After four years of legal turmoil, VICE has resigned itself to divulging national security reporter Ben Makuch's protected correspondence with his late source ISIS fighter Farah Shirdon to the Royal Canadian Mounted Police (RCMP). The fourth court case in Makuch’s legal saga ended July 4 when the Ontario Superior Court justice ruled that because the RCMP couldn’t categorically prove that Shirdon had died, RCMP still has vested interest in Shirdon’s correspondence with Makuch.
“While I am disappointed by this outcome, I understand and respect VICE’s decision to comply with the production order and protect myself and itself from further legal action,” Makuch tweeted on July 4.
RCMP ordered Makuch to hand over his instant messages with Shirdon in 2015, citing Shirdon’s charges for terrorism-related activity as justification for the request. But the original court case didn’t take into consideration that U.S. Central Command found Shirdon died in 2015, which VICE argued should nullify the ruling.
In 2016, RSF joined a coalition of media and civil liberties organizations decrying the original court ruling against Makuch and advocated for Makuch when the Canadian Supreme Court accepted the case. Despite a freshly minted shield law meant to protect journalists from being strong-armed into revealing their confidential sources, the Canadian Supreme Court ruled against Makuch in 2018.
Press freedom in Canada has long been lauded among the most protective in the world, but has slipped in ranking over the past four years due to government transparency issues and controversial antiterrorism legislation, among other factors. In 2017, Radio Canada investigative reporter Marie-Maude Denis was also denied protection from the shield law by a Quebec Superior Court.
“We are deeply disappointed by the outcome of this case,” said Sabine Dolan, RSF’s interim North America Director. “The protection of confidential journalistic material from compelled disclosure is a fundamental condition of freedom of the press. Ben Makuch and VICE have fought tirelessly to preserve the integrity of this correspondence. The court’s decision clearly sends a chilling message to all journalists in Canada and will have consequences for investigative journalism for years to come.”
Canada ranks 18th out of 180 countries in RSF’s 2019 World Press Freedom Index, after falling 10 places between 2015 and 2016.
Editor's note: the previous version of this press release incorrectly identified which party complied with the court's production order to divulge Ben Makuch's correspondences with Farah Shirdon. This story has been updated to make clear that VICE turned over the correspondences.