REASONS FOR DECISION

A. Overview

[1] Farah Mohamed Shirdon left Canada for Syria in March 2014 to join ISIS as a recruiter. In April 2014, the RCMP launched a criminal investigation into Mr. Shirdon’s activities. Later that same year, VICE Media Canada Inc. published two articles containing details of two conversations between their reporter, Ben Makuch, and someone believed to be Mr. Shirdon via Kik Messenger, an online messaging application. As part of its investigation, the RCMP obtained a production order to compel VICE Media and Mr. Makuch to turn over notes or recordings of those Kik Messenger conversations with Mr. Shirdon.[^1]

[2] VICE Media and Mr. Makuch immediately applied to quash or revoke the production order. Their application was dismissed by the Superior Court of Justice.[^2] VICE Media and Mr. Makuch appealed that decision to the Court of Appeal for Ontario, which dismissed their appeal,[^3] and to the Supreme Court of Canada, which also dismissed the appeal.[^4]

[3] Before the Supreme Court of Canada granted VICE Media and Mr. Makuch leave to appeal, two Canadian media outlets published a statement from the United States Central Command (CENTCOM)[^5] that Mr. Shirdon was killed in an airstrike in Mosul on July 13, 2015. VICE Media and Mr. Makuch did not seek to put information about Mr. Shirdon’s death before the Supreme Court of Canada by way of a fresh evidence application, although passing reference was made to it in argument.

[4] Following the release of the Supreme Court of Canada’s decision in late November 2018 upholding the validity of the production order, the RCMP took steps to enforce the order. Rather than complying, VICE Media and Mr. Makuch brought this application to revoke the production order or stay its enforcement. They argue that because Mr. Shirdon is dead, it is no longer reasonable to require them to comply with the production order. In the alternative, they argue that the enforcement of the production order would amount to an abuse of process.

[5] The Respondent argues that the issues raised now – the validity of the production order and whether reports of Mr. Shirdon’s death rendered the order unenforceable – were decided by the Supreme Court of Canada and the Applicants should be estopped from litigating them a second time. In the alternative, the Respondent argues that the evidence of Mr. Shirdon’s death is inconclusive and that it would not amount to an abuse of process for the RCMP to enforce the production order.

[6] There are two issues to be decided in this case:

a. Are the Applicants estopped from relitigating the validity of the production order or the effect of Mr. Shirdon’s death on its enforceability?

b. Would the enforcement of the production order amount to an abuse of process in light of the CENTCOM report of Mr. Shirdon’s death?

[7] For the reasons that follow, I find that the Applicants are estopped from further challenging the validity of the production order. That issue was finally decided by the Supreme Court of Canada. If the Applicants wanted to rely on the CENTCOM statement about Mr. Shirdon’s death as a basis to revoke or quash the Order, they should have formally put it before the Supreme Court of Canada.

[8] The enforceability of the production order was not decided by the Supreme Court of Canada. The Applicants are not estopped from raising that issue now.

[9] However, I find that the enforcement of the production order would not amount to an abuse of process in the circumstances of this case. The RCMP have been unable to confirm the veracity of the CENTCOM statement about Mr. Shirdon’s death. It is, therefore, reasonable for the RCMP to continue its investigation into his activities. The application to stay the enforcement of the production order is dismissed.

B. Are the Applicants estopped from relitigating the validity of the production order or the effect of Mr. Shirdon’s death on its enforceability?

[10] Litigants are expected to “put their best foot forward to establish the truth of their allegations when first called upon to do so”.[^6] To promote finality and fairness, the doctrine of issue estoppel precludes an unsuccessful party from relitigating issues that have been conclusively decided in prior proceedings.[^7] The doctrine does not apply only in circumstances where the exact legal issue is raised in two different proceedings; it also applies to matters of fact, law, or mixed fact and law that are “necessarily bound up” with the determination of the issue in the earlier proceeding.[^8] In other words, once a material fact is found to exist (or not exist) by a court, the same issue cannot be relitigated in subsequent proceedings between the same parties, even if advances as an apparently new argument.[^9]

[11] Issue estoppel can arise if three preconditions are met:

a. the same question has been decided;

b. the judicial decision which is said to create the estoppel is final; and

c. the parties are the same in both proceedings.[^10]

There will, however, be circumstances where the application of issue estoppel will itself create an injustice. As a result, courts retain the discretion to refuse to apply estoppel even if these three preconditions are met.[^11]

[12] The Supreme Court of Canada’s decision in this case is final and involved the same parties that are now before the court. I must, therefore, decide (i) whether the Supreme Court of Canada decided the same question that is before this Court and (ii), if so, whether I should nevertheless refuse to apply the doctrine of issue estoppel.

i. Did the Supreme Court of Canada already decide the issues raised on this application?

