NEWS
1. My day in court
I had a long day in court yesterday. Well, it was four hours in court, but it seemed like an eternity as lawyers were blithely discussing the possibility that I could be imprisoned for five years and fined $50,000.
I probably have five years left in me, although I’d rather not spend them behind bars. I definitely don’t have $50,000 — it’d be like getting blood from a stone.
At issue is a proposed publication ban related to the Randy Riley murder trial. Federal Crown lawyer Jan Jensen, representing the Witness Protection Program (WPP), is asking Justice Josh Arnold to ban reporters from detailing aspects of Kaitlin Fuller’s involvement in the WPP.
Fuller was the primary witness against Riley at trial. In effect the proposed publication ban applies to one person — me, as I was the only reporter present when Fuller testified.
At trial, Fuller’s involvement with the WPP was a main issue — prosecuting Crown Peter Craig argued that Fuller being in the WPP spoke to her credibility, while defence lawyer Trevor McGuigan argued just the opposite, that certain aspects of Fuller’s involvement in the WPP demonstrate that she is not credible.
The jury found Riley not guilty. It’s my job as a reporter to tell the public how that not-guilty verdict came about, and so I need to report on the “certain aspects of Fuller’s involvement in the WPP” I just mentioned.
But besides asking for a publication ban on material I might report on in the future, Jensen, the Crown lawyer representing the WPP, is additionally asking for a retroactive publication ban on articles the Halifax Examiner has already published. That is, he wants Justice Arnold to order the Examiner to unpublish the articles.
This is, to put it mildly, a significant ask. Arnold said he is unaware that a Canadian court has ever issued such an order.
Before the trial, Arnold issued two publication bans. One was the typical order prohibiting publication of arguments said at trial that weren’t said in front of the jury, until the trial ended. The second publication ban was quite unusual: it prohibited publication of any photos of Fuller or even descriptions of her physical appearance. I was fine with both publication bans, and completely abided by them. But I oppose this third proposed retroactive publication ban.
“Just the phrasing of the request that there be retroactive application in a free democratic society without without clear wording that would enable people who can constitutionally challenge it is repugnant. I mean, it’s just repugnant,” said lawyer David Coles, who is representing the CBC.
“Media is entitled to rely on the court’s order and not change its mind later on and punish or expose to potential punishment the media for doing what they understood specifically they were authorized to do,” continued Coles. “I think it’s significant that the offence provision is set out in the paragraph 21 of the [Witness Protection Program] act: ‘fine, not exceeding $50,000, imprisonment for a term not exceeding five years, or both.’ And then on summary conviction a fine not to exceed $5,000 or to imprisonment not exceeding two years or both. This is a serious, serious offence that will have taken place — will have taken place — if your Lordship grants the order that [Jensen] requests.”
After that, there was this exchange between Justice Arnold and Jensen:
Arnold: It just seems like when there’s a publication ban in place, and the publication ban has been complied with — it’s hard to understand how you would then say, okay, it wasn’t broad enough. Right? In my view, then it’s the criminality aspect that really is problematic.
Jensen: We’re not asking for anything to be cited as criminal. And I have to stress that criminality is not before the court… before the court today is not whether or not, you know, that publication was criminal, it’s simply not. And that is why, in some hypothetical, if that was ever before a criminal court, I can’t imagine that the, you know, the person who led the charge or the prosecuting Crown wouldn’t consider those circumstance.
Arnold: Okay. I understand you’re saying that, but that wouldn’t make somebody feel better if they ended up with that as a risk. The risk of having done something criminal is, I mean, it is as uncomfortable as can be. And so then saying, well, ‘I hope that people would exercise their discretion’ in a way wouldn’t be much comfort to somebody who may feel like they’re being accused of doing something criminal… If there’s a publication ban in place that says this is what you can’t talk about [Arnold was referring to the publication ban against publishing photos or descriptions of Fuller], because that’s what was there, the inference, I would say it would be fair, then you could talk about all these other things.
Jensen: Yeah. And a good defence lawyer would argue that, I’m sure, you know, if it ever came to that in the prosecution.
