March 22, 2017
R v Vice Media Canada Inc 2017 ONCA 231

On February 13, 2015, Justice Nadelle of the Ontario Court of Justice issued a production order pursuant to what was then ss. 487.012(1) and (3) of the Criminal Code, directing the applicants Vice Media Canada Inc. and Ben Makuch to produce certain documents and data pertaining to communications with or concerning Farah Shirdon.

The application for the production order was made ex parte on the basis of an Information To Obtain (ITO) sworn by the RCMP. Pursuant to s. 487.3(1) of the Code, Justice Nadelle further ordered that the production order and the ITO be sealed pending further order by a court of competent jurisdiction.

At the time those orders were issued, Farah Shirdon was under investigation for a number of offences related to his suspected involvement with ISIS. Shirdon, who was 21 years of age, and who had been raised in Calgary, was believed to have left Canada in March 2014 to join ISIS in Iraq or Syria. He has since been charged with six terrorism offences. He has not been arrested.

Between June and October 2014 Mr. Makuch wrote and Vice Media published three articles about Shirdon’s involvement with ISIS. Those articles were based in large part on communications between Mr. Makuch and Shirdon through the Kik text messaging service.

Vice Media applied to the court to quash the production order and to set aside the sealing order. The court upheld the production order and unsealed the ITO, but also imposed a publication ban over a large portion of the ITO.

On appeal, the appellants and the interveners argued for a more interventionist standard of review by the application judge in cases in which the media is the target of the warrant or the production order. In support of this contention, they pointed to the added complexities in assessing whether the order directed at the media should issue, the important constitutional rights at stake, and the ex parte nature of the initial application.

The ONCA was not persuaded on these points:

…While no doubt additional considerations come into play with a media target, I do not see how they make a reasonableness assessment more difficult, or less appropriate. I agree, if the media is the subject of an order, important constitutional rights are at stake and negative effects may flow from improvidently granting the order. The rights at stake when the warrant targets the media cannot, however, be characterized as more worthy of judicial protection than the s. 8 rights routinely engaged on motions to quash search warrants executed at homes and other locations where privacy interests are extremely high.

Finally, the ex parte nature of the initial proceeding is common to all applications for warrants and production orders. The negative impact of the ex parte proceeding is countered by the media’s right to move to revoke the warrant or production order before they turn the material over to the police: s. 487.0193(1). The media is entitled to place additional material before the reviewing judge to be considered in determining whether the warrant or production order should have issued. Practically speaking, the more significant the material placed before the reviewing judge, the more the review will take on the appearance of a de novo assessment of the merits. Under the established procedures, the media has a full opportunity to put forward its case against the production order before the police access the material.