Jim Bronskill, The Canadian Press
Posted Friday, November 30, 2018 at 9:58 PM CET
Last update Friday, November 30, 2018 10:57 PM EST
OTTAWA – The Supreme Court of Canada says that a journalist must deliver RCMP material that he picked up for stories about a accused terrorist.
The 9-0 decision is likely to be seen as a defeat by the media that could make them vulnerable to serve as a police investigative weapon.
In 2014, media reporter Ben Makuch wrote three articles about the participation of Farah Shirdon, formerly of Calgary, with the Islamic State of Iraq and the East.
Shirdon had left Canada for Turkey in March of that year. A month later, he appeared in a video of ISIL propaganda that appeared on the Internet. He broke his Canadian passport, threw a fire and said: "With the help of Allah, we come to kill you."
The exchanges between Makuch and Shirdon through a text message service were crucial for articles.
In 2015, the RCMP obtained a production order under the Criminal Code, directing Vice Media and Makuch to provide documents and data related to communications with Shirdon, who could now be dead.
Makuch filed an application to eliminate the production order, but was fired – a decision confirmed by the Court of Appeals of Ontario.
The Supreme Court agreed to hear the case of Makuch, who held the freedom of the press against the police investigating powers.
In a previous case, the court had established new conditions to assess the reasonableness of a search for a means of communication.
Vice Media argued the Supreme Court that the lower courts had been applying incorrectly or did not apply the balance test.
Philip Tunley, a lawyer at Vice Media, told the court last May that there are clear protections for the media when the judicial authorities come to call.
He said that the result of law and current practice was "a creepy effect" on the important role of the media when collecting and publishing news in Canada.
The federal lawyer, Croft Michaelson, told the audience that there was "no merit" to the criticisms of the solid legal framework that existed in deciding the access to media materials.
In its arguments, the Crown called the test a principle and flexible framework aimed at curbing any possible cooling effect that could have an order on the ability of the media to do its job. He said the courts had not acted as rubber stamps that favored the interests of law enforcement at the expense of freedom of expression.
A spokeswoman vice president told CTV News:
This is a dark day for the freedom of the press, which is a basic principle of democracy. Although we have lost this battle, nothing can make believe that a free press is essential for a true understanding of the world in which we live. We will continue to promote the power of young people's voices to speak this truth.