Much fur is flying this morning on the publication on a US blog of what is stated to be one single source's take on the secret testimony heard last week before the Gomery Commission. I will not [Ed.: ...could not, would not in a boat; could not would not with a goat...] link to it but the canny Googler might do well to consider words that rhyme with "Baptains Borters". Nothing new in this as the Bernardo testimony was posted on the internet on a "Finnish site" around ten years ago.
So you will not find anything substantive around here as far as evidence goes, but, for the national edjification, how's about a superficial review of what a publication ban is. The right to receive testamony but create a publication ban around that testimony is a procedure which must be done under power granted to the Commission. The specific powers of the Gomery Commission come from an Order in Council issued by Paul Martin, Prime Minister. It creates a commission pursuant to Part I of the Inquiries Act and, pursuant to section 56 of the Judges Act, the Honourable John Howard Gomery be authorized to act as a Commissioner on the inquiry. Further,
the Commissioner be authorized to adopt any procedures and methods that he may consider expedient for the proper conduct of the inquiry, and to sit at any times and in any places in Canada that he may decide.Each of these sources in law may include the power to order a publication ban. It is not specifically stated in Order creating the Commissions but the power to create its own rules is and, at Rules 17 and 18 of the Rules of Procedure of the Commission it states:
17. However, applications may be made by a party asking that the Commissioner issue an order that any portion of the proceedings be in camera, or issue an order prohibiting the disclosure, publication or communication of any testimony, document or evidence. Such applications shall be made in writing, supported by affidavit(s), at the earliest opportunity. The evidence and submissions on such applications may be presented in private or in public, or a combination of both, at the discretion of the Commissioner, according to these Rules, which are applicable to in camera matters with appropriate modifications.It is clear from that wording that ordinarily any "communications" of any "testimony" would be prohibited. That would tell me that speaking about the testimony would expected to be prohibited. Certainly this would cover off the "blogging is not publication" argument evoked by citizen journalists everywhere who wish to be treated as senior cub reporters on any other day. Once a publication ban is ordered, specific obligations are generally imposed on the media present under sections 50 and 51:18. The Commissioner may, at its discretion, issue an order that any portion of the proceedings be in camera, or issue an order prohibiting the disclosure, publication or communication of any testimony, document or evidence.
50. Whenever the Commission decides pursuant to Rules 17 and 18 to proceed in camera, or issue a publication, disclosure or communication ban, the designated media representative must, to the satisfaction of the Commission, take all necessary measures to ensure that all tape recording or sound recording machines have been turned off.Note that the writing down of notes by pen and paper is not mentioned.51. No other forms or means of recording, re-broadcasting or photographing beyond those permitted by these Rules will be allowed in the hearing rooms.
The specific Order requiring the publication ban is also available in the information superhighway. It provides further detail as to the expectations of Judge Gomery in this matter:
The expression "publication ban" as it is used in this decision, should be taken to have the meaning those words have been given in subsection 486(4.9) of the Criminal Code, which states that "no person shall publish in any way (...) any evidence taken, information given or submissions made at a hearing", in this case, a hearing of the Commission. In my interpretation of this disposition, "broadcast" includes a posting on the Internet.So, even though he effectively removes the word "communication" from the ban he specifically included a posting on the internet of "any evidence taken, information given or submissions made at a hearing" under the prohibition. This certainly could be taken to not include speculative discussion, however, unwise or useless such a practice would appear to be...except that it is 98.742% of everything political blogs actually post. It does not include reading and even pasting into a privately retained file the received information for future purposes once the ban is lifted. That might be taken to be actually implied as the recording and in-house sharing for future broadcast is expressly allowed. The interesting question is what in law is "posting". It would certainly include a posting such as this were it to include "any evidence taken, information given or submissions made at a hearing". Is an email that gets passed amongst a circle of friends "publication to the public"? Does it also include second-hand speculation? Is it commenting on another post which includes either evidence or second-hand speculation? It is linking to a site which posts evidence? Is it giving a rhyme of the name of the site where a post may be found? Questions, questions, questions...The word "broadcast" means "broadcast to the public", so that a publication ban would not prohibit a television broadcaster such as CPAC from continuing to capture the television images and sound of the Commission's proceedings, and from transmitting them to the media room and other in-house outlets, as it does at present. Rule 50 of the Commission's Rules of Procedure and Practice should not be construed so as to prevent this practice.
It is interesting to note one reason that a publication ban might be reasonable. Under Rule 26 of the Commissions's Rules of Procedure:
The Commission is entitled to receive evidence which might otherwise be inadmissible in a court of law. Evidence will be admissible based on its probative value in relation to the Commission's mandate.Given all the skullduggery of politics, could you imagine that any of the witnesses would have after all this time any clear recollection or even understanding of the truth of what that did? We are into the realm of the political and an election and a political purpose can hang on a useful placement of misinformation.
Comments
Arthur - April 3, 2005 1:42 pm
canny Googler might do well to consider words that rhyme with "Baptains Borters".
Since I had no idea who you were talking about (meh: politics) and that I consider myself a canny Googler, I got a straight hit using the following search pattern.
