Saturday, May 01, 2010


Not Basi-Virk, but it sounds familiar: THIS BAN GOES TOO FAR


The Globe and Mail - April 30, 2010

See photo of the handwritten notice by Justice McDermid issuing the publication ban.

A court appearance was scheduled for Woodstock, Ont., on Friday, but we can’t tell you anything about it.

{Snip} ...

Publication bans are often applied in court cases – they are routinely applied to pre-trial and bail hearings to preserve the right to a fair trial, and they are often used to shield witnesses in cases involving sex crimes. They are also used frequently to protect young offenders. These limited bans are completely justified.

But a more sweeping ban, such as the one issued by Mr. Justice Dougald McDermid in Woodstock without first hearing those who oppose it, is a danger to the rights of Canadians.

In a ruling on a key case in 1994, then chief justice Antonio Lamar of the Supreme Court of Canada wrote that “freedom of expression, including freedom of the press, is now recognized as a paramount value in Canadian society.” His guidelines made it clear that no ban should be ordered unless all reasonable alternatives are first explored.

The right to free expression is equal to the right to a fair trial, in the Charter of Rights and Freedoms, Judge Lamer wrote. That balance cannot be ignored.

At the same time, the practical reality is that in the Internet age, trying to stop the dissemination of information revealed in open court is impractical. Indeed, placing limits on traditional, responsible media may be counterproductive, as the only information available to the public will be incomplete and rife with speculation and rumour.

The extent of this ban is absurd and should be reconsidered

Thank you, Ontario.

BC Mary comment: let me show you what I wrote to five (5) top-ranking Globe and Mail editors yesterday, even before this editorial was published. I asked: 

What does it take before The Globe and Mail notices the BC tragedy?

John Stackhouse,

and 4 others

Dear Sir,

As of yesterday (April 28, 2010), a provincial government came up for scrutiny in Supreme Court. At issue: the allegedly corrupt sale of a Crown asset - Canada's 3rd largest railway - and certain associated  practices. The premier of British Columbia and most of his Cabinet will be called to testify when three government aides (pivotal members of Paul Martin's political team) stand in the prisoners' box.

This is a provincial tragedy with federal links to Prime Minister Paul Martin's office. What does it take before The Globe and Mail will give this British Columbia tragedy the attention it deserves? The longer the media silence, the worse the damage to British Columbia. 

Gordon Campbell was elected B.C. Premier because he promised "I will never sell BC Rail" and, when elected (77 seats vs 2 in Opposition) he immediately sold BCRail in a tainted, partially secret deal which ... only yesterday ... finally came to trial in BC Supreme Court.

Yes, Globe and Mail allowed a brief report to go into yesterday's BC edition (Sports Section), as it sometimes has done in the 6 years we've waited for this matter to come before the courts. But G&M has never  treated our loss of BC Rail as a national story. Not even when 32 police sergeants raided the BC Legislature on Dec. 28, 2003 to seize documents. Never happened before in the Commonwealth. It is a national story with deep, dire implications.

The trial which got under way yesterday, with jury selections, is a landmark trial about issues of great principles of government. Such stories create great newsmen ... when there are great publishers. A  provincial premier -- while not charged, is under scrutiny -- and may be listed as one of the witnesses, along with his (then) Minister of Finance and Minister of Transportation, and 41 other key members of government or BCR or CN.

To ignore such an opportunity to defend the principles of a democratic, enlightened society sends a dire message to everyone who knows what was done to BCRail ... because other Crown Corporations have  followed that template.

Some of us have created news-blogs trying to overcome the media silence surrounding the BC Rail Case. There's been 4 years of delay after suspect delay, from the first date set for the trial (June 2006). Suspicions abound that CanWest media in B.C. which howled almost daily for the blood of a previous government, soon became utterly protective of the current government and tries not to report BC Rail news at all.

My fervent wish is that The Globe and Mail will fully pick up the story and run with it, when the BC Rail trial actually begins on May 17, 2010.  Jury selection has just been completed.

                     BC Mary
          The Legislature Raids

 BC Mary comment: I am trusting Toronto Star that it's OK to post Rosie DiManno's column about publication bans, as it points out the pitfalls for the public interest in these situations.

DiManno: Media gagged in Tori Stafford murder case
Toronto Star - May 1, 2010

WOODSTOCK, ONT.—On the town’s main street, a middle-aged woman leans up against the display window of an art shop and quietly tells her friend the news.

She has already phoned her grown-up daughter and shared the knowledge that has just begun to seep through this small, nondescript burg where nothing much usually happens — until a great big something awful happened last spring: The disappearance of 8-year-old Tori Stafford.

Then, as now, word of _____________________________ travels fast, as it’s wont to do in little communities with big ears.

