TORONTO — Confusion over whether an accused Canadian terrorist is dead or not is hampering efforts to resolve a legal battle over police demand for a journalist's background materials, a request that has alarmed media-rights groups.
Federal prosecutors and the RCMP are holding fast to a production order that a Vice Media reporter produce information related to his interviews with Farah Shirdon, a Calgary man who is charged in absentia with various terrorism-related offences.
Vice Media is currently seeking leave to appeal the RCMP's demand to the Supreme Court of Canada, arguing among other things that it infringes on media freedom and could make it harder for journalists to access sources.
Last month, American military officials said Shirdon had been killed in Iraq in 2015, prompting Vice Media's lawyer, Iain MacKinnon, to offer to withdraw the Supreme Court leave request if the RCMP dropped the production demand as moot.
However, federal officials noted that the U.S. State Department in April had slapped Shirdon with a terrorist designation, suggesting he was in fact still alive.
"The RCMP have advised the Crown that they are unable to confirm whether or not Mr. Shirdon has been killed," two lawyers with the Public Prosecution Service of Canada said in a letter to MacKinnon obtained by The Canadian Press. "Currently, the position of the Crown is that the production order remains valid and enforceable."
The U.S. Central Command, which said Shirdon was killed in Mosul in a coalition airstrike on July 13, 2015, referred questions about his terrorist designation to the U.S. State Department.
The department, in turn, said last month it was making inquiries. However, this week, a spokeswoman said it could not help. It instead referred queries to the "intelligence community," and then pointed to the U.S. National Counterterrorism Centre.
Questions to the centre for any information on Shirdon's status had received no acknowledgment by Thursday.
The materials being sought by the RCMP relate to three stories reporter Ben Makuch wrote in 2014 about Shirdon. RCMP want him to turn over screen captures of his instant-message chats with Shirdon, who was cited in stories as making threats against Canada.
In a decision in March that set a binding precedent, Ontario's top court affirmed an earlier ruling that Makuch comply, despite objections from Vice and several media groups. The Supreme Court was expected to say within the next several months whether it would weigh in as Vice is asking it to do.
If the Supreme Court decides to hear Vice's appeal, it would add substantially to the outlet's legal bills and, if it were to lose, risk setting legal precedent that media groups argue would be harm the ability to gather and report on news of important public interest.
The result is that Vice would prefer the case go away, despite the Ontario Appeal Court decision.
"The main condition and basis for the production order, i.e. the criminal investigation and prosecution of Mr. Shirdon, is no longer present," MacKinnon wrote prosecutors last month. "Therefore, the production order is no longer valid or enforceable."
