Press freedom case heard in top court
OTTAWA • Journalists are not an investigative arm of the police, a lawyer representing Vice Media told the Supreme Court of Canada in arguing there should be clear protections for the media when enforcement agencies come knocking. Counsel Philip Tunley said Wednesday the result of current law and practice is “a chilling effect” on the media’s important role in gathering and publishing news in Canada.
Vice Media reporter Ben Makuch is challenging an Ontario Court of Appeal ruling that he must give the RCMP the background materials he used for stories on an accused terrorist.
In 2014, Makuch wrote three articles about the involvement of Farah Shirdon, formerly of Calgary, with the Islamic State of Iraq and the Levant.
Shirdon had left Canada for Turkey in March 2014. 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.” Makuch’s articles were largely based on exchanges he had with Shirdon through a text messaging service. 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 may now be dead. Makuch brought an application to quash the production order, but it was dismissed — a decision upheld by the Court of Appeal. The Supreme Court agreed to hear Makuch’s case, which squarely pits press freedoms against the investigative powers of police.
In a previous case, the court set out nine conditions for assessing the reasonableness of a search of a media outlet.
Vice Media argues that lower courts have been misapplying, or failing to apply, the balancing test. Rather than give careful consideration to media interests, courts give short shrift to “the pernicious effects” of warrants and production orders on the media’s ability to gather or report the news, Vice says in its written submission to the high court. Tunley said Wednesday the production order for Makuch’s materials should be tossed out, noting the possibility of Shirdon facing a criminal trial is remote. “It’s massively overbroad, it was and is premature, and other, less intrusive measures could — however many years ago — have been put in place to preserve the status quo until there was some prospect of a trial.”