Canada, Jean Brault, and the Publication Ban That Isn't.
April 05, 2005
Posted by John Tant at April 5, 2005 11:00 AM
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As I've pointed out earlier, part of my Real Job(tm) involves quite a bit of interaction with Canada. In a phone conversation this morning, the following transpired:
Canuck: So, hear anything about the Brault testimony?Me: Who?
Canuck: Jean Brault...the guy who funneled a lot of illegal money to the Liberal Party? For like eight years?
Me: I have absolutely no idea what you're talking about.
And so we discussed it a little. Apparently Jean Brault is a Montreal-based adman who testified recently in court and detailed some pretty disturbing corruption in the Canadian Government. There was fraud. There were bogus transactions. There were illegal contributions. All that fun stuff, the kind of thing that makes Watergate look like a harmless hide and seek exercise. So I asked her what the newsies were reporting:
Canuck: Um, well...the government declared a publication ban on the story.Me: A what?
Canuck: A publication ban. It's illegal for anyone to write or air a story about this. That's why I asked you...I figured this would be all over the news there because you all hate Canada.
Me: Cute. We only hate you when you boo the US Flag at hockey games. So no news outlet can cover this story at all?
Canuck: That's right.
Me: So how do you know about it?
Canuck: The testimony isn't secret. The hearings are open to the public. Reporters just aren't allowed to cover it.
Huh. So after hanging up the phone I did some Googling, and lo and behold Captain Ed of Captain's Quarters is right in the middle of this thing. He first wrote about the scandal on Saturday, was picked up by a couple of Canadian news outlets which were promptly threatened with suits for linking his blog, the suits are being resisted, and so on.
This is nuts. Seriously...nuts. And it's not like I can cast a whole lot of stones, being that San Francisco is now angling to regulate blogs. But this does open up quite a few questions. I'm writing this from a desk in D.C. Is it subject to the laws of D.C.? But if it's read all over the place, is that not an interstate thing, and subject to Federal jurisdiction? Ah, but I know we have some readers in Canada...so is it subject to those laws as well? Will a Mountie come down here and Dudley Doright my ass?
Canada: I'm doing my best to like you, I really am. But you make it so difficult sometimes.
UPDATE Howard Kurtz writes about this today, now that he isn't busy playing shufflefeet about the Schiavo "talking points"memo.
Posted by John Tant at April 5, 2005 11:00 AM
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Comments
| # April 5th, 2005 11:16 AM kris |
| On one hand, Canadians think that their news is so important that the American media will cover it.
On the other hand, Canadians think their news is so unimportant that they can impose a publication ban in the Internet age. On one hand, Canadians are smarter than their government gives them credit for because they actually *do* go to American sources for their news on this. On the other hand, Canadians are stupid to put up with a government that can legally impose a "publication ban". I'll remember this next time I hear some Canadian bitching about the chilling of dissent in America. |
| # April 5th, 2005 11:17 AM BrianH |
| I think it's standard policy for liberals, socialists, and communists to try and control the press. After all, if unflattering stories about them were actually KNOWN, they might loose some of their natural right to moral outrage!
|
| # April 5th, 2005 1:15 PM mapleleaf |
| Funny how since Canada has balked at joining Star Wars the Bush administration has tried to manipulate Canadian public opinion. Naughty, naughty - beware the backlash from the silent majority of a proud independant nation.
Canadian issues rarely surface in the US unless they directly affect you. The release of this info, contrary to a judicial order, is quite possibly as a result of White House interference. (We in Canada know, our oppostion parties are not that politically astute). Never mind that Star Wars could likely mean shooting down nuclear (not nucular GW) weapons over populated Canadian cities. The out of control military industrial complex we were warned about by President Eisenhower must have its new toy. They have a frightened America in its grip & can exact any price they want at this time. Unfortunately, what they want is Fortress America which means any country they cannot invade militarily will be manipulated politically. |
| # April 5th, 2005 1:19 PM kris |
| Mapleleaf, sweetie:
Wasn't this a public hearing? ANYONE could have released it. All it took was a single phone call. Super duper secret US spies didn't even need to be there. And if Star Wars is ever operable and there's a nuclear missile heading for America, please be assured that we're going to shoot it down whether Canada cooperates or not. |
| # April 5th, 2005 1:29 PM countertop |
| They have a frightened America in its grip & can exact any price they want at this time. Unfortunately, what they want is Fortress America which means any country they cannot invade militarily will be manipulated politically.
