In a unanimous decision released on Friday, the court acknowledged the potential “chilling” effects of such a decision on both journalists and sources, but said in this particular case the “state’s interest in the investigation and prosecution of crime outweighed the media’s right to privacy in gathering and disseminating the news”.
Justice Michael Moldaver wrote that the production order for Makuch’s records should proceed because his work didn’t involve “off the record” or “not for attribution” conversations.
“Crucially, there is no suggestion that anything the source said was intended or understood to be ‘of the record’,” the statement read.
“The journalist’s own conduct shows that the relationship was not confidential in any way.”
In a statement issued after the ruling was released, Vice called it “a dark day for press freedom, which is a basic tenet for democracy”.
Ben Makuch, the reporter, said he was “profoundly disappointed” by the ruling.
STATEMENT: 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. It is truly a dark day for press freedom around the globe at a time where journalism is unquestionably under attack everywhere.
— Ben Makuch (@BMakuch) November 30, 2018
Makuch, a national security journalist with Vice News, made contact with Shirdon in 2014. A year later, police said they believe Sherdon left Canada in March 2014 to fight with ISIL in Syria.
The journalist embedded himself in Shirdon’s social media and eventually persuaded him to explain some of ISIL’s online recruiting strategies, this led to the publication of three articles that ended involving the journalist in a lengthy legal battle with Canada’s federal police force.
In 2015, the Royal Canadian Mounted Police (RCMP) filed an information to obtain order (ITO) compelling Vice News and Makuch to produce all his communications with Shirdon including messenger chats, screen captures and any other computer records.
Vice News went to court to appeal against the order, but lost.
— Ben Makuch (@BMakuch) October 30, 2015
Shirdon was charged in absentia with terrorism offenses in 2015 but is believed to have been killed in a US air attack that year.
Makuch received the support of numerous press freedom organisations during the legal battle.
On Friday, CWA Canada, a union representing journalists called it a troubling ruling.
“I can’t express strongly enough how troubled I am with this ruling,” said CWA president Martin O’Hanlon.
“Police have an important job to do in protecting us from crime, but they cannot expect journalists to do that job for them. The media is not, nor should it ever be, an arm of the state.”
A spokesperson for Public Safety Minister Ralph Goodale, said the department is reviewing the court’s decision, according to CBC reports.
In a statement, the RCMP said it “respects judicial process and the ruling determined by the Supreme Court of Canada and will not comment further”.
The Committee to Protect Journalists (CPJ) said this decision set an “extremely worrying precedent and is a blow to press freedom in Canada”.
“The order undermines journalistic independence and could inhibit sources from talking to reporters, which would in turn chill the flow of news to the public,” it added.