At a business establishment across the street from the courthouse, everybody on the premises knows what they’re not supposed to know and what the media are not permitted to disclose, by order of a sweeping publication ban.

“Not a hope of it being kept secret, not in this town,” snorts another lady who’s just been informed of _______________________

“I can’t see how they expect to keep it quiet,” her friend agrees. “I mean, what other high-profile case is going on in this courthouse?”

Charles Phelps, 43, like many others in Woodstock, had noticed that a street around the courthouse had been blocked to traffic by police cruisers. “Obviously, something big was going on. The first thing I thought was: Is this about Tori Stafford?”

There is an answer to that question. I am forbidden from providing it.

This carefully crafted sentence, approved by Justice Dougald McDermid — at a time and place that is also subject to strict rules of nondisclosure — is the only information that can be published or broadcast:

“As we previously reported, Terri-Lynne McClintic was scheduled to appear on April 30, 2010, in the Superior Court of Justice at Woodstock but because of a temporary publication ban, we are prohibited by court order from providing any further information until further order of the court.”

The hand-written statement was distributed to reporters by a lawyer, Iain MacKinnon, acting on behalf of several media outlets — hired for reasons I can’t divulge.

The reasons for this highly irregular state of concealment over charges that had already been widely reported against the two defendants indicted for murdering Tori Stafford — McClintic and Michael Thomas C. S. Rafferty — cannot be revealed.

But for occasional procedural appearances via videolink over the past year, reported in brief digest items, these two individuals have for all intents and purposes disappeared into a black hole of nondisclosure. And now it is as if everything that’s happened most recently never happened at all — at least not for public consumption.

Yet Woodstock residents were consuming and absorbing what did occur — if anything did occur, that is to say, which I can’t say.

On a midtown porch a few blocks from the house in which McClintic once resided, where _________________________________________________________ have just been learned via tom-tom rumour, a sudden cheer goes up. “Yes!” exclaims one young woman, high-fiving her buddy, then picking up her cellphone to pass it on.

This is how it goes in real life, which is quite a different universe from the strictly controlled version of everyday existence as rather vainly expounded in Canadian courtrooms, sometimes.

People talk. They whisper down phone lines. They fall into conversation with the person seated on the next barstool. They talk of _____________________________________________ They compare notes at gasoline stations, Tim Hortons outlets, variety store cash counters.

A year ago, in the weeks following Tori Stafford’s disappearance, the rumours that swept across Woodstock were rampant. Some of the details eventually proved correct; many more were wildly off the mark. That, too, will no doubt happen again as neighbours and strangers try to put the meat on the bare bones of what they’ve heard tell.

“It’s like playing that telephone game,” says a woman who is privy to ... what may or may not have transpired, if anything did transpire, which I can’t say.

“The facts get distorted. This is going to snowball to epic proportions and disgustingness. Really, I don’t understand how they’ll manage to enforce hush-hushness. I’ve been going on Facebook all day to see if anybody has posted anything about it. That’s so easy to do now, just put up an anonymous page and say what you like. How are they going to stop that? It’s impossible to keep secrets in this day and age.”

Just about everyone who did speak with the Star refused to give their names because they understand this much: They’re not supposed to know what they know, if there’s anything to know, and they’re certainly not supposed to repeat it, no matter how much that proscription flies in the face of human nature and small-town realities.

At Good Time Charlies, a bar that Tori’s mother occasionally frequented during those long, terrible days-turned-into-weeks before an arrest was made, long before the child’s remains were discovered 42 days after she disappeared, a bartender methodically wipes down the counter.

“We don’t want to hear that name here,” he says, and it’s unclear to whom the man is referring: Tori, her parents, the defendants.

In a way, at least at this surreal point in time and place, a town officially wrapped with a gag, it’s almost as if Tori Stafford has disappeared all over again.

And another thing:

  Harper gets an F on access

By Romina Maurino 
TORONTO - The epic battle surrounding the release of uncensored Afghanistan detainee documents is the latest example of why the Harper government deserves an F when it comes to access to information, says a new report.

While Canada traditionally ranks among the top 20 countries in the world on free expression rights, when it comes to access to information and the federal government "the only assessment can be a failing grade," states the report from the Canadian Journalists for Free Expression.

"We remain bedevilled by the antics of those federal entities that invoke national security at the drop of a hat to restrict the dissemination of vital information to journalists and, in turn, the public," said the 40-page review, which is being released Monday to coincide with World Press Freedom Day.

The high-profile dispute came to a head last week in a historic ruling by Peter Milliken, the Speaker of the House of Commons. Milliken found that Parliament has an absolute right to see all the documents, which are believed to contain information related to the alleged torture of prisoners transferred to Afghan authorities by Canadian soldiers.

The three opposition parties banded together in December to demand the release of the uncensored documents, but the government only released several heavily censored collections of material.

