Month: April 2005

[Special Notice from Editor: it ain’t me.]

It has been a rare day of political scaredy-cat-ism thoughout the realm that could be called the poli-blogs of Canada. Within 24 hours of a few posts like mine on Sunday morning there were some amazingly dimwitted calls for the defence of democracy [Ed.: “toot-ta-tooooo!!!” go the horns!!! To the pea and asparagus harvesters, everyone!!!] because a commission judge ordered a publication ban. Throughout every legal system – even in the USA – there are plenty of instances of secrecy: US grand jury, Canadian trial jury, judicial privilege, solicitor-client privilege, settlement privilege, etc., etc. Some see sense – some know fear – some are just a wee bit off near the end. A publication ban to protect the fairness of a future trial is part of the same continuum and has existed for as long as we have been free. Society works because we have courts and courts work because we have lots of secrets – short term, long term, in theory or enforced by jail time. It is the way the world works…except no one told half the bloggers.

I think it has to do more with the change of the clocks for spring. Some people need a nap.

Update: How could I have been so horribly wrong. Here they are taking Jim Elve, ringleader at Blogs Canada away. Oh well.

Make sure the guys know where to
send the cookies…

Much fur is flying this morning on the publication on a US blog of what is stated to be one single source’s take on the secret testimony heard last week before the Gomery Commission. I will not [Ed.: …could not, would not in a boat; could not would not with a goat…] link to it but the canny Googler might do well to consider words that rhyme with “Baptains Borters”. Nothing new in this as the Bernardo testimony was posted on the internet on a “Finnish site” around ten years ago.

So you will not find anything substantive around here as far as evidence goes, but, for the national edjification, how’s about a superficial review of what a publication ban is. The right to receive testamony but create a publication ban around that testimony is a procedure which must be done under power granted to the Commission. The specific powers of the Gomery Commission come from an Order in Council issued by Paul Martin, Prime Minister. It creates a commission pursuant to Part I of the Inquiries Act and, pursuant to section 56 of the Judges Act, the Honourable John Howard Gomery be authorized to act as a Commissioner on the inquiry. Further,

the Commissioner be authorized to adopt any procedures and methods that he may consider expedient for the proper conduct of the inquiry, and to sit at any times and in any places in Canada that he may decide.

Each of these sources in law may include the power to order a publication ban. It is not specifically stated in Order creating the Commissions but the power to create its own rules is and, at Rules 17 and 18 of the Rules of Procedure of the Commission it states:

17. However, applications may be made by a party asking that the Commissioner issue an order that any portion of the proceedings be in camera, or issue an order prohibiting the disclosure, publication or communication of any testimony, document or evidence. Such applications shall be made in writing, supported by affidavit(s), at the earliest opportunity. The evidence and submissions on such applications may be presented in private or in public, or a combination of both, at the discretion of the Commissioner, according to these Rules, which are applicable to in camera matters with appropriate modifications.

18. The Commissioner may, at its discretion, issue an order that any portion of the proceedings be in camera, or issue an order prohibiting the disclosure, publication or communication of any testimony, document or evidence.

It is clear from that wording that ordinarily any “communications” of any “testimony” would be prohibited. That would tell me that speaking about the testimony would expected to be prohibited. Certainly this would cover off the “blogging is not publication” argument evoked by citizen journalists everywhere who wish to be treated as senior cub reporters on any other day. Once a publication ban is ordered, specific obligations are generally imposed on the media present under sections 50 and 51:

50. Whenever the Commission decides pursuant to Rules 17 and 18 to proceed in camera, or issue a publication, disclosure or communication ban, the designated media representative must, to the satisfaction of the Commission, take all necessary measures to ensure that all tape recording or sound recording machines have been turned off.

51. No other forms or means of recording, re-broadcasting or photographing beyond those permitted by these Rules will be allowed in the hearing rooms.

Note that the writing down of notes by pen and paper is not mentioned.

The specific Order requiring the publication ban is also available in the information superhighway. It provides further detail as to the expectations of Judge Gomery in this matter:

The expression “publication ban” as it is used in this decision, should be taken to have the meaning those words have been given in subsection 486(4.9) of the Criminal Code, which states that “no person shall publish in any way (…) any evidence taken, information given or submissions made at a hearing”, in this case, a hearing of the Commission. In my interpretation of this disposition, “broadcast” includes a posting on the Internet.

The word “broadcast” means “broadcast to the public”, so that a publication ban would not prohibit a television broadcaster such as CPAC from continuing to capture the television images and sound of the Commission’s proceedings, and from transmitting them to the media room and other in-house outlets, as it does at present. Rule 50 of the Commission’s Rules of Procedure and Practice should not be construed so as to prevent this practice.

So, even though he effectively removes the word “communication” from the ban he specifically included a posting on the internet of “any evidence taken, information given or submissions made at a hearing” under the prohibition. This certainly could be taken to not include speculative discussion, however, unwise or useless such a practice would appear to be…except that it is 98.742% of everything political blogs actually post. It does not include reading and even pasting into a privately retained file the received information for future purposes once the ban is lifted. That might be taken to be actually implied as the recording and in-house sharing for future broadcast is expressly allowed. The interesting question is what in law is “posting”. It would certainly include a posting such as this were it to include “any evidence taken, information given or submissions made at a hearing”. Is an email that gets passed amongst a circle of friends “publication to the public”? Does it also include second-hand speculation? Is it commenting on another post which includes either evidence or second-hand speculation? It is linking to a site which posts evidence? Is it giving a rhyme of the name of the site where a post may be found? Questions, questions, questions…

It is interesting to note one reason that a publication ban might be reasonable. Under Rule 26 of the Commissions’s Rules of Procedure:

The Commission is entitled to receive evidence which might otherwise be inadmissible in a court of law. Evidence will be admissible based on its probative value in relation to the Commission’s mandate.

Given all the skullduggery of politics, could you imagine that any of the witnesses would have after all this time any clear recollection or even understanding of the truth of what that did? We are into the realm of the political and an election and a political purpose can hang on a useful placement of misinformation.