The constant struggle between press freedom and national security

This piece appeared in The Hill Times on May 29, 2018

As Canadians we expect the authorities tasked with keeping us safe to do as they are mandated.  We spend a lot of taxpayers’ hard-earned money on law enforcement and national security agencies and we demand an efficient use of those dollars.  We want results, good ones, and we don’t want to hear excuses when something bad happens, whether that is a bank robbery, a sexual assault or a terrorist attack.

On the whole, those organisations are very good at what they do for us and are more successful than perhaps the public gives them credit for (CSIS achievements in particular are notoriously hard to measure given that agency’s secrecy).  Nevertheless each and every one of these bodies cannot execute its functions entirely on its own, regardless of how many resources it has.  We all have a role to play in public safety and help our protectors carry out their duties and provide them with any information we may have that can aid in their efforts.  This is not a controversial stand, or at least it should not be.

There is, however, a tension regarding how much information the State can force one of its citizens to hand over.  This debate is especially contentious when it comes to journalistic sources and demands that material gained in the course of the news business be turned over to law enforcement.  This issue has come to the attention of Canada’s Supreme Court in a case involving VICE News and a Canadian member of Islamic State.  In 2015 VICE reporter Ben Makuch interviewed Calgary’s Farah Shirdon, a particularly cocky terrorist who revelled in burning his Canadian passport and threatened attacks on this country.  Much of that exchange is already in the public domain and yet the RCPM has asked Mr. Makuch to surrender all the material he has on his interactions with the terrorist.  The reporter has declined the production order, citing freedom of the press, and so it will fall to the highest court in the land to render a decision on the matter.

What then, should the court say?  The issue is complicated.  Sources are a journalist’s lifeblood and the scribe who constantly offered up his sources would soon find himself out of work.  And yet public safety is paramount and only a fool would believe that the threat of terrorism from an avowed extremist band like IS does not exist.  This question revolves around what is more important: the fundamental freedom of the fifth estate and the public’s insistence that everything possible be done to ensure that a violent act does not take place.

On the one hand so much of the Shirdon video and interview is already in the public sphere that it is initially hard to fathom why the RCMP is asking for all of Mr. Makuch’s material.  I can only guess that the Mounties believe there is important detail in that which is still with the journalist and which they feel they need to make their case.  The fact that Shirdon is presumed dead does not seem to enter into the equation.

Journalists and others may say that they do not see anything of importance from a national security perspective to justify the surrender of their data to the State.  Some may conclude that the RCMP is incompetent, lazy or on a fishing expedition.  I beg to differ.  Neither Mr. Makuch nor anyone else has any idea of what the RCMP has or doesn’t have on Shirdon or why it is convinced it needs what the journalist has.  I assume that the Mounties have a good idea of what is in those exchanges and could use it to build a stronger case against this terrorist.  I also think that the call on what is or what is not relevant to determine national security be left to professionals (no slight intended to Mr. Makuch and his community but CSIS and the RCMP are the ones we entrust with this task, not VICE news).

Then there is of course the ‘slippery slope’ fear: i.e. that if information is turned over in this case it will be easier to do so in the future.  I dislike this argument, preferring to have a system where decisions are made on a individual basis (am I Pollyanish?).

The bottom line is that should an attack take place and it is discovered that something in what Shirdon said to Mr. Makuch could have helped prevent it no one will give the argument over press independence the time of day.  There is also an interesting side line: does Shirdon, as a self-described IS terrorist who wants to kill Canadians, have an expectation of privacy?  I would think not.

We will have to wait for the nine judges to weigh in on this question.  Irrespective of the decision expect the debate to continue.

 

Phil Gurski

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