Journalist Ben Makuch of Vice Media arrives to the Supreme Court of Canada in Ottawa on May 23, 2018. The Supreme Court of Canada says a reporter must give the RCMP material he gathered for stories about an accused terrorist. The decision is likely to be seen as a defeat for media that could leave them vulnerable to serving as investigative arms of the police. (Sean Kilpatrick/THE CANADIAN PRESS)

Supreme Court orders reporter to surrender confidential material

Share

Canada’s highest court ruled Friday that a reporter must surrender his materials about an alleged terrorist to Canadian police, quashing arguments from media organizations and civil liberties groups that the ruling would set a dangerous precedent for the freedom of the press.

In an editorial released Friday, Vice Media called the unanimous decision by the Supreme Court of Canada “a dark day for freedom of the press,” saying they were feeling a “profound sense of disappointment—that our society has failed to recognize the importance of a free, and independent press.”

“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,” Vice Media said.

The Canadian Association of Journalists, one of the interveners in the cases, said they are studying the ruling and are “deeply concerned.”

The case revolved around a series of 2014 reports by Vice Media reporter Ben Makuch, who wrote three articles based on text message exchanges with Farah Shirdon, a Canadian man suspected of having joined a terrorist organization in Syria.

The articles contained statements by Shirdon that, if true, could provide strong evidence implicating him in multiple terrorism offences, the Supreme Court said.

In 2015, the RCMP obtained a production order under the Criminal Code, directing Vice Media and Makuch to provide documents and data relating to communications with Shirdon, who might now be dead.

Makuch brought an application to quash the production order, but it was dismissed — a decision upheld by the Ontario Court of Appeal.

The Supreme Court agreed to hear Makuch’s case, which squarely pitted press freedoms against the investigative powers of police.

Balancing state’s interests and media freedom

Journalist Ben Makuch of Vice Media arrives to the Supreme Court of Canada in Ottawa on Wednesday, May 23, 2018. (Sean Kilpatrick/THE CANADIAN PRESS)

In a precedent-setting case in 1991, Canadian Broadcasting Corp. v. Lessard, the court had set out nine conditions for assessing the reasonableness of a search of a media outlet.

The so-called Lessard framework that came out of the ruling said judges must balance the state’s interest in the investigation and prosecution of crimes and the media’s right to privacy in gathering and disseminating the news.

Vice Media argued during hearings at the Supreme Court in May that lower courts had been incorrectly applying, or failing to apply, the balancing test.

Philip Tunley, a lawyer for Vice Media, told the high court last May there should be clear protections for the media when enforcement agencies come knocking.

Federal lawyer Croft Michaelson told the hearing there was “no merit” to criticisms of the robust legal framework in place for deciding access to media materials.

In its arguments, the Crown called the test a principled and flexible framework intended to curb any potential chilling effect that an order might have on the ability of the media to do its work. It said the courts had not been acting as rubber stamps that favoured the interests of law enforcement at the expense of freedom of expression.

A silver lining

Cara Zwibel of the Canadian Civil Liberties Association said while court decision was not what they were hoping for, it nevertheless has a silver lining.

“One concern is that the Supreme Court has already emphasized the need for courts to balance the interests of police in investigating crimes with the importance of protecting journalists’ freedom and their newsgathering activities,” Zwibel told Radio Canada International in an email.

Courts that are practically engaged on these issues on a regular basis tend to favour the police concerns over the need to protect freedom of the press, Zwibel said.

“I read today’s decision as a message to courts to take this balancing more seriously,” Zwibel said.

“Although the Court doesn’t say that the media should always have notice when production orders are sought against them, they give a strong indication that providing notice is going to be a good idea in most if not all cases.”

The ruling also establishes opportunities for more rigorous review of production orders when challenged, if the media was not present when the order was granted, Zwibel said.

“These are positive steps,” Zwibel said. “The concurring decision which recognizes a distinct and independent constitutional protection for freedom of the press is a very positive step, even if the full Court did not agree to it.”

With files from The Canadian Press

Share
Tagged with: , , ,
Posted in Society

Do you want to report an error or a typo? Click here!

@*@ Comments

Leave a Reply

Your email address will not be published. Required fields are marked *

 characters available

Note: By submitting your comments, you acknowledge that Radio Canada International has the right to reproduce, broadcast and publicize those comments or any part thereof in any manner whatsoever. Radio Canada International does not endorse any of the views posted. Your comments will be pre-moderated and published if they meet netiquette guidelines.

Netiquette »

When you express your personal opinion in an online forum, you must be as courteous as if you were speaking with someone face-to-face. Insults and personal attacks will not be tolerated. To disagree with an opinion, an idea or an event is one thing, but to show disrespect for other people is quite another. Great minds don’t always think alike—and that’s precisely what makes online dialogue so interesting and valuable.

Netiquette is the set of rules of conduct governing how you should behave when communicating via the Internet. Before you post a message to a blog or forum, it’s important to read and understand these rules. Otherwise, you may be banned from posting.

  1. RCInet.ca’s online forums are not anonymous. Users must register, and give their full name and place of residence, which are displayed alongside each of their comments. RCInet.ca reserves the right not to publish comments if there is any doubt as to the identity of their author.
  2. Assuming the identity of another person with intent to mislead or cause harm is a serious infraction that may result in the offender being banned.
  3. RCInet.ca’s online forums are open to everyone, without regard to age, ethnic origin, religion, gender or sexual orientation.
  4. Comments that are defamatory, hateful, racist, xenophobic, sexist, or that disparage an ethnic origin, religious affiliation or age group will not be published.
  5. In online speak, writing in ALL CAPS is considered yelling, and may be interpreted as aggressive behaviour, which is unpleasant for the people reading. Any message containing one or more words in all caps (except for initialisms and acronyms) will be rejected, as will any message containing one or more words in bold, italic or underlined characters.
  6. Use of vulgar, obscene or objectionable language is prohibited. Forums are public places and your comments could offend some users. People who use inappropriate language will be banned.
  7. Mutual respect is essential among users. Insulting, threatening or harassing another user is prohibited. You can express your disagreement with an idea without attacking anyone.
  8. Exchanging arguments and opposing views is a key component of healthy debate, but it should not turn into a dialogue or private discussion between two users who address each other without regard for the other participants. Messages of this type will not be posted.
  9. Radio Canada International publishes contents in five languages. The language used in the forums has to be the same as the contents we publish. The usage of other languages, with the exception of some words, is forbidden. Messages that are off-topic will not be published.
  10. Making repetitive posts disrupts the flow of discussions and will not be tolerated.
  11. Adding images or any other type of file to comments is forbidden. Including hyperlinks to other websites is allowed, as long as they comply with netiquette. Radio Canada International  is in no way responsible for the content of such sites, however.
  12. Copying and pasting text written by someone else, even if you credit the author, is unacceptable if that text makes up the majority of your comment.
  13. Posting any type of advertising or call to action, in any form, to Radio Canada International  forums is prohibited.
  14. All comments and other types of content are moderated before publication. Radio Canada International  reserves the right to refuse any comment for publication.
  15. Radio Canada International  reserves the right to close a forum at any time, without notice.
  16. Radio Canada International  reserves the right to amend this code of conduct (netiquette) at any time, without notice.
  17. By participating in its online forums, you allow Radio Canada International to publish your comments on the web for an indefinite time. This also implies that these messages will be indexed by Internet search engines.
  18. Radio Canada International has no obligation to remove your messages from the web if one day you request it. We invite you to carefully consider your comments and the consequences of their posting.

*