Canada's federal police force is claiming a VICE News reporter's cellphone contains crucial evidence in their case against an Islamic State fighter still at large, according to new documents filed in a legal battle over freedom of the press that hits a courtroom on Monday.
The Royal Canadian Mounted Police (RCMP) obtained an order from an Ontario court last February requiring VICE Media to provide messages sent between national security reporter Ben Makuch and Farah Mohamed Shirdon, the Calgary native who allegedly left Canada to join IS. VICE has brought forward an application to beat the court order.
To prove their charges filed in absentia against Shirdon, police are asking for records from Makuch's Kik Messenger app, as well as from any other VICE employee.
Shirdon is facing six criminal charges for joining a terrorist group, participating in terrorist activity, and threatening attacks against Canada and the United States.
The RCMP issued a Red Notice through INTERPOL for Shirdon, asking for his capture and return to Canada.
Some of the charges against Shirdon, who told Mukuch he left Calgary, Alberta to join IS in 2014, rely on interviews conducted between Makuch, as well as VICE CEO Shane Smith, and Shirdon.
The police contend that they need the information from Makuch's cellphone, and details about how he made contact with Shirdon, and that the publicly-available details won't suffice, according to documents filed with the court last week.
"Journalists are not lackeys for the police, and to use us that way is a totally unjustifiable violation of free expression and privacy rights."
Through this process, the RCMP also filed warrants against Kik to obtain copies of the messages.
"The RCMP executed a Production Order on Kik, and obtained time-stamps of when particular user names interacted with other users. Since Kik does not store the content of any other conversations, the RCMP could not retrieve any content from them," reads court documents filed by the prosecution. "The users would be the only source for records of conversations using Kik."
But VICE News is pushing back in court, arguing that seizing journalists' work amounts to an infringement on freedom of the press.
In its defense, VICE argued that "if media outlets are permitted to become investigative arms of the police through the use of production orders, the media's important role and credibility will be undermined, as well as its ability to gather information."
In Canada, journalists do not enjoy any blanket protections from police investigations, as they do in parts of America and Europe. The Canadian courts have recognized that journalists may be protected from production orders or search warrants, but only on a case-by-case basis.
"The terms [of the production order] were respectful of their special position in society," the prosecution states in its factum.
Lawyers for VICE have argued that the value of the Kik messages — which were largely published — do not justify seizing a journalist's cellphone records.
Much of the case is still subject to a gag order, forbidding details of the case from being published. VICE is fighting to have that sealing order revoked.
Members of the Canadian media and press freedom advocates have decried the government's actions.
"An attack on VICE's right to freedom of the press is an attack on the right to freedom of the press for all," wrote an editorial in the Ryerson Review of Journalism.
"Journalists are not lackeys for the police," said Tom Henheffer, executive director of Canadian Journalists for Free Expression. "And to use us that way is a totally unjustifiable violation of free expression and privacy rights."
"Journalists aren't an on-call branch of law enforcement," said Nick Taylor-Vaisey, president of the Canadian Association of Journalists. "The courts know that. It's inexcusable for a police force to forget that."
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