How far can we stretch the freedom of the press?

In Canada, freedom of the press and other media of communications (such as Twitter) are noted in section 2.b of the Canadian Charter of Rights and Freedoms. Freedom of the press in the United States is protected by the First Amendment to the United States Constitution. The American clause in that Amendment protects the right of individuals to express themselves through publication and dissemination of information, ideas and opinions without interference, constraint or prosecution by the government. Of course, these rights in both countries do not protect writers in the media to defame someone or advocate murder or genocide or terrorism.

We have all heard the phase, “Off the record.” which means that what you say to a reporter that is ‘off the record’ cannot be repeated in the media. Of course when interviewed by a reporter, you have to say those words.

But does the government have the right to insist that a reporter must disclose what was said to him by a person he or she interviewed?

In Germany, the right of journalists to refuse to give evidence has been extended by an amendment to the Code of Criminal Procedure. The Bundesrat (Upper House) has followed the Bundestag (Lower House) in accepting a compromise proposed by the mediation committee of the two houses of parliament.

Under the amendment, journalists' own research will be subject to the law on the right to silence and will therefore be exempt from confiscation. Under previous legislation, this only applied to material received by journalists from third parties. The new Act also extends journalists' right to silence to include the production and distribution of non-periodic publications (books, film reports, etc

That means that whatever a person (third party) tells a reporter, he isn’t required to disclose that information to the police if asked to do so.

Exceptions to this new law would only be granted in cases where the evidence obtained would help to solve a crime punishable by at least a one-year prison sentence. However, the mediation committee agreed that more exceptions should be allowed. Therefore, the law on the right to silence will not apply in cases involving breaches of the peace, threats to the rule of law, treason, terrorism, crimes that put external security at risk, offences against sexual self-determination (rape etc) and money laundering.

In the United States, there is no doubt that the use of subpoenas to force journalists to disclose their confidential news sources and unpublished information significantly intrudes on the newsgathering process. Shield laws exist in forty states (West Virginia. passed one in April 2011) if a reporter isn't covered by a shield law, there may still be a constitutional privilege that helps protect sources and information.

 Shield law is legislation designed to protect reporters' privileged information. This privilege involves the right of news reporters to refuse to testify as to information and/or sources of information obtained during the news gathering and dissemination process. Currently the U.S. federal government has not enacted any national shield laws, but most of the 50 states do have shield laws or other protections for reporters in place.

Many years ago in the United States during a trial of a crime lord, the judge ordered a reporter to disclose his source of information. The reporter gave the court the name of his source. The next day, the source was found dead. He had been shot to death.

The right to remain silent right is often 'qualified’—balanced against other interests and yet there are still exceptions, such as when the reporter is an eyewitness to a crime or is told about a pending crime. Digital journalists are often covered by the privilege. All journalists may also have legal obligations to their confidential sources if they breach the agreement. Web sites may be able to protect the identity of anonymous posters, under developing laws or even shield laws.

Proponents of shield laws argue that such laws ensure that news gatherers may do their jobs to their fullest ability and that these laws help avoid a dichotomy between government laws and journalistic ethics.

But how far can we stretch the freedom of the journalists with respect to their shield laws?

Recently in Canada, Kevin Omar Mohamed, 23, was charged with carrying a concealed weapon and possession of a dangerous weapon. (It was a knife)

This Ontario man had also been initially detained in a "preventive" arrest on fears of terrorism following an RCMP (federal police) national security investigation in Toronto. Mohamed  was taken into custody pursuant to of the Canadian Criminal Code to wit; Fear of Terrorism Offence." Although arrested, he wasn’t actually charged with any terrorism-related offence.

The 23-year-old former University of Waterloo student was arrested and later charged with “participating in the activity of a terrorist group.” The RCMP alleged that he went to Turkey in April 2014 to join Jahbat al-Nusra, an Al Qaeda branch fighting in Syria that the Canadian government considers a terrorist organization.

Mohamed’s kind of arrest speaks to Canada’s ability to tackle a threat of terrorism that is multifaceted and constantly evolving.  While there was no indication of any plans by Mohamed for a domestic attack, Canada must remain committed to preventing individuals from travelling abroad to gain training and expertise that could be used in the planning and implementation of future attacks on Canadian soil.

Although the police alleged that Kevin Omar Mohamed went to Turkey in 2014 to join a terrorist group, his mom (Debbie) says that it was an innocent family vacation he went on and that she and Mohamed’s brother were also along for the trip. She said, “If they want to arrest Kevin for going there (Turkey) then they should be arresting all three of us. He has done nothing wrong.”

According to Debbie, Mohamed went ahead a week early but was later joined by herself and her eldest son, who had stayed back to write an exam. She said that she and her sons stopped in Istanbul and then Antakya, which is near the Syrian border, during their month-long visit. She said that they spent time at tourist attractions and gave donations and worked with charity groups helping refugees. She told the Toronto Star she and her sons had been planning the trip for a long time before they visited the country in 2014. I don’t take issue with that statement however, she wouldn’t really know what plans Mohamed may have had from the time they planned the trip until she and her other son arrived in Turkey.  

 Why did Mohamed go to Turkey a week before his family did? One thing is for sure. His mother couldn’t really know what Mohamed was doing during that particular week she wasn’t in Turkey.

Going to Turkey to visit various cities in that country is not a crime nor should it make authorities suspicious of terrorist activities motives. I doubt that the police were interested in Mohamed and his family at that time. It was something else that made them really suspicious of Mohamed’s activities.

The RCMP has been conducting surveillances against Mohamed since 2014 because they suspected that he had been involved with facilitating and encouraging terrorist activity through the use of social media.

