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CanadaSupreme Court rules today in 'critically important' press freedom case

12:20  30 november  2018
12:20  30 november  2018 Source:   cbc.ca

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Supreme Court rules today in 'critically important' press freedom case © Colin Perkel/Canadian Press Vice Media reporter Ben Makuch is challenging an Ontario Court of Appeal ruling that ordered him to hand over background materials he used for stories on an accused terrorist to the Royal Canadian Mounted Police.

Canada's top court will release a decision this morning in a high-profile case that pits journalists' ability to protect their sources against police officers' ability to conduct investigations.

Vice Media reporter Ben Makuch is challenging an Ontario Court of Appeal ruling that ordered him to hand over to the RCMP the background materials he used for stories on an accused terrorist.

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The case dates back to 2014, when Makuch wrote three stories about Farah Mohamed Shirdon, a former Calgary resident, and his ties to the Islamic State.

Intrigued by the idea of a young man leaving a Canadian city to fight for a terrorist group, Makuch embedded himself in Shirdon's online world and eventually convinced him to explain some of ISIS's online recruiting and radicalizing strategies.

In 2015, the RCMP obtained an 'information to obtain order' (ITO) compelling Vice and Makuch to hand over all his communications with Shirdon — who reportedly has been killed since — including his KIK Messenger chats, paper printouts, screen captures and any other computer records.

Makuch brought an application forward to quash the RCMP's production order, but it was dismissed — a decision upheld by the Court of Appeal.

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The Supreme Court of Canada justices will release their verdict just after 9:45 a.m. ET.

'Corrupting' journalism

Makuch and his lawyers have maintained that journalists do not constitute an investigative arm of the police and have called the RCMP's request a "fishing expedition."

"When you ask a journalist to become an investigative body of an intelligence agency or a law enforcement agency, you are asking them to essentially corrupt what they do," Makuch told the CBC's  Anna Maria Tremonti back in May.

The CBC and a coalition of 12 press freedom and civil liberties groups from around the world were granted leave to intervene in the hearing.

"This is a critically important case for press freedom in Canada. What this is really about is whether or not the police can essentially turn the media into an arm of police investigation and how much protection journalistic sources will get from from those police investigations," said Josh Paterson, executive director of the British Columbia Civil Liberties Association, one of the intervenors.

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"The courts have made clear in the past that there is a public interest in protecting the right of journalists to do their job. There's a public interest in being able to prosecute crime.

"But that public interest in prosecuting crime doesn't necessarily mean having to have access to every possible shred of evidence from every possible source."

Balancing the duties of reporters and police

Paterson said the intervenors are hoping to see clearer guidelines from the Supreme Court on how to balance the ability of both journalists and police to do their jobs.

"We think that the current standard is weighed too heavily, or has been interpreted too heavily, in favour of police investigations and away from the public interest in protecting journalistic sources, and we think it's time that the court should take a look at that and rebalance it," he said.

Crown lawyers have rebutted the claim that the RCMP was on a "fishing expedition."

"The police are seeking to obtain highly reliable evidence relating to serious terrorism offences, which they cannot obtain from any other source," their factum reads.

"They are not required to go further and establish that the prosecutor will actually need that evidence to prove the case at trial, nor are they required to exhaust all other investigative avenues."

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