Tuesday , May 18 2021

The verdict of the Supreme Court against the deputy does not affect the protection of confidential sources, experts say

The Press Release Journalist must provide the RCMP with communications from the alleged communications with the accused terrorist, the Canadian Supreme Court decided on Friday with a decision experts say little to change the status quo in cases where journalists are forced to turn over material to the police.

In its verdict of 9-0, the court confirmed the potentially frightening effects of such a production order, both to reporters and sources, but said in a concrete case involving a deliberately unreliable source "the state's interest in the investigation and prosecution of crime has exceeded the right of the media to privacy in the gathering and spreading of news. "

Journalist Ben Macuc from the Deputy Media arrived at the Supreme Court of Canada in Ottawa on May 23, 2018. The Canadian Supreme Court says Makuc must give RCMP material about the stories of the accused terrorist.
Journalist Ben Macuc from the Deputy Media arrived at the Supreme Court of Canada in Ottawa on May 23, 2018. The Canadian Supreme Court says Makuc must give RCMP material about the stories of the accused terrorist. (Sean Kilpatrick / CANADIAN PRESS)

The case stems from the production order of 2015 obtained by the CCPM, demanding reporter Ben Macuc and alternate media to create screen captures of Messages exchanged with Farah Mohamed Shirdon, a Canadian who reportedly left Calgary to join Dash in Syria.

Makuc wrote three articles for Shirndon in 2014 on the basis of interviews conducted through the Kick messaging service. The MCRM said the messages were needed to investigate Shirdon, who may now be dead, for terrorist offenses.

Deputy media and Makuch fought the production order, but their application was rejected, a decision confirmed by the Court of Appeal in Ontario.

Makuc claimed that all relevant information had been published, and an order asking him to provide interview materials for the purposes of the criminal investigation would prevent his ability to collect news and build relationships with sources, especially in the "network of militants".

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However, in complying with the production order, the court finds that the requested material will not disclose a trusted source or communications that are "out of the record" or "not for indicating". Instead, Shirldon "used the media to announce his activities as a terrorist organization as a spokesman." The decision also noted that there is no alternative source to obtain the material.

"The Toronto Star will continue to absolutely protect confidential sources and will not reveal it," said Bert Brewer, lawyer for Star Journal.

The decision did not review the Law on Protection of Newspapers, which came into force last year and provides safeguards against the discovery of reliable sources.

"The court more or less held the line for a law that regulates how and when journalists will be forced to hand over the material to the police," said lawyer Justin Safaeni, who filed complaints in the case on behalf of the media coalition, including Canadian journalists for free expression and postmodernism.

The judges were not convinced that "the very act of a journalist seen as a diversion of records to the police to exploit his own source is serious enough to hurt the media's ability to collect news and report stories in the public interest," he said.

Lawyer Cara Zwibel, representing the Canadian civil liberties association in the case, said that although the decision was not what he hoped, he left cautiously optimistic that future lower court decisions might be less likely to settle in favor of the police.

"The court did not try to push the needle a bit to a bit and the need for the press to run its jobs," she said.

Mr Makuc, based in New York, was not in court to release the decision. Tunley had no comment, and it was not immediately clear when, or, even if the materials would be given to the RCMP.

"This is a gloomy day for media freedom, which is a fundamental principle of democracy," the statement said. "While we have lost this battle, nothing can shake our conviction that the free press is an instrument for a true understanding of the world in which we live."

– with files from the Canadian press

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