Press freedom on trial: Supreme Court to hear VICE News case on source protection

Thursday, November 30, 2017
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VICE News journalist Ben Makuch. PHOTO: VICE.

TORONTO, ON (November 30, 2017) - This morning the Supreme Court of Canada agreed to hear a landmark case for press freedom in Canada. VICE News successfully sought leave to appeal an Ontario Court of Appeal ruling that VICE News reporter Ben Makuch must hand over all communications between him and an ISIS fighter to the RCMP. Makuch's stand on behalf of press freedom will be recognized tonight at the 2017 CJFE Gala: A Night to Honour Courageous Reporting.

This is a big deal: the Court only agrees to hear around 8-12% of cases that apply for leave in any given year. By agreeing to hear the case, the Supreme Court of Canada will have the opportunity to overturn a dangerous precedent and ensure that press freedom and the integrity of journalism in Canada are protected.

“We are encouraged that the Court has agreed to hear the case, which will be crucial to defending press freedom in Canada," said Duncan Pike, Co-Director, Canadian Journalists for Free Expression (CJFE). “If journalists cannot protect their sources, then the information they provide will dry up, leaving Canadians uninformed and democracy impoverished.”

CJFE will be seeking leave to intervene before the Supreme Court shortly, which will require court approval to proceed. A legal intervention is a procedure that allows an outside party to join ongoing litigation, usually because the outcome of the case will affect the rights of others besides the original parties. A coalition of civil liberties organizations intervened before the Ontario Court of Appeal in support of VICE Media’s appeal, including CJFE, CBC, Canadian Media Lawyers’ Association, Canadian Association of Journalists, Canadian Media Guild, Reporters Without Borders, Aboriginal Peoples Television Network, Centre for Free Expression, The Canadian Civil Liberties Association, and the B.C. Civil Liberties Association.

Last year CJFE and VICE Media Canada joined forces with a coalition of civil liberties organizations to launch protectpressfreedom.ca, a multi-platform campaign to raise awareness about VICE News Journalist and Cyberwar Host Ben Makuch’s fight to protect his sources from RCMP interference. CJFE, together with a coalition of media, labour and non-governmental organizations, held a rally in support of VICE News reporter Ben Makuch as he appeared in court on February 6, 2017, making a principled stand to protect press freedom. The rally took place outside the Toronto courthouse in which he was appearing.

In October 2015, the RCMP served Makuch and VICE Canada with a production order seeking any notes and all records of communications with alleged ISIS terrorist Shirdon. VICE Canada has actively fought the production order over the last two years before seeking leave to take the case to the Supreme Court of Canada. 

The protection of sources is a foundational principle of journalism, making crucial reporting like Makuch’s coverage of ISIS possible in the first place. Forcing Makuch to hand over his notes to the RCMP, or go to jail, makes it less likely that sources will be willing to speak with journalists. The RCMP’s production order is a simple fishing expedition which will do little to make Canadians secure while making it harder for Makuch, VICE, and all Canadian journalists to bring stories of national importance to the public.

Interestingly, the RCMP has acknowledged as much in a recently revealed court document. The original production order, written by RCMP Constable Harinder Grewal, states, “It is a reasonable inference that this news organization would not be able to stage this kind of interview with a purported member of a terrorist group if they had a reputation for immediately handing original evidence to the police.”

Makuch’s work has deepened public understanding of a matter of urgent national importance. As the RCMP admits, this work could be made impossible if the ruling is allowed to stand.

CJFE has a long history of intervening in cases that affect free expression and free press issues in Canada, including defamation and libelprotection of sourceshate speech legislation, and access to information.

Note: Tom Henheffer, VICE Canada's Head of News and Digital, is a member of CJFE’s Board of Directors.

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