[13] In their written submissions, the Applicants argue that the death of Mr. Shirdon is a material change in circumstances that undermines the conditions for the issuance of the production order. They also take the position that the production order was rendered moot by Mr. Shirdon’s death. Finally, the Applicants argue that enforcing the production order would be an abuse of process.

[14] During oral argument, the Applicants focused on the enforceability of the production order. They argue that the Supreme Court of Canada’s decision deals only with the validity of the order and does not address whether the RCMP should be prohibited from enforcing it.

[15] The Respondents argue that the Supreme Court of Canada has already ruled that the death of Mr. Shirdon is not relevant to the enforceability of the production order issued in February 2015. The Crown points to the fact that the Applicants argued before the Supreme Court that the authorizing justice should be required to consider whether there is any prospect of a trial when deciding whether the issuance of a production order properly balances the rights of the media and the interests of the state.

[16] I find that the Supreme Court conclusively decided that the production order is valid, but did not consider whether the enforcement of the order would amount to an abuse of process in light of the reports of Mr. Shirdon’s death.

[17] Moldaver J., writing for the majority, addressed four issues in his reasons: (1) whether the framework set out in Canadian Broadcasting Corp. v. Lessard, 1991 CanLII 49 (SCC), [1991] 3 S.C.R. 421, which governs applications made by the police for a production order relating to the media, should be reconsidered; (2) whether there should be a presumptive notice requirement when the police are seeking a production order relating to the media; (3) whether the framework articulated in R. v. Garofoli, 1990 CanLII 52 (SCC), [1990] 2 S.C.R. 1421, for judicial review of a wiretap authorizations applies to an application by the media to review a production order; and (4) whether the production order issued in this case should be set aside.

[18] On the first issue, the Applicants argued that an authorizing judge should consider whether there is likely to ever be a trial when assessing the state’s interest in obtaining a production order aimed at the media. It was in this context that the Applicants made reference to the CENTCOM report that Mr. Shirdon was dead and argued that because there would never be a trial in this case the order should be revoked. The Court expressly rejected this argument, holding: “even where it appears uncertain – or even unlikely – that a trial will actually take place, society still has an interest in seeing crime investigated, particularly where it is ongoing or poses a future threat”.[^12]

[19] On the issue of notice, the Supreme Court held that the police are expected to provide an evidentiary basis in their application for a production order to explain why it should be considered without notice to the media. In addition, the authorizing judge can direct that notice be given to the media, particularly if more information is necessary to properly balance the rights and interests at stake.

[20] In relation to the standard of review, the Supreme Court held that “if the media points to information not before the authorizing judge that, in the reviewing judge’s opinion, could reasonably have affected the authorizing judge’s decision to issue the order, then the media will be entitled to a de novo review”.[^13] If the media does not adduce new information that could reasonably have affected the decision of the authorizing judge, the production order will only be set aside if there was no reasonable basis on which it could have been issued. This is not a change in the law. Applicants have always been able to adduce new evidence to augment the record on a Garofoli application to undermine the basis on which the order under review was made.

[21] On the ultimate issue of the validity of the order in this case, the Supreme Court found there was a reasonable basis to grant the production order: “The statutory preconditions were met, and based on the record it was open to the authorizing judge to conclude that the compelling state interest in the investigation and prosecution of the alleged terrorism offences at issue outweighed the media’s right to privacy in the circumstances of this case.”[^14]

[22] For the purpose of the doctrine of issue estoppel, the issue decided by the Supreme Court of Canada is the validity of the production order that requires the Applicants to produce the Kik Messenger communications between Mr. Makuch and Mr. Shirdon.

ii. Would the operation of issue estoppel create an injustice in this case?

[23] In my view, barring the Applicants from relitigating the validity of the production order would not result in any injustice in this case. Three factors inform this decision.

[24] First, the decision giving rise to issue estoppel is from the highest court in this country, and was made after many years of litigation.

[25] Second, the circumstances the Applicants now rely upon to question the validity of the order were known to them before the Supreme Court heard or decided this case. All of the evidence that is before this Court on the current application was available, or could have been available, to the Applicants before the Supreme Court hearing.

[26] In fact, the Applicants turned their minds to whether the evidence of Mr. Shirdon’s death rendered their leave application to the Supreme Court of Canada moot. Less than two weeks after CENTCOM publicly confirmed the death of Mr. Shirdon, counsel for the Applicants wrote to the Respondent about the impact of this news on the Supreme Court proceedings. That letter states, in part, as follows:

If the Crown and RCMP are in a position to confirm to their satisfaction that Mr. Shirdon was, in fact, killed in July 2015, then we suggest that the RCMP’s Production Order against Mr. Makuch and VICE Media Canada Inc. (“VICE”), and any steps taken to enforce the Order, are now moot.

