Justice issued production order directing media company and reporter to produce certain documents and data pertaining to communications with or concerning accused, individual charged but not arrested yet for six terrorism offences and who was believed to have left Canada to join ISIS in Iraq or Syria. Reporter wrote and published three articles for media company about accused’s involvement with ISIS. Articles were based in large part on communications between reporter and accused through text messaging service. Applicants’ application for order setting aside sealing order was dismissed. Trial judge found sealing order to remain in force for two weeks to permit parties to exercise right of appeal after which access would be permitted to copy of Information to Obtain (ITO) that had been redacted to prevent disclosure of information that was subject to national security claims, information that could disclose identity of specific person and information contained in paragraphs relating to investigative procedures. Trial judge found accused knew before he left Canada that he was under investigation by Canadian security authorities such that there was little risk accused would alter his behaviour on social media. Trial judge found police ought not to be required, as part of price of obtaining production order, to publicly disclose investigative steps that they proposed to take in future. Trial judge found information regarding two individuals was not redacted as those individuals were already well known to media and because far from suggesting that these two persons had any kind of connection to, involvement with or sympathy for terrorists or terrorism, contents of relevant paragraphs clearly demonstrated opposite. Trial judge found information regarding another individual was redacted as they were in different position and had told officer that if they had known that their identity would be made public at this stage of process, they would not have talked to police. Trial judge found that person’s implicit concern for safety was reasonable concern. Trial judge found publication of portions of the ITO concerning accused’s alleged involvement with ISIS and setting forth statements he was alleged to have made would put his right to fair trial in jeopardy, not only because of potential impact of that information on impartiality of jury but also because of its capacity to stigmatize him. Trial judge found based on binding jurisprudence it was not open to accept that as matter of principle allowing access but prohibiting publication was not reasonable alternative. Applicants appealed. Appeal allowed in part. Reasonableness was proper test when considering constitutionality of order. More interventionist standard of review should not be applied when media is target of order. Trial judge made no misapprehension of evidence, considered relevant factors, and made no extractable legal error. Balancing of competing interests favoured making production order. Trial judge took into account possible chilling effect and noted that source did not request confidentiality. Crown not required to show that material sought essential to prosecution. When production orders or search warrants are issued, often there is no prosecution underway and investigation is in formative stage, so that what is necessary to prove case is not known. Reasons for redacting identity of specific individual were reasonable. Certain matters of police procedure should not have been redacted as they steps were obvious. Temporary publication ban over certain materials was appropriate, and parties invited to make further submissions regarding which material should be subject to ban. Temporary order had less deleterious effect on open court principle.
R. v. Vice Media Canada Inc. (2017), 2017 CarswellOnt 3901, 2017 ONCA 231, Alexandra Hoy A.C.J.O., Doherty J.A., and B.W. Miller J.A. (Ont. C.A.); varied (2016), 2016 CarswellOnt 4901, 2016 ONSC 1961, MacDonnell J. (Ont. S.C.J.).