Court upholds ruling against reporter
Appeal decision maintains order that VICE journalist turn over materials to RCMP
After VICE Media reporter Ben Makuch published three stories about accused terrorist Farah Shirdon in 2014, the RCMP demanded he hand over all his communications with Shirdon.
The ensuing legal battle that set press freedom against the interests of law enforcement reached the Court of Appeal, which on Wednesday upheld a lower court’s decision not to quash the order to produce the documents.
The ruling is being criticized by press freedom and civil liberties organizations for putting a “chilling effect” on public interest reporting and free expression.
“The message this sends is that the police can use journalists to gather evidence and information for a criminal investigation,” said lawyer Iain MacKinnon, who represents VICE Media. “This may in fact encourage police forces to issue more of these production orders or search warrants against the media. The court had an opportunity to make clear that this should be an absolute last resort and they chose not to do that.”
The Court of Appeal panel of three judges found that Superior Court Justice Ian MacDonnell took into account the special position of the media and specifically considered concerns about the “chilling effect” of requiring the media to produce material for the police.
MacDonnell found that the material — primarily screenshots of messages between Makuch and Shirdon — sought by the RCMP provides the best and most reliable evidence of what Shirdon said, that the information was not available from any other source, that Shirdon was not a confidential source, that much of the material was published by Makuch, and that the material “could provide important and highly reliable evidence to support very serious criminal charges.”
Shirdon has been charged with ter- rorism-related offences in absentia.
It was “reasonable, on this record, to find the balancing of the competing interests favoured making the production order,” Justice David Doherty wrote.
The court also rejected the argument made by VICE that the Crown must show that the material sought is essential to the prosecution since it would be impossible to accurately assess what the Crown needs at the early stage of a production order.
“If journalists cannot protect their sources, then the information they provide will dry up, leaving Canadians uninformed and democracy impoverished,” said Tom Henheffer, executive director of Canadian Journalists for Free Expression (CJFE), in a statement that criticized the production order as little more than a “fishing expedition.”
Makuch has previously said he had published all information relevant to the public.
The CJFE and a coalition of media organizations, including Reporters Without Borders and News Media Canada, are calling on the government to change the laws governing the use of production orders to create more protections for journalists and their sources. They also urge the RCMP to withdraw the production order.
VICE Media intends to seek leave to appeal the decision at the Supreme Court of Canada, according to a statement from Ryan Archibald, the president of VICE Canada.
“This isn’t over,” he said. “VICE Media is prepared to do whatever it takes to support and defend our reporter, and our friend, Ben Makuch. His investigations into the complex world of cyber terrorism and digital security matter more now than ever.”
The statement also calls out the lack of shield laws in Canada that would provide specific protections to journalists, including from having to reveal the identity of confidential sources or share unpublished information gathered during reporting.
That kind of legislation is long overdue, MacKinnon said, noting there are various different shield laws in place in the U.S. and other countries. “Frankly, it is embarrassing that Canada, and a government that claims to believe in a free press, hasn’t taken any steps to protect journalists.”
While the odds of getting leave to appeal are stacked against them given that the Supreme Court of Canada agrees to hear only a limited number of cases, MacKinnon said it has been more than two decades since the top court looked at these issues.
“Technology has changed and the Internet has become such a critical component of journalists’ work,” he said, adding that the protection of press freedom is an issue of national and public importance.
Should leave to appeal be denied, VICE Media and Makuch will be left to decide whether they will comply with the production order. If they do not, the Crown could pursue a criminal charge. The penalty is a fine of up to $250,000 and/or six months in jail.