A Vice Media reporter will have to hand over records of his conversations with an alleged ISIS member to police following a Supreme Court of Canada decision.

In the unanimous decision released Friday, the top court upheld a lower court's ruling regarding the work of reporter Ben Makuch.

The case was seen as pitting journalists' interest in protecting their sources against the state's duty to investigate crimes. In a statement issued after the ruling was released, Vice called it "a dark day for press freedom, which is a basic tenet of democracy."

"While we've lost this battle, nothing can shake our belief that a free press is instrumental to a truthful understanding of the world in which we live. We will continue to foster the power of youth voices to speak that truth," the statement said.

Makuch took to Twitter to say he's "profoundly disappointed in today's 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. —@BMakuch

The case dates back to 2014, when Makuch wrote three stories about Farah Mohamed Shirdon, a former Calgary resident, and his ties to the Islamic State in Iraq and Syria.

Intrigued by the idea of a young man leaving a Canadian city to fight for a terrorist group, Makuch embedded himself in Shirdon's online world and eventually convinced him to explain some of ISIS's online recruiting and radicalizing strategies.

In 2015, the RCMP filed an information to obtain order (ITO) compelling Vice and Makuch to produce all of his communications with Shirdon — who has since been killed, according to reports — including Kik Messenger chats, paper printouts, screen captures and any other computer records.

Minister of Official Languages Melanie Joly offers a general comment about the government's support of the protection of journalistic sources. 0:22

Kik does not store messages on servers, meaning police could not go to a service provider for copies of the conversation.

"The articles contained statements by the source that, if true, could provide strong evidence implicating him in multiple terrorism offences," says the court's decision, written by Justice Michael Moldaver.

Makuch brought an application forward to quash the RCMP's production order, but it was dismissed — a decision upheld by the Ontario Court of Appeal.

In their Friday decision, the Supreme Court justices said that while it was important for media to be able to gather news without government interference, that right was outweighed in this case by society's interest in investigating and prosecuting crimes.

A previous court decision set out a framework of nine conditions for deciding when police should be able to access media materials. Vice Media argued before the Supreme Court that the lower courts had incorrectly applied those conditions.

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, meaning the records would not reveal the identity of a confidential source.

He also wrote that screen shots of the conversations were the only way for police to obtain hard copies of what was said.

Media not 'an arm of the state'

However, the Supreme Court justices said Friday that framework guiding access to media materials should be refined.

Right now, police can go before a court to make the case for a production order ex parte — without the journalist or media outlet present. In today's decision, the justices said journalists should be given the chance to argue their side — unless it's an emergency.

"The authorizing judge may find it desirable to require that notice be given to the media," notes the decision.

"However, that conclusion is not mandatory."

CWA Canada, a union representing thousands of journalists, called it a troubling ruling.

"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," said president Martin O'Hanlon.

It's not clear what happens next with the investigation.

NDP MP Alexandre Boulerice calls for stronger legislation to protect journalists. 0:39

A spokesperson for Public Safety Minister Ralph Goodale said his department is reviewing the court's decision.

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 court did not deal with the Journalistic Sources Protection Act — Conservative Senator Claude Carignan's bill passed in late 2017 — because the facts behind the Vice case transpired before the law took effect.

That law aims to protect confidential sources from investigations by the police.

Minister of Tourism, Official Languages and La Francophonie Mélanie Joly said the government believes "in the importance of protecting sources and making sure that journalists can protect their sources."

"We've supported the Senate bill that was presented by Senator Carignan because we believe in having a strong free and independent press, and therefore we will continue to abide by these principles," said Joly, who previously held the Heritage portfolio.

"As to the particular facts of this case, obviously I don't have any comments as of now because I haven't had the chance to read it."</s>OTTAWA, Ontario (AP) — The Supreme Court of Canada says a Vice Media reporter must give Canada’s national police force material he gathered for stories about an accused terrorist. The case has pitted press freedoms against the investigative powers of police.

The high court said in a 9-0 decision Friday the state’s interest in prosecuting crime outweighed the media’s right to privacy in gathering the news.

Reporter Ben Makuch in 2014 wrote three articles about the involvement of Farah Mohamed Shirdon, formerly of Calgary, with the Islamic State of Iraq and the Levant. Shirdon appeared in an ISIL propaganda video.

Their exchanges in text-messaging service were crucial to the articles.

The Royal Canadian Mounted Police in 2015 directed Vice Media and Makuch to provide documents and data relating to communications with Shirdon.</s>OTTAWA, Ontario (AP) — The Supreme Court of Canada ruled Friday a Vice Media reporter must give Canada's national police force material he gathered for stories about an accused terrorist in a case that pitted press freedoms against the investigative powers of police.

