



COURT OF APPEAL FOR ONTARIO

CITATION:  R. v. Vice Media Canada Inc., 2017 ONCA 231

DATE: 20170322

DOCKET: C62054

Hoy A.C.J.O., Doherty and Miller JJ.A.

BETWEEN

Her Majesty the Queen

Respondent (Respondent)

and

Vice Media Canada Inc. and Ben Makuch

Applicants (Appellants)

and

The Attorney General of
    Ontario, the British Columbia Civil Liberties Association, the Canadian Civil
    Liberties Association, Canadian Journalists for Free Expression, Canadian
    Broadcasting Corporation, Ad Idem/Canadian Media Lawyers Association, Canadian
    Association of Journalists, Canadian Media Guild/Communication Workers of
    America (Canada), Reporters Without Borders/Reporters Sans Frontières,
    Aboriginal Peoples Television Network, Centre for Free Expression

Interveners

Iain A.C. MacKinnon, for the appellants

Brian G. Puddington and Sarah Shaikh, for the respondent

Susan Magotiaux, for the intervener, the Attorney
    General of Ontario

Andrew W. MacDonald, for the intervener, the British
    Columbia Civil Liberties Association

Brian N. Radnoff and Christopher T. Shorey, for the
    intervener, the Canadian Civil Liberties Association

Justin Safayeni, for the intervener, Coalition of media
    and journalist organizations

Heard:  February 6, 2017

On appeal from the order of Justice Ian A. MacDonnell of
    the Superior Court of Justice, dated March 29, 2016, with reasons reported at
    2016 ONSC 1961.

Doherty J.A.:


I



overview

[1]

A free and vigorous press is essential to the proper functioning of a
    democracy.  The protection of society from serious criminal activity is equally
    important to the maintenance of a functioning democracy.  Those fundamental
    societal concerns can come into conflict.  When they do, it falls to the court
    to resolve those conflicts.  In this case, claims based on the freedom of the
    press and those based on effective law enforcement collide at two points.

[2]

The first collision occurred when the police obtained an
ex parte
production order requiring the appellants, Vice Media Canada Inc. (Vice) and
    an employee, Mr. Ben Makuch (Mr. Makuch), to produce to the police material created
    or used in the course of searching out and reporting on the news.  The
    appellants argue that the production order undermines their role as the eyes
    and ears of the community by effectively conscripting them into the ranks of
    law enforcement.  The police respond that they need the information referred to
    in the production order to effectively investigate serious crimes.

[3]

The second collision occurred when the appellants attempted to gain
    access to the information on which the police relied to obtain the production
    order.  Once again, the appellants argue that, to properly perform their
    function within our democracy, the press must have access to information on
    which the police rely to obtain coercive court orders.  Once again, the police
    respond that for the press to access that information would compromise the
    proper and effective investigation of serious crimes.

[4]

The application judge rejected the appellants application to quash the
    production order.  He largely accepted the appellants submission that the order
    sealing the material on which the police relied to obtain the production order
    should be set aside, directing that most of the material should be unsealed and
    available to the press for examination.  However, the application judge also
    made some of the unredacted information subject to a temporary non-publication order,
    thereby preventing the press from disseminating that information to the public.

[5]

The appellants appeal all three aspects of the application judges
    order.  They are supported in some of their submissions by three interveners.
[1]
The respondent supports all aspects of the order made by the application
    judge.  The Attorney General for Ontario intervenes to make submissions on the
    law governing production orders.

[6]

For the reasons that follow, I would: dismiss the appeal from the refusal
    to quash the production order; allow the appeal as it relates to the sealing
    order, in part; and, subject to the parties agreeing on modifications to the
    non-publication order, dismiss the appeal from that order.


II



factual background

[7]

Between June and October 2014, Mr. Makuch wrote and Vice published three
    articles about the involvement of Farah Shirdon (Shirdon) with the terrorist
    group, the Islamic State of Iraq and Syria (ISIS), in the Middle East.  The
    articles were based in large measure on communications between Mr. Makuch and
    Shirdon through Kik Messenger, a text messaging service.

[8]

Shirdon, who had lived in Calgary and was believed to have left Canada
    in March 2014 to join ISIS, was under investigation for several
    terrorism-related offences.  He was subsequently charged with six offences, but
    remains at large.

