Making facts everyone knows secret doesn’t protect crime victims, accused persons or democracy … so who benefits?

Posted on February 06, 2018, 12:42 am
6 mins

PHOTO: Nothing to see here, people, please move along …

It should be pretty clear by now that Canada’s legal mechanisms to protect victims of crimes and the rights of accused persons haven’t kept up with the digital era in which we live.

In case you’re part of the tiny minority of Albertans who have missed this, it’s been made crystal clear by the recent case of a well-known political figure apparently charged with a serious crime that has aroused strong public interest among politically alert Albertans.

I think I’ll just not bother to name the individual since it’s completely unclear at this moment whether that’s allowed or not – plus, because absolutely anybody in Alberta who is halfway alert knows who the politician is and what he’s been charged with anyway.

This is principally because all media reported on the situation before a court publication ban was either ordered or discovered – for reasons technically unknown though widely speculated upon because no one except the media who responded to it know what it says, and maybe not even some of them.

Once media operations became aware of the situation, most pulled their stories, at least for a spell.

A few reported limited facts in a way that may or may not have been permitted by the ban that no one has had the opportunity to read or hear. And the author of one subscription-only legislative newssheet told pretty much the whole story on the not unreasonable grounds that his publication went to press before anyone was aware of the ban.

Unfortunately, for the judge or whoever it was that issued the order, no one in the legal system seems to have figured out, as almost any conscious person familiar with this thing called the Internet understands, that once something has been posted there, its footprints tend to remain, even if it is pulled down again.

For example, if you use a common Internet search engine seek out the name of the politician – although you won’t hear it here – you can see summaries of the story that tell you all the essential facts you’re not supposed to know.

And you know what? The people who run Google live in a different country with a different set of laws, and they don’t really care if an agent of the Government of Canada has said we’re allowed to know something or not.

Now, publication bans exist for good reason, and protecting due process, the safety and sanity of crime victims, and the rights of the accused are all laudable goals. The government of Canada has a good web page that clearly explains the thinking behind publication bans in criminal cases.

But unfortunately – or fortunately, I suppose, depending on your point of view – the process described on that page for achieving these worthwhile goals has been made completely obsolete by the speed of the Internet, the enormous number of people who have the ability to publish things on it, and the stubborn permanence of material once it’s been published there.

Furthermore, in a case where a high-profile public figure actively engaged in political life is involved, there is a strong public interest bordering on necessity in publishing the identity of the accused person, the nature of the charges, and the time frame the alleged offences are said to have taken place.

The time frame is important because members of the voting public in a democracy have a legitimate interest in knowing whether or not the political party represented by the accused person knew about the situation before charges were laid, or the case after charges were laid, and whether it could have done anything about it.

When information is being suppressed – no matter how sensible the reasons or honourable the goals of the censors – voters will understandably become concerned that the situation may be being manipulated for political gain. This is particularly so in an era when the rights of accused persons – at least, those who are not public office holders – are treated with such contempt by the media and many politicians.

So the situation we have now as a result of the conflict of ineffective laws with technical advances in communications technology is one in which none of the interests of the alleged accused, the alleged victim, or our democracy are being served.

Indeed, the opposite is the case. They are all being hurt by the inability of the public to know the answers they need to discuss the political and policy sides of this sad situation.

The only interest that is being protected is that of the political party with which the politician in question is associated, and even that not well.

The laws of Canada in this matter assume that right now, outside your computer, its about 1970. And you know what? It’s not!

This needs to be addressed in a timely fashion by lawmakers. And timely doesn’t mean some time in the next decade or two.

14 Comments to: Making facts everyone knows secret doesn’t protect crime victims, accused persons or democracy … so who benefits?

  1. J.E. Molnar

    February 6th, 2018

    If detailed information about the president of the United States and his 19 sexual harassment accusers can be published in this day and age, as well as info on the sexual assault/misconduct allegations against Harvey Weinstein, Kevin Spacey, Patrick Brown, Rick Dykstra and Kent Hehr, then surely Alberta has evolved to the point that a UCP MLA charged with a significant criminal breach can be revealed and pertinent details exposed. This sounds suspiciously like a coverup as opposed to a criminal “rights” issue. Surely the victim’s rights can be protected without hindering the public’s right to know. Some media organization needs to step up and challenge this absurd ruling by a Red Deer court.

    Reply
    • Mohamed Mahdi

      February 6th, 2018

      I’m okay if they reveal what that politician did eventually as long as they hide the victim’s name.Also the difference between what that Alberta politician did and what spacey, brown and etc did was what that politician is quite obvious.

      Reply
      • Mohamed Mahdi

        February 6th, 2018

        I meant the nature of the crime accidentally revealed on friday that Albertan politician committed separates him from Brown, Spacey, Weinstein and etc.

