Reporter’s legal loss to RCMP sets dangerous precedent
Last week, a Superior Court judge ordered Vice Media and one of its journalists, Ben Makuch, to hand over to the RCMP records of text messages exchanged between Makuch and a suspected Daesh member, Farah Shirdon. Journalists and media outlets quickly denounced the decision as an unjustified intrusion into the journalist-source relationship. But the case raises broader issues that should concern us all — news gatherers and news readers alike.
Cases like this are rarely easy. Whenever law enforcement officials seek a court order to compel the production of records obtained from a journalist’s sources, courts are required to strike a balance between two sets of legitimate, and often competing, interests.
The RCMP has an interest in investigating serious crime. In this case, for example, the RCMP has charged Shirdon in absentia with six terrorism offences and is gathering evidence for an eventual prosecution. (Shirdon lived in Calgary, but is currently believed to be in Iraq or Syria.) Production orders are designed to assist in this investigative function by providing law enforcement access to records that will afford evidence of a crime.
At the same time, the media has a legitimate interest in communicating with sources, within a zone of privacy, in order to gather news of public importance. Giving law enforcement access to the media’s records poses a threat to this interest: the easier it is to get court orders for sensitive information obtained from sources, the less willing sources will be to speak to journalists in the first place. This “chilling effect” is a particular concern for sources who wish to remain confidential (which Shirdon did not), or sources who find themselves in an adversarial relationship with the state (which Shirdon did). As sources dry up, important stories are left untold — crippling the basic function of a free and impartial media, and doing a disservice to the public as a whole.
Every case is different. Still, in deciding whether and on what terms to grant law enforcement a production order, three basic principles help to ensure a proper balance between the needs of law enforcement and the freedom of the press.
First, the connection between the records sought from the media and the crime being investigated must be clearly articulated. In Vice’s case, the RCMP had provided only a vague and generalized assertion that the Makuch-Shirdon text messaging records would afford evidence of a crime. That is not enough. More is required before making an order that risks interfering with the media’s newsgathering abilities.
Second, the records sought must truly be the last resort for law enforcement. Alternative means of obtaining the same information should be exhausted before requiring the media to hand over their records. In Vice’s case, it appears that most (if not all) of the information sought by the RCMP was already included in articles Makuch published describing his exchanges with Shirdon. There was no need to obtain the same information through the texting records. The veracity of any quotes in those articles could be confirmed by Makuch himself, if necessary.
Finally, the potential chilling effect of any production order must be carefully weighed and considered as part of the balancing exercise. Chilling effects are cumulative and insidious, making them difficult to prove with hard evidence. But that does not make this consequence of production orders any less real — or detrimental. Remarkably, in the Vice case, the Court makes no reference to the chill- ing effect anywhere in its 34-page decision.
The need to consider these principles and to properly balance the interests of law enforcement and the media, is particularly acute for terrorism-related offences (and other similarly sensational crimes). In these cases, there is a natural tendency to favour giving law enforcement what they say they need. This is a problem. A real commitment to a free and vibrant press requires vigilance against its erosion in the name of national security. Our independent media play a vital role in informing public discourse, and ensuring transparency and accountability of the government and its agents. Its ability to do so is severely compromised when law enforcement can, with the help of the courts, effectively conscript journalists into being gatherers of evidence, rather than news.
All Canadians should find the Vice decision concerning. While law enforcement agencies must be able to do their job and effectively prosecute criminal activity, our legal system has never permitted them to do so by any means and at any cost.
Governments have a long track record of overreaching in their efforts to fight the threat of crime generally, and terrorism in particular: Bill C-51 at home and the FBI’s battle with Apple in the U.S. are only two of the most recent examples. With the Vice decision we must pause and, once again, as a nation confront the crucial question: to what extent are we willing to sacrifice our values in the name of national security? And what will our society look like when the dust settles?
The potential chilling effect of any production order must be carefully weighed and considered