A series of ludicrous events took place in an Ontario courtroom last Friday. They involved on-again, off-again decisions by a judge of the Ontario Court of Appeal concerning a publication ban on evidence against a First Nations activist.
What transpired last week is the result of the all-too common practice of denying the media the right to publish evidence presented at criminal trials in open court.
My concern is not about the merit of the charges against Shawn Brant, or the allegation that the Commissioner of the Ontario Provincial Police made threatening comments in wiretapped phone conversations with the accused.
Nor am I concerned with the rationale of Madam Justice Gloria Epstein who last Friday, July 18, 2008, first lifted a ban that had been imposed on publication of the testimony, then re-imposed the ban, but later reversed herself to once again permit publication of the evidence.
My concern is with the whole issue of publication bans on court testimony.
The courts must be open to public scrutiny at all times. Every person accused of a crime has the constitutional right to face his or her accuser in open court — to know what the charge is, who has laid it, and to hear the evidence and challenge the veracity of the accuser.
Nominally, the courts are open in Canada. If you’ve the time and inclination you can sit in on any trial. Because that’s impractical for most of us, we’ve delegated our right to attend to the news media. This is why freedom of the press is so important — not just for the press, but for us.
Without the protection of a free press, we are liable to middle-of-the-night arrests, secret charges, secret trials, and all the trappings of a totalitarian state.
Publication bans erode our protection from injustice because they prevent questionable evidence from being exposed to the timely searchlight of public examination.
In the case of Shawn Brant, he says: “This publication ban was never to protect me, it was always to suppress evidence.”
(The wiretapped phone conversations — conducted without a court order — had Julian Fantino, the Commissioner of the OPP, telling Mr. Brant that failure to remove a blockade on Highway 401 could lead to “grave consequences,” “death,” and that he — Mr. Fantino – would do everything he could to “destroy” his reputation.)
(Mr. Brant’s lawyer, Peter Rosenthal, wants Mr. Fantino suspended and an investigation held. He argues that the Commissioner’s intervention contradicted OPP guidelines on dealing with aboriginal protests. The guidelines were established after George Dudley, a native, was shot and killed by an OPP officer at Ipperwash Provincial Park in 1995.)
The publication ban was lifted by Madam Justice Epstein in response to an application by the CBC. A few hours later, on request of Crown lawyers, she granted a temporary reinstatement. In a two-page handwritten decision, she noted that if the news media are allowed to publish evidence the Crown wishes to protect, “the genie will be out of the bottle.”
And indeed tghe genie was out of the bottle. The CBC began broadcasting details of the wiretapped conversations and the Internet spread the story globally.
The process left defence lawyers and the CBC fuming. So back they went to Madame Justice Epstein, pointing out that the genie was by now all grown up and scampering about. She then re-reversed herself and quashed her earlier order reinstating the ban.
Under Canadian law, judges must grant a publication ban on evidence at bail hearings or preliminary hearings if the accused requests one. The idea — one I do not agree with — is that publicity could damage the reputation of an individual who has not yet been committed to trial.
As well, the Young Offenders Act prohibits media identification of anyone under 18 charged with a crime, along with witnesses and victims (unless the victim has died). There may be some slight justification in these cases.
Finally, under Canada’s new terrorism legislation, just about anything goes in keeping secret, even from the defence, the detail and nature of charges when the Crown wishes to do so.
It’s all wrong.
Time and again, we see court bans used to protect police and prosecutors from timely public examination of their actions. Unless the media are free to report everything that goes on in a courtroom, we the people are denied our right to monitor the integrity of the justice systrem. The way it is now, we’re just not supposed to know.
The sale of the Hudson’s Bay Company by one American owner to another sent me to my bookshelves to pull out Peter C. Newman’s 2000 book on this storied old enterprise, Empire of the Bay: the Company of Adventurers That Seized a Continent. It is one of Newman’s less celebrated works. I say that because, as a semi-official history of the fur trader cum department store, some critics have questioned whether Newman was as tough as he should have been on the company’s management — dead and alive.