Maybe I am misunderstanding you mapleleaf, but it seems pretty clear to me that if we wanted to invade Canada and make it out own, we could....and pretty easily too. The only reason we don't is a reluctance to take on all of canada's problems. I'd say the same holds true for mexico. If I remember correctly, the Canadian government was wholly unable to quash an indian uprising a couple of years ago, and it was only the threat of conflict by the Marine Corps (when the indians threatened commerce along the St. Lawrence) that quashed it - or at least that is the story one of the Indian leaders told me. |
| # April 5th, 2005 1:56 PM BrianH |
| "Star Wars" is the reason Capt. Ed wrote a story on Canadian corruption????
And the "Military Industrialist Complex" is behind it????? Why is it that every time Liberal (or Socialist, or Communist) corruption is exposed, you people start claiming "vast rightwing conspiracy"?????? There ain't no conspiracy here, just some people who like to see the truth and see criminals exposed. |
| # April 5th, 2005 2:17 PM southern_canuck |
| Trite simplifications are just that.
With no Grand Jury secrecy ( there are no grand juries in Canada ), and required public attendance at these proceedings, the audience is taken from a larger non-sworn to secrecy public. Due to aging laws, the press gag is not preventing the audience from verbal disclosures, and possibly not preventing hidden recorders from the trial room. In the case of this hearing, which is part of a public inquiry, Mr. Brault is requesting that his testimony ( there is no taking the 5th in Canada ) be held from the general public so he might have a chance at a fair trial which is coming up. What is wrong with that? I figure you would ask the same if you were in his shoes? Put your self in his place for a moment....Even if he is guilty, he deserves like all of us a fair trial. Showing some consideration rather than overt cynicism might be due here. Re the commision hearings - select former executive staff of pm Chretien, were pols of unsavoury character in 1 or 2 departments, as Chretien was himself in some ways. His "success" was largely due to persistence and political guile, the last of the Trudeau era to make it to Sussex drive ( the PM residence ). Yet Chretien did try his best to hold the country together - by forcing back sentiment against the Separatists - Parti Quebeqois. That Chretien did not manage to keep the wilder "loyal" rouge staff from doing what was really stupid, is not to his credit in the least. He may have even encouraged it. The buck truly falls in his lap, explicitly or not, as being responsible for this mess. And all guilty concerned should be held accountable in significnt ways. One part of the aspect to this inquiry is that Chretien has a vendeta against Martin, and he was probably eager to ensure that slop of this mess damages Chretien's mandate. Such is vile politics. Prior to Martin's ascent to the head of the Liberal party there was almost a war between the Chretien and Martin camps, for several years. It was not pretty. Regrettably the risk this inquiry poses to the stablity of the unity of Canada, is not trivial, as sentiment in Quebec among the french population is being stirred to the separatist side with vile exaggerations. Yes the money missing was spent illegally, and regrettably the taint will likely cover too much of the federal Liberal party. Liberal as a party name does not confer liberalism btw. Martin was as fiscally conservative as any minister on record in Canada, and wisely so. A skilled finance minster who reduced the federal per capita debt from dizzying unstable heights to amongst the best in the Group of ?7 industrial nations, in short order. He is and was a master of his real craft. A true leader of great and I hope honest stature. In the Canadian press, Martin is often villified as too corporate and to anti 'liberal' in the American context of the word. He is often charicatured in unfair ways by people who view him as too anti union, too focussed on balancing budgets... hooray I say. All in moderation, and for sane economic growth. He also has a degree of compassion, understanding of pragmatism rare among politicians. So much for the caricatures...reality is complex, more than a sound bite... He is actually quite moderate in most political and policy aspects, and that he immediately called this commission in response to the findings of a prior public report, gives credit to his character. I call into question whether he had direct knowledge or was inolved in this mess. I sincerely doubt it, but I may be wrong. If Quebec separates, if under Parti Quebecois rule ( not now ), the result will be a significant destabilization of both English and French economies, and remotely possible is a civil war. I will explain this below. Quebec separatists have on numerous occasion in the french press indicated that they will under no circumstances take their fair share of the Canadian national