“Compelling a journalist to hand over their communications with a source for the purpose of a police investigation directly undermines the independence journalists must enjoy in order to fulfill their news gathering role,” said Margaux Ewen, RSF’s North America Director.“The fact that this production order has been upheld by Canada’s highest court today is an alarming development. The chilling effect of this decision could critically harm journalists’ ability to gather and report the news in Canada. Today’s Supreme Court ruling was not just a loss for VICE and Ben Makuch, but for all journalists and media organizations working in Canada.”
The Canadian Supreme Court’s decision, which was published on November 30, upholds the rulings of two lower courts in a legal battle that dates back to 2015, when the Royal Canadian Mounted Police (RCMP) obtained a production order compelling VICE and Makuch to hand over all communications with Farah Shirdon, a Canadian citizen and alleged Islamic State fighter. It is now up to the RCMP to uphold the production order, and thereafter up to VICE and Makuch to choose how to respond.
“This is a dark day for press freedom, which is a basic tenet of democracy,” a spokesperson for VICE said. “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.”
A coalition of 12 press freedom and civil liberties groupsfrom around the world, including RSF, intervened in the case when it was heard before the Supreme Court of Canada on May 23. The coalition argued that the protection of confidential journalistic material from compelled disclosure is a fundamental condition of freedom of the press. Without it, the vital watchdog role journalists play in a democratic society is undermined, as sources risk being deterred from sharing information of public interest with members of the press.
This Supreme Court decision comes at a time when journalistic source protection has been increasingly under threat. Despite the adoption of a federal “shield law” protecting confidential sources —which does not apply in the VICE case— in October 2017, a Quebec Superior Court in March ordered Marie-Maude Denis, an investigative reporter for Radio-Canada, to reveal her sources in a Quebec City corruption case. The court applied the shield law, but ultimately ruled that the public’s interest in the outcome of the trial outweighed that of journalistic source protection. Radio-Canada is currently fighting the order to compel Denis’ testimony, and the Supreme Court announced on August 9 that it will hear this case.
Canada ranks 18th out of 180 countries in RSF’s 2018 World Press Freedom Index.
*CORRECTION: An earlier version of this statement inaccurately referred to this case as involving confidential sources in its title. This has since been updated.