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EVIDENCE - Documentary evidence - Electronic records - Privilege - Informants - Publication bans and confidentiality orders

Monday, April 03, 2017 @ 11:54 AM  

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Appeal by Vice Media (Vice) and Makuch from the dismissal of applications to quash a production order and to unseal the record supporting the production order. Between June and October 2014, Makuch wrote and Vice published three articles about the involvement of Shirdon with the terrorist group ISIS in the Middle East. The articles were based upon communications between Makuch and Shirdon through a text messaging service. Shirdon was under investigation for several terrorism-related offences at the time. Makuch’s articles purported to confirm that Shirdon was an ISIS combatant. The police sought a production order directing Vice and Makuch to produce documents and data relating to their communications with Shirdon. The issuing judge ordered the production of all paper printouts, screen captures and computer records of all communications with Shirdon via text and directed that all information relating to the application for the production order should be sealed. Vice examined its records and advised the police that the only materials in its possession covered by the production order were some instant messenger chats between Makuch and Shirdon, and screen captures of the chats. Makuch and Vice did not produce the material, but instead applied to quash the production order and to unseal the record relied upon by the police to obtain it. The applications judge found the order reasonable and refused to quash it. The judge found that the material sought was the best and most reliable evidence of what Shirdon said, and could provide direct evidence against Shirdon on the outstanding charges. He noted that Shirdon was not a confidential source and that much of the information sought had already been placed in the public domain by Makuch in his articles. In sealing the record supporting the production order, the judge accepted that there were national security reasons for sealing and/or redacting portions of the record. He also accepted redactions of the identity of an individual who had provided information to the police affiant and of the future steps the police intended to take in investigating Shirdon. The applications judge also made a non-publication order with respect to the affidavit, citing Shirdon’s fair trial rights.

HELD: Appeal allowed in part. The production order was upheld, while the sealing order was varied. The applications judge applied the appropriate standard of review of reasonableness to the production order. A more interventionist approach was not mandated simply because the target of the production order was a media outlet. The judge’s reasons revealed no misapprehension of the evidence, no failure to consider relevant factors and no other legal error. He gave due consideration to the chilling effect the production order might have and was satisfied that the facts of the case would significantly reduce this effect. It was reasonable to redact from the record the identity of the informant, but not to redact information about the normal investigative techniques the police intended to employ once in possession of the information sought from Vice and Makuch. The appeal court would not interfere with the non-publication order without submissions addressing the specific parts of the affidavit not properly the subject of such order.

R. v. Vice Media Canada Inc., [2017] O.J. No. 1431, Ontario Court of Appeal, A. Hoy A.C.J.O., D.H. Doherty and B. Miller JJ.A., March 22, 2017. Digest No. TLD-Apr32017003