[9]

In the articles written by Mr. Makuch, Shirdon purported to confirm that
    he was a combatant with ISIS.  He made specific threats against Canada.

[10]

On February 13, 2015, the police sought a production order under s.
    487.014 of the
Criminal Code
, R.S.C., 1985, c. C-46, directing Vice
    Media and Mr. Makuch to produce documents and data relating to their
    communications with Shirdon.
[2]
An order issued directing production among other things of:

Paper printouts, screen captures or any other computer records
    of all communications between Makuch or any employee of Vice Media Canada Inc.,
    Vice Studio Canada Inc., and Shirdon, aka Abu Usamah over Kik [M]essenger.

[11]

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.

[12]

After receiving the production order, 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 Mr. Makuch and
    Shirdon, and screen captures of the Kik Messenger chats.  As I understand it, the
    screen captures are digital photograph files of certain conversations between Mr.
    Makuch and Shirdon.  Vice and Mr. Makuch did not produce the material covered
    by the production order, but instead brought an application to quash or set
    aside that order and an application to unseal the record relied on to obtain
    the order.


III



the appeal

A:  Jurisdiction

[13]

Before the application judge, the appellants sought prerogative writ
    relief in the nature of
certiorari
, quashing the production order and
    directing the unsealing of the material that was before the issuing judge.  The
    appellants also sought orders under the
Criminal Code

setting aside the sealing order (s.
    487.3(4)) and revoking or varying the production order (s. 487.0193(4)).

[14]

An order granting or refusing prerogative writ relief by way of
mandamus
,
certiorari
or prohibition is appealable to this court under s.
    784(1).  The
Criminal Code
does not provide for appeals from orders
    under s. 487.3(4) or s. 487.0193(4).

[15]

None of the parties raised this courts jurisdiction.  At the outset of
    oral argument, the court inquired as to its jurisdiction to entertain appeals
    from the orders made pursuant to the
Criminal Code
provisions.

[16]

Mr. MacKinnon, counsel for the appellants, referred the court to
R.
    v. Ciarniello
(2006), 81 O.R. (3d) 561 (C.A.), leave to appeal refused,
    [2006] S.C.C.A. No. 424.  In that case, the court observed that s. 784(1)
    provides for an appeal from a decision granting or refusing the relief sought
    in proceedings by way of
mandamus
,
certiorari
or
    prohibition.  In holding that the right of appeal extended to the refusal of inextricably
    linked relief sought in the proceeding (at para. 25), even relief broader than
    that available by way of prerogative writ, Sharpe J.A. observed, at para. 24:

We must respect the principle relied upon by the Crown that
    this court has no jurisdiction to entertain an appeal that is not authorized by
    statute.  However, that principle does not require us to interpret the appeal
    rights that Parliament has given in an unduly restrictive or technical manner. 
    It is in the interests of the fair and efficient administration of justice that
    all appeals relating to the same issue and arising out of the same proceeding
    be brought before the same court at the same time.

[17]

I would apply
Ciarniello
here.  The language of s. 784(1) is
    broad enough to encompass appeals from all of the orders made by the
    application judge.

B:  The Standard of Review

[18]

The appellants and interveners make submissions, with respect to the
    standards of review applicable both on the application and in this court.

[19]

The application judge was asked to quash or revoke the production order,
    either in the exercise of his supervisory prerogative writ powers, or under his
    statutory powers granted by s. 487.0193.  Under the statute, the application
    judge could revoke the production order only if the order was unreasonable in
    the circumstances (s. 487.0193(4)(a)), or if it sought the production of a
    document that was privileged or otherwise protected from disclosure by law (s.
    487.0193(4)(b)).  The application judge had no authority under the statute to
    make his own assessment of the merits of the initial request.  Apart from the
    power to set aside orders that called for production of privileged or other
    protected documents, the review allowed by the statute contemplates a deferential
    reasonableness standard of review.

