TORONTO — A high-profile RCMP demand for a journalist’s background materials related to interviews with a suspected terrorist should be set aside even though Canada’s top court recently upheld the police request, Vice Media argues in a new legal action.
The application to Ontario Superior Court hinges on indications that the accused is in fact dead.
“In this case, there has been a material change in circumstances underlying the production order since it was first issued,” the application by Vice and its reporter asserts. “The RCMP and the Crown cannot prosecute a dead person. The production order is no longer legally enforceable.”
As a result, Vice and the journalist argue, the courts should now declare the RCMP’s demand unenforceable and a violation of their constitutional rights.
The materials at issue relate to three stories the reporter wrote in 2014 on a 22-year-old Calgary man, whom police charged in absentia with various terrorism-related offences. The articles were largely based on conversations he had with the suspect, who was said to be in Iraq, via the online instant messaging app Kik Messenger.
With court permission, RCMP in February 2015 sought access to the journalist’s screen captures and logs of those chats. The reporter refused to hand them over, prompting a hard-fought battle that ended in November when the Supreme Court of Canada upheld the police demand as legitimate.
Despite conflicting indications over his fate, Vice argues the suspect was killed in Iraq in July 2015. That information only emerged in media reports in September 2017, long after the RCMP issued its production order. The courts, Vice argues, have never taken that new information into account in upholding the production order against the journalist.
The reports of his death in a coalition airstrike on Mosul were based on a statement by the U.S. Army Central Command at the time. However, the U.S. State Department later placed the man on a terrorist watch list, leading to speculation that he might still be alive, although the command stood by its assessment as recently as last month.
In supporting materials filed with the court, Vice cites the State Department as saying that a person may for various reasons remain a designated terrorist even after death. The upshot, Vice argues, is that the U.S. military assessment the suspect is dead is “highly reliable” and uncontradicted.
“As the criminal charges against [the suspect] cannot be prosecuted or investigated any further because there is no prospect of a trial as a result of [the man’s] death, any further attempt to enforce the production order would be for reasons that are unrelated to the basis upon which it was issued and, therefore, unlawful,” the court application states.
In an interview with AdvocateDaily.com, Toronto lawyer and mediator Howard Winkler says the test on Vice Media’s application will be whether it can demonstrate that there is new or more reliable evidence that the suspect is dead.
“They will also have to demonstrate that if the new information had been available to the authorizing judge, it could reasonably have affected his decision,” says Winkler, principal and founder of Winkler Dispute Resolution. “If Vice Media can overcome these obstacles, it is likely that the attempt to set aside the production order will be successful on the basis there no longer exists an overriding societal interest in investigating a crime, which cannot be prosecuted due to the death of the subject of the investigation.”
In the case adjudicated by the Supreme Court of Canada (SCC), the issue related to the legality of the original production order made against Vice Media and its reporter, Winkler explains.
“The Supreme Court upheld the production order after considering the competing interests of the media’s right to gather information without government interference and society’s interest in investigating and prosecuting crimes. While the court refined the test to be used by judges in the exercise of their discretion, they did not feel that it was appropriate to overturn the original production order,” he says.
However, Winkler says the SCC left the door open in cases where the production order was made ex-parte.
“If the order is granted ex parte and is later challenged by the media, the standard of review is determined by applying the following test: if the media points to information not before the authorizing judge that, in the reviewing judge’s opinion, could reasonably have affected the authorizing judge’s decision to issue the order, then the media will be entitled to a de novo review,” the court stated.
If the evidence suggesting that the man is dead was not before the authorizing judge, the argument now being advanced by Vice Media is tenable, Winkler says.
The question as to whether the Journalistic Sources Protection Act would apply to the current application by the news site is up for debate, he adds.
“I would suggest not, but in any event, Vice Media should get the benefit, in its current application, of the refined test established by the Supreme Court of Canada,” Winkler says.
This case underscores the importance for journalists to properly document the terms of their relationship with confidential sources, including the fact that the information is only being provided upon the assurance of confidentiality, he says.
“However, journalists must take great care to not arbitrarily offer confidentiality where it would not otherwise be required. If such abuse occurs, legitimate claims of confidentiality might be reviewed with greater skepticism,” Winkler says.
The journalist, who once vowed never to hand over the materials, has repeatedly refused to respond to interview requests from The Canadian Press since the Supreme Court decision, which came amid alarm from media groups over police investigators using journalists to do their work.
In a statement on Wednesday, Vice said the U.S. military had “reliably confirmed” the man’s death in 2015, causing a significant change in circumstance to the original production order.
“While the RCMP continues to demand the production of information on a subject known to be deceased, our application respectfully asks the court to see the absurdity of such a request and revoke or stay the order,” a Vice spokesman said.
The Department of Justice did not immediately respond to a request for comment.
The Vice application, which asks for a stay in enforcing the production order pending outcome of the proceedings, is slated to he heard at the end of this month.