debt, which would be about 20-25%. The result will be a mess, and despite you revelling in all kinds of trivia, glofiying "rights of free speech" when Canada does not have secret grand juries, is bizarre, maybe ignorant. If the debt of the rest of Canada increases by 30% per capita, you figure Quebec will be left off the hook? fat chance. This is not simple. Canada and most Canadians are good neighbors to our friends to the South. I admire so much about America, and enjoy the wonderful kind citizens, while still being proud of my native land. I at times disdain the polarization of politics, the overemphasis on trivial wedge issues, the excessive violence in public media, sounds moderate eh? So whose conservative? Show me a gun or tank or plane that works well and does not bankrupt the treasury or eithe ... [truncated] |
| # April 5th, 2005 2:44 PM kris |
| southern_canuck,
i think what people are criticizing is: 1. Canada's lack of freedom, particularly in an age where physical borders cannot easily restrict the flow of information. 2. As far as the rights of Mr. Brault to a fair trial. I think that's a good point, but once again, Canada needs to look at its laws and really think about whether they can work in today's environment. |
| # April 5th, 2005 2:57 PM JohnTant |
| southern_canuck, regrettably your comment was truncated due to length. I think I get the gist of what you're saying, however.
A few points. First, that a public inquiry is, by law public, is the point of the matter. To me it makes no sense to have what is clearly a public matter, assented to by the legislature, and have one judge try to circumvent that by declaring it off-limits to the press. If the complaint is that it should be non public, then I'd think the outrage should be directed to the relevant MPs and not the ones who are acting within the existing law (in other words, change the law from the legislature, not the bench). But to my way of thinking, when it comes to things like this, public is the way to go. Next, if the concern is that Brault's testimony will taint a jury pool, as kindly as I can put it: I don't buy it. I had a rebuttal for this, but I'll instead let Captain Ed speak for me: Others have pointed out that Justice Gomery wanted to keep the information private to keep the testimony from souring a jury pool for Jean Brault, Chuck Guité, and Paul Coffin. This sells Canadian citizens short, ethically and intellectually, and unfortunately this attitude exists in courtrooms south of the border as well. Jury selection these days apparently means finding twelve people who never read newspapers, books, or watch the news on television, and then putting someone's life into their hands. It's rubbish. Jurors take the job seriously enough that they can determine the validity of the evidence presented in court -- as opposed to the often-inaccurate information presented in the media -- and render a decision based on meeting a threshold based on reasonable doubt. When lawyers empanel the twelve most ignorant people they can find, we wind up with juries like the OJ Simpson jury: people who get manipulated by lawyers with sing-song slogans ... which is probably exactly what the lawyers on both sides wanted in the first place. To your rhetorical question "what would I do in [Brault's] shoes" my answer is: well, I'd probably steer clear of breaking the law in the first place. You reap what you sow, and the possibility of sitting in the hot seat during a public inquiry certainly existed as Brault was funneling illegal funds to the Liberal Party. Next, it's clear Chretien is hugely implicated in this. But I think it's a mistake to suggest it ends with him. Let's remember, Martin was pretty much Chretien's anointed successor. Now all of a sudden I'm supposed to believe this is vile politics because of some grudge Chretien has? Again, I don't buy it. And there are testified links to Martin in this...people who were in the previous administration and who Martin kept on. I will be fair and point out so far we haven't yet had a cross on Brault, so some other things may be coming out in the next few days. With that, I don't think any of the themes presented in the original post or the comments qualify as trite nor trivial. What's at issue here is uncovering salient facts which have a direct relevance to the votes Canadians will soon be asked to cast. That's far from trivial. As for Parti Quebecois issues, Chretien wasn't the first PM to deal with separatists and he probably won't be the last. Quebec has been dangling the secession rhetoric as long as I can remember. But even if it was some herculean task and he was under a lot of stress in doing so, that does not excuse Chretien from participating in the illegal funneling of tax money to the Liberal Party. |
| # April 5th, 2005 3:05 PM tigger |
| Gotta love the delicious irony of Americans criticizing Canada for a "lack of freedom". |
| # April 5th, 2005 3:11 PM blindsay |
| Canada's lack of freedom???
