Subpoena, Search Warrant and Production Order

R v Vice Media Canada Inc et al 2016 ONSC 1961

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.