Vice Canada and reporter-editor Ben Makuch looking into appeal of the decision.

By H.G. Watson, Associate Editor

An Ontario Superior Court judge has upheld a production order that will require a Vice Canada reporter to hand over his notes to the RCMP.

In a ruling released Mar. 29, Superior Court Justice Ian MacDonnell upheld the production order that requested all of Vice national security reporter and associate editor Ben Makuch’s notes, records and communications with a Canadian IS member, Farah Mohamed Shirdon.

Makuch told J-Source he does not want to comply with the order. “We’re going to be exhausting every legal option,” he said. Vice Canada is looking into appealing the decision.

“It is journalists’ jobs to shed light on the truth, and protection of journalists’ work product and trust-building with interview subjects are essential in that mission,” Vice Canada head of content Patrick McGuire told J-Source in an emailed statement. “We stand behind Ben Makuch and we will stand behind every journalist in his position. The principles at stake are too important.”

RCMP spokesperson Annie Delisle told J-Source in an email that, “The RCMP respects the court’s decision.”

The contents of the decision were under a temporary publication ban until Mar. 30. The details of the production order and the Information to Obtain were under seal. Unlike a publication ban, in which media and members of the public can hear certain details but not publish them, a sealing order makes private all of the details. However, MacDonnell did rule to unseal most of the ITO, though a temporary publication ban will be in effect over parts of it to protect Shirdon’s right to a fair trial.

In his decision, MacDonnell refuted Vice Canada’s submissions that the production order was overly broad and would not provide any evidence about the offences the RCMP are investigating, noting that he believed that Vice had “misread” the structure of the ITO.

“The screen captures are important evidence in relation to very serious allegations,” MacDonnell wrote, adding that there is “strong public interest” in an effective investigation. “They are highly reliable evidence that that do not require a second hand interpretation.”

Vice Canada’s position was that Makuch’s articles already contained the substance of the messages and that the RCMP could have subpoenaed Makuch to testify about the communications.

“I think the RCMP should have gone further in explaining why it would afford evidence of the offences, particularly when Ben’s article said that he was unable to independently verify Shirdon’s identity, beyond the fact that he was responding to his questions,” Iain MacKinnon, Makuch and Vice Canada’s lawyer, told J-Source in an email. He added that the ITO was, in fact, clear that the RCMP tried to get the chat logs from KIK, an open-source messaging app, directly. However, Vice Canada’s argument was that the RCMP already had enough evidence from statements Shirdon has made publicly via his social media accounts.

In February 2015, the RCMP served Makuch with a production order, connected to several stories he had written about Shirdon. Makuch told J-Source in November that the two first connected over Twitter and used KIK.

Shirdon has been charged with six Criminal Code violations, all related to terrorism, based on social media postings he made. In 2014, he was filmed burning his Canadian passport.

In court on Mar. 1, MacKinnon argued that the production order was a “fishing expedition” and there was not sufficient explanation why the chat logs should be released. Crown attorney Sarah Shaikh countered that it isn’t up to Vice to say which documents the RCMP may or may not need.

“It’s really upsetting,” Makuch said of the decision. “The government at large needs to understand that this is a pretty serious matter for the freedom of the press.”

He believes this case has already had a chilling effect on other journalists. “I’ve spoken to at least a few journalists who have said, ‘Could this happen to me if I talk to a certain type of source?’”

“Even having that conversation once is one too many times for me,” Makuch added.

H.G. Watson can be reached at hgwatson@j-source.ca or on Twitter.