[20]

The scope of review contemplated by prerogative writ review of search
    warrants and similar investigative tools is well-settled.  The reviewing court
    will quash the order only if, having regard to the record before the issuing
    judge, as augmented by evidence before the reviewing judge, no judge acting
    reasonably could have concluded that the order should be made:
R. v.
    Garofoli
, [1990] 2 S.C.R. 1421, at p. 1452;
R. v. Morelli
, 2010
    SCC 8, [2010] 1 S.C.R. 253, at para. 40;
R. v. Sadikov
, 2014 ONCA 72, 305
    C.C.C. (3d) 421, at paras. 83-84; and
R. v. Nero,
2016 ONCA 160, 334
    C.C.C. (3d) 148, at para. 71.  The 
Garofoli
 standard of review has
    been applied on motions brought by the media to quash a search warrant:  see
R.
    v. National Post
, 2010 SCC 16, [2010] 1 S.C.R. 477, at para. 80.

[21]

The appellants and the interveners argue for a more interventionist
    standard of review by the application judge in cases in which the media is the
    target of the warrant or the production order.  In support of this contention,
    they point to the added complexities in assessing whether the order directed at
    the media should issue, the important constitutional rights at stake, and the
ex
    parte
nature of the initial application.

[22]

None of these arguments is persuasive.  While no doubt additional
    considerations come into play with a media target, I do not see how they make a
    reasonableness assessment more difficult, or less appropriate.  I agree, if the
    media is the subject of an order, important constitutional rights are at stake
    and negative effects may flow from improvidently granting the order.  The
    rights at stake when the warrant targets the media cannot, however, be
    characterized as more worthy of judicial protection than the s. 8 rights routinely
    engaged on motions to quash search warrants executed at homes and other
    locations where privacy interests are extremely high.

[23]

Finally, the
ex parte
nature of the initial proceeding is
    common to all applications for warrants and production orders.  The negative
    impact of the
ex parte
proceeding is countered by the medias right to
    move to revoke the warrant or production order before they turn the material
    over to the police:  s. 487.0193(1).  The media is entitled to place additional
    material before the reviewing judge to be considered in determining whether the
    warrant or production order should have issued.  Practically speaking, the more
    significant the material placed before the reviewing judge, the more the review
    will take on the appearance of a
de novo
assessment of the merits. 
    Under the established procedures, the media has a full opportunity to put
    forward its case against the production order before the police access the
    material.

[24]

There are at least three good reasons for applying the
Garofoli
standard to all motions to quash warrants and similar documents.  First, the
    warrant or production order is a presumptively valid court order.  A review of
    that order, proceeding as a
de novo
examination of the orders merits,
    would be inconsistent with the existence of a valid order.  Second, the
Garofoli
standard of review is consistent with the standard of review selected by
    Parliament in providing a statutory road to review production orders under s.
    487.0193(4).  If the
Garofoli
standard were rejected in favour of a more
    interventionist standard, as proposed, the statutory reasonableness standard
    would become irrelevant except in those rare cases where the initial order was
    made by a Superior Court, thereby rendering prerogative writ relief
    unavailable.

[25]

Third, and most important, the nature of the decision made by the
    issuing justice invites a deferential standard of review.  The issuing justice
    must weigh the evidence offered in the supporting material, consider what
    inferences should be drawn from that material and, if satisfied that the
    preconditions to the warrant or production order exist, decide whether, in all
    of the circumstances, he or she should exercise a discretion in favour of
    granting the warrant or production order.

[26]

Appellate courts have long recognized that decisions which rest on the
    weighing of evidence and the exercise of discretion are not readily amenable to
    a correctness standard of review.  Realistically speaking, there is often no
    right or wrong answer to such questions.  Appellate review under the guise
    of the correctness standard simply becomes a redoing of the function performed
    at first instance.  That redo adds time and expense, but little else to the
    process.

[27]

The standard of review applicable in this court needs little comment. 
    To the extent that the appellant challenges the standard of review used by the
    application judge or argues that the application judge misapplied or failed to
    apply applicable legal principles, this court reviews on a correctness
    standard:  see
Canadian Broadcasting Corp. v. Manitoba (Attorney General)
,
    2009 MBCA 122, 250 C.C.C. (3d) 61, at paras. 21-23.  However, when the
    appellant quarrels with factual determinations made by the application judge,
    or the application of the correct legal test to the circumstances before the
    application judge, the appellant must demonstrate clear and palpable error, or
    an unreasonable assessment.

C: Should the Production Order
    Have Been Set Aside?

