Honour Rehtaeh Parsons’ memory by publishing her name

Nova Scotia Attorney General Lena Metlege Diab

Nova Scotia Attorney General Lena Metlege Diab

Today would have been Rehtaeh Parsons’ 19th birthday, so I’m going to celebrate by breaking the publication ban again.

Despite overwhelming public support to publish her name without restriction, Nova Scotia’s Attorney General, Lena Metlege Diab has refused to apply a power available to her.

It’s in Section 6 of the Public Prosecutions Act, which allows the Attorney General to order that there will be no prosecution of people who publish Rehtaeh Parsons’ name in connection with the court case against two boys who took and distributed a degrading picture of her while she was vomiting out a window.

It’s a simple way around a statutory publication ban that a judge had no choice but to impose.

On two occasions, Metlege Diab has punted the decision to Martin Herschorn, the Director of Public Prosecutions. He has said in letters to Glen Canning and Nancy Rubin, a lawyer representing four media outlets that challenged to ban, that to use this power would be “unprecedented for this Service, and inappropriate in this context.”

When Herschorn uses the word “unprecedented” it implies that there has to have been a case like this in the past for them to be able to act, but that is not so. All that is required is the legal authority and it is there in black and white in Section 6 of the Public Prosecutions Act. Furthermore, it is not Herschorn’s power to exercise, it is Metlege Diab’s.

As for Herschorn’s repeated use of the word “inappropriate,” well, in the oft-quoted words of film character Inigo Montoya “You keep using that word. I do not think it means what you think it means.”

It is perfectly appropriate. There is no better time to use this power than now. It is perfectly suited for this case and if another similar case came along, it should be used then, too.

Right now, there is a chill. The media are reluctant to use Rehtaeh Parsons’ name and important discussions are not happening because of this ban. Nova Scotia’s Liberal government is failing the public by refusing to act.

In announcing a decision that The Chronicle Herald and many others would not face prosecution, Metlege Diab would be applauded.

If she can’t see the wisdom in using this power, she should at least see the popularity and, like any good politician, she should follow the votes.

Note: There is a petition circulating. To sign it, click here. If you’d like to let Metlege Diab know your thoughts on this, please sign it. You can also send her a message on Twitter at @LenaDiabMLA or send her an e-mail at justmin@gov.ns.ca.

Advertisements

Sexting advocate claims injustice in Rehtaeh Parsons case – despite guilty pleas

A screen capture of a comment Parker Donham made on Facebook about the child pornography charges -- after the first of two guilty pleas.

A screen capture of a comment Parker Donham made on Facebook about the child pornography charges — after the first of two guilty pleas. On Monday, a second boy pleaded guilty to distributing the photo that was used to shame and bully Rehtaeh Parsons.

Sexting advocate Parker Donham says an injustice has been committed against the two boys who pleaded guilty in the Rehtaeh Parsons case and is using the publicity around the case to champion for changes to an “overly broad law.”

Sounds ridiculous doesn’t it? No, I’m not kidding you, it’s true. I might be guilty of putting a little spin on that lede, but it’s exactly what Parker does. If anyone tells you a journalist does not put spin on their copy, don’t believe them. Parker does and he takes spin to Spinal Tap levels.

Don’t take my word for it, go read Parker’s blog titled Moral Panic Makes Bad Law.

In promoting his blog on Facebook, Parker suggests that the court cases in which two boys pleaded guilty involved “a trumped up charge to appease media demands that the boys be punished.”

One might think Parker is just following the advice of the late great George Carlin to “question everything.” If you’re an adherent to that philosophy, you should also question Parker, especially because he is prone to making erroneous assumptions in addition to applying copious amounts of spin to his arguments.

Exhibit 1: He assumes there is no evidence to support sexual assault charges when the agreed statement of facts read in court suggest otherwise. He was not in court either day and seemingly is not aware of these agreed statements of fact. These facts might not convict, but there is other evidence available, and more could have been obtained by police if they simply did their job properly.

