Forcing a news outlet to turn over materials it used for stories on a suspected terrorist would set a dangerous precedent for media freedoms, an Ontario court heard Tuesday.
In submissions on behalf of Vice Media, lawyer Iain MacKinnon said the RCMP were on a sweeping fishing expedition that could undermine the media’s ability to report on matters of public interest.
“The effect on journalists could be crippling,” MacKinnon said. “It could prevent them from doing their jobs.”
However, the government countered that media freedoms, while important, are not absolute, and have to be weighed against the public interest in seeing serious crimes investigated and prosecuted.
At issue is a year-old court-sanctioned demand from the RCMP that Vice Media and its reporter Ben Makuch provide all materials he used to produce three articles in 2014 about Farah Shirdon, of Calgary.
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 the Toronto-born Shirdon, 22, 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.
The Vice stories were largely based on conversations Makuch had with Shirdon via an online instant messaging app called Kik Messenger. As part of its demand, RCMP want Makuch to turn over the contents of those chats.
Police say they say they need the materials to gather possible further evidence against the Canadian, including proof of whether he was in fact in Iraq.
“The only reason that (RCMP) have come forward to Vice is that they are the only source of the information,” Crown lawyer Sarah Shaikh told Superior Court Justice Ian MacDonnell.
Police want to know how Makuch tracked Shirdon down but the reporter argues he simply monitored the suspect’s online activities through social media accounts. Police did the same before charging Shirdon.
“Mr. Shirdon was not shy about going online and posting his thoughts,” MacKinnon told court.
Allowing police to use media to further their investigations, MacKinnon told MacDonnell, could lead to fewer journalists taking on controversial stories and people become reluctant to talk to reporters.
“The damage that would be caused outweighs the value of the information sought,” the lawyer said.
Shaikh countered that the public has a strong interest in seeing police combat terror-related crimes. Media should voluntarily provide information related to criminal offences or expect judicial orders to do so, she said.
“(Journalists) are not in a position to determine what is evidence of a crime,” Shaikh said.
The order to Vice was carefully focused to take into account the media’s special role in society — balanced against the “serious nature” of the charges against Shirdon, Shaikh said.
At the same time, she said, Shirdon voluntarily made statements to Vice knowing they would be published and police need to know what else he might have said.
“There is no expectation of confidentiality,” Shaikh said.
Vice and Makuch also asked 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, hurt innocent third parties, and risk the right of the accused to a fair trial.
MacKinnon called those concerns “purely speculative” and no reason to resort to secrecy.
MacDonnell reserved his decision.