approach where sealing orders are sought, Dixon J. finds that the position of the Respondents is neither flexible nor contextual. And, Dixon J. is satisfied the proposal by the Applicant is consistent with the guidance of the Supreme Court of Canada to apply a flexible and contextual approach.