As a Canadian law student, I can assure you that our country is one of the most free in the world. FYI, this inquiry is an example of this. We have an independent auditor general that scours the governments books, looking for anything untoward. This is what lead to this inquiry. The very Liberal Government under scrutiny called the inquiry. Contrary to what this article implies, the entire inquiry is broadcast on television on CPAC live (a national political channel). This has been going on for months...ad naseum. There is a publication ban for a small amount of testimony TO PROTECT THE FREEDOM AND RIGHTS of those who will face criminal trials as a result. Can you imagine if the US paid as close attention to its books? [note: Canada has balanced its bugets 7 years in a row - even though our economy is dependent on the US market. Guess what that means. The so-called recession in the US during Bush term I was because of bad management. A true economic recession would have impacted Canada more]. But can you imagine such a transparant process in the US? I wonder how hard it would be to find contracts given to companies that donate to the republican party. This is all that this is about. [except the contracts in question were paid to ad firms in the context of the 1995 Quebec referedum, where a free vote in Quebec on whether or not to seperate brought Canada within 2% of disintegrating]. I do not mean to be overly critical, but the article above is completely misleading. And the bizarre comments about canada lacking freedom don't help either. Come visit, drink the clean water; and relax with a joint while watching the sunset. No one will bother you. All good people welcome. |
| # April 5th, 2005 3:18 PM kris |
| Well, I think this public hearing that cannot be reported on AND the threat of the government to punish news sources who dare to mention where people can read about the case in America is a great example of the lack of freedom of the press in Canada.
I did a very quick search, and found this article where someone in Canada is fighting "is fighting a criminal charge that he was willfully promoting hate against an identifiable group". That's not what I'd call freedom of speech. |
| # April 5th, 2005 3:30 PM JohnTant |
| Blindsay, I'll point out again that the idea of a publication ban to "protect" those giving testimony sells your fellow citizens short. If the government is so concerned about citizens not being able to serve in a jury after having read a transcript of the testimony in the Globe and Mail, then why bother having jury trials at all?
The link to Captain's Quarters did disclose the fact that there's a televised feed. I don't think I implied that there was a total blackout on it. Certainly my contact in Toronto didn't. But just because it's on CPAC doesn't mean a whole lot. Do the Canadian citizens who do not receive CPAC not deserve to be informed about what's going on in a public inquiry? In short, I don't think the original post is misleading at all. It's actually pretty fair...it accurately describes the craziness of a judge ordering a publication ban when the subject of the inquiry is public, and anyone can write a blog about it. On your simplification of the issue, I should point out that "trite" now begins to take on relevance. It isn't just about a government contracting with a company who will donate to the Liberal party. It's about using that relationship as a front to funnel tax money into party coffers...a front that has no other purpose (Brault testified that he had Liberal staffers on the payroll who did nothing else but party business). I'll leave alone the remainder of your comment as an irrelevant opportunistic jab stemming from deeper philosophical issues you have about the US. But I will allow that for one of the "most free" countries in the world, having it threaten to toss a journalist in jail for covering so-called public testimony kind of torpedoes your case. I'll toss in a gratuitous mention of shall-issue concealed carry permits as well. :) |
| # April 5th, 2005 3:32 PM blindsay |
| If you're really interested in free speech in Canada, it is called freedom of expression and is governed by s. 2(b) of the Canadian Charter of Rights and Freedoms (part of the constitution).
We do draw the line at "hate speech". When challenged, it WAS found that the "hate speech" provisions violate s. 2(b), but the provisions were upheld under s. 1, when it was determined that such "hate speech" laws (where expression linked with violence with no legitimate purpose is banned) are "demonstrably justified in a free and democratic society". And all this is determined by what's called the "Oakes test". I'm not saying it's fun. But it's all there. I know, I know; sometimes it is just easier to stick with preconceptions. |
| # April 5th, 2005 3:47 PM blindsay |
| BTY, I actually agree that publication bans in general are stupid. And I think bloggers do a good thing. I was just reacting to hyperbole. I mean, the report will come out.