Assuming that the information from CENTCOM is accurate, our clients’ current Application for Leave to the Supreme Court will no longer be required. Therefore, we suggest that the parties advise the Court that Mr. Shirdon had been confirmed dead and the materials sought by the Production Order are no longer needed for a criminal investigation and prosecution. As a result, the Leave Application is now moot and the Application will be withdrawn by the Appellants.

The Respondent wrote back a few days later and said that the RCMP had been unable to confirm that Mr. Shirdon had been killed. The Respondent, therefore, took the position that the production order remained valid and enforceable.

[27] If the Applicants wanted to argue that the new information about Mr. Shirdon’s death rendered the proceedings moot, or was otherwise relevant to the validity of the production order, they should have sought leave to adduce fresh evidence before the Supreme Court of Canada. They are not entitled to sit on new evidence or a new argument only to raise it if they are unsuccessful on appeal.[^15]

[28] Finally, there remains one narrow basis on which the Applicants can advance their argument about the effect of Mr. Shirdon’s death on the RCMP investigation. It is still open to the Applicants to argue that the enforcement of the order, notwithstanding the Supreme Court’s determination that it was properly issued, would amount to an abuse of process. That argument was not made before by the Supreme Court of Canada and it does not question, implicitly or explicitly, the validity and finality of the Court’s decision. Rather, it engages different factual and legal considerations than were before the Supreme Court.

[29] Otherwise, to the extent the current application seeks to set aside that order, it is barred by operation of issue estoppel and I decline to exercise my discretion to entertain any argument that the production order is invalid.

C. Would the enforcement of the production order amount to an abuse of process in light of the CENTCOM report of Mr. Shirdon’s death?

[30] The Applicants take the position that the CENTCOM statement is true and the RCMP has not provided a convincing explanation for their decision to persist with their investigation of Mr. Shirdon in light of the CENTCOM statement. The Applicants argue that, in those circumstances, the RCMP decision to continue its investigation of Mr. Shirdon and enforce the production order is an abuse of process.

[31] The Respondent acknowledged during the oral hearing that if there was indisputable evidence of Mr. Shirdon’s death, it likely would amount to an abuse of process for the RCMP to enforce the production order, given that Mr. Shirdon is the only target of their investigation. However, the Respondent takes the position that the CENTCOM statement is not conclusive. Even if the CENTCOM statement is reliable, it is not sufficient for the RCMP to close its investigation. The Respondent argues that it is reasonable, and therefore not an abuse of process, for the RCMP to continue to investigate Mr. Shirdon until it can confirm his death.

[32] I accept that the CENTCOM statement is likely reliable in the sense that CENTCOM likely took careful steps to confirm Mr. Shirdon’s death before making any public comments about the military strike that killed him. I also accept that the RCMP has been unable to confirm the content of the CENTCOM statement in this case. Given the risk posed by Mr. Shirdon, it is not an abuse of process for the RCMP to continue its investigation.

i. Legal Framework for the Abuse of Process Analysis

[33] The decision by the RCMP to continue its investigation of Mr. Shirdon and enforce the production order is at the core of the RCMP mandate. Every member of the RCMP is under a duty to preserve the peace, prevent crime, and apprehend offenders. RCMP officers also have a duty to execute warrants and production orders that have been validly issued.[^16]

[34] It is the function of the police to investigate incidents that might be criminal, make conscientious and informed decisions about whether to lay charges, and then provide the fruits of their investigation to the prosecutor.[^17] When evidence of a crime is published in the media, the Canadian public expects the police to investigate those reports.[^18]

[35] A necessary corollary of the duty to make decisions about whether charges should be laid is the obligation to make decisions about whether and when to end an investigation. The decision to start, continue, or end an investigation involves a significant exercise of discretion on the part of the police. This Court should not interfere with a decision by the RCMP to commence, continue, or conclude an investigation, or operational steps taken during an investigation, unless that decision amounts to an abuse of process.

[36] The Superior Court of Justice has inherent jurisdiction to control its own process and prevent an abuse of process. Generally speaking, an abuse of process can arise in two ways. First, when a prosecutor acts in a way that undermines the fairness of the trial. Second, when a prosecutor’s conduct undermines the integrity of the judicial process.[^19] When an alleged abuse of process involves the exercise of prosecutorial discretion, a court will intervene only when the decision is made in bad faith or for an improper purpose.[^20] The court will issue a stay of proceedings only in the “the clearest of cases”.

