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Government Lawyers Seek to Block Free Speech Groups in VICE’s Court Battle with RCMP

A court has ordered national security reporter Ben Makuch to hand over communications with a suspected ISIS fighter to the federal police. VICE is fighting that.


Photo by Colin Perkel/Canadian Press

A coalition of media and free speech organizations will be fighting to have their say on VICE's appeal of a court order requiring national security reporter Ben Makuch to hand over all notes and communications between him and a suspected Islamic State fighter to Canada's federal police.

The Crown plans to oppose granting the intervener status to the groups, which include the Canadian Civil Liberties Association (CCLA), and the British Columbia Civil Liberties Association (BCCLA), when they present their arguments at the end of October.

In March, an Ontario court upheld a production order from the Royal Canadian Mounted Police to produce Kik instant messenger app chat logs, or screenshots of the chats, between Makuch and Mohammed Farah Shirdon, a 22-year-old former Calgary resident who allegedly left Canada in 2014 to fight alongside IS in Iraq and Syria.

VICE's appeal of the decision will be heard in February 2017.

Justin Safayeni, a lawyer for the coalition, made up of eight organizations including the CBC, Canadian Journalists for Free Expression, Reporters Without Borders, and the Canadian Association of Journalists, called it a "broad group" with a common interest.

"All of them have a significant interest in protecting freedom of expression and the ability of journalists to gather and report the news, including by making sure journalists can communicate with their sources and conduct their work within a zone of privacy, without interference from the state and being compelled by the state to produce information and documents to law enforcement authorities," Safayeni said in an interview with VICE News.

READ MORE: 'A Detrimental Chilling Effect': VICE Pushes Back in Legal Fight With Canadian Police

Cara Zwibel of the CCLA told VICE News the organization is concerned about media being "conscripted" by police forces for help in their investigations and the detrimental effect it could have on sources' willingness to approach journalists.

While VICE has argued that all relevant information about Shirdon has already been published in various articles and interviews, Zwibel said there is still reason to be worried "that this sends a message to other people that you need to be wary before you contact a journalist because what you say may be handed to police even if it's intended to be off the record or background."

The CCLA has also taken issue with a publication ban that's been imposed on the information to obtain, a document outlining the evidence police presented to obtain the order, as well as the order itself.

"We're concerned about the general transparency of the process and whether a publication ban is really necessary in these circumstances and how long it might be in place for," said Zwibel, adding that while publication bans can help protect a person's right to a fair trial, in this case, Shirdon is not in the country, has not been arrested, and there's no indication of if and when that may happen.

"There's potentially an indefinite ban on publishing this material, and we think the court needs to look more closely at some of those factors and some of the context there in deciding whether or not a publication ban is warranted," she said.

The RCMP argues that Makuch's notes are crucial to its case against Shirdon, who was charged in absentia with six terror-related charges and remains at large outside of Canada.

VICE's lawyer Iain MacKinnon argues, however, that the production order should be quashed because it wouldn't produce any new evidence of a crime and that it's a way for Canada's federal policing body to conduct a fishing expedition. He also contends upholding the order would set a dangerous precedent by creating a "chilling effect" on journalists' ability to gather news.

Follow Tamara Khandaker on Twitter.