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Fight Over VICE News Journalist's Digital Messages Now in the Hands of a Judge

Canadian police claim the records contain crucial evidence in their case against a Calgary man claiming to be an Islamic State fighter, and who remains at large.
VICE News reporter Ben Makuch leaves court this week (Photo by Colin Perkel/The Canadian Press)

The question of whether copies of a reporter's instant messenger chats with an alleged terrorist should be turned over to the police is now in the hands of a Toronto judge.

Justice Ian MacDonnell's decision will resolve months of wrangling between the Royal Canadian Mounted Police and VICE News, which is fighting a court order requiring it to turn over a journalist's records of digital messages to law enforcement.

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The police claim the records contain crucial evidence in their case against a Canadian man claiming to be an Islamic State fighter, and who remains at large.

Lawyer Iain MacKinnon spent the morning arguing in court that the order should be quashed because it wouldn't produce any additional evidence of a crime, and that respecting the order would create a chilling effect on the press' ability to gather news.

"What we're faced with," said MacKinnon, "is the delicate balance between the interest of the public and the privacy of the media."

The order from police came after a series of interviews between Mohamed Shirdon and VICE News reporter Ben Makuch, as well as VICE CEO Shane Smith.

Shirdon is currently thought to be living inside the Islamic State, and is wanted by Canadian police on various terrorism charges. Police are asking for records from Makuch's Kik Messenger app.

But the police, MacKinnon pointed out, have a wealth of evidence against Shirdon — enough to charge him without requiring chat logs between him and Makuch. There is no relevant information in Makuch and Shirdon's conversations that hasn't already been published by VICE, MacKinnon said.

Additionally, MacKinnon said getting in touch with Shirdon wasn't difficult, outlining exactly how Makuch managed to do so.

"Anyone could contact him via Twitter," he told the court.

"They're proceeding on the basis of conjecture," said MacKinnon, calling the order a "fishing expedition."

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Crown prosecutor Sarah Shaikh, however, argued that it's possible that the information produced would help the RCMP investigate and prosecute Shirdon, and predicted that sources like him wouldn't be dissuaded from speaking out in the future, should this order be granted, because they would want their statements to be made public.

'What we're faced with is the delicate balance between the interest of the public and the privacy of the media.'

Several arguments made by both sides can't be reported because they refer to a document that is currently under a sealing order — this includes exactly what the RCMP hopes Makuch's notes and correspondence records will help them to prove.

The Crown argued that journalists are not in a position to know what is and isn't relevant information to an investigation. Journalists also don't know what information police have already gathered in the course of their investigation, Shaikh said.

Shakh also argued the "investigative nature" of the warrant should be considered — the information obtained from a production order doesn't necessarily have to be direct evidence of a crime.

The issuing judge only needs to believe there's a connection between "grounds to believe that offences were committed and that the documents will afford evidence in relation to the offences," said the Crown's factum.

"Anything relevant or logically connected to an incident under investigation, the parties involved, and their potential culpability, falls within the scope," it continues.

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MacKinnon countered that the Crown could simply subpoena Makuch to corroborate the veracity of his articles, to which Shaikh responded that the Crown and police have an obligation to present the best evidence — a news article is hearsay and is not sufficient when actual exchanges between Makuch and Shirdon exist.

The Crown also argued that because Shirdon was talking to a reporter, there was no expectation of privacy — he knew his statements would be public and that's why a production order isn't problematic.

But MacKinnon said just because someone talks to a reporter, it doesn't mean they expect information to be handed over to police. That's why whistleblowers, for example, expect confidentiality protection from journalists, and feel more comfortable speaking to reporters than to law enforcement authorities.

The decision ultimately comes down to Justice Ian MacDonnell, who wondered whether Shirdon had any expectation of privacy.

"He wanted all of this to be published, for it all be out there … Isn't that a relevant consideration?" MacDonnell asked the lawyers.

But Makuch didn't publish a transcript of the entire conversation, MacKinnon pointed out, adding that there could be more to the exchanges.

He also argued against the Crown's request for a temporary sealing order on an affidavit known as an "information to obtain," calling the request "onerous."

"We can't even say there will be a trial in two years," he said. "There may never be a trial because Shirdon has never been arrested."

Because Shirdon's comments have already been widely publicized through his own social media accounts and news articles, he continued, the idea that the disclosure of information through the ITO would compromise his rights to a fair trial, if he's ever brought before the courts, is "disingenuous because it's all already out there," he said.

Follow Tamara Khandaker on Twitter@anima_tk