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 reporter Ben Makuch asserts. "The RCMP and the Crown cannot prosecute a dead person. The production order is no longer legally enforceable."
As a result, Vice and Makuch 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 Makuch wrote in 2014 on a Calgary man, then-22-year-old Farah Shirdon, whom police charged in absentia with various terrorism-related offences. The articles were largely based on conversations Makuch had with Shirdon, 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 Makuch's screen captures and logs of those chats. Makuch 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 Shirdon's 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 Makuch.
The reports of Shirdon's 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 Shirdon 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 Shirdon is dead is "highly reliable" and uncontradicted.
"As the criminal charges against Shirdon cannot be prosecuted or investigated any further because there is no prospect of a trial as a result of Shirdon'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 sates.
Makuch, 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" Shirdon'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.