Supreme Court

Administrative Law

Prerogative remedies


Not necessary to impose presumptive notice requirement where police sought production order in relation to media

Justice issued ex parte 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, which were based in large part on communications between reporter and accused through text messaging service. Media company and reporter’s (“applicants”) unsuccessfully challenged production order and successfully had most of material in sealed Information To Obtain unsealed. Applicants appealed. Appeal dismissed. There was reasonable basis for issuing production order, and de novo consideration of framework in Canadian Broadcasting Corp. v. Lessard favoured issuance of production order. There was no basis for recognizing presumed chilling effect whenever state sought production order related to media. Where materials sought could reasonably be expected to have higher degree of probative value, case in favour of granting production order was strengthened. Notion that police should be denied production order unless they could demonstrate that order was necessary to secure conviction could not be sustained. It was not necessary to impose presumptive notice requirement in situations where police sought production order in relation to media. Applicants did not point to any information not before authorizing judge that could reasonably have affected decision to issue production order. Balancing of media’s right to privacy in gathering and disseminating news and of state’s interest in investigating and prosecuting crime favoured issuance of production order.

R. v. Vice Media Canada Inc. (2018), 2018 CarswellOnt 19988, 2018 CarswellOnt 19989, 2018 SCC 53, 2018 CSC 53, Wagner C.J.C., Abella J., Moldaver J., Karakatsanis J., Gascon J., Côté J., Brown J., Rowe J., and Martin J. (S.C.C.); affirmed (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.).

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