Vice Media journalist Ben Makuch is seen outside the Ontario Court of Appeal on Feb. 6, 2017.Colin Perkel/The Canadian Press
A judge who ordered a journalist to turn over his background materials to the RCMP failed to properly balance the need to prosecute a serious crime against the ability of the media to their jobs, an Appeal Court heard Monday.
In particular, lawyer Iain McKinnon said, the judge failed to appreciate the "chilling effect" turning over the information would have on the media.
"He didn't even take it into account," McKinnon told the Ontario Court of Appeal.
At issue is an RCMP demand that Vice Media journalist Ben Makuch give them his background materials related to articles he did in 2014 on Farah Shirdon.
RCMP charged Shirdon, whose whereabouts are unknown, in September 2015 with several terrorism-related offences, including that the Calgary man left Canada to join the Islamic State terror organization and that he had threatened Canada and the U.S.
McKinnon, who represents Vice, accused the RCMP of going on a fishing expedition by demanding Makuch's logs from an Internet messaging app called Kik, which the journalist used to communicate with Shirdon.
Last March, Superior Court Justice Ian MacDonnell accepted government arguments that Vice was the only source of the information police needed to further their investigation of Shirdon, prompting an appeal that media and civil liberties groups are watching closely.
"The screen captures are important evidence in relation to very serious allegations," MacDonnell said in his ruling. "There is a strong public interest in the effective investigation and prosecution of such allegations."
McKinnon called it critical that sources – especially those in an adversarial relationship with the state – don't view journalists as an arm of the police. Otherwise, they would be reluctant to talk to the media – something even the officer who obtained the order against Vice recognized, he said.
But Appeal Court Justice David Doherty appeared to have difficulty swallowing the argument, saying no objective person would consider Makuch to be an agent of police – given that he was being ordered to hand over his materials.
"It can still have a chilling effect," McKinnon insisted.
McKinnon said police already had "arguably more damning" information that Shirdon, who may never face trial in Canada, had posted on the Internet.
"They simply don't need it. They don't need this information," the lawyer said. "They've got it already."
Doherty, however, noted that the Kik chats amount to confession, so it was obvious why police would want to see them.
"They are direct statements from the accused incriminating himself of the crimes," Doherty said.
Also under appeal is MacDonnell's decision to impose a sealing order and publication ban on some of the information the RCMP provided to get the production order against Makuch.
Media and civil-right groups, which have intervened in support of Vice, called the publication ban too broad and too vague.
A lawyer for the British Columbia Civil Liberties Association, Andrew MacDonald, urged the Appeal Court to provide a "rigorous framework" and provide "important guidance" to lower courts about when police should be able to ask for a journalist's sources.