[28]

A production order under s. 487.014 of the
Criminal Code
is a
    means by which the police can obtain documents, including electronic documents,
    from individuals who are not under investigation.  The section empowers the
    justice or judge to make a production order if satisfied, by the information
    placed before her, that there are reasonable grounds to believe that: (i) an
    offence has been or will be committed; (ii) the document or data is in the
    persons possession or control; and (iii) it will afford evidence of the
    commission of the named offence.  If those three conditions exist, the justice
    or judge can exercise her discretion in favour of granting the production
    order.  She may, however, decline to make the order even if those conditions exist. 
    In deciding whether to exercise her discretion in favour of making the
    production order, she will have regard to the impact of that order on the
    constitutionally protected rights of the target of the order and the public.  The
    more significant the negative impact, the more cogent must be the grounds for
    seeking the order:  see
Canadian Broadcasting Corp. v. Lessard
, [1991]
    3 S.C.R. 421, at p. 444.

[29]

In light of
Lessard
and its companion case,
Canadian
    Broadcasting Corp. v. New Brunswick (Attorney General)
, [1991] 3 S.C.R.
    459 (
CBC v. New Brunswick
), when a proposed production order targets
    the media, the court must exercise its discretion with care, to avoid
    compromising  if the police were to compel the medias information too easily
     the unique and important role the media plays in society.  In
CBC v. New
    Brunswick
, Cory J., for the majority, said, at pp. 475-76:

The constitutional protection of freedom of expression afforded
    by s. 2(b) of the
Charter
does not, however, import any new or
    additional requirements for the issuance of search warrants.  What it does is
    provide a backdrop against which the reasonableness of the search may be
    evaluated.  It requires that careful consideration be given not only to whether
    a warrant should issue but also to the conditions which might properly be
    imposed upon any search of media premises.

[30]

Cory J. proceeded to list several factors to be considered in assessing
    the reasonableness of a search targeting information in the possession of the
    media.  His approach and those factors were referred to with approval in
R.
    v. National Post
, at paras. 31-33, 79.

[31]

Much of the argument on the appeal focused on the factors outlined in
Lessard
,
CBC v. New Brunswick
, and
R. v. National Post
.  The appellants
    argue that the application judge failed to properly consider and weigh the
    respective factors. Those interveners supporting the appellants argue that the factors
    should be restructured, to more properly reflect the importance of freedom of
    the press in contemporary society, by more strictly limiting the states ability
    to compel production of information from the media.

[32]

I am not convinced that there is any need to restructure the factors
    identified in the controlling case law. When the state exercises its powers to
    search and seize, reasonableness is the constitutional litmus test.  The place
    to be searched and the nature of the material to be seized are important
    considerations in that reasonableness assessment.  The
Lessard
factors
    recognize the significance of those considerations.  They also recognize that
    the ultimate assessment is of necessity a fact-specific one.  Any attempt to
    exhaustively enumerate all relevant factors, or to define them narrowly, is
    doomed to fail.  In my view, the present approach provides adequate room for a
    proper balancing of the important competing interests which must be considered
    in a case in which the state seeks to compel production of material from the
    media.

[33]

The application judge correctly identified his function in reviewing the
    production order (at paras. 11-13).  He expressly recognized that special
    considerations arose when a media outlet was the target of the production order
    (at para. 13).  He considered at length, at paras. 27-54, the factors
    identified in
Lessard
and
CBC v. New Brunswick
.  He
    identified and addressed the following considerations:

·

the
    material sought (screen captures of the conversations between Mr. Makuch and
    Shirdon) provided the best and most reliable evidence of what Shirdon said.  These
    statements could provide direct evidence against Shirdon on the outstanding
    charges;

·

the
    same quality of evidence was not available from any other source, including Mr.
    Makuchs testimony or the records kept by the service provider (Kik Messenger);

·

Shirdon
    was not a confidential source of Mr. Makuchs.  In speaking with Mr. Makuch, Shirdon
    was anxious to broadcast his views to the world.  He wanted those views
    disseminated;

·

the
    substance of much of the information sought had already been placed in the
    public domain by Mr. Makuchs articles; and

·

the
    material could provide important and highly reliable evidence to support very
    serious criminal charges.

[34]

After a careful consideration of the entirety of the record before him,
    the application judge concluded, at para. 47:

I am satisfied that the ITO set forth a basis upon which, after
    taking into account the special position of the media, the authorizing justice
could
have determined that the balance between the interests of law enforcement and
    the medias right to freedom of expression favoured making the production
    order. [Emphasis in original.]

