An Ontario judge ruled Thursday that a media coalition and two civil liberties organizations can intervene on behalf of a VICE Canada journalist, as he fights a production order filed by the RCMP.
VICE will be back in court in February, fighting a previous ruling that ordered national security reporter Ben Makuch to hand over Kik messenger chat logs between him and an alleged ISIS fighter. Thursday's ruling means that they'll have back-up.
The judge granted intervener status for all three parties, despite opposition from the Crown, which argued that they were duplicating arguments and raising new issues that would shift the focus away from VICE's appeal.
But Justin Safayeni, lawyer for the coalition, argued the case would have a broad impact on the rights of all media in Canada. Safayeni is representing eight organizations including the CBC, the Canadian Media Guild, and Canadian Journalists for Free Expression.
The coalition wanted status for the February hearing to argue for strict guidelines on how police can slap production orders on journalists, arguing that "a chilling effect will always follow from production orders targeting the media, and particularly those targeting communications with a source."
They said that merely serving a journalist is enough to dampen freedom of the press.
"Our whole argument is that we don't need evidence of a chilling effect—this is something that based on inferences and understanding of human behavior, the court should take account of without evidence," Safayeni said.
The coalition will argue that judges should always weigh that chilling effect against the value of the information that would be gained through a production order before granting it. In this case, the production order is being used to gather evidence against someone who's been charged in absentia and may even be dead.
"Here, you've already charged someone and you're gathering evidence for a trial that may not even happen," said Safayeni.
For its part, the BC Civil Liberties Association plans to help flesh out the kinds of questions an authorizing judge must ask when dealing with a production order that targets the media.
Brian Radnoff, lawyer for the Canadian Civil Liberties Association, said his client's submissions will focus on the gag order that was applied to the documents filed to VICE Canada. An Ontario Superior Court later ordered the gag orders be lifted, in part, but issued an indefinite publication ban over the rest.
The Canadian Civil Liberties Association says the judge didn't consider that Farah Shirdon, the alleged ISIS fighter in question, isn't in Canada, will likely never be arrested, and that information about his connection to terrorism is already available online.
The association will argue that courts should carefully scrutinize any order that violates Canada's open court principle, especially publication bans on information that's already been available to the public.
Canadians going abroad to participate in terrorism is one of "the most significant political issues" of the current day said Radnoff, one that's of interest of "all Canadians regardless of the position they take.
"It's worthy of examination by the public, and it's important that the media be permitted to examine it."
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