Journalists today do their reporting using technologies that didn’t exist when many of the precedent-setting cases in Canadian law happened.

By Kat Eschner

Third-party intervenors in yesterday’s appeal by Ben Makuch and Vice Canada provided broader context into the importance and dangers of this case.

Vice Canada and Ben Makuch’s lawyer Iain MacKinnon argued that forcing the national security reporter to give up records of his Kik messenger chats with alleged ISIS member Farah Mohamed Shirdon, who is a Canadian, would be wrong in itself but would also set a dangerous precedent. Intervenors on the case also spoke to its broader implications for journalism in Canada.

Makuch spoke with Shirdon over the messaging app in 2014. Shirdon has been charged with six terror-related offences, but his whereabouts are unknown at present. The production order that Makuch is facing comes from the RCMP as part of the process of building a case against the alleged ISIS fighter.

They say that the Kik chats will provide evidence of Shirdon’s whereabouts at the time he spoke to Makuch.

When Vice Canada and Makuch first went to court in March 2016, MacKinnon argued that the RCMP was on a “fishing expedition” for evidence against Shirdon. But Superior Court Justice Ian MacDonnell upheld the production order in a decision released March 29.

In Toronto’s Osgoode Hall, MacKinnon argued that Shirdon’s numerous social media posts — including one from 2014 that showed him appearing to burn his Canadian passport on Youtube — “are alternative sources of the information” the RCMP is seeking.

Crown attorney Brian Puddington disagreed, saying it is impossible to predict what evidence might be needed and it is the job of police to ensure they place everything on the record.

“It’s very common, with technology today, to have an interview by text,” MacKinnon said, arguing that requesting the chats is akin to asking for a reporter’s notebook or an interview transcript — something that is accorded a high degree of respect under the law.

Defining technology and its place in Canadian media law is an important part of this argument and speaks to the broader implications of this case’s outcome. Other supporters of Vice’s case argued that Canada’s media law is shaped by previous legal decisions that were made before the existence of online methods of communication like Kik messenger.

This case is further complicated by a publication ban on the Information to Obtain that the RCMP initially used to get the production order. Those arguing in support of Vice’s case say that the publication ban violates the legal principle that all information possible should be available to the public in a court case, within reason.

Among those appearing were also four intervenors. Intervenors are interested parties who, in the words of the BCCLA’s Caily DiPuma, are “there really to assist the court in kind of thinking through the issues at stake from a broader perspective.”

Lawyers for three of the intervenors spoke in support of Vice. The fourth was a representative of the Ontario Attorney General’s office who spoke in support of the Crown. Susan Magotiaux argued that journalists’ rights are currently robustly protected by law, and that MacDonnell’s decision should be upheld.

Lawyer Brian Radnoff, representing the Canadian Civil Liberties Association, argued that the temporary publication ban “could go on for two years,” making it somewhat less than temporary.

CCLA executive director Sukanya Pillay told J-Source that the organization sought leave to intervene on this case because issues like the publication ban and the production order are what the civil liberties organization fights on every day.

The CCLA primarily addressed the publication ban in their argument. Pillay said that bans on the information police used to obtain an order to produce can figure into the chilling effect. They prevent members of the public from being able to see what happened in past cases, she said, making it impossible for them to make an informed decision about talking to a journalist.

Pillay also said “journalism is at a fork in the road” and journalists are under fire from a wide variety of quarters and threatened by fake news. As a test of how media law deals with journalism in the digital age, she said, this case is important.

The court heard from a lawyer representing a coalition of Canadian journalism organizations. “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,” the coalition wrote in a March 31, 2016 letter.

Their lawyer argued that production orders targeting journalistic work can have a “chilling effect” that limits journalistic storytelling by both making sources less willing to come forward and speak and by creating the possibility that the press “may resort to self-censorship” in order to limit police incursions on their work.

“There’s a public interest in investigating crime and there’s a public interest in freedom of the press,” DiPuma said.

Both of those interests are changed by digital technology, she said. Civil liberties groups like hers are concerned about police stepping on civil liberties in online investigations, but BCCLA also argues that police need to do a full investigation using the tools at their disposal before attempting to turn to journalists.

Those tools, they wrote, are much broader than they were when many of the judicial decisions that set precedent in Canadian media law were written.

The BCCLA, represented by lawyer Andrew MacDonald, told the judges that this case was an opportunity to create a broader framework for dealing with these questions when they arise in the future. That framework would rely previous judicial decisions, the association wrote, and “will serve to guide authorizing judges in the exercise of their judicial discretion to issue production orders that target the media.”

The stakes if they don’t find a way to do so: “There may be stories that just aren’t told,” said DiPuma. “That’s the real danger.”

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Kat Eschner is a freelance journalist and the former editor of the Ryerson Review of Journalism. Find her and her work on Twitter @KatEschner

Kat Eschner is a freelance journalist and the former editor of the Ryerson Review of Journalism. Find her and her work on Twitter @KatEschner