Since the Speaker's ruling, the government has had one meeting with opposition parties to work out a deal that allows access to the documents while protecting national security, with another one planned for Monday.

Bob Carty, a journalist and CJFE board member, called Milliken's ruling a "great step forward for access to information," but noted that the Afghan detainee documents are far from the only case where the government is working against freedom of expression.

"The rule should be that it's accessible or free information at all times, and the hiding of it should be the exception," Carty said in an interview.

"Unfortunately what we've got now in Canada is the reverse of this."

"The secrecy in government has become worse under Harper under his direct example," said Carty, adding the Liberals "were not much better."

The group wants the government to deliver on the suggested changes, which include giving the information commissioner the power to order the release of government information. They also include expanding coverage of the act to all Crown corporations [BC Mary comment: BC Rail was a Crown corporation!], and ensuring that all exemptions from the disclosure of government information are justified only on the basis of harm or injury that would result from disclosure.
The group did also offer some praise, namely to the Supreme Court for taking on several cases dealing with defamation, the protection of sources and access to information in 2009.

But while the court "met all our expectations in establishing the defence of 'responsible communications' ... lofty statements from the Supreme Court do not, in and of themselves, advance the cause of free expression," the group said.

Appeal Courts also get top grades for deciding in favour of more open courtrooms when they hear arguments around publication bans, but trial judges all too often "exhibit a stubborn dependence on a knee-jerk use" of the bans.

While the CJFE is hopeful there will be improvements on issues such as hate speech, defamation, libel chill, and the protection of sources - given that key decisions will be coming down in the next few months - the overall picture, said Carty, is mixed.

"The Canadian experience is that of a very uneven student," he said.

"They're doing very well on a couple of subjects and doing terribly bad (in others)."

BC Mary comment: I have mentioned (many times) that Madam Justice MacKenzie needs to provide a reason for her publication ban over the BC Rail trial, which wasn't requested by either Defence or Crown. If we knew WHY she felt a ban is necessary, the media and the public could better comprehend what her ban is intended to achieve. As things stand, however, it seems only to have caused confusion and constraint.

And that's not a good thing.


Wow...way to go Mary! We can only hope they listen, and dig deep. Especially after checking out your blog, which I have no doubt they'll be doing on a regular basis if they haven't been already.

When media begins to dig much deeper than Martin, Tellier, McLean, et al would feel reasonably comfortable with...we'll know we're getting somewhere. To my way of thinking anyway...
That is one damn fine letter, BC Mary. It could not be said better. Thank you so much.
Thanks, Leah.

I keep meaning to get around to writing to CBC's "Power Politics" too ... and other media which should be reporting on the BC Rail Case.

"What does it take ... ?" I ask.
Many thanks, lynx ...

I hope others will write too

and keep asking, until proper attention is paid. Mark Hume has been good, at G&M but for some reason he's been sent elsewhere. And I don't think they've ever made it a national story.
I'll say it again; it's really an international story, and our Big Media Monopolies have already been shown to be unwilling to report on it, or just incompetent for not doing so.

Executives of two US-chartered railways, plus a Canadian-chartered but effectively US-owned railway, plus (by video testimony) a former consultant for a Boston firm, make this a US story as much as a Canadian one. Add in some of the top players in one of the largest Canadian political party, and apparent meddling in selection (and elevation) of justices by the other federal party, and pretty well an all-star cast of BC's largest and most dominant political party, and it should be headline news across the country. But apparently not. Not to our self-appointed "national newspaper", and not to the publicly-owned but government-cowed CBC.

This is being kept off the national radar as effectively as the Chinese Communist Party has kept Tienanmen and Tibet out of the public mind in China.

Come to think of it, considering the excellent coverage they've given all that, maybe the Epoch Times, Canadian edition, would have the balls to cover what the Globe and CBC clearly will not and/or are desperately trying to pretend isn't important. It's going to take more than the Canadian media establishment to give this case the coverage it deserves.....bloggers have done that effectively, but largely we're preaching to the choir...when not battling the info-gnomes and PAB trolls/dissemblers, that is....
Just to note that the Canadian Press copy on this issue ran in the Halifax Chronicle-Herald

But there was no sight of any coverage of the BC Rail trial, or its publication ban, even though Canadian Press had copy on it available.

this is a province, though, where the court decision on the BC group sueing transit for the right to advertise was portrayed as a victory for aetheists intent on attacking organized religion....and where the biggest scandal of the moment is some paltry expenses abuse by an (NDP) MLA (though they did report on Milliken's opening of the torture file, but that's understandable as society and the economy here are based around the military).

I'm still boggled that, with the heads of three of the continent's largest railways in court, with half the government cabinet, that this is getting no real coverage, or analysis, anywhere else in the country (except in, as Mary noted, the inside of the sports section).
Post a Comment

<< Home