In April 2016, we reported that an Ontario court had upheld a police production order requiring Vice Media Canada Inc. (“Vice”) to produce communications between reporter Ben Makuch and Farah Shirdon, a Canadian believed to be fighting for ISIS.
Last week, the Ontario Court of Appeal largely upheld this decision, including a broad publication ban preventing reporting on much of the police affidavit (the Information to Obtain, or ITO) used to obtain the production order (2017 ONCA 231).
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.
Justice MacDonnell of the Ontario Superior Court upheld the production order. He determined that the lower court had reasonable grounds for making the order, and had struck the appropriate balance between the interests of the state in the investigation of crime and the constitutional rights and interests of the media.
While Justice MacDonnell largely unsealed the ITO, he also placed a publication ban over much of it, on the basis that this was required to protect Shirdon’s fair trial rights. This meant that the media could not report on much of the basis for the production order, including what police allege is the evidence against Shirdon.
The Court of Appeal Decision
Writing for a unanimous three-judge panel of the Ontario Court of Appeal, Justice Doherty upheld the production order, affirming that the application judge had considered the appropriate factors in his decision. These factors included that the Kik screenshots were the most reliable evidence of what Shirdon said to Makuch; that Shirdon was not a confidential source and was “anxious to broadcast his views to the world”; and that the substance of much of the information sought had already been placed in the public domain through the Vice articles.
In response to arguments that the application judge had failed to properly consider and weigh those factors, including the impact on freedom of expression and freedom of the press, Justice Doherty disagreed. He stated that Justice MacDonnell had “implicitly” addressed the chilling effect the production order could have on the media’s ability to perform its role by noting in his decision the factors that tended to reduce any such chilling effect – that no promise of confidentiality had been made to Shirdon and that the information sought in the production order was largely in the public domain. In so doing, the Court of Appeal provided short shrift to the concerns raised by Vice and interveners in the case that production orders of this nature will impact the ability of journalists to obtain information from named sources going forward, given the risk that such material will have to be turned over to law enforcement to be used against the source.
While Justice Doherty unsealed more of the ITO, he upheld the publication ban over large portions of it, including the ban over what the police allege is the evidence against Shirdon and the police affiant’s opinion as to the conclusions to be drawn from the evidence. Justice Doherty did find that it was unclear why the application judge had imposed a publication ban on certain other paragraphs of the ITO that “appear to refer to background information that is readily available to and known to the public”, but rather than varying the publication ban himself, he directed the parties to agree on this or bring another application to Superior Court for a variance.
Disappointingly, Justice Doherty accepted that permitting access to an ITO (while largely banning its publication) may be a reasonable middle ground, stating that,
“[t]o the extent that Canadian Broadcasting Corp. v. Canada holds that a properly tailored non-publication order cannot provide a reasonable alternative measure to a sealing order, the case is wrongly decided.” 
This holding fails to recognize that providing the media with access to a document that cannot be reported on is small – or no – comfort to the Canadian constitutional principle of open courts.
The Court of Appeal’s decision is disappointing both for its failure to emphasize the importance of an independent press to democratic society, and for its acceptance of a broad publication ban on the basis of the fair trial rights of an at-large accused, nowhere close to trial in Canada. Both aspects of the decision raise serious concerns about the proper protection of free expression and freedom of the press, including whether the decision is in line with case law from the Supreme Court of Canada.
Vice has said it may seek leave to appeal the decision to the Supreme Court of Canada.
Paul Schabas, Iris Fischer and Ravi Amarnath, Blake, Cassels & Graydon LLP, Toronto, Canada.