[37] Here, there is no prosecutor and there is no trial. This application focuses on the RCMP’s exercise of discretion to continue its investigation of Mr. Shirdon. The Supreme Court of Canada has already found that the production order in this case is valid and the RCMP are entitled to the documents in the possession of the Applicants. The issue, therefore, is whether the enforcement of the valid production order would undermine the integrity of the judicial process or bring the administration of justice into disrepute.

[38] Historically, the common law doctrine of abuse of process was considered analytically distinct from the abuse of process doctrine under s. 7 of the Charter. Since 1995, however, the common law doctrine has been subsumed under s. 7 of the Charter except in those rare circumstances where “the Charter, for some reason, does not apply yet where the circumstances nevertheless point to an abuse of the court’s process”.[^21]

[39] Here, Mr. Makuch’s s. 7 Charter rights are engaged because he faces the possibility of imprisonment for up to six months if he fails to comply with the production order.[^22] As a corporation, however, VICE Media does not enjoy s. 7 rights.[^23] Given the narrow scope of this Court’s jurisdiction to prevent an abuse of process in the context of a police investigation, the result in this application will be the same whether considered under the common law abuse of process doctrine or under s. 7 of the Charter. The governing consideration either way is whether enforcement of the order would bring the administration of justice into disrepute.

[40] The only way the enforcement of a valid production order could bring the administration of justice into disrepute is if it were being done for an improper purpose or in bad faith. There is no direct evidence that the RCMP is acting in bad faith or for an improper purpose. For example, there is no evidence that the RCMP want the material from the Applicants to assist with an investigation into someone other than Mr. Shirdon. The question, therefore, is whether bad faith or an improper purpose can be inferred from the circumstances of this case. The answer to that question turns how likely it is that the CENTCOM is true and the reasonableness of the explanation given by the RCMP for continuing its investigation in the face of that statement.

[41] The Applicants are seeking to rely on the CENTCOM statement for the truth of its contents. It is, therefore, hearsay. Nonetheless, it can be admitted under the principled exception to the hearsay rule if it is both necessary and reliable.[^24] The CENTCOM statement is necessary in the sense that information about Mr. Shirdon’s death is not available to the Applicants from any other source. Even if the CENTCOM statement is sufficiently reliable to meet the test for admitting hearsay – threshold reliability – the issue will be whether it conclusively proves that Mr. Shirdon is dead – ultimate reliability.

[42] The Applicants adduced evidence from General Francis Taylor, the former Under Secretary, Office of Intelligence and Analysis, U.S. Department of Homeland Security, to support both the threshold and ultimate reliability of the CENTCOM statement. The Applicant sought to have General Taylor qualified as an expert in CENTCOM operations and the reliability of statements made by CENTCOM regarding the killing of high-profile terrorism targets. Before assessing the reliability of the CENTCOM statement and the reasonableness of the RCMP decision to continue its investigation, I must first decide if General Taylor’s expert evidence is admissible.

ii. Admissibility of General Taylor’s Evidence

[43] General Taylor was not involved in the operation that purportedly resulted in the death of Mr. Shirdon. He was also not involved in the decision made by CENTCOM to comment publicly on Mr. Shirdon’s death. Nonetheless, General Taylor was able to comment on the steps ordinarily taken by CENTCOM to confirm the death of a target in military operations. He was also able to comment on the process ordinarily undertaken by CENTCOM to decide whether to publicly confirm the death of a target during a military strike. Finally, General Taylor could comment on information sharing arrangements between the US Military and other allied forces, including Canada, working with CENTCOM in the Middle East.

[44] By way of broad overview, General Taylor testified that CENTCOM employs Battle Damage Assessment (“BDA”) to determine the outcome of an air strike undertaken as part of a military operation, and to confirm whether the target of the strike was killed. General Taylor testified that decisions about whether to issue a public statement about the results of a military operation are made at the highest levels of the US Military. In General Taylor’s opinion, there is “no reason” to doubt the reliability of CENTCOM’s statement that Mr. Shirdon was killed in an air strike in Mosul on July 13, 2015.

[45] The Respondent opposes the admissibility of General Taylor’s evidence, arguing that his evidence is not necessary, and that General Taylor is not qualified to opine on the reliability of the CENTCOM statement about Mr. Shirdon’s death notwithstanding his extraordinary credentials. I disagree.

[46] The outcome of this application turns, in large part, on the likelihood that the CENTCOM statement about Mr. Shirdon’s death is true and the reasonableness of the RCMP’s explanation for persisting with its investigation of Mr. Shirdon in light of that statement. General Taylor’s evidence is logically relevant to both issues. While General Taylor is not involved in any decisions about the strike on Mr. Shirdon, he can testify about the steps that were likely taken by CENTCOM to confirm Mr. Shirdon’s death before it was publicly reported. This evidence, if accepted, would tend to increase the reliability of the CENTCOM statement.

