Monthly Archives: October 2014

Time for Nova Scotia’s Attorney General to step up

Landry Herschorn copy

Director of Public Prosecutions Martin Herschorn (left) and former Justice Minister Ross Landry.

Last fall, Nova Scotia’s Liberal government coasted to an easy electoral victory and among their many promises was a commitment to spend $6 million during a three-year span to boost funding to sexual assault support centres and create a prevention strategy.

Seven months after taking power, Lena Metlege Diab, the Liberal government’s Justice Minister and Attorney General, had an opportunity to do something to prevent sexual assault and failed to do it.

Although there have been no charges of sexual assault in the Rehtaeh Parsons case, it has been alleged that sexual assault took place. The definition of sexual consent is integral to the case and there is a great opportunity to educate people about this.

In light of what happened to Rehtaeh Parsons, keeping her name in a public discussion about sexual consent and cyberbullying — and allowing the media to use her name without restriction — would serve a clear public benefit to women, men, girls, and boys.

As the Attorney General, Metlege Diab has the power to order the Public Prosecution Service to not prosecute any media that violate the publication ban in this case. It says so right in the Public Prosecutions Act.

Power and duties of Attorney General:

6 The Attorney General is the minister responsible for the prosecution service and is accountable to the Assembly for all prosecutions to which this Act applies and

(a) after consultation with the Director of Public Prosecutions, may issue general instructions or guidelines in respect of all prosecutions, or a class of prosecutions, to the prosecution service … (and)

(b) after consultation with the Director of Public Prosecutions, may issue instructions or guidelines in a particular prosecution …

So, given that Metlege Diab has the power, it is disappointing that she wouldn’t exercise it in the Rehtaeh Parsons case. Furthermore, it is odd that if she is the elected person who must answer to the Legislative Assembly, and ultimately the people of this province, that she would let a bureaucrat speak on her behalf. That’s what she did when she let Martin Herschorn, the Director of Public Prosecutions, respond to letters from Nancy Rubin, a lawyer representing the media, and Glen Canning, the father of Rehtaeh Parsons, in which they requested a pronouncement that violations of the publication ban would not be prosecuted.

In the letter, Herschorn said it was “unprecedented for this Service and inappropriate in this context” to issue the pronouncement.

Here’s the catch though, it’s not unprecedented. Michael Baker did it in 2003 to prevent a waste of resources prosecuting firearms registration offences because they would soon be made legal. As for it being inappropriate, with all due respect to Mr. Herschorn, he’s wrong. It is the right thing to do because protecting the identity of a girl who has died, and who became a household name when she committed suicide because the justice system failed her, is the prime example of doing too little, too late.

As if refusing to act wasn’t enough, Herschorn went one step further to seemingly create the perfect Catch-22. He said the Public Prosecution Service only gets involved in reviewing cases once a crime has been committed and once a charge is laid. Essentially, the only way for the Public Prosecution Service would offer an opinion on this matter would be for the media to take the risk of breaking the ban and hoping they wouldn’t be prosecuted. So far, no mainstream media have taken what is a minimal risk, but there have been exceptions.

Glen Canning has broken the ban, Leah Parsons has broken the ban, and I’ve broken the ban. So far, none of us have been charged. Come on in folks, the water’s fine.

Much is made of the Nova Scotia Public Prosecution Service being the first in Canada to be independent from political control. This is a good thing, but before you start the slow clap, let’s take a look back at why Nova Scotia did this back in 1990. It wasn’t some bold innovation. On the contrary, it was cod liver oil served up to the politicians by the Marshall Inquiry.

Two prominent members of John Buchanan’s Tory government – Billy Joe MacLean and Roland Thornhill — were deemed to have received preferential treatment by prosecutors during criminal investigations. The Marshall Inquiry said that, in both cases, the Attorney General of the day relied on misleading or poor reports from Deputy Attorney General Gordon Coles and recommended that the public prosecution service be largely independent of political control.

Nowadays, the Nova Scotia Public Prosecution Service touts itself as being an independent body and it seems proud, almost strident about that, but they act as if the Attorney General, who is answerable to the Legislature, the government and the people of this province, can’t tell them how to do their job.