Many Canadians lamented the sale by Toronto’s Thomson family of The Bay to American entrepreneur Jerry Zucker. The store’s been up for sale again since his death in April. The buyer, real estate investor Richard Baker, controls Lord & Taylor, the big American department store that’s respected for its long heritage but is having the same problems as The Bay in attracting younger and more affluent shoppers.
Newman, as always, wrote an engrossing tale in Empire of the Bay. He has that ability to transport the reader into an exotic environment. And that was certainly one way to describe the court of King Charles in 1702 when two French fur traders, Raddison and Groseilliers, convinced British investors and the King’s nephew, Prince Rupert of Bavaria, to put money into a scheme to bring furs out of the country around Hudson’s Bay.
The Company of Adventurers of course went on to reign over most of Canada’s territory west of the Great Lakes. Newman properly salutes the role of George Simpson, the Scottish-born trader who headed the company in its glory years of the 19th century. Like a modern day jet setter, he spent most of his time on “the road” (except in his case it was on the river, by canoe). He also found time to father around 70 children by various Indian maidens he maintained at different trading posts.
Canadians by now have become accustomed to seeing many of our major assets pass into foreign hands. Just as well, because that’s what the global economy is all about. In fact, more Canadians are investing abroad than foreign companies are investing in this country. And foreign investment has declined in Canada as a share of total global investment — 2.9 per cent in 2001 compared to 7.1 per cent in 1985.
Foreign take-overs still stir Canadian emotions, however. One of the things that’s always puzzled me about the Left has been their strident support of domestic capitalists. There’s tons of evidence that Canadian owners have been complacant, non-innovative, and generally lacking in the wit or will to invest in technology and systems that increase productivity and build wealth.
Perhaps it was okay to give an edge to local entrepreneurs when the country was young and our manufacturers were unable to compete against bigger and richer foreign (American) operators. Hence the National Policy of Sir John A. Macdonald that kept low-priced farm implements out of Canada. The Masseys and the Harrises got rich on it.
In today’s global economy, the factor of ownership really doesn’t count for much. You can argue all you wish that a Head Office in Duluth has no interest in keeping jobs in North Bay. The same goes for a Head Office in Toronto, or in Calgary. They’re all pretty well driven by the same economic realities.
We should wish Richard Baker well in his venture with The Bay. He’s going to have to meet the Canadian “value challenge,” as the retail analysts call it. Better products, lower prices, good service. What’s not to like about that?
Today’s release of the Omar Khadr interrogation tapes once again demonstrates how different is truth is from the disinformation we’re fed by our governments.
Whether we like it or not, Omar Khadar, a brain-washed, misled young boy, is Canada’s own child soldier. The tapes, ordered released by a courageous Judge Richard Mosley on insistence of defence counsel, reveal a story of duplicity, deception and abuse — by Canadian authorities.
Toronto Star national security reporter Michelle Shephard, who wrote the book on Khadr — Guantanamo’s Child: The Untold Story of Omar Khadr – also wrote her paper’s story of the tapes today.
Her account is straight-forward, unemotional reportage of what the initial tapes show of the interviews. But she told me today she thinks “there’s a possibility Khadr could be back in Canada by next year.”
“Much of what was in the tapes I had covered in my book,” she added.
Anyone who wants to understand Canada’s betrayal of its solemn oath to recognize the circumstances under which child soldiers are recruited into battle, and its failure to live up to its international obligation in this case, should read Guantanamo’s Child. (John Wiley & Sons Canada Ltd., $18.97 at Amazon.ca.)
The book opens with a graphic account of the firefight between U.S. Special Forces and a Taliban squad in Afghanistan: “The grenades came down in a shower burst in the early morning heat, falling one after another with sickening thuds. The U.S. Special Operations Forces under attack couldn’t believe how many were being thrown, seemingly tossed by a company of soldiers, not the five or six men housed in the compound built of mud, straw and stones.”
Omar Khadr, badly wounded, was seized in that fight. He was held as an illegal combatant and transferred to Guantanamo where he has spent the past six years. Whether he threw or did not throw the grenade that killed Sgt. Christopher Speer is, unhappily, no longer the point. The point is that he has never received the treatment that a child soldier is entitled to under international law.