Later in the hearing, I said this to the judge:
Bousquet: It probably doesn’t have the weight to Mr. Jensen that it does to me, but I felt like he rather flippantly said that, well, if I get charged, a defence lawyer can make this argument in my defence. And frankly, no disrespect for anyone in this room, but I’m not on the public dime. You know, this is a real financial, psychological, emotional burden put on an individual — the entire apparatus of the state, potentially charging me with a crime. And they just say, well, a lawyer could defend it. This is kind of, you know, it strikes to the gravity of the situation. I just want to make that point.
But which articles that the Examiner published would the retroactive publication ban apply to?
That’s a great question, and one I didn’t have the answer to until yesterday. I had previously guessed that the WPP objected to two articles — one written by me and the second written by El Jones. But I was only right about one of those. It turns out that the objection is two articles I authored.
Unfortunately, because of an interim publication ban, I can’t tell you which two articles those are, nor can I link to them. I feel like I’m living some Kafkaesque nightmare.
But, once Jensen told the court what the articles were, I re-read them, and for the life of me couldn’t understand how — as Jensen argued — they violate the Witness Protection Program Act. Even if I knew ahead of time about the specifics of Witness Protection Program Act (I didn’t), I would have written exactly what I wrote without thinking I was violating the act.
At issue is Section 11(1) of the Witness Protection Program Act, which reads:
Disclosures prohibited
- 11(1) Subject to sections 11.1 to 11.5, no person shall directly or indirectly disclose
- (a) any information that reveals, or from which may be inferred, the location or a change of identity of a person that they know is a protected person;
- (b) any information about the means and methods by which protected persons are protected, knowing that or being reckless as to whether the disclosure could result in substantial harm to any protected person; or
- (c) the identity and role of a person who provides protection or directly or indirectly assists in providing protection, knowing that or being reckless as to whether the disclosure could result in substantial harm to
- (i) that person,
- (ii) a member of that person’s family, or
- (iii) any protected person.
I told the judge it would have helped if Jensen could simply point to specific sentences in the articles I wrote and say, look, this section violates this section of the act. Make a one-to-one connection, demonstrating the violation of law.
I was making that point when the judge interrupted me to say that Jensen had submitted a sealed affidavit to the court, and I could read a redacted version of that affidavit if I promised not to give it to anyone else. So I promised, and we took a break so I could read the four-page affidavit, of which one page was entirely redacted, a big black square obscuring all the print.
I was underwhelmed by it.
I continued with the judge:
Bousquet: I look at those articles and I think I’m reasonably intelligent, I think, how is this article violating that act, in specific section 11(1)? And I can’t get there. I just can’t get there. I don’t see that there’s anything in either of these articles that violates any of those three provisions. Where I think they’re hanging their hat, and again, I can only guess because this is redacted, is on that phrase, and I thought it was going to come to this, “means and methods.” And that’s included in the act, in 11(1)B —”any information about the means and methods.” So I think they’re referring back to that. And okay, the means and methods that I think I discussed in those articles [I can’t now report on what I mentioned] and that would be the means and methods that they’re seeking to retroactively ban. Okay.
Arnold: Let me move you forward just to help you adjust some of your arguments. So in addition to the means in this, if you go to paragraph 15.
Bousquet: The mosaic effect?
Arnold: Yeah.
[The “mosaic effect” is that no one particular in the article unveils information about Fuller that violates the act, but taken collectively, items in the article could lead someone to infer that information.]
Bousquet: Yeah. And again, I, I was not able to do that personally when I had Ms. Fuller’s testimony and transcribed it and published parts of it. Um, maybe someone smarter or wiser than me could have done it, but I couldn’t. So I don’t know how to get there. But in terms of the means and methods, it’s very specific that there’s not just means and methods of the program. It’s means and methods that could result in substantial harm to the protected person. I would argue that what this is all about is the Witness Protection Program and/or the crown or the combination as expressed at the trial of Mr. Riley are embarrassed. They had a bad witness. And these articles illustrate exactly how they had a bad witness, not in a manner that puts her safety at risk, but that just embarrasses [them] — the use of the Witness Protection Program in this prosecution. That’s it.
