Ter­ror sus­pect dead or alive?

Con­fu­sion ham­pers res­o­lu­tion of me­dia fight

The Western Star - - Obituaries/Canada - BY COLIN PERKEL

Con­fu­sion over whether an ac­cused Cana­dian ter­ror­ist is dead or not is ham­per­ing ef­forts to re­solve a le­gal bat­tle over po­lice de­mand for a jour­nal­ist’s back­ground ma­te­ri­als, a re­quest that has alarmed me­di­arights groups.

Fed­eral pros­e­cu­tors and the RCMP are hold­ing fast to a pro­duc­tion or­der that a Vice Me­dia re­porter pro­duce in­for­ma­tion re­lated to his in­ter­views with Farah Shir­don, a Cal­gary man who is charged in ab­sen­tia with var­i­ous ter­ror­ism-re­lated of­fences.

Vice Me­dia is cur­rently seek­ing leave to ap­peal the RCMP’s de­mand to the Supreme Court of Canada, ar­gu­ing among other things that it in­fringes on me­dia free­dom and could make it harder for jour­nal­ists to ac­cess sources.

Last month, Amer­i­can mil­i­tary of­fi­cials said Shir­don had been killed in Iraq in 2015, prompt­ing Vice Me­dia’s lawyer, Iain MacK­in­non, to of­fer to with­draw the Supreme Court leave re­quest if the RCMP dropped the pro­duc­tion de­mand as moot.

How­ever, fed­eral of­fi­cials noted that the U.S. State Depart­ment in April had slapped Shir­don with a ter­ror­ist des­ig­na­tion, sug­gest­ing he was in fact still alive.

“The RCMP have ad­vised the Crown that they are un­able to con­firm whether or not Mr. Shir­don has been killed,” two lawyers with the Pub­lic Pros­e­cu­tion Ser­vice of Canada said in a let­ter to MacK­in­non ob­tained by The Cana­dian Press. “Cur­rently, the po­si­tion of the Crown is that the pro­duc­tion or­der re­mains valid and en­force­able.”

The U.S. Cen­tral Com­mand, which said Shir­don was killed in Mo­sul in a coali­tion airstrike on July 13, 2015, re­ferred ques­tions about his ter­ror­ist des­ig­na­tion to the U.S. State Depart­ment.

The depart­ment, in turn, said last month it was mak­ing in­quiries. How­ever, this week, a spokes­woman said it could not help. It in­stead re­ferred queries to the “in­tel­li­gence com­mu­nity,” and then pointed to the U.S. Na­tional Coun­tert­er­ror­ism Cen­tre.

Ques­tions to the cen­tre for any in­for­ma­tion on Shir­don’s sta­tus had re­ceived no ac­knowl­edg­ment by Thurs­day.

The ma­te­ri­als be­ing sought by the RCMP re­late to three sto­ries re­porter Ben Makuch wrote in 2014 about Shir­don. RCMP want him to turn over screen cap­tures of his in­stant-mes­sage chats with Shir­don, who was cited in sto­ries as mak­ing threats against Canada.

In a de­ci­sion in March that set a bind­ing prece­dent, On­tario’s top court af­firmed an ear­lier rul­ing that Makuch com­ply, de­spite ob­jec­tions from Vice and sev­eral me­dia groups. The Supreme Court was ex­pected to say within the next sev­eral months whether it would weigh in as Vice is ask­ing it to do.

If the Supreme Court de­cides to hear Vice’s ap­peal, it would add sub­stan­tially to the out­let’s le­gal bills and, if it were to lose, risk set­ting le­gal prece­dent that me­dia groups ar­gue would be harm the abil­ity to gather and re­port on news of im­por­tant pub­lic in­ter­est.

The re­sult is that Vice would pre­fer the case go away, de­spite the On­tario Ap­peal Court de­ci­sion.

“The main con­di­tion and ba­sis for the pro­duc­tion or­der, i.e. the crim­i­nal in­ves­ti­ga­tion and pros­e­cu­tion of Mr. Shir­don, is no longer present,” MacK­in­non wrote pros­e­cu­tors last month. “There­fore, the pro­duc­tion or­der is no longer valid or en­force­able.”

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