On Friday, the federal Crown lawyer threatened me with criminal prosecution related to my reporting on the Randy Riley trial. This morning, the court has issued an interim publication ban related to my reporting. Soon after this article is published, I’ll be meeting with a criminal lawyer to help defend my position.
So what’s going on and what does it mean for the Halifax Examiner?
Randy Riley was charged with the 2010 murder of Chad Smith in North Dartmouth. In 2015, a man named Nathan Johnson was convicted of first degree murder for the same murder. And in 2018, Riley was convicted of second degree murder, but that conviction was overturned by the Supreme Court, and a new trial ordered. That trial just played out at the Supreme Court of Nova Scotia.
The case against Riley has always been largely circumstantial — no physical evidence connected Riley to the murder or the murder scene, and the Crown’s case rested primarily on the testimony of two witness, Paul Smith (no relation to Chad Smith) and Kaitlin Fuller.
Both Paul Smith and Fuller had testified in the 2015 (against Johnson) and 2018 (against Riley) trials. But since then, both have changed their story, and both have said they had lied in their previous testimony at court.
I won’t re-report the trial here, especially since there is a new publication ban. But I can say that Paul Smith’s changed story served to lessen the case against Riley. But Fuller’s changed story served to strengthen the case against Riley.
The Crown argued that Paul Smith changed his story because he felt threatened — by whom was never explicitly stated, but the implication was that Paul Smith was threatened by Riley or someone in Riley’s orbit. No direct evidence of a threat was offered.
In contrast, Kaitlin Fuller said she had withheld newly provided details — first provided in 2021, 11 years after the murder, and presented in court for in the recent trial — because she had been threatened by Riley the day after the murder.
After Fuller revised her story in 2021, she was placed in the Witness Protection Program (WPP).
Kaitlin Fuller’s involvement in the WPP was a central element in the retrial of Randy Riley.
The Crown argued that going into the WPP demonstrated Fuller was a credible witness. Why else would someone upend their life, removing themselves from family and friends, lifting their children from their school environments, to move somewhere else under an assumed name, if they didn’t fear for their life?
The defence, however, argued that Fuller benefited financially by being placed in the WPP. I am currently prevented from saying much more about that, but the gist of it, from the defence’s perspective, is that she had incentive to lie.
As Fuller was testifying, I reported on it. I published an article detailing her new story as she presented it to the jury, and what the defence challenged her on in cross examination. This was responsible journalism, doing exactly what reporters across the country do during court trials on a regular basis.
The Examiner also published an article by my colleague El Jones, which was a commentary on Fuller’s testimony and the defence’s challenge to it. It is a pointed commentary, but also a fair perspective. Surely, Canadians have the right to comment on testimony given in open court, and news outlets have the right to publish that commentary.
As I understand it, the new, interim publication ban prevents me from linking to those published articles.
But after those two articles were published, the WPP asked presiding Justice Josh Arnold for a publication ban on details of the WPP’s relationship with Kaitlin Fuller — that is, on details I already published. It subsequently became clear that the WPP wanted the publication ban to be retroactive, which meant that somehow the already-published articles would disappear, like Trotsky being airbrushed out of a photo of a Lenin speech, or Winston Smith rewriting history for the Ministry of Truth.
Arnold put the issue aside until after the charge against Riley went to the jury.
That happened at the end of the day last Wednesday. We don’t know why the jury decided the way it did — jury deliberations aren’t public, and jurors don’t have to explain themselves — but it seems inescapable that they had to wrestle with the truthfulness of Fuller’s revised story, and found it lacking. It’s hard to believe that her involvement in the WPP wasn’t a factor in that decision.
And it didn’t take them long to come to that conclusion, just three-and-a-half hours. On Thursday, the jury found Riley not guilty on all charges.
I’m a reporter. It’s my job to inform readers about what happened in a murder trial, to explain and give context for the jury’s decision. And in this trial, there’s no way to understand the jury’s not-guilty verdict without diving into the Kaitlin Fuller’s involvement with the Witness Protection Program. To prevent me from doing that reporting makes a mockery of the open court principle, the idea that for the public to have confidence in the justice system, it must know what happens in court. We don’t have secret trials in Canada.
Moreover, Fuller’s involvement with the WPP raises other very serious questions about the WPP itself, and those questions should be interrogated and explored by a free press.
So just doing my job as a reporter, I’ve investigated Fuller with regard to what she testified to in court. I’ve obtained court documents related to her past, I have interviewed people who were not witnesses or participants at trial, and I found things on the internet.
Through the course of that reporting, I obtained information that sheds light on her relationship with the Witness Protection Program, and on both her testimony at trial and, crucially, on the Crown’s own representations at trial.
On Friday, while opposing the proposed publication ban I attempted to present this information to Justice Arnold. I never intended for the information to be released publicly, but as I was preparing to give the information to the judge, I gave it to the Crown, and they became so alarmed they threatened me with being charged criminally should I submit it to the court.
I now am told that there is an entire process to go through to keep submissions to the judge sealed. So now I’m hiring not one, but two lawyers — one who works in media law, a second in criminal law. We’ll work through this, and I’m hoping the judge will soon see exactly what information I’m talking about, and he’ll understand its importance and why you, readers, should know about it — not in detail, just in broad description — so you can understand the issues at hand.
I hasten to add, I have scrupulously abided by the two publication bans already in place for the trial — one is the usual prohibition against publishing details about what was said in court without the presence of the jury, and the second was a prohibition against publishing or linking to any photos or physical descriptions of Kaitlin Fuller and her family.
And I’ll abide by the interim publication ban and by whatever final decision Justice Arnold comes to.
In the meanwhile, the Halifax Examiner will be absorbing enormous (for us) legal costs. Frankly, it’s money we don’t have. I’ll max out the corporate credit card and line of credit, and exhaust my own meagre savings, but I worry that even that won’t cover costs.
Interim publication ban
Here is the text of the interim publication ban:
IT IS HEREBY ORDERED THAT:
- Until the final conclusion of the motion and a decision on it is rendered, no information shall be published in any form or by any means pertaining to personal details of Kaitlin Fuller and her family and any of their interactions with the Witness Protection Program, except:
i. the total amount of financial support received from the Program;
ii. that the Defence attacked the truthfulness of some of her testimony by alleging it was given so she could re-enter the Program; and
iii. that the Defence alleged she broke Program rules, but no particulars of those breeches;
al of which applies from October 6th, 2023 forward, but not to publications before that date.
- Until the final conclusion of the motion and a decision on it is rendered, Kaitlin Fuller’s testimony in this trial shall be kept sealed and shall not form part of the public record, with the exception that counsel appearing on behalf of the Applicant Attorney General of Canada, Jan Jensen, may have access to a copy of the testimony.
- Until the final conclusion of the motion and a decision on it is rendered, the sealed, confidential version of the affidavit of a member of the Witness Protection Program and an unredacted version of the Attorney General of Canada’s brief in support of this motion which was filed with the Court shall remain sealed, to be viewed only by the presiding Justice