Arnold: Okay… so let’s be very cautious here in relation to what you’re doing. You can make the argument that you want to make. But we’ve heard, and I’m just want to hive off, because you could be right, you could be wrong — when you say the Crown being the prosecuting authority or the Crown being Mr. Jensen, because to date, in relation to this application — the Public Prosecution Service, the Crown, was responsible for the prosecution of Mr. Riley. The crown in this case and PPS, has taken no position in relation to this.
Bousquet: Fair enough. Understood.
Arnold: So let. Let’s just not just throw it all government versus non-government. Okay. And and be specific on what you’re saying.
Bousquet: Okay. Understood, Justice Arnold, and I’m following your logic. But to zoom way out, this is what this open court principle is about, to be able to inform the public of how Mr. Riley was found not guilty. And in my view, as a reporter, a commentator, this is the problematic aspect of that process.
Arnold: I understand. Yeah.
Bousquet: So I don’t know how I report on that without getting into these particular issues.
I had another set of arguments related to the interim publication ban now in place, which I agreed to, simply to move the court process along. Those provisions seal Fuller’s testimony and preclude me or anyone else from doing any further reporting on the trial that details Fuller’s testimony and her relationship with the Witness Protection Program. I didn’t want those provisions of that ban to be included in a future ban.
I ended my submission to the court by coming back to the open court principle:
Bousquet: I’m not telling you anything you don’t know, anyone in this court doesn’t know, but that open court principle is there for a reason. And again, Mr. Riley was found not guilty by a jury. People are wondering how that happened, why that happened. Is that right? Did the jury get it wrong? Did the crown screw up? You know, what happened there? And my job is to tell the public that, and the open court principle is there so that the public has trust in this entire system. And where there are breakdowns, they learn about it. Otherwise it’s just this black box where some people go into court and some of them are found not guilty, some found guilty. But you, public, have no idea why. I can’t tell you. And that’s my entire submission.
Justice Arnold is reserving his decision about a publication ban until Friday.
Obviously, this is causing me some distress. I’m just trying to do my job, and here I am worrying about being charged with a crime — I think that’s unlikely, but still. And this is a time suck, and a money suck.
If you’d like to help out with the legal costs (and potentially, although I doubt it will come to this, bail money), you could drop us a few coins here, and I’d be grateful. Hey, money’s tight, and if you don’t have the means to help us out, please don’t and please don’t worry about it. But you could still help out by spreading the word. Thanks much.
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2. Inter-tie
“Mothballing the proposed Atlantic Loop megaproject that could have delivered Quebec hydroelectricity to the Maritimes appears to have revived a smaller project that has languished for years on the drawing board,” reports Jennifer Henderson:
The construction of a second transmission line to carry electricity between Nova Scotia and New Brunswick has been discussed for more than a decade since the existing “inter-tie” between the two provinces has been at capacity and created a bottleneck to importing more renewable energy.
On Monday, federal Natural Resources Minister Jonathan Wilkinson sat down with the premiers of Nova Scotia and New Brunswick to discuss a joint submission by the two provinces that would enable them to stop burning coal by 2030.
Wilkinson indicated publicly he is receptive to a plan to generate more renewable energy from additional wind farms and solar installations backed up with grid-scale battery storage in Nova Scotia and more wind and more nuclear energy produced in New Brunswick.
But a critical component of that Clean Energy Plan relies on the construction of a $1.4 billion transmission line to move renewable electricity between Onslow, Nova Scotia and Salisbury, New Brunswick, as well as the construction of a $300 million transmission line from Salisbury to Point Lepreau in New Brunswick, where additional nuclear capability is being considered.
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3. Police budget
“Halifax Regional Police want money for more officers, civilian investigators, and body worn cameras, although the board of police commissioners wants more details on the costs and evidence for those requests,” reports Suzanne Rent:
Halifax police acting chief Don MacLean presented the busines plan and operating framework for its 2024/25 budget at the Board of Police Commissioners Wednesday night. MacLean called the presentation “a high-level introductory discussion” of the budget.