Exhibit 2: In his blog, Parker writes that child pornography law is a result of “moral panic” that is leading to “a flurry of child pornography charges against youngsters guilty only of entirely consensual sexting.”

When making that claim, Parker links to this post about a case in British Columbia.

On a more careful examination of the case Parker cites, we realize that while the sexting might have been consensual originally, the criminal charges arose from actions that took place after a relationship ended and could in no way be described as consensual.

For a more accurate description of that case read this. Parker didn’t link to that, or provide more details, because it doesn’t fit his narrative. He is constructing a paper dragon and the only valid argument he is making is that what happened in the Rehtaeh Parsons case does not fit the definition of child pornography that most of us have come to understand.

Of course it is not “child porn” according to that definition, but don’t get sidetracked by our contrarian crusader’s argument. Consider these key points instead:

  1. What the boys did fits the legal definition of child pornography as set down by Parliament. A judge has ruled thus on two occasions. For someone so concerned about the rule of law, Parker should give this more credence. If he doesn’t like these rulings, he should ask Parliament to change the name of the law. Remember, Parker has said what the boys did was “disgraceful and reprehensible.” Presumably, he also thinks it should be prohibited by law as he has said he would have even supported voyeurism charges under Section 162 of the Criminal Code. As best as I can tell, Parker’s only valid objection is the labelling of the crime. This is hardly something that supports an assertion that in “injustice” has been done.
  2. The facts known to police would support laying at least one charge of sexual assault, perhaps two, with a reasonable likelihood of conviction. If you don’t know what this evidence is, open your eyes and keep an open mind. “There are two sides to every story” is something we keep hearing in this case. The truth is somewhere in between the two sides — but not in the middle. That’s because some people simply don’t understand the laws concerning sexual consent in this country. This is the discussion we should be having. It is of monumental importance.
  3. Additionally, this information should have been used by police to elicit more evidence to support those charges, and perhaps others, but the police investigation was woefully inadequate and misdirected, according to Leah Parsons and Glen Canning. Their complaints have sufficient merit that it has prompted the province to hire Murray Segal, the former Deputy Attorney General and Chief Prosecutor of Ontario, to review the way the police and the Public Prosecution Service handled the case. Segal’s review is on hold, but will resume when these criminal proceedings conclude in January.
  4. Whatever legitimate concerns Parker might have about sexting being criminalized pale in comparison to the more pressing concerns this case is about: cyber-bullying, sexual consent, and suicide prevention. Furthermore, to bring them up in connection with this case and suggest that an injustice has been done against the boys is one of the most ridiculous things I’ve ever seen an intelligent person write.
  5. The police, prosecutors and judiciary in this province do not do anything to “appease an enraged public and media.” They do their job and when they fail, they can enrage the public and media which prompts them to actually do their job. That is why we have freedom of the press, to hold our public officials accountable. We don’t have freedom of the press to conscript them into lynch mobs and that is certainly not what happened here. If the police and Crown laid a charge to appease an “enraged press and public,” it makes no sense that they would lay a charge that would automatically invoke a publication ban when another law, voyeurism, was available to them. A more likely motive for the “child porn” charge is that there would be a statutory publication ban – not one that would leave a judge with some discretion. This creates a disconnect from the court proceedings to the handling of the case between November 2011 and April 2013 – the handling that will be under review. The media and public would most certainly have preferred a voyeurism charge so that Rehtaeh Parsons’ name could be published without restriction.

Sometimes, being a contrarian is a good thing. We need contrarians because they challenge us to think and question the zeitgeist. However, this is a cautionary tale about how being a knee-jerk contrarian can put you far out on a ledge — in an untenable position maintained only by stubbornness, not reason.

In a parting cheap shot at journalists who are doing their job and ensuring that public officials are held accountable, Parker writes in his Facebook teaser for the blog post: “This is not the Nova Scotia news media’s finest hour” and refers to some as “journocutors.”

