Ontario’s top court rules against VICE in press freedom case

The Ontario Court of Appeal has upheld a ruling ordering a VICE News reporter to hand over his communications with a source to the Royal Canadian Mounted Police, a decision the company says it plans to appeal to the Supreme Court.

“Simply put, this isn’t over,” VICE Canada president Ryan Archibald said on Wednesday in a statement. “VICE Media is prepared to do whatever it takes to support and defend our reporter, and our friend, Ben Makuch. His investigations into the complex world of cyber terrorism and digital security matter more now than ever.”

The decision released Wednesday morning is already being criticized as a further erosion of press freedoms in Canada.

Last year, the lower court upheld an RCMP production order from 2015 that compelled VICE Media and Makuch — who covers national security and surveillance — to give the police force all the Kik instant messenger chats, or screen grabs of those chats, he had with Farah Shirdon, a 22-year-old man from Calgary, Alberta who is suspected of taking up arms with Islamic State fighters in Iraq and Syria. Even though the RCMP has already laid six terror-related charges against Shirdon in absentia — because his whereabouts have been unknown for years — the force argues that Makuch’s communications are essential for their investigation.

Makuch’s case has drawn the ire of civil liberties advocates who have slammed the RCMP’s tactics as a fishing expedition with a disregard for journalistic integrity. It’s compounded by recent attacks on press freedom across Canada, which has no shield laws that protect journalists from being forced to expose confidential sources. Late last year, it was revealed that Quebec police officers were spying on reporters with the blessing of provincial judges.

R. v. Vice Media Canada Inc. by Rachel Browne on Scribd

“The decision sets an extremely troubling precedent. This is a huge blow to press freedom in Canada,” said Tom Henheffer, executive director of the Canadian Journalists for Free Expression. “There are not enough protections for journalists in this county … Public interest, and national security, is going to be struck a severe blow because journalist sources are going to dry out.”

At the Court of Appeal hearings in February, VICE Canada lawyer Iain MacKinnon argued that the decision of the lower court ignored the wealth of evidence it already has against Shirdon, including comments gleaned from his public social media presence. It’s unlikely that Makuch’s materials would have any further value, MacKinnon added, and the lower court did not properly balance the interests of press freedoms against law enforcement powers.

Makuch argued in an affidavit that gaining trust with sources depends on the assumption that the journalist is not an arm of law enforcement, and that the communications between them can remain confidential.

Although Prime Minister Justin Trudeau has said that press freedom is “absolutely critical” for a functioning democracy, he has yet to propose concrete measures that would prevent government and law enforcement from interfering with journalists.

Scott Bardsley, press secretary to the federal minister of public safety, sent VICE News a joint statement with the Prime Minister’s Office, saying the departments are aware of the court’s most recent decision, but wouldn’t comment further because “the specifics of the case involve an ongoing investigation.”

The statement added that freedom of the press is “essential” and that Canada “resolutely supports the rights of journalists to pursue and share information.”