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4. Diversity
“Men still dominate the Halifax Regional Municipality workforce, but there is more diversity among new municipal staff, according to a report presented to Halifax regional council on Tuesday,” reports Suzanne Rent.
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5. DeMolitor fired
This item is written by Jennifer Henderson.
Premier Tim Houston has fired Nargis DeMolitor, a special advisor to the Immigration Minister who ran as a former Progressive Conservative candidate for Clayton Park West in the last provincial election.
Late Monday afternoon, a post from her social media account went out that referred to Israelis as “the Nazi’s of the 21st century.” The post was deleted within minutes. On Tuesday morning, DeMolitor issued a tweet indicating her X [formerly Twitter] account had been hacked by someone.
“Information was tweeted without my knowledge. I apologize if anyone was offended!” said the post on X Tuesday — an airy and less than fulsome apology, noted Liberal leader Zach Churchill, when he raised the issue on Tuesday afternoon.
By late Tuesday afternoon, a statement from the premier’s press secretary said an investigation by the PC party (it pays DeMolitor’s salary) determined an unnamed PC party member had gained access to DeMolitor’s social media account and used it send to the disturbing tweet.
The statement from the Premier’s Office said the hacker had been stripped of membership in the PC party.
Yesterday Premier Houston took further action when he stood in the House of Assembly and made the following statement:
Even though the access was unauthorized, it was made easier by the actions of a provincial employee who shared social media login information with an individual outside of government. This was also an obvious breach of trust. As a result of that breach of trust, that individual [DeMolitor] no longer works for the province. There is no place for hate in the PC Party or in Nova Scotia.
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Government
City
Community Planning and Economic Development Standing Committee (Thursday, 10am, City Hall and online) — agenda
Province
Standing Committee on Health (Thursday, 9am, One Government Place and online), Mental Health Supports for First Nations Communities – more info
On campus
Dalhousie
Today
Voice Masterclass with Rachel Fenlon (Thursday, 11:35am, Dalhousie Arts Centre) — free performance
David Schroeder Music and Culture Lecture Series with Maria Cizmic, University of South Florida (Thursday, 12am, Dalhousie Arts Centre, Room 406) — free performance of “Story of an Artist”: Performing Disability and the Music of Daniel Johnston
Sciographies season five returns for a fifth season (Thursday, 5:30pm, online) — podcast shares the lives, stories and research of Dalhousie scientists; weekly episodes air on Thursdays at 4:30PM on CKDU 88.1FM; or listen on most podcast apps (Apple, Spotify, Soundcloud) until November 2, 2023.
Decolonizing and Indigenizing Health in Mi’kma’ki (Thursday, 5:30pm, online) — more info
Panellists:
Dr. Brent Young: Identifying and Disrupting Anti-Indigenous Racism within the Healthcare System
Michelle Peters: Pillars of Indigenizing Clinical Work in Mi’kma’ki
Jacklyn Paul and Naj Siritsky: Decolonizing Health Care in Unceded Mi’kma’ki- Reflections on a Two-Eyed Approach to Healing
Tomorrow
Thriving Futures 2023: Community Contributing to the World (Friday, 9am, Halifax Central Library) — program event is focused on enabling inclusive sustainable development at Dalhousie and connected communities to co-create positive micro impacts that can contribute and co-inspire thriving futures in our communities — more info
Pop Music Ensemble Noon Hour (Friday, 11:45am, Strug Concert Hall) — free performance by students from the Fountain School of Performing Arts
Theatre Masterclass (Friday, 1pm, Dalhousie Arts Centre, Studio 2) — Demystified Creation; A Fictional Self In partnership with Prismatic Arts Festival more info
2023 MacKay Lecture Series: Our Aesthetic Possibilities (Friday, 7pm, in the auditorium named after a bank, Marion McCain Arts and Social Sciences Building) — Canisia Lubrin, University of Johannesburg will talk
King’s
Today
Universities Studying Slavery Conference – (Thursday to Saturday, all day) — more info
Tomorrow
