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


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

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