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Supreme Court rules against VICE in press freedom battle against the RCMP

The Supreme Court has upheld an RCMP order compelling VICE and reporter Ben Makuch to hand over source materials.

by Rachel Browne
Nov 30 2018, 2:00pm

The Supreme Court of Canada ruled Friday against VICE Media and national security reporter Ben Makuch in their battle against the Royal Canadian Mounted Police in a case that pitted the role of journalists against the role of police and prosecutors.

The ruling compels Makuch and VICE to hand over any source material regarding Makuch's interviews with a Canadian man alleged to have joined ISIS. It's an outcome that was feared by press freedoms advocates, who have argued that such a ruling would be a blow to journalistic integrity in Canada.

The case revolves around a series of articles written by Makuch in 2014 based on interviews he had with a Calgary man, Farah Shirdon, who allegedly left Canada to join Islamic State fighters in Iraq and Syria.

In 2015, the RCMP obtained a production order compelling VICE Media and Makuch to hand over any communications with Shirdon and any documents relating to those communications.

VICE Media and Makuch refused to hand anything over and fought to have that production order quashed in court. The lower courts denied those attempts to overturn the production order, but it was upheld by the Supreme Court on Friday.

“In this case, Vice Media has put forward all of the evidence and argument that would have been weighed in the balance. Based on that record, in my view, the production order strikes a proportionate balance between the rights and interests at stake,” the court wrote in its unanimous decision.

The ruling states that "the benefits of the state's interests in obtaining the information outweighs the harmful impact on the press’ constitutionally protected ... rights."

What happens next depends on a number of factors. It's up to the RCMP to enforce the production order. And then it's up to VICE and Makuch to decide how they will respond.

The ruling does point out that changes should be implemented around how law enforcement obtains warrants and production orders from news outlets. Specifically, it states that a the news outlet subjected to any order should be present in court when police are making arguments to obtain warrants or production orders.

Shirdon was featured in an ISIS propaganda video that showed him ripping up his Canadian passport and throwing it into a fire. The RCMP charged Shirdon with six terror-related charges in absentia, and argued that they needed Makuch’s communications to carry out their investigation properly.

Shirdon likely died in an airstrike in 2015 in Iraq, according to news reports and the U.S. Central Command (CENTCOM), which oversees U.S. military operations in the region. But Canadian officials have not confirmed this information.

Lawyers for VICE Media argued in court that the production order should be disregarded because it was overly broad, and it was very unlikely that Shirdon would ever face criminal trial anyway. Further, journalists should not be an arm of law enforcement, VICE argued, and sources may be fearful of trusting reporters if it’s possible for law enforcement to seize those communications.

A press freedoms coalition of civil liberties advocates and media agencies also threw their weight behind VICE’s case at the Supreme Court, arguing that the production order intrudes on the privacy and freedom journalists must be afforded in order to properly do their jobs.

Makuch has also said that any relevant information he gleaned from Shirdon had already been published.

Government prosecutors argued that Makuch’s communications with Shirdon are crucial evidence in their case.

Public Safety Canada did not immediately respond to a request for comment from VICE News on Friday morning.

Last October, the Canadian Parliament unanimously passed a press shield law that would protect journalists and their sources from interference by law enforcement. That did not apply in VICE/Makuch’s case as Shirdon’s identity was never concealed.

"The suggestion that the production order would interfere with Vice Media’s newsgathering and publication functions shrivels in a context where the source was not a confidential one and wanted everything he said to be made public," the Supreme Court decision states.

A press freedoms struggle is also playing out in Quebec, where the Superior Court issued a decision in May forcing an investigative reporter with Radio-Canada to reveal the identities of the sources she used in a story regarding corruption in the handling of public contracts.

Radio-Canada has vowed to appeal that decision, arguing that it poses a threat on the public’s right to information.

Cover Image of VICE journalist Ben Makuch. Colin Perkel/The Canadian Press.

This article originally appeared on VICE News CA.