The high court said in a 9-0 decision Friday the state's interest in prosecuting crimes outweighed the media's right to privacy in gathering the news.

Vice Media said the ruling made it a "dark day for press freedom."

Organizations representing Canadian journalists also decried the decision as setback that imperils their work.

In 2014, reporter Ben Makuch wrote three articles about the involvement of Farah Mohamed Shirdon, formerly of Calgary, with the Islamic State of Iraq and the Levant.

Shirdon had left Canada for Turkey in March of that year. A month later, he appeared in an ISIL propaganda video that turned up on the internet. He tore up his Canadian passport, threw it into a fire and said, "With help from Allah, we are coming to slaughter you."

Their exchanges in text-messaging service were crucial to the articles.

The Royal Canadian Mounted Police in 2015 directed Vice Media and Makuch to provide documents and data relating to communications with Shirdon.

Makuch tweeted: "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."

The Canadian Association of Journalists and Canadian Journalists for Free Expression also called the ruling deeply disappointing.

"It creates a chill for anyone who wants to speak truth to power or expose government wrongdoing," said CAJ president and CJFE board member Karyn Pugliese. "The country's highest court erred significantly in today's decision."</s>OTTAWA — The Supreme Court of Canada says a reporter must give the RCMP material he gathered for stories about an accused terrorist.

The 9-0 decision is likely to be seen as a defeat for media that could leave them vulnerable to serving as investigative arms of the police.

In 2014, Vice Media reporter Ben Makuch wrote three articles about the involvement of Farah Shirdon, formerly of Calgary, with the Islamic State of Iraq and the Levant.

Shirdon had left Canada for Turkey in March of that year. A month later, he appeared in an ISIL propaganda video that turned up on the internet. He tore up his Canadian passport, threw it into a fire and said, "With help from Allah, we are coming to slaughter you."</s>OTTAWA — The Supreme Court of Canada says a reporter must give the RCMP material he gathered for stories about an accused terrorist.

The decision is likely to be seen as a defeat for media that could leave them vulnerable to serving as investigative arms of the police.

In 2014, Vice Media reporter Ben Makuch wrote three articles about the involvement of Farah Shirdon, formerly of Calgary, with the Islamic State of Iraq and the Levant.

Exchanges between Makuch and Shirdon through a text-messaging service were crucial to the stories.

The RCMP obtained a production order under the Criminal Code that directed Vice Media and Makuch to hand over documents and data related to communications with Shirdon.

Makuch brought an application to quash the production order, but it was dismissed — a decision upheld by the Ontario Court of Appeal and now the Supreme Court.</s>OTTAWA—The Supreme Court of Canada says a reporter must give the RCMP material he gathered for stories about an accused terrorist. The 9-0 decision is likely to be seen as a defeat for media that could leave them vulnerable to serving as investigative arms of the police.

In 2014, Vice Media reporter Ben Makuch wrote three articles about the involvement of Farah Shirdon, formerly of Calgary, with the Islamic State of Iraq and the Levant. Shirdon had left Canada for Turkey in March of that year. A month later, he appeared in an ISIL propaganda video that turned up on the internet. He tore up his Canadian passport, threw it into a fire and said, “With help from Allah, we are coming to slaughter you.” Exchanges between Makuch and Shirdon through a text-messaging service were crucial to the articles.

In 2015, the RCMP obtained a production order under the Criminal Code, directing Vice Media and Makuch to provide documents and data relating to communications with Shirdon, who might now be dead. Makuch brought an application to quash the production order, but it was dismissed — a decision upheld by the Ontario Court of Appeal. The Supreme Court agreed to hear Makuch’s case, which squarely pitted press freedoms against the investigative powers of police. In a previous case, the court had set out nine conditions for assessing the reasonableness of a search of a media outlet. Vice Media argued at the Supreme Court that lower courts had been incorrectly applying, or failing to apply, the balancing test.

Philip Tunley, a lawyer for Vice Media, told the high court last May there should be clear protections for the media when enforcement agencies come knocking. He said the result of current law and practice was “a chilling effect” on the media’s important role in gathering and publishing news in Canada. Federal lawyer Croft Michaelson told the hearing there was “no merit” to criticisms of the robust legal framework in place for deciding access to media materials. In its arguments, the Crown called the test a principled and flexible framework intended to curb any potential chilling effect that an order might have on the ability of the media to do its work. It said the courts had not been acting as rubber stamps that favoured the interests of law enforcement at the expense of freedom of expression.</s>The Supreme Court of Canada says a reporter must give the RCMP material he gathered for stories about an accused terrorist.