[35]

The reasons of the application judge reveal no misapprehension of the
    evidence, no failure to consider factors relevant to his assessment, or any
    other form of extractable legal error.  It was reasonable, on this record, to find
    the balancing of the competing interests favoured making the production order.

[36]

I will specifically refer to two arguments made by the appellants. 
    First, they submitted that any production order targeting the media necessarily
    has a chilling effect on the medias ability to perform its role.  The
    appellants argue that potential sources who know that the government can and
    will seize records of their communications with journalists will necessarily be
    more reluctant to provide information to journalists.  Inevitably, that
    reluctance will result in less information of public importance being available
    through the media.  The appellants maintain that this chilling effect exists
    even if a specific production order seeks information that is largely in the
    public domain and was not provided to the media under any promise, implied or
    otherwise, of confidentiality.  They argue that the application judge ignored
    the inevitable chilling effect of the production order on the medias ability
    to inform the public on matters of public importance.

[37]

The application judge did not specifically use the phrase chilling
    effect.  He did, however, refer to the specific factors which, in the
    circumstances of this case, impacted significantly on any chilling effect. 
    He referred to the absence of any requests for confidentiality from the
    sources, noting that the source was anxious to tell the world about his beliefs
    and conduct.  The application judge also referred to Mr. Makuch having
    published much of the material sought in three articles predating the request
    for the production order.

[38]

The application judge was clearly alive to the concerns about the
    negative impact of requiring the media to produce material for the police.  I
    have no doubt the application judge appreciated, as part of that concern, the
    potential chilling effect.  He implicitly addressed that concern as it
    existed on the facts of this case by identifying factors that tended to significantly
    reduce the potential chilling effect.

[39]

The appellants second argument relates to the potential probative value
    of the material sought by the production order.  As I understand this argument,
    the appellants argue that the reviewing judge must consider whether the
    prosecution actually needs the evidence sought to support the prosecution or,
    alternatively, whether the Crown has enough evidence to make its case without
    that material.  This necessity requirement is distinct from considerations of
    whether the information is available from sources other than the media.  The alternative
    source factor is well-recognized in
Lessard
and its companion case:
Lessard
,
    at p. 445; and
CBC v. New Brunswick
, at p. 481.

[40]

I would reject the argument that the Crown must show that the material
    sought is essential to the prosecution.  As the Attorney General of Ontario points
    out, when production orders or search warrants are issued, often there is no
    prosecution underway and the investigation is very much in its formative
    stage.  No one could accurately assess what the Crown does or does not need to
    prove its case at trial.

[41]

More significantly, in my mind, this submission improperly blurs the
    line between judge and prosecutor by assigning judges the job of deciding
    whether the prosecution has sufficient evidence to prove its case without
    access to the information in the hands of the media.  To suggest that a judge
    can foreclose police access to relevant evidence otherwise producible in law,
    because the judge thinks the prosecution does not need the evidence to prove its
    case, is to seriously confuse the role of those who investigate and prosecute
    crime with the role of those who adjudicate the cases brought by the prosecution
    against individuals.


IV



the sealing and non-publication orders

A:  The Sealing Order

[42]

The judge who granted the production order made a sealing order under s.
    487.3(1) in respect of all material related to the application for the
    production order, including the affidavit filed by the police officer in
    support of the application.  Before the application judge, the Crown conceded
    that parts of the affidavit could be made public, but argued that other parts
    of the affidavit should be redacted before the affidavit was made available to
    the public.  The Crown justified some of the redactions on grounds of national
    security.  The appellants did not challenge the redactions made on that
    ground.

[43]

The Crown attempted to justify other redactions under the terms of ss. 487.3(2)(a)(ii)
    and (iv).  Section 487.3(2)(a)(ii) allows for a sealing order if disclosure of
    the information would subvert the ends of justice by compromising the nature
    and extent of an ongoing investigation.  Section 487.3(2)(a)(iv) provides for a
    sealing order if disclosure of information would subvert the ends of justice by
    prejudicing the interests of an innocent person.