She can, just has to do it in a public way and can’t give hush-hush orders to protect political cronies or friends. This limitation on the operational independence of the Director of Public Prosecutions is spelled out on the department’s website.

The Attorney General can issue written instructions to the Director of Public Prosecutions and these instructions are binding, but must be made public. The purpose of this is explained by the following excerpt:

This procedure preserves the ultimate prosecutorial authority of the Attorney General. This is a means of ensuring accountability to the electorate for the manner in which public prosecutions are conducted.

In this case, Metlege Diab would make a public pronouncement that would be well-received by the electorate, but so far, her inaction on this issue is as disappointing as the original reaction of her predecessor Ross Landry, the NDP Justice Minister who made this callous remark on April 9, 2013, two days after Rehtaeh Parsons was taken off life support:

“If the evidence isn’t in place, we can’t second-guess every investigation.”

Remember, this is a ban that Rehtaeh Parsons’ parents don’t want, an Ontario Crown Attorney prosecuting the case doesn’t want, and one which Judge Jamie Campbell said doesn’t serve any purpose in this case. So, while the learned judge was rightly applying the law, common sense and justice get short shrift.

As a result of this ban, organizers of two events in Ontario (one in Kingston, the other in Cornwall) have cancelled public speaking engagements for Glen Canning.

That’s the chill that has been created by this ban and it’s got to stop. This is a tremendous opportunity for Nova Scotia’s first female Attorney General to do the right thing.

One of the accused is due back in court for sentencing on Nov. 13 and the other is scheduled for a trial later in the month.

By then, let’s hope that Metlege Diab has given the media the green light to use Rehtaeh Parsons’ name again – without restrictions.

Don’t wait for legal reform — push for it

roderick-macdonald

Roderick Macdonald was a contrarian and innovator who shaped legal reform in Canada.

Most Canadians probably think legal reform is something best left to lawyers and politicians. Reflect on that for a few minutes and ask yourself if you want to leave it entirely up to them. Consider to whom they might be beholden and don’t leave it up to others to make the kind of country you want.

In the Internet age, there is greater opportunity to participate in democracy and participate in discussions. The Internet is  to us as the agora was to ancient Greece. It is an amazing medium, but some people are using it to great harm and our justice system doesn’t seem to be able to keep pace.

As Hilary Beaumont wrote in her excellent article in The Coast there are people using the Internet to commit crimes that police say are beyond the current scope of the law. In some cases that’s true, but in many cases police and prosecutors just need the mental dexterity to apply existing laws to new crimes that fit under their umbrella.

I’m a firm believer in democracy, despite its flaws, but there is a lack of accountability and transparency in our government and bureaucracy. There is also an overwhelming urge to dither instead acting clearly and decisively to do the right thing. You should never be afraid to do the right thing under the circumstances. If you’re afraid of future consequences, then you adjust your actions to mitigate or eliminate those.

After writing about the publication ban in the Rehtaeh Parsons case, someone contacted me and offered to help. It was great to hear a total stranger offer me words of encouragement and legal support if I needed it. He also shared with me some new inspiration: former McGill University law professor Roderick Macdonald.

In May, Macdonald gave what was perhaps his last interview at a symposium in Montreal, and a few of his comments are worthy of a valedictory address for a man who had a profound impact on legal reform in our country.

“Many, many people believe that the law is a one-way projection of authority from lawmakers or law-givers to citizens, who are merely passive respondents to what the commands of the people in authority are. The best way to achieve a harmonious and peaceful society is to recognize that people have within themselves the capacity to do what is appropriate under the circumstances, and that the law should be designed to facilitate their agency.”

Now that a growing number of people have broken the publication ban in the Rehtaeh Parsons case, Glen Canning has asked the Attorney General and the Public Prosecution Service of Nova Scotia to issue a pronouncement saying they will not prosecute. We wait, but hopefully they will make a decision before the next court appearance. Meanwhile, media outside Canada, including one of the world’s most respected newspapers — The Guardian — are covering it and using Rehtaeh’s name in their coverage.

Hopefully, they’re convinced the ban has been broken. If they’re not convinced, then keep doing your part to break it. It’s about nothing more than making sure public officials are held accountable for their actions — or inaction — and for this to be done with public scrutiny.