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.