[44]

The application judge correctly identified the applicable legal
    principles.  To obtain a sealing order, a party must satisfy the two-part
Dagenais-Mentuck
test.  First, the party must show that the sealing order is necessary to
    prevent a serious risk to the proper administration of justice because
    alternative, less intrusive, measures cannot prevent that risk.  Second, the
    party must demonstrate that the benefits of the sealing order outweigh its
    negative impact on the rights and interests of the parties and the public, including
    the effects on the right to free expression, the right of the accused to a fair
    and public trial, and the efficacy of the administration of justice:  see
Toronto
    Star Newspapers Ltd. v. Ontario
, 2005 SCC 41, [2005] 2 S.C.R. 188, at
    para. 26.

[45]

In addition to national security redactions, the application judge
    concluded that the Crown could justify only two relatively minor redactions. 
    One, a partial redaction of para. 34 of the affidavit, was warranted to
    preserve the anonymity of an individual who had provided information to the
    affiant.  The other, a redaction of paras. 63(b) and 63(c), was justified on
    the ground that disclosing future investigative steps would compromise the police
    investigation.

[46]

In my view, the application judges reasons, at para. 74, for redacting
    the identity of the person referred to in para. 34 of the affidavit provide a
    reasonable basis upon which the application judge could determine that, on an
    application of the legal principles he identified, the redaction was appropriate. 
    There is no basis upon which this court can interfere with that assessment.

[47]

I reach a different conclusion in relation to paras. 63(b) and (c), under
    the heading Investigative Plan.  They set out the steps which the affiant
    indicates the police may take to follow up on any information generated by the
    production order sought.

[48]

The steps described in paras. 63(b) and (c) are obvious.  They come down
    to the assertion that the police will follow up on any leads generated by the
    information they obtain through the production order.  For example, the affiant
    indicates that the police will interview individuals who are identified in that
    material.

[49]

I would think that anyone aware of the execution of the production
    order, a public fact, would assume that the police would follow up on any
    pertinent information revealed to them using normal investigative tools such as
    interviews with identified persons.  It cannot be said that public exposure of a
    self-evident planned course of investigation presents a serious risk to the
    proper administration of justice necessitating the redaction of that
    information from the affidavit.

[50]

There was no basis in the evidence before the application judge for the redaction
    of paras. 63(b) and (c).  The contents of those paragraphs should be available
    for public perusal.

B: The Non-Publication Order

[51]

After holding that only very limited redactions from the affidavit
    should be made, the application judge turned to whether he should make a
    non-publication order in respect of any of the unredacted portions of the
    material.  The application judge recognized that any non-publication order must
    be justified under the two-part
Dagenais-Mentuck
test, summarized
    above at para. 44, referred to in
Toronto Star Newspapers Ltd. v. Ontario
. 
    He accepted that a non-publication order could, in some circumstances, provide a
    less intrusive alternative to a sealing order, while still preventing the
    potential risk to the proper administration of justice posed by dissemination
    of the material in issue.  In short, the application judge understood that a
    non-publication order was a viable alternative, in some circumstances, to a
    full sealing order or an order closing a courtroom to the public (at paras.
    99-120):  see
Ottawa Citizen Group Inc. v. R.
(2005), 75 O.R. (3d) 590
    (C.A.), addendum (2005), 75 O.R. (3d) 607 (C.A.); and
R. v. Flahiff
(1998), 123 C.C.C. (3d) 79 (Que. C.A.).

[52]

I agree with the application judges analysis and, in particular, his
    rejection of
Canadian Broadcasting Corp.

v. Canada
, 2013 ONSC
    7309, at paras. 58-65.  To 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.  An order that limits publication of certain information for a fixed
    time period, while permitting full access to the material or the relevant
    proceeding, has a less deleterious effect on the open court principle, and associated
    individual rights, than does an order that effectively locks the courtroom door
    to the media and the public.  The application judge explained the significant
    difference, at para. 126:

Second, what is contemplated is not an absolute ban on the
    publication of the search warrant materials.  The media can still publish the
    identity of the target of the investigation, the nature of the materials sought
    by the production order, the date on which the application was made and the
    order was issued, the nature of the materials sought, and some portions of the
    ITO.

I would add that the media are also free to comment on
    and, if deemed appropriate, criticize the nature and scope of any
    non-publication order made.

[53]

In accepting that a non-publication order can provide an effective and
    constitutional alternative to a sealing order or an order excluding the public
    from a courtroom, I do not mean to suggest that a non-publication order should
    merely be available for the asking.  A non-publication order involves a
    significant intrusion upon the open court principle and must be justified by
    the party seeking it.  The application judge indicated, at para. 120:

That is not to say that it [a non-publication order] will be a
    reasonable alternative in every case  whether it will be so will be a
    case-specific determination that will require consideration of the second
    branch of the
Dagenais
/
Mentuck
test.

