The Supreme Court of Canada ruled on Friday against VICE Media and national security reporter Ben Makuch in their battle against the Royal Canadian Mounted Police in a case that pitted the role of journalists against the role of police and prosecutors.
The ruling compels Makuch and VICE to hand over any source material regarding Makuch's interviews with a Canadian man alleged to have joined ISIS. It's an outcome that was feared by press freedoms advocates, who have argued that such a ruling would be a blow to journalistic integrity in Canada.
"The chilling effect of this decision could critically harm journalists’ ability to gather and report the news in Canada," Margaux Ewen, North America Director for Reporters Without Borders, wrote in a statement. "Today’s Supreme Court ruling was not just a loss for VICE and Ben Makuch, but for all journalists and media organizations working in Canada.”
The case revolves around a series of articles written by Makuch in 2014 based on interviews he had with a Calgary man, Farah Shirdon, who allegedly left Canada to join Islamic State fighters in Iraq and Syria.
In 2015, the RCMP obtained a production order compelling VICE Media and Makuch to hand over any communications with Shirdon and any documents relating to those communications.
VICE Media and Makuch refused to hand anything over and fought to have that production order quashed in court. The lower courts denied those attempts to overturn the production order, but it was upheld by the Supreme Court on Friday.
“In this case, Vice Media has put forward all of the evidence and argument that would have been weighed in the balance. Based on that record, in my view, the production order strikes a proportionate balance between the rights and interests at stake,” the court wrote in its unanimous decision.
The ruling states that "the benefits of the state's interests in obtaining the information outweighs the harmful impact on the press’ constitutionally protected … rights."
What happens next depends on a number of factors. It's up to the RCMP to enforce the production order. And then it's up to VICE and Makuch to decide how they will respond.
Shirdon was featured in an ISIS propaganda video that showed him ripping up his Canadian passport and throwing it into a fire. The RCMP charged Shirdon with six terror-related charges in absentia, and argued that they needed Makuch’s communications to carry out their investigation properly.
Shirdon likely died in an airstrike in 2015 in Iraq, according to news reports and the U.S. Central Command (CENTCOM), which oversees U.S. military operations in the region. But Canadian officials have not confirmed this information.
The Supreme Court's ruling does point out that changes should be implemented around how law enforcement obtains warrants and production orders from news outlets. Specifically, it states that a the news outlet subjected to any order should be present in court when police are making arguments to obtain warrants or production orders.
Cara Zwibel, a director of the fundamental freedoms program at the Canadian Civil Liberties Association, told VICE News in an interview that this is a positive aspect of the ruling.
"While this is not the decision that we wanted, there are some things in the decision that i think are trying to move the needle in the right direction," said Zwibel. "A lot is going to depend on the implementation and how seriously the courts kind of take this direction."
In addition to the work of journalists, the decision could also impact researchers and academics in Canada.
"As someone who interviews militants, those involved in terrorist groups, and community members all the time, the SCC decision is definitely something that is worrying," Amarnath Amarasingam, a senior research fellow at the Institute for Strategic Dialogue, told VICE News on Friday. "Even as the court is clear about this case being very narrow, there is definitely potential that people will stop talking to us out of fear, stifling research and knowledge production."
Lawyers for VICE Media argued in court that the production order should be disregarded because it was overly broad, and it was very unlikely that Shirdon would ever face criminal trial anyway. Further, journalists should not be an arm of law enforcement, VICE argued, and sources may be fearful of trusting reporters if it’s possible for law enforcement to seize those communications.
A press freedoms coalition of civil liberties advocates and media agencies also threw their weight behind VICE’s case at the Supreme Court, arguing that the production order intrudes on the privacy and freedom journalists must be afforded in order to properly do their jobs.
Makuch has also said that any relevant information he gleaned from Shirdon had already been published.
Government prosecutors argued that Makuch’s communications with Shirdon are crucial evidence in their case.
A spokesperson from Public Safety Minister Ralph Goodale told VICE News in an email that the office was reviewing the court's decision. The decision "seeks to balance two crucial priorities: the need for police and security agencies to keep Canadians safe from crime and terrorism; and the need for the media to be free to pursue their vital work with confidence and integrity," the spokesperson wrote.
"The intersection between the two is crucial to our democracy. That's why a unanimous ruling of the Supreme Court of Canada is so significant. We all need to examine and understand the Court's analysis," the spokesperson continued.
Last October, the Canadian Parliament unanimously passed a press shield law that would protect journalists and their sources from interference by law enforcement. That did not apply in VICE/Makuch’s case as Shirdon’s identity was never concealed.
"The suggestion that the production order would interfere with Vice Media’s newsgathering and publication functions shrivels in a context where the source was not a confidential one and wanted everything he said to be made public," the Supreme Court decision states.
A press freedoms struggle is also playing out in Quebec, where the Superior Court issued a decision in May forcing an investigative reporter with Radio-Canada to reveal the identities of the sources she used in a story regarding corruption in the handling of public contracts.
Radio-Canada has vowed to appeal that decision, arguing that it poses a threat on the public’s right to information.
In Newfoundland, Aboriginal People’s Television Network reporter Justin Brake is facing criminal charges over his coverage of Muskrat Falls, a hydroelectric dam, in 2016.
Cover Image of VICE journalist Ben Makuch. Colin Perkel/The Canadian Press.