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Media and rights groups win right to intervene in Vice-RCMP fight

Last Updated Oct 27, 2016 at 1:57 pm MDT

TORONTO – Media and rights groups on Thursday won the right to intervene in a news outlet’s appeal of an order that one of its reporters turn over his materials to the RCMP.

The ruling by Ontario’s chief justice over objections of the government comes in a case that pits journalistic rights against those of police investigating potential criminal offences.

In making his decision, Justice George Strathy rejected Crown arguments that the groups were trying to reinterpret already well-settled law, or introduce evidence not already before the court.

The case involves an order that reporter Ben Makuch and Vice Media hand over background materials related to interviews he did with a Canadian man, Farah Shirdon, whom the RCMP accuses of terrorism-related offences.

Police have argued the material is crucial to their ongoing investigation.

The three separate groups now allowed to intervene in Vice’s appeal — to be heard in February — comprise an eight-member media coalition that includes the CBC and APTN, the Canadian Civil Liberties Association, and the B.C. Civil Liberties Association.

In arguing for status at the appeal, coalition lawyer Justin Safayeni said it should come as no surprise the case has garnered widespread interest.

“This case is about when production orders can be used to compel journalists to turn over records,” Safayeni told Strathy. “This goes beyond the interests of the immediate parties in the appeal.”

It’s the first time Ontario’s top court is dealing with such an important case, he said, and its ruling will create guidance to police and courts in future cases.

All three intervenors said they offered a unique and informed perspective and would not simply duplicate Vice’s submissions. Among other things, Vice argues that allowing police to conscript reporters into helping their investigations would make sources reluctant to come forward and hamper the media’s ability to inform the public.

In opposing the interventions, Crown lawyer Sarah Shaikh said the case turns on “accepted law” and the intervenors were trying to relitigate matters the Supreme Court of Canada has already decided.

“That is what the proposed intervenors are missing in this case,” Shaikh told Strathy.

Strathy appeared unconvinced. With the evolution of charter and a free press, he said, “It’s very hard … to say anything is settled these days.”

Shaikh also argued the groups were being “overly dramatic” in framing the case as journalists being forced to become police agents. Journalists, she said, are members of the community and must respect the law — even if they do have special status in terms of their role in society.

RCMP have charged the Toronto-born Shirdon in absentia with offences that include leaving Canada to participate in the activity of a terrorist group, taking part in the activity of the Islamic State terrorist group, and threatening Canada and the U.S.

The production order calls on Vice to hand over records related to how it or its journalists contacted Shirdon. The order — only parts of which can be published — also asks for printouts, screen captures or other computer records of communications Makuch or Vice had with Shirdon via the Kik instant-messenger application.

In allowing the interventions, Strathy said the groups could not be repetitive, should limit their written materials to 15 pages each, and could not try to supplement the existing factual record. The Canadian Civil Liberties Association’s input would have to focus on the publication ban and sealing order, while the other two must focus on the production order itself.

Strathy said his written reasons for his decision would follow.