        Reply
  2. Leonard Balfour

    February 6th, 2018

    Is this the who and what part of the five w’s you’re referencing? [NOTE: The commenter provided a link to a lingering version of one of the stories pulled down by mainstream media, in this case the Edmonton Journal. The answer to his question is yes. So that’s one more person who knows, pretty well the entire population of Alberta over the age of 10.DJC]

    Reply
    • Leonard Balfour

      February 6th, 2018

      I don’t see how linking to an article talking about the law enforcement activities of our taxpayer funded police forces as they impact UCP MLA Don MacIntyre, is worthy of such a dismissive italicized deletion! One would think think he’d been proven to be a…

      Reply
      • David Climenhaga

        February 6th, 2018

        What makes you think I’m talking about him … ? DJC

        Reply
  3. student

    February 6th, 2018

    Publication bans are usually ordered when the victim is a family member. This is a little different than the US President’s alleged affairs with porn stars and others.

    Reply
  4. David

    February 6th, 2018

    I think #metoo and others would argue that silence is a part of the problem. So we get to hear all about Trumps misleads, PC leaders in other provinces and even a Federal Cabinet Minister, but somehow there is radio silence imposed across Alberta on what this UCP MLA did.

    As you point out there are a lot of problems with this. First, information was released before the court order and people saw or heard it – this can’t be fully taken back now and I suspect this is floating around the rumour mill. We can talk about it privately, but not print it which probably makes the information out there less accurate than if it were subject to the normal constraints of print media.

    I do wonder if there is some political agenda behind the gag, but like everything else at this point it is just speculation. However, it is probably actually not helpful to the UCP whether it is intended to be or not – it is also hard for them to respond to dead air. In the meantime all we have to go on is the MLA wanted to spend more time with his family, perhaps before going to prison, but again that is speculation given we know so little.

    There are times a publication ban makes good sense, but I am not sure in this case the public interest is being very well served.

    As you point out, there are a lot

    Reply
  5. February 6th, 2018

    Why would a Judge put a publication ban on MLA Derek Fildebrant not being allowed to rejoin the UCP caucus?

    Reply
  6. Tiddo

    February 7th, 2018

    [NB: My comment below borrows from comments I made in a thread on the r/Alberta subreddit in an exchange with another Redditor – who appears to work for Global News in Edmonton – after the original articles were taken down, redacted and republished. I make some strong comments about the media – specifically the proprietors of media outlets – being cowardly for not pushing harder for answers to pressing concerns well within the public’s interest about the arrest, the publication ban and the timing of the events in question. If any of this is out of place, please let me know; I can provide a link to the thread.]

    How were they able to get a publication ban so quickly? Who asked for it, or was it imposed by the judge?

    Just because you’re not reporting the nature of the charges, you can report the publication ban. The fact that no news outlet has covered this AT ALL speaks volumes. As it stands now, there’s barely any mention – other than cached headlines – that a sitting member of the legislature resigned under murky circumstances following an arrest for… something… and yet there is already a publication ban in place.

    Report what you know and stop being such cowards.

    I’ll walk back the “cowards” comment. That was uncalled for and I’m sorry.

    But as a former print journalist who covered cops and courts and local government for six years (in another time and place) I do know what it takes to cover these kinds of stories and the kind of dogged work needed to get at the truth.

    I also know that when it involves someone of high profile in a small community, there is often a tendency for the police and prosecution to, let’s say, circle the wagons a bit to protect both the integrity of their cases, and maybe also not make waves with other power brokers in case the arrest comes to nothing.

    I understand that Mr. Macintyre also has the right to be presumed innocent and that publishing stories about cases like this tend to paint the accused in a very unfavourable light, a cast that can’t be removed easily if they end up being exonerated.

    Contrary to what [some] may think, as a citizen and a journalist you can still go to the courthouse and ask to see the records; you can still ask the prosecutor why and how the publication ban came about. Who asked for it? Did the judge impose it on their own? How do publication bans work? Court process is not covered by the publication ban, I don’t believe, and if the judge says it is, that is an assertion that can be easily challenged by appealing to a higher [authority] for clarification. Those are all good stories.

    If the reason for the ban was to protect the identity the victim, fine. Let them say that, and then you report it. If the reason for the ban was because the accused is a high profile member of the community and too much information would hamper the investigation or potentially affect his ability to get a fair trial. Fine. Let them say that and then you report it.

    All valid considerations.

    But it is YOUR (the media’s) job to ask those responsible these questions and report on what they say.

    I know. It’s Tuesday and this happened, what? Friday? I know somebody’s working on it. And it will eventually come out. But this guy is (was) a sitting member of the legislature and a policy critic for the official opposition. He very well could have been a minister of government following the next election.

    That’s news. That’s a story. A real story of importance to the community. And yet all the reportage has consisted of a weak quote from the local RCMP saying there was a publication ban. I’ve covered murder trials: nothing happens that fast in a courtroom. There’s always a hearing and then the judge rules. When did the publication ban happen? Who asked for it? Why? What does it cover?