The decision is likely to be seen as a defeat for media that could leave them vulnerable to serving as investigative arms of the police.

READ MORE: Vice Media challenges RCMP demand for reporter materials in top Ontario court

In 2014, Vice Media reporter Ben Makuch wrote three articles about the involvement of Farah Shirdon, formerly of Calgary, with the Islamic State of Iraq and the Levant.

Exchanges between Makuch and Shirdon through a text-messaging service were crucial to the stories.

The RCMP obtained a production order under the Criminal Code that directed Vice Media and Makuch to hand over documents and data related to communications with Shirdon.

READ MORE: Vice Media reporter forced to turn over materials to RCMP after Ontario appeal court ruling

Makuch brought an application to quash the production order, but it was dismissed _ a decision upheld by the Ontario Court of Appeal and now the Supreme Court.</s>OTTAWA — A Vice Media reporter must give the RCMP material he gathered for stories about an accused terrorist, the Supreme Court of Canada has ruled in a case that pitted press freedoms against the investigative powers of police.

In its 9-0 decision Friday, the high court said the state’s interest in prosecuting crime outweighed the media’s right to privacy in gathering the news when all the factors in play were taken into account.

Vice Media said the ruling made it a “dark day for press freedom.”

Organizations representing Canadian journalists also decried the decision as setback that imperils their work.

“Police have an important job to do in protecting us from crime, but they cannot expect journalists to do that job for them,” said Martin O’Hanlon, president of CWA Canada, a union that represents over 6,000 media workers. “The media is not, nor should it ever be, an arm of the state.”

In 2014, reporter Ben Makuch wrote three articles about the involvement of Farah Mohamed Shirdon, formerly of Calgary, with the Islamic State of Iraq and the Levant.

Shirdon had left Canada for Turkey in March of that year. A month later, he appeared in an ISIL propaganda video that turned up on the internet. He tore up his Canadian passport, threw it into a fire and said, “With help from Allah, we are coming to slaughter you.”

Exchanges between Makuch and Shirdon through a text-messaging service were crucial to the articles.

In 2015, the RCMP obtained a production order under the Criminal Code, directing Vice Media and Makuch to provide documents and data relating to communications with Shirdon, who might now be dead.

Makuch brought an application to quash the production order, but it was dismissed — a decision upheld by the Ontario Court of Appeal.

The Supreme Court agreed to examine Makuch’s case, with a full bench hearing arguments last May.

In a previous case, the court had set out nine conditions for assessing the reasonableness of a search of a media outlet.

Vice Media argued at the Supreme Court that lower courts had been incorrectly applying, or failing to apply, that balancing test.

Philip Tunley, a lawyer for the multimedia outlet, told the high court there should be clear protections for journalists when enforcement agencies come knocking.

He said the result of current law and practice was “a chilling effect” on the media’s important role in gathering and publishing news in Canada.

Federal lawyer Croft Michaelson told the hearing there was “no merit” to criticisms of the legal framework in place for deciding on police access to media materials.

In its arguments, the Crown called the test a principled and flexible framework intended to curb any potential chilling effect that an order might have on the ability of the media to do its work.

Although the Supreme Court was unanimous in dismissing Makuch’s appeal, the judges provided two distinct sets of reasons.

Justice Michael Moldaver said on behalf of the majority that the framework continues to provide a suitable model for considering applications for search warrants and production orders relating to the media, though certain elements should be tweaked.

Even then, Moldaver wrote, the production order for Makuch’s materials should stand because disclosure of the materials would not reveal a confidential source, no “off the record” or “not for attribution” communications would be disclosed, there is no alternative source through which the materials could be obtained, and Shirdon used the media to publicize extremist views.

Moldaver added that he struggled to see why a chilling effect should be presumed in such matters, saying this “should be assessed on a case-by-case basis.”

Tunley had no comment Friday, and it was not clear when — or even if — the materials would be given to the RCMP.

The Mounties said they respect the judicial process but would not comment on the next steps in their investigation.

“This is a dark day for press freedom, which is a basic tenet of democracy,” Vice Media said in a statement. “While we’ve lost this battle, nothing can shake our belief that a free press is instrumental to a truthful understanding of the world in which we live.”

Makuch, who is based in New York, was not at the court for the decision’s release, but he tweeted: “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.”

The Canadian Association of Journalists and Canadian Journalists for Free Expression also called the ruling deeply disappointing.

