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Canadian politicians aren’t fazed by Supreme Court ruling against VICE reporter

The decision compels VICE reporter Ben Makuch to hand over his communications with an alleged ISIS member

by Stephen Maher
Nov 30 2018, 10:23pm

Library of Parliament.

MPs offered up a muted reaction to a Supreme Court of Canada decision that undercuts source protection for journalists, giving no indication they would press the matter further.

In a unanimous ruling on Friday, the Supreme Court upheld an order compelling VICE reporter Ben Makuch to give the RCMP records of conversations he had in 2014 with alleged ISIS fighter Farah Shirdon, who is believed to have been killed in an airstrike in Iraq in 2015.

The judges decided that the RCMP’s demand for Makuch’s information was legal, given that “the source was not a confidential one and wanted everything he said to be made public.”

VICE has strenuously objected, calling this a “dark day for the freedom of the press,” and the Canadian Association of Journalists called it a “blow against press freedom,” but MPs across party lines had a measured reaction on Friday.

“We all need to examine and understand the Court's analysis,” said a spokesman for Public Safety Minister Ralph Goodale.

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“We respect the unanimous decision of the Supreme Court and believe that in some specific cases it is in the public interest to obtain certain information to ensure public safety and justice,” a spokeswoman for NDP public safety critic Matthew Dubé told VICE News.

The Conservative heritage critic, former journalist Peter Kent, said in an interview with VICE News that MPs are unlikely to do anything to tamper with the balance the top court has found on the question.

“One respects the Supreme Court as the highest court of the land. It was a unanimous decision and it supported lower courts’ decisions,” Kent said.

Kent, who worked as a high profile broadcast journalist for decades, explained that the facts of the case convince him the court made the right decision.

“Speaking only as a former journalist, but I am persuaded by the lines in the court’s ruling that the argument defending protection and the rights shrivels in the context that the source was not a confidential one, and he wanted everything he said to be public,” he said.

Because Makuch’s conversations with Shirdon took place in 2014, the court made its ruling without considering the Journalistic Sources Protection Act, a 2017 bill that provides greater protection for journalists, in particular when it comes to confidential sources.

That means the court will wrestle with the same issues again, but the outcome will not differ, Carissima Mathen, a University of Ottawa law professor, told VICE News. “It seems that they would have probably reached the same outcome in this case, given the facts of the case.”

MPs would be reluctant to overturn independent decision maker on this kind of question, she added.

“There’s no legislative response unless you wanted to severely constrain the RCMP’s powers to get production orders, and I don’t see the government doing that.”

Conservative Senator Claude Carignan, who authored the source protection bill, said Friday that he was pleased the court recognized the importance of press freedom, and he looks forward to seeing the result of cases conducted under the law he wrote.

“If you had the comments of the Supreme Court on the importance of the free press, and you put in the application of the new bill, I think we could have a good result in the future to protect journalistic sources,” he said.

The court is now wrestling with a similar case: Marie-Maude Denis of Radio Canada has gone to the top court to appeal a lower court ruling requiring her to expose confidential sources in a Quebec corruption investigation.

A ruling is expected in the spring. That case will be considered under the new source-protection law.

“The next Supreme Court ruling, when they will interpret the legislation, will be very important for journalism,” said Carignan.

According to Mathen, it’s possible, although unlikely, that MPs might want to revisit the question of source protection after that hearing.

Cover image of Canada's House of Commons. Library of Parliament.