An Ontario Superior Court judge has forced Global News to hand over to the RCMP a recording from a 2019 interview conducted with an alleged ISIS member in detention in northeast Syria.
The news follows a one-and-a-half-year legal battle that placed a gag order on coverage of the case. The ruling also dismissed fears that providing the interview to police would put a “chill” on journalists, making it more difficult for trusted sources to speak with them if journalists are perceived as collaborating with police and law enforcement, or turn them into targets as a result.
Documents filed by the RCMP in court as part of those proceedings also revealed for the first time that the police force is preparing to try to prosecute the alleged ISIS fighter in question.
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In October 2019, Global News journalist Stewart Bell travelled to Syria and interviewed Mohammed Khalifa, a Canadian who is alleged to have travelled there to fight for ISIS.
The interview took place at a base of the Kurdish-led Syrian Democratic Forces in northeast Syria. Bell recorded audio of his interview, excerpts of which were broadcast on Oct. 15, 2019, on Global News and included in an article published on GlobalNews.ca.
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Khalifa, who had been captured by Kurdish forces in northeast Syria in January 2019, admitted during the interview to leaving Canada with the intention of fighting for ISIS in Syria. He also admitted that he narrated ISIS propaganda releases such as the mass execution video Flames of War.
One month later, in November 2019, RCMP served Global News with a production order from a Superior Court judge that required Global News to hand over the recording. That order also imposed a gag on Global News and sealed the records of the case from the public eye. As Global News was not notified that a proceeding had been commenced to obtain the production order, it was not initially given the chance to argue against the imposition of the order.
At issue in the case is the assertion by RCMP Const. Waleed Abousamak that there is no other way the information that the RCMP believes to be in the recording with Khalifa “can reasonably be obtained.”
Abousamak works with the RCMP’s Ontario Integrated National Security Enforcement Team (INSET) which is one of the force’s regional units responsible for investigating and prosecuting national security offences like terrorism.
“Global News is extremely proud of the courageous, on-the-ground reporting Stewart Bell did in Syria to bring this important story to Canadians. We are disappointed with the Court’s decision which makes it more difficult and dangerous for our journalists to do their work,” said Sonia Verma, Editor in Chief of Globalnews.ca.
Lawyers for Corus Entertainment, the parent company of Global News, had argued in court that the production order issued in November 2019 should be revoked and that lawyers for the company should be granted a hearing to discuss the proposed order before it was imposed.
That was the recommendation issued by the Supreme Court of Canada in 2018 in a similar case involving Vice Media when RCMP sought all communications between Ben Makuch, a reporter for the outlet, and a Canadian believed to have fought for ISIS — who had since died.
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The Supreme Court forced Makuch to hand over the records, but noted courts should give journalists the chance to argue against production orders before imposing them, except in emergencies.
“However, that conclusion is not mandatory,” the court ruled in a decision that was widely condemned by press freedom groups at the time, who warned it set a precedent for journalists to be used as “an arm of the state.”
Lawyers for Corus Entertainment raised similar concerns, arguing in September 2020 that forcing Global News to hand over the recording would create a “media chill” and that “there is not a sufficient explanation as to why further efforts have not been made by the RCMP in this regard.”
“There is no evidence that the RCMP have attended to interview the Target whereas there do not appear to be any significant barriers to doing so,” the lawyers for Corus Entertainment argued. “Access to the Target appears possible and he has already agreed [redacted].”
Subsequent attempts to fight the bid to obtain the recording have failed, despite fears shared with the court that handing it over would put Bell’s life at risk given he has been the target of numerous death threats from violent extremists, including ISIS supporters.
Lawyers for the Public Prosecution Service of Canada dismissed those concerns as “unsubstantiated.”
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Journalist previously received ISIS death threats warranting police probe
In a sworn affidavit filed with the court on Aug. 5, 2020, Bell said he had received death threats from ISIS members, including one who said they knew how to find him.
“The message advised that ISIS knew where I lived and was coming to cut off my head like James Foley,” Bell said in the affidavit, noting that threat prompted a police investigation and resulted in security advice aimed at reducing the risk of being attacked by ISIS supporters.
Phil Gurski, president and CEO of Borealis Threat and Risk Consulting, provided a sworn affidavit in the case based on a series of “assumptions,” which asked for his professional opinion on whether the life of a journalist would be in danger if they were forced to hand over material to police.
Gurski noted that being forced to hand over the material would increase the risk to a journalist who subsequently travels into northeastern Syria, and noted that it is “reasonable” to believe the journalist’s life would be in danger in Canada as well.
