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'A Detrimental Chilling Effect': VICE Pushes Back in Legal Fight With Canadian Police

A court has ordered that a VICE News reporter hand over digital messages with an alleged Islamic State fighter. VICE is now appealing that decision.
VICE News reporter Ben Makuch. (Photo by Colin Perkel/The Canadian Press)

Prime Minister Justin Trudeau says he's putting his faith in the Canadian judicial system when it comes to an ongoing court battle between VICE News and the Royal Canadian Mounted Police.

The federal policing agency is seeking the correspondences between Ben Makuch, a national security reporter, and Farah Shirdon, an alleged Islamic State fighter that is wanted on terrorism-related offenses — and a Canadian court has upheld that request. VICE has filed an appeal on the grounds that it will have a "detrimental chilling effect" on the practice of journalism in Canada.


In an interview with VICE's Head of Content Patrick McGuire on Thursday, Trudeau weighed in on the case, saying a "strong" judicial decision was needed to balance the freedom of the press and "needing to keep Canadians safe." He would not, however, comment on whether or not he thought it was appropriate for the RCMP to be able to serve a media organization with a production order, deferring to the courts.

"I'm always willing to discuss next steps, but as it is, I'm entrusting in our judicial systems and in our courts," he said.

Asked if stronger journalism protection laws were on his radar, Trudeau said, "Obviously this particular context has brought up reflection for us. But we will see how things evolve."

In March, an Ontario court upheld a production order granted to the RCMP in 2015 for all communications via Kik Messenger between Makuch and Shirdon, a Calgary man believed to have left home in 2014 to fight alongside IS militants in Iraq and Syria.

The order also demands any notes or records from all VICE employees or third parties regarding how Shirdon was contacted and any interviews that were facilitated.

The decision has been condemned by civil liberties and press freedom advocates around the world as a dangerous blow to journalistic integrity, many agreeing with VICE that journalists shouldn't be required to serve as an extension of law enforcement.

Related: Canadian Judge Orders VICE News Journalist to Hand Over Digital Messages


The inclusion of freedom of the press in Canada's Charter of Rights and Freedoms is "a recognition that government infringement in the practice of journalism is harmful not just to journalists and their sources, but ultimately to society as well — no matter how acutely the state may wish to interfere," says VICE's notice of appeal.

VICE is also appealing the publication ban on a document outlining the RCMP's reasons for requesting the production order and describing its own investigation, and arguing for it to be lifted.

Justice Ian MacDonnell didn't place enough weight on the potential "chilling effect" the decision might have on journalists' ability to report stories of public interest, the role media play in a democratic society, and the material evidence — an affidavit sworn by reporter Ben Makuch, in particular — submitted by VICE, the notice of appeal states.

Further, VICE will argue that the judge erred by failing to take into account the disruptive effect the production order could have, including the risks to a journalist's physical safety, and in finding that it wouldn't disrupt Makuch's or VICE's work. The notice of appeal also states that the lower court judge failed to consider the evidence the police was able to gather against Shirdon on its own, without any information from VICE.

VICE's lawyers also criticize the judge's decision to issue a publication ban over large swaths of the RCMP's ITO "on the basis that such publication would pose a serious risk to Shirdon's right to be tried by an impartial jury," arguing he didn't consider factors including the uncertainty around whether or not he'll ever be apprehended, arrested or tried, as well as the fact that he'd made posts on social media that were already publicly available.

Follow Tamara Khandaker on Twitter: @anima_tk