VICE vs. RCMP court battle begins on Monday

A Canadian media outlet squares off against the government Monday in a legal battle that pits media freedoms against the ability of police to investigate terrorism offences.

'Journalistic sources are not protected by a class privilege,' says government

VICE journalist Ben Makuch, left, and alleged ISIS fighter Farah Mohamed Shirdon, right. (Ben Makuch/Twitter, Canadian Press)

A Canadian media outlet squares off against the government Monday in a legal battle that pits media freedoms against the ability of police to investigate terrorism offences.

VICE Media and its Toronto journalist Ben Makuch want Ontario Superior Court to quash an order that they hand over material related to their interviews with a suspected terrorist to the RCMP.

"Courts should be wary of allowing the state to conscript journalists as investigative arms of the police," VICE and Makuch state in their factum.

"If media outlets are permitted to become investigative arms of the police through the use of production orders, the media's important role and credibility will be undermined, as well as its ability to gather information."

A year ago, Ontario court Judge Jack Nadelle ordered the online news outlet to hand over materials that Makuch used to produce three articles in 2014 about Farah Shirdon, of Calgary, including that he had left Canada to fight for Islamic State. The stories were based on conversations Makuch had with Shirdon via an online instant messaging app called Kik Messenger.

Police said they needed the information to gather possible further evidence against the Canadian. Nadelle ordered VICE to turn over unedited copies of records of communications with Shirdon and any notes related to how they had communicated with him.

Public interest 

The Toronto-born Shirdon, 22, a nephew of a former prime minister of Somalia, has made threats publicly against Canada and the U.S.

In October 2014, Makuch cited Shirdon as saying from Iraq: "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."

Last September, RCMP charged Shirdon in absentia with several offences, including leaving Canada to participate in the activity of a terrorist group, taking part in the activity of a terrorist group, and threatening the U.S. and Canada.

"All members of the public, including the media, have an interest in seeing that these crimes are investigated and prosecuted," the government says in its court submissions.

In requesting the court uphold the production order against VICE, the government argues RCMP were mindful of the media's special role in society but freedom of the media must be balanced against the strong public interest in prosecuting terrorist offences.

"Journalistic sources are not protected by a class privilege," the government says. "Journalists cannot give a source a total assurance of confidentiality."

'Chilling effect'

VICE and Makuch will also be asking the court for access to the sealed supporting documentation RCMP used to get the order.

The government, however, argues that making the information public could jeopardize an ongoing national-security investigation or hurt innocent third parties. As a result, it says it is now willing to release only part of the material.

In asking the court to quash the production order, VICE argues RCMP have already charged Shirdon with various terrorism offences, a sign authorities believe they have enough evidence against him without the requested documents.

VICE also says all the information relevant to the charges is contained in the articles Makuch wrote. Forcing him to turn over the underlying materials amounts to a fishing expedition that could create a "chilling effect" in which sources of important information for journalists would dry up.

The case resembles an ongoing battle in the United States, where the FBI is trying to get Apple to hack the iPhone of a gunman in the San Bernardino, Calif., shooting in December that left 14 dead and 22 wounded.