Not our finest hour? Parker, none of us claims to be as perfect as you, but at least we are not creating a distraction from the more important discussions that actually pertain to this case.

If there is fault here, it is with you for creating this attention-seeking distraction. Most importantly, though, the fault lies with the public institutions that failed Rehtaeh Parsons, and not with the media and the public that is seeking justice.

Now, let’s get back to our more important discussions.

Lawyer David Fraser pans publication ban in Rehtaeh Parsons case

David Fraser is absolutely right. It’s time to end this discussion about the publication ban and shift our focus back to the more important discussions we need to have about cyber-bullying, sexual consent, suicide prevention, and accountability for public officials.
Justice might never come for Rehtaeh Parsons, but at least we can use her memory to learn some valuable lessons and help inform some important discussions.

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.

Publication ban is pointless

Canning Parsons

Glen Canning (left) and Leah Parsons have fought to keep their daughter’s name alive.

One of the beauties of being a freelancer is that I don’t have to worry about consulting lawyers or publishers, I can just follow my gut and do what a journalist is supposed to do.

To paraphrase the Mr. Dooley character of American humorist Finley Peter Dunne: It’s the job of journalists to “afflict the comfortable and comfort the afflicted.”

Sometimes, you get the opportunity to do both and when those opportunities arise, you must seize them. Yesterday, more than any other day, it was important to use Rehtaeh Parsons’ name.

The guilty plea of one of the accused was validation for her and her family. Any journalist with a sense of public good would recognize that you’d need to link yesterday’s development back to April 2013, when the whole world knew her name and the eyes of the world were on Nova Scotia because of the failure of our justice system to lay any charges.

There was a clear purpose to my post and I’m not content to wait for politicians to change the law. I’m going to point out its flaws, why it needs to be amended, and why it should not apply in this case. I also consulted with Rehtaeh Parsons’ parents – Leah Parsons and Glen Canning — and got a blessing from both of them to break the ban.

Also, reading the judge’s decision from May gave me confidence that it was a pretty safe path if I chose my steps carefully. I was not flouting it just for the sake of flouting it. Former colleague Stephen Kimber, a professor of journalism at King’s College, suggested in a Facebook discussion that “there’s a danger when we start violating bans because we believe it’s wrong in one particular instance.”

“What if another reporter decides to name an alleged rape victim, or a child abuse victim because they think it’s justified. Do we get to decide when the law applies and when it doesn’t? And, given that everyone already knows who the victim is in this case, is it really necessary to break the ban to make the argument it is wrong here, or to write in a way that makes the connections for the reader without specifically naming the victim?”

In this case, I take to heart the comments made by Judge Jamie Campbell when he wrote in his decision: “It’s a ban that everyone wants, just not in this case.”

To see Judge Campbell’s decision, click here.

Clearly, it’s a good law, but it just doesn’t work in this instance. A judge, our director of public prosecutions, and our Attorney General had an opportunity to fix that, but none took the opportunities available to them for various reasons. You say that “everyone” knows her name, but I think that only those closely connected to the case would make the crucial connection if not for the efforts of the victim’s parents — Glen Canning and Leah Parsons — who have been breaking the ban.

I’m not claiming the right for me or any other journalist to decide when the law applies and when it doesn’t. But remember, both of Rehtaeh’s parents opposed the ban and the Crown fought it, too. Also, when the Crown reviews a complaint — if there is one — they will consider the intent of Parliament in drafting the law, the wishes of the parents, and whether the public interest is served in prosecuting.

Precisely the things that I considered before writing the post.

Guilty plea in Rehtaeh Parsons case

rehtaeh parsons

Rehtaeh Parsons committed suicide in April 2013. Her death helped spark a new police investigation.

A young man who took the picture used to shame and bully Rehtaeh Parsons has pleaded guilty to production of child pornography.

