TORONTO—A Canadian news outlet must give the RCMP background materials used for stories on a suspected terrorist, despite objections from the reporter, a judge has ruled.
In addition, Ontario Superior Court Justice Ian MacDonnell banned publication of information police relied on to obtain a court order that Vice Media and reporter Ben Makuch produce the materials related to Farah Shirdon.
The three Vice stories in 2014 were largely based on conversations Makuch had with Shirdon via an online instant messaging app called Kik Messenger. RCMP want access to Makuch’s screen captures of those chats.
“The screen captures are important evidence in relation to very serious allegations,” MacDonnell said in his ruling. “There is a strong public interest in the effective investigation and prosecution of such allegations.”
In October 2014, Makuch cited Shirdon, of Calgary, 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.”
RCMP charged the Toronto-born Shirdon, 22, in absentia last September 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 Canada and the U.S.
Police said they needed the Makuch materials as proof Shirdon had been in Iraq. They also want to know how Makuch tracked the suspect down, but the reporter said he simply monitored his online activities.
In an interview from San Franciso on Thursday, Makuch said he planned to fight the ruling, adding that the issues at stake for broader media freedoms in Canada were too important.
“You don’t want to be restrained in who you talk to and how you talk to them and have the fear that you could be faced with a production order from the RCMP if you do talk to a salacious source or some source that is obviously criminal,” Makuch told The Canadian Press.
In the worst-case scenario, he said, he would be prepared to go to jail to keep the information out of RCMP hands.
In his decision, MacDonnell accepted government arguments that Vice was the only source of the needed data. He also rejected Vice’s argument that police essentially already had all the relevant information.
He said he was satisfied the judge who issued the initial production order last year had taken into account the special position of the media, and had properly balanced the interests of law enforcement and the media’s right to freedom of expression.
Speaking in Vancouver, RCMP Commissioner Bob Paulson said he was “very sensitive” of the need for journalists to be free from the RCMP forcing them to divulge information.
“I am respectful of a journalist’s right and need to be able to do their jobs freely,” Paulson said. “But when it comes to important evidence to a criminal case then I think we should bring the courts in.”
Still, Makuch’s media lawyer, Iain MacKinnon, said the decision could have a “serious chilling effect” on journalists.
“Police officers investigating crimes may start using similar production orders more often in the future and rely on journalists as an investigative arm or tool to gather evidence in their investigations,” MacKinnon said.
“Their credibility and independence will be undermined if people believe that anything they say to journalists could be easily turned over to police.”
In banning publication of the supporting documentation police used to obtain the production order, MacDonnell said it was necessary to preserve Shirdon’s right to a fair trial—should he ever be arrested and tried.
The case, he said, had attracted national attention in light of the Islamic State’s “brutality and barbarism” and the prospect young Canadians were being radicalized and might become homegrown terrorists.
“I am satisfied that publication of portions of the information … concerning Farah Shirdon’s alleged involvement with ISIS and of statements he is alleged to have made—some of which the public might find to be quite alarming—would pose a serious risk to his right to be tried by an impartial jury,” the justice said.
MacDonnell’s ruling was issued Tuesday, but was subject to a temporary ban to give the federal government a chance to see if any of his reasons needed redacting. That ban has now been lifted.