VICE launches new legal battle to protect journalist's materials

VICE Media Canada is urging an Ontario court to revoke or amend a previous court order that would compel the media company and journalist Ben Makuch to give the Royal Canadian Mounted Police any notes and communications between Makuch and an alleged Islamic State fighter.

VICE and Makuch submitted new documents on Tuesday that provide evidence that Farah Shirdon was killed during an airstrike in Iraq in July of 2015, including statements regarding his death from the U.S. military.

“Due to this material change in circumstances since the Production Order was issued, the Production Order is now moot and unenforceable,” states the application filed by Makuch and VICE Media.

This matters because, as the applicants state in their motion, “the RCMP and the Crown cannot prosecute a dead person.”

VICE's move is the latest in a yearslong legal saga that made its way to the Supreme Court of Canada, with the highest court siding with the RCMP last month in its pursuit of Makuch’s notes.

In 2014, Makuch wrote three articles about Shirdon, a Calgary man who left Canada to join the Islamic State. The RCMP went on to charge Shirdon with a number of terrorism-related offences. And it obtained a production order demanding Makuch and VICE’s notes and communications via Kik messenger surrounding those articles. The RCMP has claimed it requires those records to properly carry out its investigation of Shirdon.

The new documents filed in court cite a number of news articles from 2017, a U.S. State Department press release, and email correspondences. This evidence could not have been brought forward during the original proceedings, as Shirdon was thought to still be alive when the RCMP obtained its order two years prior in 2015, the court documents state.

In the fall of 2017, Global News and other outlets reported that the U.S. government’s Army Central Command (CENTCOM) had confirmed that Shirdon was killed in a drone strike in Iraq in 2015. This information was not previously made public.

“Farah Mohamed Shirdon, an external operations facilitator and recruiter, was killed by a coalition airstrike in Mosul on July 13, 2015. We have nothing further to add at this time,” a CENTCOM spokesperson told Global at the time.

After the Supreme Court’s ruling in December 2018, VICE.com editor-in-chief Josh Visser followed up with CENTCOM to confirm their information on Shirdon, according to the new court documents that includes an affidavit by Visser.

Visser corresponded with U.S. Army Colonel Sean J. Ryan who replied in an email on the evening of December 8th that he had “no new information contrary to the CENTCOM spokesman announcing the death of Farah Mohamed Shirdon …”

“I can’t speak to the specifics on this case for security reasons, but the Coalition regularly used [Intelligence, Surveillance and Reconnaissance] assets and intelligence to confirm strikes,” Col. Ryan wrote.

A Public Prosecution Service of Canada spokesperson told VICE News in an email on that it will "respond to the application in court." A court appearance is scheduled for later this month.

The application states that if the court does not revoke or amend the previous production order, it should issue a new one declaring that “any further attempt by the RCMP or the Crown to enforce it against the Applicants, as an abuse of process” that violates VICE’s and Makuch’s Charter rights.

A VICE spokesperson wrote in an email: "While the RCMP continues to demand the production of information on a subject known to be deceased, our application respectfully asks the court to see the absurdity of such a request and revoke or stay the order."

The Supreme Court’s 2018 ruling against VICE Media has been decried by civil liberties as an affront to press freedoms in Canada, although the ruling did point to changes that should be implemented regarding how law enforcement agencies obtain production orders and warrants for information held by news outlets. In particular, that a news outlet should be present in court when police are making arguments to obtain the order, something that was not the case when the RCMP pursued its production order against VICE Media.

Makuch has refused to comply with the RCMP’s production order, saying that journalists should not do the police’s work for them, and that any relevant information regarding Shirdon has already been made public through his work. A coalition of press freedoms advocates and media agencies was granted intervenor status and argued at court that the production order intruded on the privacy and freedom of journalists to do their jobs without intrusion.

Last October, Canada’s Parliament unanimously passed a press shield law to protect journalists and their sources from law enforcement interference, however that did not apply in the VICE Media matter as it was initiated before that law was passed, and Shirdon was not an anonymous source.

Cover image via VICELAND