VICE reporter ordered to hand over communications to police
A ruling by the Ontario Superior Court upholds the mandate to surrender background materials used for stories on suspected terrorists to the RCMP. On March 31, 2016, the Ontario Superior Court demanded that VICE News reporter Ben Makuch supply police with text messages he exchanged with Farah Shirdon, a Canadian man suspected of involvement with ISIS.
Justice Ian MacDonnell ordered Makuch and VICE News to provide the RCMP with the background materials, and has banned the publication of information relied upon by police to obtain the court order, effectively gagging VICE and Makuch from speaking about the case.
Three stories published in 2014 were based largely on the conversations held between Makuch and Shirdon through the Kik instant online messaging app. The ruling allows the RCMP to access Makuch’s screen captures of those conversations. Until the ruling, Makuch refused to provide the messages.
According to Justice MacDonnell, there is a “strong public interest in the effective investigation and prosecution of such allegations. Justice MacDonnell continued to say that the screen captures are “important evidence in relation to very serious allegations.”
There have been questions surrounding the validity of Justice MacDonnell’s assertion that the messages in question are of vital importance to the investigation. Patrick McGuire, head of content for VICE Canada, argues that VICE News is not withholding any highly reliable evidence.
“Our reporting has allowed the RCMP to charge Shirdon in absentia,” said McGuire in a March 31 VICE News article published. “We are not protecting Shirdon’s identity or whereabouts, and we believe we have published all relevant material that is within the public interest. VICE News, and every other Canadian journalistic organization, must be permitted to operate as an entity that is independent from law enforcement.”
Iain MacKinnon, VICE’s lawyer has released a statement regarding the news outlet’s decision to back Makuch in his decision to withhold his source information.
“[This order] could have a very real chilling effect on the willingness of people and witnesses speaking to journalists,” said MacKinnon, in the same March 31 article. “If people realize that what they say to a journalist could easily be handed over to police and used as part of a criminal investigation, that may scare somebody off in speaking to a journalist. That is a very real concern that, unfortunately, the judge did not address in his reasons, even though it was raised as a factor he should consider.”
This concern has been repeated by Reporters Without Borders, Canadian Journalists for Free Expression (CJFE), and in a statement by Makuch. In a March 31 interview with CBC News, Makuch noted that “[if] we’re going to be made an investigative arm of the police, it’s going to change how we news gather. It’s also going to change how sources interact with us.”
Tom Henheffer, executive director of CJFE said in an interview with VICE News’ Rachel Browne that the court’s decision signals a concerning turning point for journalistic integrity.
“This is an extremely unfortunate decision and obviously a huge blow for press freedom in Canada,” said Henheffer, in the same March 31 article. “Journalists are not a law enforcement arm for the government and to be treated as such by the judiciary is a massive mistake.”
The primary concern surrounding the Superior Court’s decision is for the state of Canadian journalism and journalism as a whole. If there is no guaranteed protection from legal persecution for bringing attention to information that is pertinent to the Canadian public, there will be disincentive for those so inclined to bring this information forward.