Campaign Puts Focus on Press Freedom in Ongoing Court Battle

Media and civil liberties groups want ruling in Vice Media case thrown out
By John Kelly
John Kelly
John Kelly
November 1, 2016 Updated: November 3, 2016

Fearing that a court order forcing a reporter to hand over communications with his source to the RCMP could have a chilling effect on free expression in Canada, a coalition of groups has launched a campaign to have the ruling overturned.

The groups say the ruling could deliver “a dangerous blow to journalistic integrity,” while the RCMP maintain that having access to the information is vital to their investigations.

The case goes back to 2014, when Vice Media reporter Ben Makuch made contact with Farah Shirdon—a Canadian-born member of the Islamic State of Iraq and Syria then fighting in Iraq—by following his Twitter feed. Using the Kik instant messaging app, Makuch was able to interview the Calgary native for a series of articles, later arranging a video interview with Shirdon and Vice CEO Shane Smith.

According to news reports, Makuch had cited 22-year-old Shirdon as saying: “Canadians at home shall face the brunt of the retaliation. If you are in this crusader alliance against Islam and Muslims, you shall see your streets filled with blood.”

Shortly afterward, Shirdon was charged by the RCMP in absentia with terrorism-related activities and threatening Canada and the U.S.

In February 2015, the RCMP served Vice with a court-granted production order demanding all communications between Makuch and Shirdon as well as related records from Vice staff and any third parties.

Vice’s attempt last March to have the production order overturned was rejected by Justice Ian MacDonnell, who questioned whether Shirdon could expect confidentiality—the first criteria of the so-called Wigmore test used by the courts to gauge journalistic privilege—considering his intention was to have his message publicized in the first place.

MacDonnell wrote in his decision that screen grabs of Makuch’s chats with Shirdon are “important evidence in relation to very serious allegations,” adding that they “are highly reliable evidence that do not require a second-hand interpretation.”

Vice appealed MacDonnell’s ruling, which will be heard in February 2017.

“This is a court case that will establish a very important precedent—either one where journalists and their sources are protected or one where the police forces are able to run roughshod over press freedom rights,” says Tom Henheffer, executive director of Canadian Journalists for Free Expression.

CJFE is one of the groups in the coalition, which also includes the Canadian Media Guild, Reporters Without Borders, and two civil liberties organizations, among others. The groups were granted intervener status in the case last week.

Any actionable intelligence that would have been in these conversations is already a matter of public record.
— Tom Henheffer, Canadian Journalists for Free Expression

Henheffer says the contents of Makuch’s communications with Shirdon are public and already known to the RCMP.

“All the information has already been published, there’s nothing substantial in his notes that hasn’t been published. Any actionable intelligence that would have been in these conversations is already a matter of public record.”

The RCMP argues, however, that Makuch’s communications are vital evidence needed to prove their charges and to discover Shirdon’s whereabouts.

‘A Chilling Effect’

The coaltition notes that Makuch’s work has shed light on what motivates people to join ISIS, and as such has provided an essential public service.

In a joint letter to Public Safety Minister Ralph Goodale, the coalition says MacDonnell’s decision undermines the independence of journalists.

“By forcing Makuch to hand over his notes to the RCMP or go to jail, the court has undermined press freedom—a critical component of our democratic society—and made it less likely that sources will be willing to speak with journalists,” the letter reads.

The coalition’s lawyer, Justin Safayeni, said in a Vice News article that “a chilling effect will always follow from production orders targeting the media, and particularly those targeting communications with a source.”

As well as having the RCMP’s demands for Makuch’s communications with Shirdon dropped, the coalition wants the statutes regarding the use and issuance of production orders be altered to better protect free expression.

Though freedom of the press is enshrined in the Charter and the Constitution, there is no constitutional right for journalists to protect the identities of confidential sources. Instead, the courts rely on the Wigmore Test as a benchmark against which each case is compared.

Henheffer says part of the coaltion’s campaign is to spread awareness about the issue, which includes an online petition that will be sent to the government, and ads on television and social media.

“We’re doing everything we can to raise public support for Ben and show the government that they need to reverse the decision and drop the production order. The best case scenario would be for the RCMP to drop the production order. There’s some other scenarios beyond that, but I think the most likely scenario is that we wind up winning in court.”

John Kelly is a freelance reporter based in Toronto.

John Kelly