‘Dark day for press freedom’ in court
OTTAWA • A Vice Media reporter must give the RCMP material he gathered for stories about an accused terrorist, the Supreme Court of Canada has ruled in a case that pitted press freedoms against the investigative powers of police.
In its 9-0 ruling Friday, the high court said the state’s interest in prosecuting crime outweighed the media’s right to privacy in gathering the news when all the factors in play were taken into account.
Vice Media said the decision made it a “dark day for press freedom.”
In 2014, reporter Ben Makuch wrote three articles about the involvement of Farah Mohamed Shirdon, formerly of Calgary, with the Islamic State of Iraq and the Levant.
Shirdon had left Canada for Turkey in March of that year. A month later, he appeared in an ISIL propaganda video that turned up on the internet. He tore up his Canadian passport, threw it into a fire and said, “With help from Allah, we are coming to slaughter you.”
Exchanges between Makuch and Shirdon through a text-messaging service were crucial to the articles.
In 2015, the RCMP obtained a production order under the Criminal Code, directing Vice Media and Makuch to provide documents and data relating to communications with Shirdon, who might now be dead.
Makuch brought an application to quash the production order, but it was dismissed — a decision upheld by the Ontario Court of Appeal. The Supreme Court agreed to examine Makuch’s case, with a full bench hearing arguments last May.
In a previous case, the court had set out nine conditions for assessing the reasonableness of a search of a media outlet.
Vice Media argued at the Supreme Court that lower courts had been incorrectly applying, or failing to apply, that balancing test.
Philip Tunley, a lawyer for the multimedia outlet, told the high court there should be clear protections for journalists when enforcement agencies come knocking.
He said the result of current law and practice was “a chilling effect” on the media’s important role in gathering and publishing news in Canada.
Federal lawyer Croft Michaelson told the hearing there was “no merit” to criticisms of the legal framework in place for deciding on police access to media materials. In its arguments, the Crown called the test a principled and flexible framework intended to curb any potential chilling effect that an order might have on the ability of the media to do its work.
Although the Supreme Court was unanimous in dismissing Makuch’s appeal, the judges provided two distinct sets of reasons.
Justice Michael Moldaver said on behalf of the majority that the framework continues to provide a suitable model for considering applications for search warrants and production orders relating to the media, though elements should be tweaked.
Even then, Moldaver wrote, the production order for Makuch’s materials should stand because disclosure of the materials would not reveal a confidential source, no “off the record” or “not for attribution” communications would be disclosed, there is no alternative source through which the materials could be obtained, and Shirdon used the media to publicize extremist views.
Makuch, who is based in New York, was not at the court for the decision’s release. Tunley had no comment, and it was not immediately clear when — or even if — the materials would be given to the RCMP.
“This is a dark day for press freedom, which is a basic tenet of democracy,” Vice Media said in a statement. “While we’ve lost this battle, nothing can shake our belief that a free press is instrumental to a truthful understanding of the world in which we live.”