[47] General Taylor’s evidence is also necessary to assist the court in determining the reliability of the CENTCOM statement. The steps taken by CENTCOM before and after an airstrike to confirm the identity of its target and the success of the attack are beyond the knowledge of the court. The process involved in the decision to issue a public statement about Mr. Shirdon’s death is also beyond the expertise of the court. Finally, General Taylor has expertise on information sharing between the US and Canada about CENTCOM military operations that goes well beyond the knowledge of the Court.

[48] I find that General Taylor is a properly qualified expert on the operations of CENTCOM, the reliability of public statements made by CENTCOM regarding the death of high-profile terrorism targets in military operations, and the sharing of intelligence between the US and Canada. General Taylor was a very impressive witness both in terms of his knowledge of the subject matter and his approach to giving evidence.

[49] From June 1996 to May 2001, General Taylor was the Commander of the Air Force Office of Special Investigations. In that role, he supported CENTCOM military operations in the Middle East.

[50] From April 2014 to January 2017, General Taylor was the Under Secretary, Office of Intelligence and Analysis, US Department of Homeland Security. In that capacity, he developed and implemented intelligence programs to support the US Intelligence Community. He dealt with CENTCOM on a daily basis, including in relation to the killing of high value targets in the Middle East. He attended weekly meetings of the National Security Council in relation to US counter-terrorism efforts. The Council gave direction to and received reports from CENTCOM about anti-terrorism operations. The Council designated people as “high value terrorism targets” for the purpose of military, intelligence or law enforcement operations. The Council also made decisions about whether to make public statements about military strikes. Between 2014 and 2017 – the timeframe in which Mr. Shirdon was allegedly killed and CENTCOM issued its first statement confirming his death – General Taylor was personally involved in two or three decisions about whether CENTCOM would issue a public statement about a targeted strike.

[51] General Taylor was balanced in his evidence and fairly acknowledged the limits of any opinion he offered. He clearly understood his duty to the Court to provide objective, unbiased evidence, and appeared to do so throughout his testimony.

[52] I find that the threshold requirements for the admissibility of General Taylor’s expert opinion evidence are satisfied. I also find that the benefits of admitting his evidence outweigh any potential risks. His evidence is legally relevant and of a specialized nature such that is necessary for the proper determination of this application. I have no concerns about the reliability of his testimony or its objectivity.[^25]

iii. Is the CENTCOM Statement of Mr. Shirdon’s death admissible for the truth of its contents?

[53] Based on the evidence of General Taylor, I am satisfied that the CENTCOM statement that Mr. Shirdon was killed in Mosul in 2015 meets the test for threshold reliability and is admissible for the truth of its contents.

[54] Mr. Shirdon left Canada in 2014. He was believed to be a high-profile recruiter and facilitator for ISIS, using social media to encourage westerners to join ISIS. According to General Taylor, in 2014 and 2015 the US government was particularly concerned about ISIS recruiting English speaking operatives for training and possible terrorist operations in the west. Identifying ISIS recruiters like Mr. Shirdon was a priority for the US government during that period.

[55] General Taylor testified that, whenever possible, the US military tries to capture high ranking officials of terrorist groups. However, between 2014 and 2017 there was no US military presence in Mosul, Iraq to support a capture operation. During that time frame, military strikes were designed to kill identified targets.

[56] In his various military positions, General Taylor was privy to, participated in, and observed several operations designed to capture or kill high value terrorism targets. General Taylor explained that, in advance of a strike, the US military puts significant effort into developing an “intelligence picture” of the target’s pattern of life so they can determine how best to capture or kill the target.

[57] Once a strike occurs, the US military conducts a BDA to determine whether the intended target was struck and killed, and whether there was any unintended collateral damage. Conducting a BDA is a routine part of military operations. To the extent possible, the US military relies on multiple sources of information to conduct the BDA in each case, including video from the weapon platform used for the strike, post-strike reconnaissance from airborne or space-based intelligence gathering platforms, US or other military personnel in the vicinity of the strike, reliable human sources on the ground, open source intelligence (including from social media).

[58] In its September 6, 2017 statement, CENTCOM stated that Mr. Shirdon “was killed by a coalition airstrike in Mosul on July 13, 2015”. CENTCOM made a similar statement in late 2018, adding that the Coalition “regularly uses” intelligence, surveillance and reconnaissance to confirm strikes. This statement is consistent with the BDA process General Taylor described.

[59] General Taylor testified that it would be “very unusual” for CENTCOM to issue any public statement that a target had been killed without solid confirmation. He further testified that the CENTCOM statement about Mr. Shirdon would have been based on validated BDA information derived from intelligence, surveillance and reconnaissance sources following the strike. General Taylor testified that the decision to issue a statement about Mr. Shirdon would have been approved at the highest level in CENTCOM, and perhaps at the Pentagon as well. Finally, General Taylor testified that CENTCOM would not issue a false statement about the death of Mr. Shirdon. In fact, General Taylor is not aware of any situation in which CENTCOM would falsely report the death of a target.