“It creates a chill for anyone who wants to speak truth to power or expose government wrongdoing,” said CAJ president and CJFE board member Karyn Pugliese. “The country’s highest court erred significantly in today’s decision.”</s>The court said the state's interest in prosecuting crime outweighed the media's right to privacy in gathering news when all factors were considered.A Vice Media reporter must give the RCMP material he gathered for stories about an accused terrorist, the Supreme Court of Canada has ruled in a case that pitted press freedoms against the investigative powers of police.In its 9-0 ruling Friday, the high court said the state's interest in prosecuting crime outweighed the media's right to privacy in gathering the news when all the factors in play were taken into account.Vice Media said the decision made it a "dark day for press freedom."In 2014, reporter Ben Makuch wrote three articles about the involvement of Farah Mohamed Shirdon, formerly of Calgary, with the Islamic State of Iraq and the Levant.Shirdon had left Canada for Turkey in March of that year. A month later, he appeared in an ISIL propaganda video that turned up on the internet. He tore up his Canadian passport, threw it into a fire and said, "With help from Allah, we are coming to slaughter you."The Supreme Court agreed to examine Makuch's case, with a full bench hearing arguments last May.In a previous case, the court had set out nine conditions for assessing the reasonableness of a search of a media outlet.Vice Media argued at the Supreme Court that lower courts had been incorrectly applying, or failing to apply, that balancing test.Philip Tunley, a lawyer for the multimedia outlet, told the high court there should be clear protections for journalists when enforcement agencies come knocking.In its arguments, the Crown called the test a principled and flexible framework intended to curb any potential chilling effect that an order might have on the ability of the media to do its work.Although the Supreme Court was unanimous in dismissing Makuch's appeal, the judges provided two distinct sets of reasons.Makuch, who is based in New York, was not at the court for the decision's release. 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 dark day for press freedom, which is a basic tenet of democracy," Vice Media said in a statement. "While we've lost this battle, nothing can shake our belief that a free press is instrumental to a truthful understanding of the world in which we live."</s>OTTAWA — A Vice Media reporter must give the RCMP material he gathered for stories about an accused terrorist, the Supreme Court of Canada has ruled in a case that pitted press freedoms against the investigative powers of police.

In its 9-0 ruling Friday, the high court said the state’s interest in prosecuting crime outweighed the media’s right to privacy in gathering the news when all the factors in play were taken into account.

Vice Media said the decision made it a “dark day for press freedom.”

In 2014, reporter Ben Makuch wrote three articles about the involvement of Farah Mohamed Shirdon, formerly of Calgary, with the Islamic State of Iraq and the Levant.

Shirdon had left Canada for Turkey in March of that year. A month later, he appeared in an ISIL propaganda video that turned up on the internet. He tore up his Canadian passport, threw it into a fire and said, “With help from Allah, we are coming to slaughter you.”

Exchanges between Makuch and Shirdon through a text-messaging service were crucial to the articles.

In 2015, the RCMP obtained a production order under the Criminal Code, directing Vice Media and Makuch to provide documents and data relating to communications with Shirdon, who might now be dead.

Makuch brought an application to quash the production order, but it was dismissed — a decision upheld by the Ontario Court of Appeal.

The Supreme Court agreed to examine Makuch’s case, with a full bench hearing arguments last May.

In a previous case, the court had set out nine conditions for assessing the reasonableness of a search of a media outlet.

Vice Media argued at the Supreme Court that lower courts had been incorrectly applying, or failing to apply, that balancing test.

Philip Tunley, a lawyer for the multimedia outlet, told the high court there should be clear protections for journalists when enforcement agencies come knocking.

He said the result of current law and practice was “a chilling effect” on the media’s important role in gathering and publishing news in Canada.

Federal lawyer Croft Michaelson told the hearing there was “no merit” to criticisms of the legal framework in place for deciding on police access to media materials.

In its arguments, the Crown called the test a principled and flexible framework intended to curb any potential chilling effect that an order might have on the ability of the media to do its work.

Although the Supreme Court was unanimous in dismissing Makuch’s appeal, the judges provided two distinct sets of reasons.

Justice Michael Moldaver said on behalf of the majority that the framework continues to provide a suitable model for considering applications for search warrants and production orders relating to the media, though certain elements should be tweaked.

Even then, Moldaver wrote, the production order for Makuch’s materials should stand because disclosure of the materials would not reveal a confidential source, no “off the record” or “not for attribution” communications would be disclosed, there is no alternative source through which the materials could be obtained, and Shirdon used the media to publicize extremist views.

Makuch, who is based in New York, was not at the court for the decision’s release. 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 dark day for press freedom, which is a basic tenet of democracy,” Vice Media said in a statement. “While we’ve lost this battle, nothing can shake our belief that a free press is instrumental to a truthful understanding of the world in which we live.”
The Supreme Court of Canada says that Vice Media reporter Ben Makuch must give the Royal Canadian Mounted Police material he gathered for stories about an accused Islamic State terrorist.