Case information

Constitutional law — Charter of Rights — Fundamental freedoms — Freedom of the press — Criminal law — Evidence — Search warrant — Production order — Production order issued for records of communications between journalist and source who is under investigation for terrorist activity — Whether production, sealing or non-publication order should have been set aside —How balancing test under third factor set out in Canadian Broadcasting Corp. v. Lessard, [1991] 3 S.C.R. 421, for issuing search warrant for media premises, should apply to journalist-source communications? — How should courts assess and weigh “chilling effect” of production order on media’s news-gathering abilities? — If at all, how should courts assess and weigh probative value and usefulness of material sought by means of production order, in terms of its actual value to criminal investigation or to prosecution of crime? — What standard of review should superior courts apply in reviewing ex parte production orders targeting media, to ensure that due consideration and weight is given to Lessard factors?

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(PUBLICATION BAN IN CASE) (SEALING ORDER) (COURT FILE CONTAINS INFORMATION THAT IS NOT AVAILABLE FOR INSPECTION BY THE PUBLIC)

In 2014, Mr. Makuch wrote and Vice Media published three articles about the involvement of Farah Shirdon with the terrorist group, the Islamic State of Iraq and Syria (“ISIS”), in the Middle East. The articles were largely based on communications between Messrs. Makuch and Shirdon through a text messaging service. The RCMP obtained a production order under s. 487.014 of the Criminal Code, directing Vice Media and Mr. Makuch to produce documents and data relating to their communications with Mr. Shirdon. The issuing judge also directed that all information relating to the application for the production order, including the affidavit sworn in support of the application, should be held under seal pending further court order. Vice and Mr. Makuch brought an application to quash or set aside the production order and an application to unseal the record relied on to obtain the order. The motion to quash was dismissed, and the sealing order was varied. Vice and Mr. Makuch appealed, but the Court of Appeal dismissed their appeal as it relates to the production order and varied in part the sealing/redaction order. With respect to the non-publication order, and subject to the parties agreeing on a variation of that order, it also dismissed that appeal.