Friday, April 08, 2005


If I thought the U.S. was objectively superior to Canada, I'd live there, so spare me any of those insults, but:

I really think they're onto something with this Fifth Amendment dealy.

Broadly speaking, we have a pretty mature legal system. Why are we forcing people to make self-incriminating statements in front of a public government inquiry, in advance of their criminal trials, under threat of incarceration? In fact, why should anyone be forced to make self-incriminating statements for any reason?

The echo chamber has been loud and crowded for the past few days. Why? Because Jean Brault was testifying at the Gomery inquiry, and instead of...
A) Mr. Brault being granted immunity for his truthful testimony,
B) Mr. Brault being offered a plea bargain in exchange for his truthful testimony,
C) Mr. Brault being permitted to keep his mouth shut so as not to incriminate himself,
...we had to attempt to sequester a nation of 30 million people. Practicalities aside, I find that crazy.

Practicalities back up front now, kudos to Shannon here for making the obvious explicit, which is that a publication ban is not some mushy concept, but a "law", or as Justice Gomery put it, "as that term is used in Section 486(4.9) of the Criminal Code", i.e.: person shall publish in any document or broadcast in any way [...] any evidence taken [or] information given...

Read the whole section, please. (And note that Gomery did specify that the internet counts as a broadcast). You will note that there is very little language about being a good citizen, abiding by the spirit of the thing, fulsome accordance with the ban, etc..

Which! is a long way of saying that the only thing bloggers were/are prohibited from doing is reproducing (or paraphrasing) testimony; I figured this was abundantly clear when, on Sunday night, CTV News mentioned Captain's Quarters and showed his front page on the tee-vee.

Which! brings us to this: I hope Captain Ed or some other kind Yanqi continues to report on the testimony still under ban. If it's interesting, I might link to it, and comment cryptically and no doubt unhumourously, seeing as how it's not illegal to do so.

Any ethical problem you might have with that presumably arises from the same reason the ban was put in place--to avoid biasing the jury pool in Montreal. I suppose you could run a little disclaimer at the top:
"Warning: if you are a Montreal resident who is not under 18, a convicted criminal, a non-citizen, terminally ill, or otherwise unsuitable for jury duty, do not follow this link if you think it might compromise your ability to be unbiased."

But, I don't think I'd bother, as it should be noted again: there is no law against Montrealers informing themselves about Brault & friends however they please. If anyone was really serious about discouraging this, they might start by moving the open public inquiry out of the same city as the criminal trials will be held.

Addendum #1: I am not trying to belittle anyone like Andrew who, after hearing the Justice Ministry's comments designed to chill, reacted accordingly and avoided the subject entirely. I simply want to underline that the ban was enacted under a law composed of words with a (relatively) exact meaning. One may not be clear on how it might be prosecuted; this is no cause for shame. But this is not the same thing as believing it can be prosecuted indiscriminately, in accordance with vague notions of the spirit of the thing.

Addendum #2: Per all the above, I'm a little fuzzy on this logic (I'm just picking on Kate because she put it clearly).
That the testimony that directly implicates those who face fraud trials is remaining under ban is a provision that I think is acceptable, and I will do my utmost to respect it, and ask my commentors to do the same.

Kate wasn't breaking the law before, and her own comments would certainly indicate that she was quite sure that she wasn't ("I suspect that concerns about Canadian bloggers linking directly to Captains Quarters post reporting testimony of the Gomery Inquiry can probably be put to rest." - Apr.4). What exactly is different now?

Apparently it's this issue of respect; a personal ethic that Brault deserves a fair trial, and you don't feel it's right to provide assistance (in the form of a hyperlink) to any potential jurors who might (legally) seek to inform themselves about the still-embargoed testimony.

I guess I'd look at it from the other direction: that Kate, and those agreeing with her sentiment, are basically planning to abide by the dictates of a different, more restrictive publication ban law, which the government might enact were it not both unenforceable and unconstitutional.


At 10:32 AM, Anonymous Anonymous said...

Yeah, my logic was a bit fuzzy. It was hard not to be that week. I suppose what I menat to say was that I'd probably not go out of my way to link to self-incriminating testimony, or republish it.


At 10:35 AM, Blogger Matt said...

Fair enough Kate - I figured that's probably what you meant. We all have our own goals for our own sites, and one doesn't have to do XYZ just because some government official implies that you shouldn't.

That said, per the text of my post, I do think there is some merit in defying non-lawful warnings from the government, just to show them that your freedom isn't something you're willing to surrender on a hint.


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