Writing and Publishing Open House (Friday, 10:30am, Lower Level A&A, Room 261) — more info
Classics in the Quad (Friday, 5pm,King’s Library Steps) — King’s Theatrical Society performs the ancient Greek comedy Aristophanes’ The Birds more info
Saint Mary’s
Making Sense of Reality: The Role of Scale (Thursday, 12pm, online) — Dr. Cristian Suteanu will talk — click to register
In the harbour
Halifax
05:30: Thermopylae, car carrier, arrives at Autoport from Southampton, England
06:30: Oceanex Sanderling, ro-ro container, moves from anchorage to Fairview Cove
07:45: Emerald Princess, cruise ship with up to 3,679 passengers, arrives at Pier 22 from Saint John, on a seven-day roundtrip cruise out of New York
08:00: CSL Flevik, bulker, sails from Pier 9 for sea
09:00: ROKS Hwacheon, Korean Navy combat support ship, sails from Dockyard for sea
10:00: ROKS Hansando, Korean Navy helicopter training ship, sails from Dockyard for sea
10:30: Navios Indigo, container ship, arrives at Fairview Cove from Valencia, Spain
12:00: Nolhanava, ro-ro cargo, arrives at Pier 42 from Saint-Pierre
13:00: GPO Emerald, heavy lifter, moves from IEL to anchorage
14:00: SLNC Magothy, cargo ship, sails from Pier 9 for sea
15:30: One Falcon, container ship (146,287 tonnes), arrives at Pier 41 from Colombo, Sri Lanka
15:30: Thermopylae sails for sea
17:00: Rossi A. Desgagnes, chemical tanker, arrives at anchorage from Saint John
17:45: Emerald Princess sails for New York
18:00: High Wind, oil tanker, sails from anchorage for sea
00:30 (Friday): CSL Tacoma, bulker, arrives at Gold Bond from Freeport, Bahamas
Cape Breton
07:45: Carnival Magic, cruise ship with up to 2,745 passengers, arrives at Sydney Marine Terminal from Halifax, on an eight-day roundtrip cruise out of Norfolk
16:30: Cherokee, oil tanker, arrives at EverWind from Cartagena, Spain
17:30: Carnival Magic sails for Norfolk
Footnotes
Iris is still away. She’ll be back soon.
What a farce. It seems that the powers that be do not want the public to know anything. And if the public happens to learn about something then it must be erased. So sorry that you are facing this poop fest, Tim. We all appreciate all that you and your team do.
I feel like the administration of justice is being brought into disrepute by the actions of the Crown and WPP. They had a witness, willing to purger themselves for financial gain. That’s what I gathered from your reporting, and had I been in court, would have be able to observe first hand. To wave a hand and pretend that didn’t happen, is an obvious sign of incompetence on the part of the RCMP and the Crown. They can make silly semantic arguments all they want but the reality is, they had a bad witness and are trying to never be held accountable for theit failures.
On the retroactive publication ban story….was the redacted affidavit redacted for all parties or just Tim as a self represented party not bound by bar conventions? Also the story was written as if it was evidence that was entered but not disclosed to other parties to the case until the judge stepped in. On the surface and as reported procedural fairness seems suspect
The redacted affidavit was given to Coles, but just moments it was given to me.
Is CBC also opposing the retroactive ban in Court? Are there other parties in court opposing it – other media or organizations – as well?
The CBC is opposing the retroactive ban on principle, not related to anything it has published. No other media have objected, and I was the only reporter in the courtroom yesterday.
Navigating publication bans is a very challenging part of court reporting, especially when it comes to the “mosaic effect” when the person in question is from a small community. Adding the possibility of a retroactive ban on already-published content could have a very chilling impact on journalism. I am glad you and other media outlets are pushing for clarity on this matter
I don’t see how anyone could uphold a retroactive publication ban. The content of Tim’s articles is already out there. I’ve been told many times that once something is posted on the internet, it is there forever even if the original poster removes the content because the original poster has no control over where the information may have been shared. Wouldn’t that also be the case here? I know most articles are behind the paywall, as I agree they should be, but anyone could copy and email anything they wanted, couldn’t they?