He admitted to taking the picture of another boy, a co-accused in the case, who was in the picture with Rehtaeh in November 2011 when he was 17 and Rehtaeh was 15. Neither of the accused, who were both under 18 at the time, can be named. Their identities are protected by the Youth Criminal Justice Act.

Crown Attorney Alex Smith read an agreed statement of facts to Halifax Provincial Court Judge Greg Lenehan.

Smith describes the image which shows one boy, naked from the waist down, behind Rehtaeh and pressing his genital region up against her while giving a thumbs-up sign. Rehtaeh Parsons is naked from the waist down.

“At the time the photograph was taken, (one of the accused) was having sex with Rehtaeh Parsons as she was vomiting out the window,” Smith told the court.

The youth in court today faced charges of production and distribution of child pornography. The Crown dropped the charge of distribution.

Another boy, the one in the picture who is charged only with distribution of child pornography, is scheduled to go on trial in November.

There is also a publication ban on the identity of the victim, Rehtaeh Parsons, despite the opposition of the Crown Attorney and her parents. Four Nova Scotia media outlets fought the ban in May, but Judge Jamie Campbell said it was a statutory ban that he had to impose – even though it didn’t make sense because her name was already so well known. In reporting this story today, media outlets continue to observe the ban.

It is the law of the country and judges must do their duty and enforce the law passed by Parliament. That is why the judge cannot be faulted in this case.

This post respectfully disregards the publication ban because a greater public good is served by doing so.

There is a higher goal than upholding the law and that is justice; something that judges, especially those that practice judicial restraint, sometimes do not consider.

There is an oft-told story of a conversation between two great American jurists, Oliver Wendell Holmes and Learned Hand, who met for lunch one day.

As Holmes began to drive away, Hand implored him to “Do justice, sir, do justice!”

Holmes stopped and admonished his fellow judge with this retort: “That is not my job. It is my job to apply the law.”

In the absence of an activist judge, or an Attorney General or Director of Public Prosecutions willing to make a public pronouncement that no charges will be laid in this case, it is left to the media to wonder about the safety of violating the ban.

Henry David Thoreau, in his essay Civil Disobedience, encouraged people to disobey what he called “unjust laws.”

Thoreau wrote: “Unjust laws exist; shall we be content to obey them, or shall we endeavor to amend them, and obey them until we have succeeded, or shall we transgress them at once?”

Let me be clear. It’s not that this law is unjust. It is that it is unjust in this case and should be ignored.

Clearly, this is an exception that Parliament did not think of when they passed the law and they need to amend it.

Lastly, there is a clause in the Youth Criminal Justice Act that allows for the parents of a victim to waive the privacy rights of their children. Glen Canning and Leah Parsons have done so in this case, but Judge Campbell chose not to accept that argument, saying that the Criminal Code provision wins the day – even though it doesn’t really make any sense in this case. See decision here.

Rehtaeh Parsons’ name brings power to any discussion about sexual consent, cyber-bullying, and suicide prevention. Her case prompted important legal reforms in Nova Scotia and the rest of Canada. The federal government, which is working on passing Bill C-13 to counter cyber-bullying, is doing so partly because of what happened to Rehtaeh Parsons.

Most importantly, this change of plea needs to be connected to the case at a time when publication of her name was permitted.

Why?

Because of the way the police and the Public Prosecution Service handled the case. Initially, the police focussed their investigation — such as it was — on sexual assault after an incident in November 2011. They spent most of their early efforts investigating Rehtaeh and took a long time – several months – before interviewing the four teenage boys alleged to have raped her when she was extremely intoxicated.

The Nova Scotia Public Prosecution Service reviewed the case, but didn’t lay charges because there wasn’t a strong enough likelihood of a conviction. It was dubbed a “he said, she said” case amid claims that Rehtaeh had made advances, or at least appeared willing earlier in the evening.

By the time the picture was taken, as the agreed statement of facts read into court today would indicate, Rehtaeh was not in any state to be consenting to sex.