[60] General Taylor testified that he is aware of circumstances in which terrorist organizations have made false claims on social media that one of its members died in battle. He explained that terrorist organizations have an incentive to put out false statements about the death of its members to “obfuscate the circumstances” of its operatives. CENTCOM, on the other hand, has no reason to falsely claim it killed a high ranking terrorist. General Taylor explained that it would be detrimental to CENTCOM’s overall credibility to issue a report that turned out to be false.

[61] The Crown adduced evidence that Mr. Shirdon was placed on the Specially Designated Global Terrorist List in April 2017 – almost two years after he was reportedly killed – in an attempt to undermine the reliability of the CENTCOM statement. The designation says that Mr. Shirdon is “actively engaged in terrorism” and was in Raqqa in 2016, more than a year after his reported death. General Taylor testified that this list is a tool employed by the US State and Treasury Departments to seize and freeze assets of people involved in terrorist activities. General Taylor testified that the State Department likely had not received information about Mr. Shirdon’s death from CENTCOM by the time they put him on the list. Nevertheless, General Taylor testified that it is not unusual for a deceased individual to be designated as a Specially Designated Global Terrorist or to remain on the list. For example, Anwar Al-Awlaki, a senior recruiter for Al‑Qaeda, is still on the list despite having been killed in 2010. Osama bin Laden is also still on the list. General Taylor testified that the fact that Mr. Shirdon was put on the Specially Designated Global Terrorist List after he was reportedly killed does not change his opinion that the CENTCOM statement is reliable.

[62] General Taylor testified that he has “no reason to doubt” the reliability of the statement from CENTCOM and, as a result, he has no reason to believe Mr. Shirdon is still alive. Though in cross-examination, General Taylor agreed that, without access to the information in the possession of CENTCOM about the strike, he cannot say conclusively that Mr. Shirdon is dead.

[63] On the basis of General Taylor’s evidence, I accept that the CENTCOM statement that Mr. Shirdon was killed in an airstrike in Mosul in July 2015 is reliable in the sense that CENTCOM likely conducted a BDA after the strike to confirm their target and is not likely to have issued a false statement. As a result, I find that the content of the statement is likely true. The fact that Mr. Shirdon was placed on the Specially Designated Global Terrorist List in 2016 does not, in my view, undermine the credibility of the CENTCOM statement. That list is created for a different purpose; a purpose which endures even after a suspected or known terrorist is dead.

[64] A finding that the CENTCOM statement is likely to be true satisfies the threshold reliability requirement but is not determinative of this application. The question is whether it is nonetheless reasonable for the RCMP to pursue its investigation of Mr. Shirdon in the face of a reliable statement from CENTCOM that he is dead.

iv. Is the RCMP decision to continue its investigation of Mr. Shirdon reasonable?

[65] The Respondent filed an affidavit from Constable James Kirkpatrick, Acting Corporal of the Integrated National Security Enforcement Unit, to explain the RCMP decision to continue its investigation of Mr. Shirdon in the face of the CENTCOM statements. The Applicants chose not to cross-examine Constable Kirkpatrick on his affidavit.

[66] Constable Kirkpatrick was the lead investigator in relation to the activities of Mr. Shirdon. According to Constable Kirkpatrick, the investigation into Mr. Shirdon remains open and will remain open until they obtain proof or evidence of his death. Constable Kirkpatrick states that it is the responsibility of national security investigators to investigate all threats “until ultimately the threat has ended”.

[67] Constable Kirkpatrick explains that it is difficult for the RCMP to rely on foreign reports that a “high risk traveller”, like Mr. Shirdon, has been killed: “Such reports are difficult to rely on for many reasons including that the source of the information comes from outside Canada, the basis of the report is not usually known, and sometimes the reports are proven to be false.”

[68] The RCMP is aware that CENTCOM has said publicly that Mr. Shirdon was killed in 2015. However, Constable Kirkpatrick is not aware of the basis of that report. CENTCOM has not provided the RCMP with any proof or evidence that would confirm their report of Mr. Shirdon’s death.

[69] Constable Kirkpatrick states that “any information that has been provided to the RCMP from the FBI in relation to Shirdon has been provided under caveat and cannot be disclosed”. Constable Kirkpatrick also states that any communication with or information received from the US about Mr. Shirdon’s death is protected by national security privilege. The Applicants did not challenge the privilege claim or otherwise seek disclosure of the content of the communications between the RCMP and any foreign entity about Mr. Shirdon’s death.

