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 Vice journalist Ben Makuch must turn over the 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, was that 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 someone “actively engaged in terrorism.”
The only witness called 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 called the Centcom statement trustworthy, even though he said he didn’t know what happened to Shirdon.
“I can’t speak to that (but) I have no reason to doubt its reliability,” Taylor said. “Centcom does not make a false statement or announcement — for credibility reasons.”
A strike on a high value target — in this case Shirdon — would be subject to a routine analysis to assess whether it was successful, Taylor testified. However, the specific procedures involved in that assessment might be classified, he said.
Taylor explained that 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.
What is certain, he testified, is that military officials don’t put out false information about a death. The two-year delay in Shirdon’s case might have been for security or intelligence reasons, he said.
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 in fact 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.
To further 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 hand them over, prompting the fight that went to the Supreme Court, which upheld the production order.
Fenton called it an “extraordinarily unusual set of circumstances” given that word of Shirdon’s death came only long after the RCMP issued Makuch its production order.
“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.
Colin Perkel, The Canadian Press