VICE Canada is calling it “a dark day for press freedom.”
The Supreme Court of Canada (SCOC) ruled today that VICE Media reporter Ben Makuch will have to turn over the notes of his conversations with an alleged ISIS member to RCMP. The unanimous 9-0 decision upholds an earlier lower court ruling.
Back in 2014, Makuch wrote three articles about Farah Mohamed Shirdon, a former Calgary resident, suspected of leaving Canada to join Islamic State fighters in Iraq and Syria. The articles were largely based on communications between Makuch and Shirdon through a text messaging service. According to the U.S. Military, Shirdon was killed in an attack in 2015.
The case pitted the interests of journalists to protect sources against those of the state to investigate crime.
RCMP obtained a production order in 2015, compelling VICE and Makuch to hand over any communications with Shirdon and related data and documents, which both the media outlet and reporter refused.
Makuch brought forward an application to quash the production order, which was dismissed, with the decision later upheld by the Ontario Court of Appeal. The Supreme Court agreed to examine the case and heard arguments in May.
“Here, the state’s interest in investigating and prosecuting the alleged crimes outweighs the appellants’ right to privacy in gathering and disseminating the news,” wrote Justice Michael Moldaver in today’s decision. “Importantly, disclosure of the materials sought 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 sought may be obtained; the source used the media to publicize his activities with a terrorist organization and broadcast its extremist views as a sort of spokesperson on its behalf; and the state’s interest in investigating and prosecuting the alleged crimes — which include serious terrorism offences — weighs heavily in the balance.”
The SCOC ruling notes that the case “does not engage the new Journalistic Sources Protection Act because the facts arose before the legislation came into force.”
Decision will have “chilling” effect on sources: VICE
In response to today’s decision, VICE posted an editorial statement.
“We thought about starting this editorial with a defiant ‘journalism is under attack’ statement. And that’s true. But what we’re also feeling today is a profound sense of disappointment—that our society has failed to recognize the importance of a free, and independent press.”
“Lawyers for VICE Canada argued unsuccessfully through three levels of court that the RCMP is fishing for information and is effectively forcing a journalist to be an agent of the state. With this court decision hanging in the balance for years, Makuch has continued to produce fearless and important journalism on sensitive and often dangerous topics. Today’s decision will no doubt have a chilling effect on both sources, who may be reluctant to talk to reporters, and on journalists themselves, who could be less inclined to report on sensitive issues. While our lawyers lost, we strongly believe that the journalism—which is already under attack across the globe—needs to be free from state intervention.”
STATEMENT: I am profoundly disappointed in today’s ruling, not just as an appellant in this case or a reporter, but as a citizen of Canada. It is truly a dark day for press freedom around the globe at a time where journalism is unquestionably under attack everywhere.
— Ben Makuch (@BMakuch) November 30, 2018
The VICE response also points to other cases of journalistic prosecution in Canada, including criminal charges against Justin Brake, a reporter with the Aboriginal People’s Television Network, who is facing charges of mischief and disobeying a court order after he entered the Muskrat Falls hydroelectric project along with protesters in Oct. 2016. At the time, he worked for theindependent.ca. There have also been several instances in Quebec where police were found to have tracked incoming and outgoing calls and texts on the cel phones of Marie-Maude Denis and Isabelle Richer of Radio-Canada investigative program Enquête, as well as the show’s former host Alain Gravel. In 2016, La Presse revealed columnist Patrick Lagacé was the subject of two dozen police warrants to track his whereabouts using the GPS chip in his cel phone and obtain the identities of everyone he communicated with.
“It should go without saying: we are all better off when journalism operates freely, without interference from the state. Otherwise, leaders remain unchecked, massive corporations undermine elections, and the stories of the most vulnerable members of society remain untold. This might seem like hyperbole, but a quick glance at the recent headlines in any major publication should serve as proof that these things are happening,” concludes the VICE response.
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