The Optional Protocol to the Convention on the Rights of the Child makes the use of anyone under the age of 18 in combat illegal. States that capture such child soldiers have an obligation to treat them in a humanitarian fashion, and to attempt to rehabilitate them.
No one knows whether Omar Khadr would be a security threat today. But there are proper steps that can be taken to rescue this Canadian citizen from the legal morass into which he has been trapped for more than a third of his life.
Michelle Shephard sees pressure “building steadily” to get Khadr out of Guantanamo.
“I’m not sure if Prime Minister Stephen Harper will change his stance before Khadr’s trial but I think with the upcoming change in the U.S. administration (and both presidential candidates saying they’d shut Gurantanamo) there’s a possibility Khadr could be back in Canada by next year.”
Khadr is scheduled to face military trial at Guantanamo in October.
Whatever the outcome, there’s sure to be an update to be written on Guantanamo’s Child. “I hope to add a chapter or two,” Michelle says.
Yep, I mean it. That’s a brilliant cover The New Yorker magazine has this week. The one showing Barack Obama in Muslim garb and his wife Michelle as a gun-toting black anarchist.
It’s brilliant because it taps into the powerful imagery of satirical comment in a way that the written word alone never can.
It’s brilliant because it’s shot down Republican hopes of slandering, either overtly or covertly, Obama as some kind of Muslim sympathizer, or as soft on the war on terrorism. I can’t imagine John McCain ever going this route himself. But there are uncounted numbers of his right-wing supporters who wouldn’t hesitate to do so. McCain’s comment that the cover is “totally inappropriate” is helpful, under the circumstances.
Obama supporters who are causing a furor — some calling for a boycott of the magazine — should reflect more thoughtfully on the nature of political journalism. But what can you expect in a society drenched in “political correctness”?
As New Yorker editor David Remnick says, “The idea is to attack lies and misconceptions and distortions about the Obamas, and their background and their politics.”
Political strategizing aside, the controversial cover serves as a useful reminder that freedom of expression cannot be curtailed — ever — if democratic societies are to retain their core values. Just as Canada’s Western Standard magazine had every right to publish the Danish cartoons about Mohammed, the New Yorker must be able to present this stunningly original political perspective without facing such extreme verbal abuse.
Of course, people also have the right to say what they think of anything they see or hear, in print or any other media. But let’s all relax a bit. Perhaps James Carville put it best: “I don’t know what the big deal is.”
It is marvellous how conventional wisdom can be harnessed to turn facts upside down.
I was in Salt Lake City last week, checking out some of the historic sites maintained by the Mormons – the members of the Church of Jesus Christ of Latter Day Saints. It’s a movement that’s spawned thousands of books.
Attractive young ladies of different races and nationalities are there to guide you through places like the Mormon Tabernacle and the Beehive House lived in by Brigham Young. Of course, unless you’re Mormon (and I’m not) you’re not permitted into the grandest edifice of all, the LDS Temple.
I was eager to see everything I could to help me get it right in the historical adventure novel I’m working on. (A branch of my family headed by Joseph Argyle walked 1,300 miles across the Great Plains as members of the Mormon First Handcart Company in 1856.)
The great controversy that’s always dogged the Mormon church is of course polygamy. Officially disowned for over 100 years, polygamy is still a sore point because some have refused to give up the practice.
Like any religion, Mormonism has trouble facing up to facts. Founder Joseph Smith promoted polygamy (the more kids a man fathered, the higher he’d rank in Heaven), claiming he’d been told in a revelation that “if any man espouse a virgin, and desire to espouse another, then he is justified; he cannot commit adultery for they are given unto him.”
That’s not the way the young lady guiding us through the Beehive told it. Her version was that Joseph Smith had “received a revelation telling him that some men were called upon to support other families in need. Later, there was another revelation that this was no longer necessary.” She added, for good measure, that anyone who practices polygamy is not acceptable as a Mormon. The conventional wisdom of the LDS today suggests that polygamy was merely a historical anomaly, without religious significance.
Polygamy aside, you can’t travel in Utah without being tremendously impressed at the achievements of this once-persecuted sect. Mormons have managed to cling to a primitive religion while also embracing modernity. Their focus on education, work, and family — all causes espoused by Brigham Young — turned a desert into an American Zion.