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.

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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.