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Journalists must provide RCMP material about accused terrorists: Supreme Court

Jim Bronskill, The Canadian Press

Published Friday, 30 November 2018 9:58 EST

Last Updated Friday, 30 November 2018 10:57 EST

OTTAWA – Canada's Supreme Court says a reporter must provide the RCMP material that he collected for the story of a accused terrorist.

The 9-0 decision is likely to be seen as a defeat for the media which can make them vulnerable to serving as a police investigation weapon.

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

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

The exchange between Makuch and Shirdon through text messaging services is very important for articles.

In 2015, RCMP obtained production orders under the Criminal Code, directing the Media Deputy and Makuch to provide documents and data relating to communications with Shirdon, who may now be dead.

Makuch brought in an application to cancel production orders, but was dismissed – a decision upheld by the Ontario High Court.

The Supreme Court agreed to hear the Makuch case, which correctly complained of press freedom against the power of police investigations.

In the previous case, the court has set nine conditions to assess the reasonableness of the search for media outlets.

Media representatives argue at the Supreme Court that a lower court has misapplied, or failed to implement, a balance test.

Philip Tunley, a lawyer for the Media Representative, told the high court last May there should be clear protection for the media when law enforcement agencies came knocking.

He said the results of current law and practice were "a terrible effect" on the important role of the media in gathering and publishing news in Canada.

Federal Croft Attorney Michaelson told the court that "there is no point" in criticizing the strong legal framework in place for breaking access to media material.

In his argument, Mahkota calls the test a principle and flexible framework intended to curb the potential effects of an order that might have on the ability of the media to do its work. It said the court did not act as a rubber stamp favored by the interests of law enforcement at the expense of freedom of expression.

A deputy spokesman told CTV News:

This is a dark day for press freedom, which is the basic principle of democracy. Even though we lost this battle, nothing can shake our belief that a free press plays an important role in an honest understanding of the world in which we live. We will continue to cultivate the sound power of the youth to talk about that truth.

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