Vice Media's Ben Makuch loses press freedom case at Supreme Court

Vice Media's Ben Makuch loses press freedom case at Supreme Court
Vice Media reporter Ben Makuch has lost his case at the Supreme Court of Canada, after a long legal battle that raised serious questions about freedom of the press.
 
The Court unanimously upheld an order that Makuch must hand over to police the copies of the conversations he had with Farah Shirdon, originally of Calgary. Shirdon had said he became involved with the Islamic State of Iraq and the Levant.
 
Vice had argued in court that journalists should not be exploited by police as an investigative service. But Canada's federal police force, the RCMP, wanted evidence to conduct their investigation.
 
The Court sat with the full complement of nine judges on May 23, 2018 and all determined that the appeal should be dismissed, and that Vice had to give police screenshots of the conversations. They said the production order from the police was "properly issued" and should be upheld.
 
"The suggestion that the production order would interfere with Vice Media's newsgathering and publication functions shrivels in a context where the source was not a confidential one and wanted everything he said to be made public," wrote Justice Michael Moldaver, who signed the decision with Justices Clément Gascon, Suzanne Côté, Russell Brown and Malcolm Rowe in agreement.
 
"Crucially, there is no suggestion that anything the source said was intended or understood to be 'off the record.' The journalist's own conduct shows that the relationship was not confidential in any way. Accordingly, the benefit of the state's interest in obtaining the messages outweighs any harm to Vice Media's rights."
 
In its deliberations, the Court did not engage the Journalistic Sources Protection Act that the Trudeau government enacted in 2017. That law aims to shield confidential sources from investigations by the police. The facts of the case did not involve this law, because they happened before it came into force, however it is likely to govern these types of cases going forward.
 
"I am profoundly disappointed in today’s ruling, not just as an appellant in this case or a reporter, but as a citizen of Canada," Makuch said in a statement posted on Twitter, a few hours after the ruling was released. "It is truly a dark day for press freedom around the globe at a time where journalism is unquestionably under attack everywhere."
 

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