TORONTO — Forcing a reporter to give information on a terror suspect to the RCMP would be unreasonable given that the wanted Canadian man is almost certainly dead, an Ontario justice heard on Tuesday.
The argument from Vice Media played out in Superior Court despite a Supreme Court of Canada ruling in November that journalist Ben Makuch must turn over logs of chats he had with Farah Shirdon, formerly of Calgary.
At issue in the hearing was the reliability of statements from U.S. Central Command — known as Centcom — issued in 2017 and 2018. Those statements, first reported in the media, stated Shirdon had been killed in an air strike in Mosul, Iraq, in July 2015.
Despite the statements, Crown lawyer Brian Puddington argued there was no proof Shirdon was killed. He noted the U.S. State Department still designates Shirdon as "actively engaged in terrorism."
The only witness to testify before Justice Breese Davies was an American military intelligence expert, Gen. Francis (Frank) Taylor, who retired after 31 years of service in 2017.
Taylor said he didn't know what happened to Shirdon but called Centcom statements trustworthy.
"Centcom does not make a false statement or announcement — for credibility reasons," Taylor said. "I have no reason to doubt its reliability."
A strike on a high value target such as Shirdon would be subject to a routine analysis to assess whether it was successful, Taylor testified. The two-year delay in Centcom's public report on Shirdon might have been for security or intelligence reasons, he said.
Taylor explained it's not unusual for dead terrorists — such as al-Qaida mastermind Osama bin Laden — to remain on the State Department's terror list. That could happen because one hand of government isn't talking to the other, or because assets or associates are still being sought.
Vice lawyer Scott Fenton urged Davies to quash or stay the production order. The Centcom statements buttressed by Taylor's statements, he said, is solid evidence Shirdon is dead.
"They're the people that killed him (and) there's not a shred of evidence the Crown has put forward, the RCMP has put forward, that he's still alive," Fenton said. "There can't be a trial for a dead person. It's a wholly unreasonable purpose to enforce the order."
Shirdon, a prolific user of social media to recruit westerners to the Islamic State, has now been quiet for several years, court heard. However, he is still wanted in Canada on various terror-related charges.
As part of its investigation, the RCMP has long demanded Makuch's instant-messaging chat logs that led to his writing stories about Shirdon in 2014. Makuch has steadfastly refused to provide them, prompting a fight closely watched by media and free-speech activists that went to the Supreme Court, which upheld the production order.
Fenton called it an "extraordinarily unusual set of circumstances" that word of Shirdon's death came only long after the RCMP demanded Makuch's materials.
"Your position depends on my making a factual finding that he's dead," said Davies, who wanted to know why Shirdon's fate wasn't thrashed out thoroughly during the Supreme Court hearing.
"The Crown specifically opposed any raising of that issue," Fenton responded. Puddington suggested the issue was raised, and that Vice has chosen to now take an impermissible second kick at the litigation can.
"A stay of enforcement should not be granted," Puddington said. "It's now been four years."
Makuch, who now lives and works in the United States, has previously said he would not turn over the RCMP-requested logs. He has, however, agreed to preserve them until the case is over, although Puddington wanted him to give the material under seal to the court.
Davies, who wondered what steps the RCMP have taken to verify Shirdon's status and what it would take to persuade them he is dead, reserved her decision.