In a disappointing decision in the case of R v Vice Media Canada Inc (2016 ONSC 1961) an Ontario court has upheld a production order requiring Vice Media Canada Inc. (Vice) to deliver to police communications between reporter Ben Makuch and Farah Shirdon, a Canadian believed to be fighting for ISIS.
Also concerning is the Court’s decision to impose a publication ban on much of the law enforcement affidavit (the Information to Obtain, or “ITO”) used to get the production order, a step backwards for the open court principle in Canada.
Shirdon has been charged in Canada with terrorism-related offences in connection with his alleged association with ISIS. He is believed to have left Canada in 2014 to join ISIS in Iraq or Syria and is at large somewhere in the Middle East.
Between June and October 2014, Vice published three articles about Shirdon’s involvement with ISIS. The articles were based in large part on communications between Makuch and Shirdon via a text messaging service called Kik. On February 13, 2015, Justice Nadelle of the Ontario Court of Justice issued an ex parte production order directing Vice and Makuch to produce documents and data relating to Makuch’s communications with Shirdon, including the Kik text messages. Both the production order and ITO were sealed pending further order of the court. Vice challenged the production order and applied to unseal the ITO.
The Decision and Its Implications
In a decision released last week, Justice MacDonnell of the Ontario Superior Court upheld the production order. He also largely unsealed the ITO, but then placed a publication ban over much of it, on the basis that this was required to protect Shirdon’s fair trial rights.
With respect to the production order, Justice MacDonnell had to consider whether the lower court had reasonable grounds for making the order, and whether it struck the appropriate balance between the interests of the state in the investigation of crime and the constitutional rights and interests of the media. The free expression rights of the media, and the public, are protected under s. 2(b) of the Canadian Charter of Rights and Freedoms. Section 2(b) includes protection for the media’s newsgathering activities.
While Justice MacDonnell engaged in a review of the relevant law, he appeared to give little weight to the rights and interests of the media. He focused on the importance of the evidence – the text messages – to law enforcement in eventually prosecuting the case against Shirdon, and found that there was no alternative source for evidence of the same quality and reliability. There was evidence that the Kik messaging service did not store the content of messages and could not assist the police. This may serve as a distinguishing feature in cases where the authorities are able to obtain the evidence by way of an alternative source.
Justice MacDonnell acknowledged the role of the media, but quickly found that the state’s interest in law enforcement was determinative. He did not spend much time dealing with the fundamental importance of an independent press to democratic society and made no reference to the risk of a chilling effect on public interest journalism if sources become reluctant to talk to journalists for fear they will be used as tools of law enforcement down the road.
Perhaps even more startling than the decision upholding the production order, the Court unsealed most of the ITO but imposed a publication ban on what appears to be the majority of the document. The basis for this decision was that the risk of jury tainting and stigmatization from media reporting on the ITO outweighed the importance of the open court principle and the right to freedom of expression. In Canada, many alternatives exist to protect against jury tainting that are less intrusive to openness than a publication ban, including challenges for cause, changes of venue, and sunset clauses allowing publication until close to trial. The Court’s sweeping publication ban is particularly surprising on the facts of this case, given that any trial is years away, and will only take place if authorities are able to locate Shirdon and bring him back to Canada.
In arriving at his decision on the publication ban, Justice MacDonell considered whether allowing access to a redacted version of the ITO while prohibiting publication offered a reasonable alternative to a full sealing order. He rejected the reasoning in an earlier decision of the Ontario Superior Court, CBC v Canada (2013 ONSC 7309), that permitting media access but prohibiting publication is problematic as it does not allow the media to exercise its constitutional function of acting as a conduit of information for the public. As the Court said in CBC v Canada, such limited openness “[a]t best…represents private selective scrutiny without any ability to express the results of that scrutiny.” Instead, Justice MacDonnell preferred older case law that accepted that permitting access to the ITO (while banning publication) was a reasonable middle ground between a sealing order and publication. This means the media can access the ITO but not report on the basis for the production order, shrouding much of this public interest matter in secrecy.
If Canadian media organizations continue to be faced with production orders such as the one challenged by Vice in this case, and if Canadian courts continue to uphold them, there is a very real concern that journalists in Canada will find it harder to do their jobs. Also of concern is the Court’s rolling back of the constitutionally-protected open court principle through its broad publication ban, to deal with a temporally distant risk that could be mitigated in other ways.
Vice has said publicly it is considering whether to appeal the Court’s decision.
Paul Schabas, Iris Fischer and Helen Richards, Blake, Cassels & Graydon LLP, Toronto, Canada