|
| # April 5th, 2005 6:00 PM JohnTant |
| Blindsay, you make some interesting points and bring up some useful information (FWIW, the US has similar limits on the 1st Amendment guarantee of free speech), but more to the point...how relevant is the "freedom of expression" guarantee here? Assume I'm running a newsletter in Canada. I want to express an opinion on the Jean Brault testimony. I can't publish one. Sure I can "express" myself to my neighbor or coworkers, as my correspondent "Canuck" did. However, if I put them in writing or air them on television, I will be held in contempt and jailed. For that matter, if this conversation were taking place live on the CBC we'd be facing charges. So aren't we talking about matters of the press here, not ones of general expression?
I think on the large issue we actually agree...if it's a public inquiry, and there's a televised feed, it's lunacy to order a publication ban in this day and age and expect it to hold. Either go the full nine and have the inquiry in secret (which carries with it an entirely different set of issues) or do away with this charade of a ban. On the latter post, yeah there's a certain amount of hyperbole in the comment thread (I think any hyperbole in my own post is obviously intended to be comedic.). But from where I sit, it seems to be coming from both sides (I'll refer to you mapleleaf's post, for example). Bottom line, I think we can all criticize (or criticise) Gomery's ruling without making this an us vs. them pissing match. Thanks for your comments. |
| # April 5th, 2005 6:05 PM james |
| i know nothing about canadian con law, but your explanation, blindsay, explains "speech linked with violence with no legitimate purpose," whereas the article that kris pointed out said nothing of violence or any other sort of action. on the contrary, it's an article re: someone being prosecuted for making "hateful" statements alone.
i looked up your oakes test and it looks largely identical to the "strict scrutiny" analysis that the US supreme court often applies to laws that restrict fundamental rights, with the addition of an additional balancing inquiry. however, a law prohibiting hate speech would easily be struck down by the US supreme court, as any such law would by definition be overly broad and not in furtherance of any valid government objective. |
| # April 7th, 2005 2:33 PM NicholasMRoach |
| You can express your opinion on Jean Brault's testimony ... but you cannot reveal that testimony because he has a court case coming in June and he has rights like every other Canadian to the presumption of innocence. If you are being questioned by the police you have the right to refuse to respond to questioning as it might incriminate you. That is why lawyers always tell you to not say anything to the police. In court you do not have to take the stand. We do not have the right to take the fifth in inquiries like the Gomery Commission. This is where the problem lies. Not in Freedom of Speech for the press or anyone else. |
| # April 7th, 2005 2:53 PM JohnTant |
| Again, I can certainly "express" an opinion, but that isn't always the same as publishing one as an OpEd. Using that argument Nicholas, at best I'd be publishing an unsupported opinion (more on that in a minute). So is that really "expressing an opinion" if there's such a restriction?
In fact, in looking at your argument if the rationale behind the publication ban is to avoid tainting a prospective juror, then how can a Globe and Mail OpEd saying simply "In our opinion, Brault is way guilty" coexist with that reasoning? Per the argument that the opinion may be expressed, if it's published under the G&M's masthead (and thus with the reputation for good or ill), it's probably going to be given some legitimacy that wouldn't necessarily exist if it were two guys talking in their driveways. And there's the distinction I'm driving at. If I'm a newsie, or a blogger, or a pundit, I'm not going to offer a public opinion without support. To do that, by necessity, I must refer to the testimony. I must say "Yeah, Brault is slimy because he said he helped illegally funnel money into the coffers of the Liberal party." So there may be some vague right to self-expression here, but it's a right to do something meaningless in the context of this issue. It isn't so much a general FoS issue in my opinion as it is one of the press. If the argument is that people can talk about it all they want (and indeed people ARE talking about it) then that means one judge is dictating what may be covered as news. And again, let's look at the double standard here. MPs seem to be quite familiar with the testimony. So why do *they* get to know all about it, but the electorate at large is denied a reasonable opportunity to have the same knowledge? This isn't a national security issue. It's a corruption issue. And besides, I think the argument that it contaminates the presumption of innocence is bogus. It's saying either Canadians can't be trusted to serve on juries (which is insulting) or the system would prefer 12 people who live in hermit huts to pass judgement (which is ridiculous). |