    This is where the cowards comment comes in (for which I apologize again) but: this is the media’s job.

    It’s not your job to take the RCMP’s word for it. The impression I got from both Global’s and the CBC’s pieces is that the interest being served by the publication ban is not that of justice or protecting the victim’s identity but protecting the accused from scrutiny.

    I know it’s a different time from the late 80s, when I was a cub reporter at a small chain of papers in rural New York. But I also know that my first EIC and publisher would have flayed me alive in the street if I came back with a story like that. If I had gone all the way and bugged every prosecutor, cop, judge, clerk and dogcatcher in the county and came back with the bruises to prove it, then he would himself call the judge and the DA. And if that didn’t work, then he’d call his lawyer and be in court the next morning. If it was newsworthy (and admittedly if he didn’t like the accused) he would stop at nothing to get that story.

    This is why the media are cowards; maybe not the reporters who would – I hope – love nothing more than to dig their teeth into this, but the owners, managers and editors who would rather not upset the community/the powers that be and potentially lose advertisers and readers/viewers because doing the right thing tends to cost money before it makes money.

    TL;DR: You’re not all cowards, but the media sometimes acts cowardly when they don’t do their jobs properly, and while lack of resources is often to blame, it is not a valid excuse, especially when it leads to perceptions of favouritism towards a high profile member of the community; reporting on the facts of a publication ban are not the same thing as reporting on the contents of the ban and the media has a duty to report as much as they can, even if they run afoul of the law.

    Reply
  7. jerrymacgp

    February 7th, 2018

    I’m reminded of the tag line the Washington Post added to their masthead last year, after the Trump inauguration: “Democracy dies in darkness”. Not only must justice be done, but seen to be done, and one cannot judge whether justice is being done if one cannot see it.

    Also, is there an element of “libel chill” at work here, or just an overly cautious interpretation of a court-imposed publication ban?

    Reply
    • Tiddo

      February 8th, 2018

      I think there’s a lot going on with this, as part of a larger trend in the news business, but mainly it comes down to risk vs. reward.

      I can recall many times in the past where news organizations (mainly the majors like CBC, The Globe and Mail, and Toronto Star) would routinely challenge publication bans, often seemingly on the basis of the principle you stated: justice must be seen to be done, but also that the public has a right to know what’s happening in the courts. While publication bans are often made in the interest of protecting rights of the accused, the integrity of the justice system, and the identity of the victim, sometimes they are over-broad and fail to take into account the public’s right to know and the media’s duty to inform the public.

      The risks are that some media outlet has to put the effort – and spend dwindling resources – to chase a story (possibly even going so far as to employ a lawyer or two to challenge the ban in court) that has little reward: it might attract viewers and clicks, but it also attracts controversy and can potentially divide the audience, causing some in the audience to look elsewhere for their information. People now consume media based on how it makes them feel and how it conforms to their worldview.

      If the local media appears to be beating up on a popular local politician who is presumed innocent regardless of the charges, some people will get offended and loudly protest and threaten to point their eyeballs at another channel. Then advertisers will be shy to commit to ad buys. If the media don’t report the story, there will be another segment of the population offended that the accused is getting preferential treatment.

      Lather, rinse, repeat. Only add in the fact that most people consume news online, usually on a mobile device, from a feed curated through the algorithms of social media or an app that aggregates content based on what the individual user responds to.

      The days of having “journals of record”, collecting and curating what’s new and newsworthy, being the de facto official store of a community’s collective memory on a daily basis, are largely gone. I haven’t picked up a copy of the Calgary Herald in years; I stopped being interested in the product when most of the content became sports, lifestyle and real estate advertorial and entertainment news. The Globe and Mail is half the paper it was 10 years ago; same for the National Post. I would pay for access online, but they charge the same as what they do for a physical copy of the paper and the only benefit is convenience; the content is still terrible.

      Unfortunately, the proprietors of media outlets are no longer coming up from the media trenches but people from the financial and business worlds who seem to be interested in owning media properties only as a business proposition, not as a quasi-public service that also happens to generate revenue. (I’ll leave aside for now the rather murkey waters of ownership concentration into corporate behemoths whose interests in shaping public opinion may be less than altruistic).

      Stories that generate traffic and reader/viewer engagement are great, but if they cost a lot of money to produce, turn off a segment of your audience, and fail to generate traffic, no manager is going to think it worthwhile to invest scant resources on those stories.

      Reply
  8. Keith McClary

    February 9th, 2018

    Supreme Court sides with CBC in publication ban case
    “However, the CBC refused to take down the articles posted to its website before the ban and the Crown sought an order citing the broadcaster for criminal contempt as well as an interim injunction for removal of the stories.

    A judge rejected the request for an injunction, but the province’s Court of Appeal overturned that decision — prompting the broadcaster to head to the Supreme Court.”

    Reply

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