[70] Rather, the Applicants filed a number of redacted documents obtained through an Access to Information Act request that shed further light on the RCMP decision to continue its investigation. On September 7, 2017 – the date of the original media reports about Mr. Shirdon’s death – RCMP Constable Myers sent an email that says the RCMP had been informed about the CENTCOM statement of Mr. Shirdon’s death. The recipient of that email has been redacted. Constable Myers sent a second email dated February 8, 2018 with the subject “FBI response: SHIRDON death report”. The recipient of that email is also redacted but the email states that “the RCMP’s position remains that, without being provided proof of SHIRDON’s death through indisputable means such as DNA evidence, for obvious public safety reasons, the RCMP must assume that he is alive and maintain the investigation in open status”.

[71] The Applicants argue that it is unreasonable for the RCMP to take the position that nothing short of DNA evidence will convince them of the death of Mr. Shirdon (or the target of any other investigation). General Taylor testified that it would be very unusual for the US military to obtain DNA to confirm the death of a target in an airstrike behind enemy lines. He further explained that it would be unusual for DNA to be available after a successful strike because military strikes are designed to completely obliterate the target.

[72] I do not read Constable Myers’s email to mean that the only way the RCMP will accept the CENTCOM statement that Mr. Shirdon is dead is if they receive DNA proof from the US Military. I read the email to say that the RCMP will not close its investigation into a terrorist suspect, whom they believe poses a real threat to Canadian and international security, without convincing evidence of some sort from the US to confirm the CENTCOM statement. The reference to DNA evidence is an example of the type of information that would convince the RCMP of Mr. Shirdon’s death. The reference to confirmation through “indisputable means” suggests that the RCMP want to be sure Mr. Shirdon is dead before closing their investigation.

[73] The Applicants also argue that the CENTCOM statement is reliable and should be sufficient for the RCMP to close its investigation. In the alternative, the Applicants argue that the RCMP has not taken adequate steps to obtain confirmatory information from the American counterparts. I will deal with their alternative argument first.

[74] General Taylor testified that he would be surprised if the members of the Canadian military are not aware of the details of the airstrike on Mr. Shirdon. The Canadian military has representatives stationed at CENTCOM headquarters in the Middle East who participate in and receive information about anti-terrorism operations. General Taylor was not able to comment on whether information about Mr. Shirdon’s death would have been shared with Canadian law enforcement agencies, such as the RCMP, although he noted that the cooperation between the FBI and the RCMP (and between the CIA and CSIS) is “the best in the world”. Importantly, General Taylor testified that there may be information about sources and operative methods that the US would never share, even with close foreign allies.

[75] Based on Constable Kirkpatrick’s affidavit and the documents filed by the Applicants, I find that there were communications between the RCMP and FBI about the CENTCOM report of Mr. Shirdon’s death. The content of those communications is privileged. The Applicants chose not to cross-examine Constable Kirkpatrick on his affidavit or challenge the privilege claim. Therefore, I have no reason to reject Constable Kirkpatrick’s evidence that, despite these communications, the RCMP has not received information from the FBI, or any other agency, that would allow them to independently verify that Mr. Shirdon is dead. Whatever information they did receive from the FBI did not confirm or refute the CENTCOM report. This is not inconsistent with General Taylor’s evidence that Canada and the US have strong information sharing arrangements but some information is never shared.

[76] Given that the RCMP have been unable to verify the CENTCOM report, are they required to accept it and close their investigation into Mr. Shirdon?

[77] When asked whether US counter-terrorist officials would accept the word of the CENTCOM spokesperson that someone was killed, General Taylor testified that if a US military organization said they had killed someone and that statement could be verified, US counter‑terrorism agencies would accept it as a fact. General Taylor also testified that US counter‑terrorism officials would not close an ongoing investigation without access to the underlying information to confirm the death of its suspect. This appears to be the exact position the RCMP are taking in this case: they are not prepared to close their investigation based on the CENTCOM statement without evidence or intelligence to verify the death of Mr. Shirdon.

[78] This is not a situation in which the RCMP have been presented with credible evidence about the death of their target from a trusted ally and are refusing to seek confirmatory evidence. That could well give rise to an inference of bad faith on the part of the RCMP. Here, the RCMP have communicated with the FBI about the report of Mr. Shirdon’s death and, for whatever reason, have not received information that would allow them to confirm the CENTCOM statement.

[79] There is also no evidence that the RCMP want the Kik messages between Mr. Makuch and Mr. Shirdon to advance an unrelated investigation. Mr. Shirdon is the only target named in the production order application and the only person to have been charged as a result of that investigation. If the report of Mr. Shirdon’s death was irrefutable and the RCMP persisted with the enforcement of the order, that likely would give rise to an inference that the RCMP was acting for an improper purpose to further some other investigation.