“If it becomes known that the journalist cooperated with the Canadian government, s/he would be at greater risk of harm from individuals in Canada associated with terrorist groups or who see themselves as acting on behalf of terrorist groups,” Gurski stated in the affidavit.
Gurski noted while the risk to the life of a journalist forced to comply with an order to hand over material is lower in Canada than it is in Syria, “the threat to the journalist’s life in Canada from individuals seeking to fulfill the wishes of terrorist groups abroad is real.”
RCMP argues not ‘reasonable’ for force to try to interview Khalifa
Bell noted in an affidavit that he had been advised that “police and military forces of both the United States and the United Kingdom had attended in the area and conducted interviews with detained ISIS suspects.” Khalifa also alleged in the interview with Global News that he had given another interview to the U.S. Federal Bureau of Investigation.
Lawyers for the Public Prosecution Service of Canada claimed that if there is any FBI interview with Khalifa, it would likely be deemed inadmissible in a Canadian criminal proceeding.
“The Crown neither confirms nor denies this assertion. If there is any such FBI interview, the Crown confirms it is not available to the RCMP for use as evidence in the Target’s trial,” the Crown lawyers wrote.
They then argued it’s not reasonable to suggest Canadian investigators travel to Syria to interview Khalifa — who remains in Kurdish custody in northeastern Syria — citing “significant safety, practical and legal constraints against interviewing the Target in SDF custody.”
“All parties to this application agree that the Kurdish region in northeastern Syria is a dangerous place,” the PPSC lawyers wrote, describing the dangers as “particularly acute” for government officials and agents of the state, including police officers.
With Khalifa in Kurdish custody in “unclear” detention conditions, the PPSC lawyers argued it would be hard for RCMP to make sure any interview would be both voluntary and compliant with the Canadian Charter of Rights and Freedoms.
That lack of certainty raised the possibility any RCMP interview could be used as grounds to challenge a prosecution of Khalifa on Charter rights grounds, they wrote.
“While an RCMP interview is a hypothetical possibility, in these circumstances it is not a reasonable alternative,” the lawyers concluded.
They then accused Global News of having “over-stated the risk to their journalist” of complying with the production order.
The politics of repatriating ISIS fighters
The arguments from the Crown prosecutors are the latest in repeated attempts by the government to rebuff calls that it follow the leads of allied countries and repatriate citizens detained in Syria over allegations of supporting or fighting for ISIS.
Prime Minister Justin Trudeau said last year that “the situation in Syria continues to be extremely dangerous” and that it was too much of a risk to send Canadian consular officials there. He has not commented directly on why it appears no law enforcement officials are being sent to gather interviews with alleged fighters either.
Global News is aware of 14 known adult Canadian citizens detained in Kurdish camps and prisons on suspicions of having worked with ISIS. Human Rights Watch has also estimated there may be at least 47 Canadian citizens including men, women and 26 children as well.
The U.S., U.K., France, Germany, Finland, Norway, and Denmark are among the 20 countries that have repatriated either some or all of their citizens detained in Syria since coalition forces defeated ISIS, which seized control of an area it called a “caliphate” beginning in 2013.
“We recognize that we need to try and help all Canadians. It is more complicated when we talk about the fact that a number of these people could face charges when they return to Canada for their activities linked to terrorism,” Trudeau told reporters in June 2020.
Questions around repatriation from the Conservatives have largely focused on why the government has not yet presented a plan to reduce the risk any returning foreign fighters could pose on Canadian soil.
But the question remains on why law enforcement officers — who face a wide range of risks daily as part of their jobs — appear either unwilling or unable to make an attempt to gather material on the ground, and are instead using journalists to build their cases.
The repatriation of alleged foreign fighters has been a political live wire for years.
Trudeau faced intense criticism from opposition parties when he said in 2017 that he supported the idea of rehabilitation programs for returning Canadian ISIS members, and the Conservatives have used the issue to bill Trudeau as weak on public safety in the years since.
Adding to the political considerations is the fact Trudeau lost his party’s majority government status in October 2019, meaning the government needs to maintain the support of at least one other opposition party to remain in power.
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While 20 months have passed since that election, close to 17 of those have been consumed with the politics of the coronavirus pandemic since the virus was first officially identified in China on Dec. 31, 2019, and declared a pandemic in March 2020.
As Canada’s vaccination efforts ramp up, speculation has been running rife in recent months that the country is heading toward a fall election once Trudeau’s pledge is fulfilled to vaccinate every Canadian who wants a shot by the end of September 2021.
Popular opinion has in the past been strongly against bringing any ISIS fighters back to Canada.
A poll by Ipsos for Global News in October 2019 suggested 71 per cent of Canadians believe the government “should not do anything to help bring these Canadians back to Canada.”
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