[54]

Applying the
Dagenais/Mentuck
test, the application judge
    concluded that the fair trial rights of Shirdon outweighed the negative impact
    on the open court principle and the medias right to access court proceedings occasioned
    by a temporary publication ban on some of the contents of the affidavit.  The
    application judge listed, by way of a schedule to his reasons, the various
    parts of the affidavit which were subject to the non-publication ban.  He
    directed that the ban would remain in place until the proceedings against
    Shirdon were terminated.  He further ordered that if Shirdon had not been arrested
    within two years, the continued need for the ban should be reassessed.

[55]

I accept the application judges description of Shirdons fair trial
    rights and the negative impact that publishing some of the information in the
    affidavit, before trial, could have on those rights (at paras. 75-98). 
    However, the application judge did not specifically indicate how publication of
    each part of the affidavit subject to the non-publication order would negatively
    impact on Shirdons fair trial rights.

[56]

Some parts of the affidavit that are subject to the non-publication ban
    refer to potential evidence, or what the affiant alleges is evidence, against
    Shirdon on the charges outstanding against him.  Other parts of the affidavit
    contain the affiants opinion as to what inferences or conclusions could be
    drawn from certain evidence.  The potential negative impact of these parts of
    the affidavit on Shirdons fair trial rights is clear without further
    articulation.  There are, however, parts of the affidavit subject to the
    non-publication order that do not fit into these categories.

[57]

On my review of the affidavit, several of the sections subject to the
    non-publication order appear to refer to background information that is readily
    available to and known to the public, or to information that is revealed in
    parts of the affidavit that are not subject to a non-publication order.  For
    example, see the Investigators Comments after paras. 27(k), 28(c), 30(e),
    32(k), 35, 35(e), 35(i)(iv), 35(i)(vi), 60(k) of the affidavit.
[3]

[58]

Other parts of the affidavit refer to the contents of Mr. Makuchs
    articles, published on June 23, October 1, and October 7, and a Skype interview
    with Shirdon on September 23 (at paras. 44-52 of the affidavit).  It is not
    clear to me why the affiants summary of those articles found in paras. 60(i)
    and (j) is subject to a non-publication order.

[59]

The parties did not make submissions directed at specific parts of the
    affidavit subject to the non-publication order.  The submissions were put on
    the broad basis that there should or should not have been a non-publication
    order made.  I would not vary the application judges order without submissions
    addressing the specific parts of the affidavit which may, on the principles as
    enunciated by the application judge, not be properly the subject of a
    non-publication order.

[60]

I see two possibilities.  It may be that the respondent and the
    appellants can agree on what parts of the affidavit should no longer be subject
    to a non-publication order.  If so, the parties could prepare a proposed order
    for this court reflecting that agreement.  Alternatively, if the parties cannot
    reach a consensus, the appellants could bring an application under s. 487.3(4) in
    the Superior Court to vary the non-publication order made by the application
    judge.


V



conclusion

[61]

I would dismiss the appeal as it relates to the production order made by
    the application judge.  I would vary the sealing/redaction order made by the
    application judge in the manner set out above.  With respect to the non-publication
    order, and subject to the parties agreeing on a variation of that order, I
    would dismiss the appeal, but direct that the appellants, if so advised, may
    seek a variation of the non-publication order in the Superior Court.

Released: AH  MAR 22 2017

Doherty J.A.

I agree Alexandra
    Hoy A.C.J.O.

I agree B.W. Miller
    J.A.





[1]

The interveners, the British Columbia Civil Liberties
    Association (BCCLA) and the Coalition of media and journalist organizations
    made submissions relating to the production order.  The intervener, the
    Canadian Civil Liberties Association (CCLA) made submissions relating to the
    sealing order and the non-publication order.



[2]

I will refer to the relevant sections by their present
    numbering.



[3]

These portions of the affidavit are presently subject to the
    non-publication order and are not available to the public.  The parties and the
    interveners, however, do have access to these portions of the affidavit.  The
    same is true of the parts of the affidavit referred to in para. 59 of these
    reasons.


