By Lena Williams, Guild-CWA :: A Canadian Court has ordered a Vice News reporter to give police his notes and other materials for three stories he wrote in 2014 on a suspected ISIS fighter.
The Royal Canadian Mounted Police told the Ontario Superior Court that it needed “any notes and all records of communications” between Ben Makuch, a national security reporter for Vice, and the suspect, Farah Shirdon.
Never mind that Shirdon, a native of Toronto, is long gone. He left Canada two years ago to fight in Syria and Iraq. He was charged in absentia on terrorism-related offenses last September. Canadian authorities first have to find him, catch him and then deport him back to Canada to stand trial.
Nevertheless, the RCMP, Canada’s federal police force, managed to persuade the court that Makuch’s stories, based on screen capture chats via an online instant messaging app, are essential to apprehending and trying Shirdon.
Exactly how and why is a mystery. Judge Ian MacDonnell, who heard the case, banned publication of information that police relied on to obtain a search warrant against Vice in February 2015.
MacDonnell said the ban was necessary to preserve Shirdon’s right to a fair trial, presuming there is one eventually.
Vice attorneys said police were on a “fishing expedition” and argued that seizing any journalist’s records would violate Canada’s press freedoms.
A coalition of journalist organizations including CWA Canada and the Canadian Media Guild are expressing alarm at the court’s ruling.
“This ruling sets a dangerous precedent and deals a blow to press freedom and the integrity of journalism in Canada,” the group said in March 31 statement.
“By compromising the trust between journalists and their sources, this decision undermines both free expression and national security,” the statement continued. “Makuch’s work has shed light on what motivates ISIS fighters, providing an essential public service and informing the public about a matter of national importance.”
In a formal appeal of the ruling April 29, Vice said, “This appeal raises issues concerning one of the hallmarks of a democratic society — a free and independent press. Journalists’ ability to pursue the truth without fear of reprisal or interference is essential to every facet of Canadian life.”
The case is another unfortunate example of law enforcement targeting journalists whose legwork has outpaced official investigations.
Makuch was closely monitoring the web traffic of known ISIS sympathizers when he noticed a suspected Canadian member of the group was active online.
Using an alias, Makuch was able to contact Shirdon through Twitter and KIK Messenger, an instant messaging platform for smartphones.
“Canadians at home shall face the brunt of retaliation,” Shirdon told Makuch. “If you are in this crusader alliance against Islam and Muslims you shall see your streets filled with blood Inshaa Allah.”
In a follow-up Skype interview with Vice CEO Shane Smith in September 2014, Shirdon claimed “a lot of brothers” are in New York City “mobilizing right now.”
One month later, a 32-year-old Libyan-Canadian man who had converted to Islam and visited Libya, shot and killed a Canadian soldier on ceremonial sentry duty. The suspect ran inside Canada’s Parliament building, where he was fatally shot by security forces.
It was subsequently reported that the mounted police had received at least three warnings of potential terrorist attacks on uniformed officers prior to the shootings, yet removed extra patrols around the parliamentary precinct days before the tragedy.
I get the feeling that the RCMP was embarrassed by its failure to effectively track down suspected ISIS members in Canada. The RCMP could have and should have launched a covert operation, using aliases, to track down Shirdon using the same methods that Makuch did. But it didn’t.
Now the RCMP is trying to make up for its mistakes by coercing a reporter to violate his journalistic principles and turn on a source.
In his ruling, MacDonnell maintained that the police’s needs superseded the rights of Vice and Makuch to protect their work product, including screen captures.
“The screen captures are a copy of the actual electronic messages that Shirdon placed on Mr. Makuch’s computer screen,” MacDonnell said. “They are highly reliable evidence that do not require a second hand interpretation.”
That’s beside the point.
As Vice lawyer Iain MacKinnon pointed out, if the Canadian courts and law enforcement get away with confiscating Makuch’s notes, then similar so-called production orders could become commonplace in Canada.
“It could have a very real chilling effect on the willingness of people and witnesses speaking to journalists,” MacKinnon said. “If people realize that what they say to a journalist can 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.”
Journalists aren’t lackies for the police to be used and abused at law enforcement’s convenience. Makuch’s stories were published for all, including the police, to see.
There is no imminent threat to Canada’s national security based on the information the court ordered to be turned over. If that were the case, Makuch himself has said he “would never sit” on it.
“I’m a journalist, we make stories,” Makuch told CBC News.
And he should be treated like one with all the rights and privileges afforded him under the Canadian Constitution.