[80] In the end, Constable Kirkpatrick states that relying on the CENTCOM report without supporting evidence “is dangerous, can hamper investigations, and poses a danger to the safety of Canadians (particularly if the reports are proven to be false)”. I accept his evidence on this point. Given that the RCMP have been unable to obtain information to verify the CENTCOM report from its US counterpart, it is reasonable for them to continue their investigation of Mr. Shirdon, notwithstanding the reliability of the CENTCOM report. There is no basis for me to infer that the RCMP decision to continue its investigation into Mr. Shirdon is for an improper purpose or tainted by bad faith.

D. Conclusion

[81] The Applicants have established that the CENTCOM report that Mr. Shirdon was killed in an air strike in Mosul is admissible for the truth of its contents and likely true. However, the RCMP has not received evidence from CENTCOM or any other agency to allow them to verify the report. Given the serious risk posed by terrorists around the world, it is reasonable for the RCMP to continue its investigation of Mr. Shirdon. It would not amount to an abuse of process for the RCMP to enforce the production order that the Supreme Court found to be valid. The application is therefore dismissed.

B. Davies J.

Released: July 4, 2019

COURT FILE NO.: CR-19-90000010-00MO

DATE: 20190704

ONTARIO

SUPERIOR COURT OF JUSTICE

VICE MEDIA CANADA INC. and BEN MAKUCH

Applicants

– and –

HER MAJESTY THE QUEEN

Respondent

REASONS FOR JUDGMENT

B. Davies J.

Released: July 4, 2019

[^1]: Mr. Shirdon was charged in absentia on September 24, 2015 with six terrorism charges. [^2]: R. v. Vice Media Canada Inc, 2016 ONSC 1961 [^3]: R. v. Vice Media Canada Inc, 2017 ONCA 231 [^4]: R. v. Vice Media Canada Inc., 2018 SCC 53 [^5]: CENTCOM is the US military command most responsible for implementing military strategy, along with its NATO allies, against Al-Qaeda and ISIS in the Middle East, including Syria. [^6]: Danyluk v. Ainsworth Technologies Inc, 2001 SCC 44, at para. 18 [^7]: Penner v. Niagara Regional Police Service Board, 2013 SCC 19, at paras. 88 - 89 [^8]: Danyluk, at para. 54 [^9]: Currie v. Ontario (Attorney General), 2017 ONCA 266, at para. 16 [^10]: Angle v. Minister of National Revenue, 1974 CanLII 168 (SCC), [1975] 2 S.C.R. 248, at 254 [^11]: Danyluk, at para. 33 [^12]: Vice Media, SCC at para. 49 [^13]: Vice Media, SCC at para. 73 [^14]: Vice Media, SCC at para. 87 [^15]: The Catalyst Capital Group Inc. v. VimpelCom Ltd., 2019 ONCA 354 at paras. 49 – 52 [^16]: Royal Canadian Mounted Police Act, R.S.C., 1985, c.R-10, s. 18 [^17]: VICE Media, SCC at para. 47 [^18]: Lessard, at p. 447 [^19]: R. v. Nixon, 2011 SCC 34, at para. 36 [^20]: Nixon, at para. 66 - 68 [^21]: R. v. O’Connor, 1995 CanLII 51 (SCC), [1995] 4 S.C.R. 411, at para. 70 [^22]: Criminal Code of Canada, s. 487.0198 [^23]: Irwin Toys Ltd. v. Quebec (Attorney General), 1989 CanLII 87 (SCC), [1989] 1 S.C.R. 927 [^24]: R. v. Khan, 1990 CanLII 77 (SCC), [1990] 2 S.C.R. 531 [^25]: R. v. Abbey, 2017 ONCA 640 at para. 48```

Vice Media Canada Inc. v. The Queen, 2019 ONSC 4084

Case Summary

REASONS FOR DECISION

A. Overview

B. Are the Applicants estopped from relitigating the validity of the production order or the effect of Mr. Shirdon’s death on its enforceability?

i. Did the Supreme Court of Canada already decide the issues raised on this application?

ii. Would the operation of issue estoppel create an injustice in this case?

C. Would the enforcement of the production order amount to an abuse of process in light of the CENTCOM report of Mr. Shirdon’s death?

i. Legal Framework for the Abuse of Process Analysis

ii. Admissibility of General Taylor’s Evidence

iii. Is the CENTCOM Statement of Mr. Shirdon’s death admissible for the truth of its contents?

iv. Is the RCMP decision to continue its investigation of Mr. Shirdon reasonable?

D. Conclusion

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Expert Witnesses

Issues

Statutory Provisions 2

Legal Tests 3

Legislation 2