By Ryan Van Horne
A Nova Scotia provincial court judge is scheduled to rule tomorrow on whether Frank: The Halifax Edition will be subject to a sweeping publication ban request.
At a court hearing held July 28, a woman — who cannot be named because her family was the subject of a child-protection hearing — said Frank Halifax has shown a “blatant disregard” for the statutory publication ban that should be protecting the identity of her children.
At the heart of the case is a story published by Frank Halifax in print and online in early 2015 that named the mother and her ex-husband in connection with a Department of Community Services investigation into concerns raised by two third parties about the ex-husband’s conduct around the children. As a result of the hearing, a judge gave the mother full custody of the children and only gave the father supervised access.
In a rare private prosecution, the mother charged Andrew Douglas, managing editor, and Coltsfoot – the parent company of Frank Halifax – with violating a publication ban under the province’s Children and Family Services Act (CFSA). The legislation prohibits anyone from publishing information that identifies anyone who was the subject of a hearing under the act.
The mother decided to pursue charges on her own when the police chose not to. The Nova Scotia Public Prosecution Service, citing solicitor-client privilege, won’t say what advice they gave police. RCMP spokesperson Jennifer Clarke wrote in an e-mail that “the investigator determined that based on the Crown’s advice, there was insufficient evidence to lay a charge.”
At the provincial court hearing, the mother alleged Frank Halifax continues to tweet and write about her, including publishing two more articles in May and July, 2017. The articles state, among other things, that she made “unfounded” and “scurrilous” allegations against the children’s father during the CFSA proceedings.
The mother argued the ongoing articles and posts flout the statutory publication ban she says was breached, and that led to her laying charges against Douglas and Coltsfoot in the first place.
She asked Halifax Provincial Court Judge Elizabeth Buckle for a sweeping ban that would do three things: impose a discretionary publication ban identical to the statutory ban; order the accused to remove identifying information already published on the magazine’s website and social media accounts and; prohibit Douglas and/or any agent of Coltsfoot Publishing from publishing information about the case.
As reported earlier in a Canadaland article, legal experts such as Monique St. Germain, the general counsel for the Canadian Centre for Child Protection, and Rollie Thompson, a family law professor at Dalhousie’s Schulich School of Law, agree identifying parents is tantamount to identifying children.
Thompson, who co-wrote the CFSA in 1990, said the law is “rock hard” in favour of protecting children from possible exposure.
“In the context of a child welfare proceeding, it’s fairly easy to see how a child could be impacted by information about child welfare’s involvement in their life,” St. Germain added.
But in addressing the publication ban request, Judge Buckle told the mother she wasn’t sure she had the authority to prohibit Frank reporters – other than the accused Douglas — from attending court and to ask them to remove material published online.
Since the trial for Douglas and Frank is a proceeding under the CFSA, the mother argued Section 93 gives Buckle the power to close a hearing to any or all members of the public if it is necessary to “obtain the full and candid testimony of a witness.”
The mother, representing herself, said she doesn’t feel safe presenting at trial all the evidence she has gathered. If Frank reporters heard it, she fears that they would publish it and put her and her kids in further jeopardy.
Defence lawyer David Hutt, who represents Douglas and Coltsfoot, told Buckle that the mother’s request did not pass the Dagenais/Mentuck test, which requires judges to identify a risk to the proper administration of justice and be unable to find a reasonable alternative.
The mother said her reluctance to present all her evidence presents such a risk and, given Frank’s track record since the charges were laid, there is no reasonable alternative to Buckle imposing a ban under her common law powers.
Hutt counter-argued there is an alternative – the statutory ban under Section 94(1) of the Children and Family Services Act. At the same time, Hutt suggested earlier in his remarks that he didn’t accept that the mother had in fact ever had a hearing under the CFSA, which would trigger the ban.
“We agree, and concede, that they would have to do it carefully if there was a CFSA proceeding involving children that was part of the picture here,” Hutt said. “There’s no proof before you that there was a proceeding.”
The mother offered to give Judge Buckle evidence presented at a CFSA hearing and court orders which proved there was one, but said she was reluctant to share them with the defence until she could be certain Frank would respect the publication ban.
Hutt then conceded last Friday’s appearance was a hearing under the CFSA, but added “this prosecution is very remote from anything involving children.”
Judge Buckle disagreed.
“If you peel back the onion far enough, you get to something involving the potential identification of children,” she told Hutt.
Hutt also decried the mother’s attempt to prevent Frank from talking about the case.
“Clients like mine who are facing real jeopardy in quasi-criminal proceedings have a right to talk about the case against them,” he said.
Buckle, however, didn’t see the harm in restricting how Frank could report on the case.
“Even in a more regular statutory imposed ban on publication, the limits of the accused’s ability to talk about the charges against him or her are limited by the existence of publication bans,” she said.
Buckle reserved her decision on the request for a publication ban until Thursday, August 3.
Michael Bate, publisher of Frank Ottawa, notes that the two publications are separate entities and that Frank Ottawa has no connection to Frank Halifax and its legal troubles.
Ryan Van Horne is a Halifax-based freelance journalist. His work has appeared in newspapers and magazines from coast to coast. He blogs at ryanvanhorne.com. Follow him @RyanVanHorne.
Correction: An earlier version of this story did not specify that Frank Halifax and Frank’s national edition, published in Ottawa, are separate entities and that Frank national edition has no connection to the Halifax court case. J-Source regrets the error.