An Ontario court has ruled that a VICE News reporter must hand over all communications between him and an Islamic State fighter to Canada's federal police force.
Last month, VICE Media fought the Royal Canadian Mounted Police's (RCMP) court-granted production order for national security reporter Ben Makuch's Kik instant messenger app chat logs, or screen shots of the chats, between him and Farah Shirdon.
The 22-year-old Calgary man allegedly left Canada in 2014 to fight alongside IS in Iraq and Syria. He was charged in absentia with six terrorism-related offences last September, after he was interviewed by Makuch and VICE CEO Shane Smith. He's still at large and the RCMP has issued a red notice through INTERPOL asking for his capture and return back to Canada.
The RCMP argued they needed Makuch's communications with Shirdon as evidence to prove their charges.
VICE fought the production order in court, arguing that police seizure of any journalist's records would violate press freedoms and set a dangerous precedent for journalism in Canada.
VICE also argued that Makuch's records would not provide the police with anything they didn't already know and that the production order was merely a fishing expedition by the RCMP.
But in a decision released this week, the court rejected VICE's attempt to quash the order, ruling that the police's ability to gather evidence trumps the rights of VICE and Makuch to protect their work product in this case. Specifically, the screen captures of the chats are "important evidence in relation to very serious allegations" and "The screen captures are a copy of the actual electronic messages that Shirdon placed on Mr. Makuch's computer screen. They are highly reliable evidence that do not require a second hand interpretation," Justice Ian MacDonell wrote in his decision.
VICE is reviewing the judgment and giving serious consideration to appealing the decision.
Patrick McGuire, head of content for VICE Canada, said he doesn't agree with the judge's assertion that VICE is withholding any "highly reliable evidence."
"Our reporting has allowed the RCMP to charge Shirdon in absentia. We are not protecting Shirdon's identity or whereabouts, and we believe we have published all relevant material that is within the public interest," McGuire said. "VICE News, and every other Canadian journalistic organization, must be permitted to operate as an entity that is independent from law enforcement."
VICE's lawyer, Iain MacKinnon, said similar production orders could become more common in Canada if police know they can easily obtain notes and recordings from journalists. "It could have a very real chilling effect on the willingness of people and witnesses speaking to journalists," said MacKinnon. "If people realize that what they say to a journalist could easily be handed over to police and used as part of a criminal investigation, that may scare somebody off in speaking to a journalist. That is a very real concern that, unfortunately, the judge did not address in his reasons, even though it was raised as a factor he should consider."
It's very rare for law enforcement agencies to demand records from journalists in Canada, and Tom Henheffer, executive director of the Canadian Journalists for Free Expression, said the court's decision signals a concerning turning point for journalistic integrity.
"This is an extremely unfortunate decision and obviously a huge blow for press freedom in Canada. Journalists are not a law enforcement arm for the government and to be treated as such by the judiciary is a massive mistake," Henheffer said in an interview.
"If journalists are an armslength office of some enforcement agency, that's going to hurt their ability to get information from these groups, whether they be terrorists or anyone else. It's important that those stories are told to the Canadian people because we need to understand what makes these guys tick and the best way to do that is by having journalists talk to them."
Henheffer says he hopes the case will be turned over on appeal. "If it isn't, then there has to be pressure put on legislators to ensure that something is in place to protect journalistic sources," he said.
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