Protection for a journalist's sources currently exists in a legal void that needs filling given the importance of media to our democracy, a new application to the Supreme Court of Canada states.
In seeking leave to fight an RCMP demand for a reporter's background materials, Vice Media and journalist Ben Makuch argue Canada's top court has never dealt with journalist-source communications.
"Clarification is desperately needed," their leave memorandum states. "Many key questions remain unanswered or are the subject of conflicting appellate decisions."
The materials in question relate to three stories Makuch wrote in 2014 on a Calgary man, Farah Shirdon, charged in absentia with six terrorism-related offences. The articles were largely based on conversations Makuch and Shirdon had via Kik Messenger, an instant messaging app.
RCMP want access to Makuch's screen captures of those chats. He and others argue that could lead to source "chill" – making people reluctant to provide important information to the media. Two lower courts, however, have sided with police.
"Law enforcement seeks an order to compel an innocent journalist and media outlet, which are not being investigated by any government agency, to produce every available record of their communications with an individual whom the journalist spent months cultivating as a source," the leave memo states.
"The decisions below give short shrift to the chilling effect on the ability of journalists to gather and report important news stories, and place an unjustified high value on law enforcement's interests, without explanation or analysis."
In 1991, the Supreme Court mandated carefully balancing the rights of the media in a democratic society against the public interest in crime fighting. However, the court has yet to deal with the "chilling effects" that arise when police want access to communications with a reporter to prosecute the source, the application states.
The current legal battle, which has attracted attention from numerous media rights and civil liberties groups, is likely to be repeated with rising frequency in future given that journalists are increasingly communicating electronically with sources in adversarial relationships with the state, the leave memo states.
"The stakes are high. The law is unsettled. The results of the decided cases are concerning," the application states. "These issues are recurring and this court's guidance is necessary."
Vice and Makuch argue that it's unlikely Shirdon will ever face trial in Canada, given that it's not known whether he is alive or where he is. They also maintain the RCMP already has a significant amount of evidence against him and don't need the extra materials.
However, in upholding the RCMP production order, Superior Court Justice Ian MacDonnell said last year the screen shots were important evidence in relation to "very serious allegations." He found a strong public interest in effective investigation and prosecution, and downplayed Makuch's contention – shared by the various rights groups – that being forced to turn over the materials would compromise the media's ability to gather news.
Ontario's highest court said in rejecting a Vice appeal that MacDonnell had been "clearly alive" to concerns about source "chill" and had made no errors in his ruling. Shirdon had never asked for confidentiality and had in fact been keen to share his views publicly, the court noted.
A key issue that needs resolving, the leave application states, is that lower courts have consistently tilted toward law enforcement when balancing media rights against crime-fighting needs.
"Far from being given particularly careful consideration, even where journalist-source communications are at stake, lower courts give short shrift to the pernicious effects of warrants and production orders on the media's ability to gather or report the news," the application states.
The government has until June 19 to file its response.