Amazingly, the existence of a photograph of a minor engaged in a sexual act did not spark law enforcement professionals involved in the investigation to consider laying a charge of production and distribution of child pornography. Canning said police and school officials knew of the photo’s existence within a week of it being taken.

“They allowed this image to spread even knowing that this was child pornography. They knew who had it and who was doing it and there was nothing done to stop it,” he said. “Every time it was shared, it victimized Rehtaeh.”

The photo spread like wildfire through her community in a suburb of Halifax. Fellow students called Rehtaeh Parsons a slut and some total strangers texted her and asked her if she wanted to have sex with them. The bullying became too much so she switched schools and sought counselling. She claimed she was raped, but no charges were laid and this added to the grief. She struggled for months, but in April 2013, she committed suicide by hanging herself in the bathroom with a belt.

Her case attracted worldwide attention and even prompted the intervention of Anonymous, who started #OpJustice4Rehtaeh to get the police to reopen the case. The police reopened the case and, amid the furor, some people defended the four boys saying that the sex was consensual.

Within a few months, the police laid charges of production and distribution of child pornography against two of the four boys, but some claimed it was just a way to put an end to mounting public pressure.

Today’s guilty plea should put an end to those claims.

When Judge Greg Lenehan told the young man to meet with a probation officer and cooperate with them in the preparation of a pre-sentence report, he responded in a subdued voice. “Yes, sir.”

He is scheduled to return to court for sentencing on Nov. 13.

For Leah Parsons, Rehtaeh’s mother, nothing will ever bring her daughter back. But keeping her memory alive and using it to make some important changes, means a great deal to her.

“None of it is enough, but the fact that he’s pleading guilty is some consolation,” she said. “I do feel some solace in that she just wanted to be validated and she wanted people to know that this actually happened to her.”

An early autopsy of the newspaper industry

newspaper-2

The newspaper business is slowly dying, but it didn’t have to be this way.

The Poynter Institute reports that 1,300 more newspaper jobs disappeared in the United States in 2013.

In what is surely a most cruel form of irony, the people responsible for running the newspaper business – the suits, the MBAs, the publishers – could have made the decisions to at least soften the decline of the industry if not prevent it, but they failed miserably.

Supposedly, they had all that business savvy, but they proved that they didn’t. They supposedly had the knowledge to read the changing business landscape and the authority to make the decisions to adjust; they did neither well enough to make a difference.

Here’s something you need to know about newspapers. They were never really a challenging business during their prime. In many communities and cities, they were a licence to print money – especially if it was a one-newspaper market. Classified advertising was the huge cash cow for many newspapers and there was also revenue from display advertising that pushed the percentage of revenue from non-subscription sources to upwards of 75 to 80 per cent.

Think about that. The people who got the newspapers at their doorstep paid for 25 per cent of the cost of collecting that news, printing it on newsprint, and delivering the bundled-up dead trees to the homes of subscribers.

Then, along comes a new medium called the Internet that can deliver the news to readers for a pittance. You still need to pay reporters, photographers, designers, and people to upload the news to a website, but you eliminate some huge cost centres. You don’t need to buy newsprint, you don’t need to buy expensive printing presses, or pay the salaries of people to print it and deliver it.

Comparatively, it’s a cheaper, more environmentally friendly way of delivering news to readers. It offered the promise of huge savings if the new medium was embraced, but the industry timidly put one toe in the water instead and continued printing newspapers while paying lip-service to their websites.

Then came the complaints that the Internet wasn’t working for them because they had to give content away because people wouldn’t pay for it. During this time sites like Craigslist and Kijiji siphoned classified ad revenue. Instead of copying their business model to keep those eyeballs on newspaper websites, they continued to charge for classified ads and drove more and more classified ad users to these free websites.

Like anything that has gone extinct, the companies that run newspapers failed to evolve.

If the companies that run newspapers want to exist — and continue delivering news — after the great demographic bubble of the baby boom passes on, they’ll need to get their heads out of their wazoos and stop printing news on dead trees.