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.