It was an interpretation of the context and the words uttered by him in a social media context that got the RCMP worried. The RCMP say Mohamed's arrest was part of "an extensive national security criminal investigation" called Project SWAP.

Mohamed’s statements on Twitter are why the prosecutor asked the court to order that Mohamed should be given a peace bond which he would have to abide with.

"The RCMP has the belief at this point, (which hasn't been tested in court) that Mohamed may be a threat to the security of Canada and that was the reason why the RCMP arrested him.  They didn't charge him with any acts of terrorism.

Based on a fear that someone "will commit'' a terrorism offence, police may obtain a peace bond, a tool that can mean jail unless a suspect abides by strict conditions—for instance, that they surrender their passport and regularly report to police.

Peace bonds have been increasingly used since 2001 for terrorism suspects — six of them related to members of the 2006 Toronto 18 terrorist plot, and most recently against Winnipeg man Aaron Driver for his social media posts justifying the shootings on Parliament Hill in October 2014.

Anti-terrorism legislation was introduced by the Conservative government under Bill C-51 in 2015 makes it easier for the RCMP to obtain peace bonds.

The RCMP said that numerous sources have connected Mohamed with a Twitter account using the pseudonym “Abu Jayyid,” which included statements by him supporting the al-Nusra Front, a group that has been linked to Al Qaeda—both being terrorist organizations. The police were able to get access to that computer information which made their steps undertaken against Mohamed possible.

Now you are by this time, wondering what Mohamed’ case has to do with the issue of freedom of the press.

The RCMP charged Toronto-born, Farah Shirdon, 22, in absentia last September with several offences, including leaving Canada to participate in the activity of a terrorist group, taking part in the activity of a terrorist group, and threatening Canada and the U.S.

A Vice Media reporter, Ben Makuch wrote three stories between July and October 2014 based in large part on the communications of Shirdon (who was raised in Calgary and is believed to have left Canada in March 2014 to join Daesh, also known as ISIS and Islamic State, in Syria)  and Ben Makuch.

In one interview with Makuch, Shirdon espoused typical pro-Daesh propaganda, going on about how blood has to flow in the streets of the Western world. But Makuch reported that the man’s “bravado also made it difficult to decipher legitimate threats from hyperbole, which makes it tough to know just how serious the domestic threat to Canadians really is.”

The RCMP asked Ben to turn over to them any information he got from Shirdon. Ben refused to cooperate on the premise that he was bound to keep it confidential.

The RCMP went to court and obtained a “production order’ stating that Ben must turn over to the RCMP all the information Ben was given by Shirdon.

Superior Court Justice Ian MacDonnell refused to quash what is known as a production order, which the RCMP obtained last year to compel the Vice reporter to turn over his communications with Farah Shirdon. The communications in question happened through the Kik text messaging service. Shirdon has since been charged with six terrorism offences, but not arrested since he is currently beyond the reach of the RCMP.

It is obvious that the RCMP need that information because notwithstanding that Shirdon is in Syria, the RCMP can get an arrest warrant against him if he returns to Canada.

The RCMP was able to secure the order for the data from a lower court judge in February 2015 on the basis of what is known as an Information to Obtain (ITO) order which typically lays out the facts of a case and why a production order or search warrant is requested.

Justice MacDonnell found that there is no alternative source for the RCMP to obtain copies of the communications between Makuch and Shirdon, and that there was no alternative source for evidence of the same quality and reliability.

Mr. Justice MacDonnell wrote in a decision this week, referring to the charges against Shirdon, “There is a strong public interest in the effective investigation and prosecution of such allegations.”

The evidence sought was written on Makuch’s Computer screen when the two men communicated with one another. Makuch’s computer drive has actual electronic messages that Shirdon placed on Makuch’s computer screen. They are highly reliable evidence that does not require a second-hand interpretation.                                                                                                         

The judge said, “I am satisfied that the ITO (information technology outsourcing) set forth a basis upon which, after taking into account the special position of the media, the authorizing justice could have determined that the balance between the interests of law enforcement and the media’s right to freedom of expression favoured making the production order.”

At the same time, MacDonnell granted access to the ITO used by the RCMP to obtain the production order, but imposed a temporary publication ban on information pertaining to Shirdon’s alleged involvement with Daesh.

Patrick McGuire, Vice Canada’s head of content said, “It is journalists’ jobs to shed light on the truth, and protection of journalists’ work product and trust-building with interview subjects are essential in that mission. “We stand behind Ben Makuch and we will stand behind every journalist in his position. The principles at stake are too important.”

Vice’s lawyer, Iain MacKinnon, said he was concerned about the impact the ruling could have on journalists doing their jobs. He said, “Police officers investigating crimes may start using similar production orders more often in the future and rely on journalists as an investigative arm or tool to gather evidence in their investigations.”

The Toronto Star’s Michelle Shephard also spoke to Shirdon over instant messenger in 2014. He told then the Star that the `Daesh’s war “has just begun.”

Shirdon, like other foreign fighters joining the so-called caliphate, are “disenfranchised, disaffected” people that feel like “heroes” in the movement. They are a danger to the people in countries suffering from terrorism and they will also be a danger to people in Canada and elsewhere when they return as experienced terrorist killers.  

The people in Canada and other peace loving countries have to protect themselves against homegrown terrorists and as such, the police should be able to have access to any information that exists no matter how private and confidential that information may be. We are at war with terrorism and for this reason, we have to set aside some of our freedoms in order to protect us all from the ravages of terrorism. It is a sacrifice on our part that is absolutely necessary. Of course the information sought must be pertinent.