Yay.
Flea - April 3, 2005 3:16 pm
I am mildly concerned you have decided not to link to any American blogs that may or may not be publishing material that would violate the publishing ban were it published in Canada. While I believe there is room for debate about the wisdom of such publishing bans in general it is my intention to obey the law. If you think linking might be construed as a violation of the ban it would be wise for people to consider delinking posts published in the United States...
Alan - April 3, 2005 5:16 pm
I would thing that the mildest of mild should be the shade of your concern but, in the world of HTML where does one post begin and another end. My references to the differnt aspects of the internet were merely questions when I posted that but now I do not know. Had you added a link in your comment I may well have gone in and undone the HTML. I certainly would not if you had placed content in your reply as that I would suggest would no doubt have qualifed as "posting" even though it was in a comment and not a post. <p>Further, somewhere in my archvies I have linked to a recent ruling in Canada on where you can sue - which is also really about jurisdiction and the intenet. I just awakened from a well deserved nap and can't find it but that is anoter critical question to the posting blogger <i>international</i>. Is it where the server is or where the author hits "create/post"?
Flea - April 3, 2005 6:03 pm
I, for one, am trying to keep conversation limited to generalities about Canadian politics and the merits of publishing bans per se. I have noticed a few bloggers (ones who are not linking) discussing material I believe is subject to the content of the ban thereby missing the point of not linking to anything! :)
This is tortured stuff. I am beginning to think the Americans have a point about our pleasantly authoritarian country (thought that particularly phrase was applied to extending hate-speech legislation to protect gay people... something I thought was entirely reasonable) (perhaps I have a pleasantly authoritarian personality!).
Alan - April 3, 2005 7:54 pm
True but if you look at the Order, though, it makes perfect sense as there are three people who admit they are pretty face a criminal trial. There may a jury needed and if it is all over the media in the uncontrolled version with heresay and semi-opinion those fair trials could be at risk.
On the general point of the law of the internet, I really have to find that post about the other case. I think it was on libel now that I think of it.
Alan - April 3, 2005 8:10 pm
Here's that post. Only three and a half weeks ago.<p>Note this point:<blockquote class="smalltext">The Post should have foreseen fallout from the stories would have followed Bangoura wherever he lived, Pitt said in a decision last year, allowing the lawsuit to proceed to trial. The Post appealed.</blockquote>So if in a libel case, the Canadian courts have said something published in another country can have a connection to Canada even though few people are exposed to it, surely a similar finding could be made in the case of a Royal Commission Order. Here is the trial ruling in <i>Bangoura</i> v. <i>Washington Post</i>, 2004 CanLII 26633 (ON S.C.). Read section 30 which states:<blockquote class="smalltext"> Frankly, I see the unwillingness of an American court to enforce a Canadian libel judgment as an unfortunate expression of lack of comity. This should not be allowed to have an impact on Canadian values. The Washington Post defendants' home jurisdiction's unwillingness to enforce such an order is not determinative of whether the court should assume jurisdiction. See Wilson v. Servier Canada Inc. (2000), 50 O.R. (3d) 219 (Sup. Ct.) where Cumming J. said at p. 229 - 230 at paras. 29 - 31:<blockquote>The defendants further argue that the Ontario action should be stayed because, should the plaintiff be successful in Ontario, the plaintiff would have to relitigate in France. In my view, that is not a factor with which this court should concern itself. It is for the plaintiffs to weigh the advantages and disadvantages of commencing an action in Ontario knowing that it may not be enforced in France. Moreover, as it seems as though not all of Biofarma's assets are located in France, should the plaintiff be successful, it may be possible to recover upon a judgment outside of France.</blockquote>
In my view, a "blocking statute" like Article 15 of the French Code Civil has no place in the contemporary, interconnected world of globalization and global trade, which depends upon mutual recognition and respect for settled international norms, including the principle of comity.</blockquote>As a result, this is the law merely noting what the reality be - the internet is a communications network without borders. Why should the law be hand tied and have to pretend that they are there only for its purposes of jurisdiction and process?<p>Think of this in a practical context. If the Flea were to post banned content on a US server and I in Canada link to the Flea's post with a post called "US blogger posts banned info" I think I have as clearly published as if I had the same content in .pdf format on my server in Canada avaliable under a similar blog link. Linking is merely indexing, even though it is haphazard (which is an odd word without an "<i>F</i>" in the middle). By indexing I am adding your publication to my publication. To do so in this case is to publish in Canada.<p>I think that is a pretty sensible argument and one which avoids all the new economic "you-don't-get-it" whoohaa.
Alan - April 4, 2005 8:25 am
Interesting to read the <i>Globe</i> has picked up the publication of alleged evidence on that rhymetastic blog:<blockquote class="smalltext">Details of the Brault testimony began cropping up on various websites yesterday after it was first posted Saturday night on a conservative American site. The blog is run by a 42-year-old call centre manager from Minneapolis, Minn., with a libertarian bent who is concerned about publication bans and restrictions on freedom of information. In an interview yesterday, he said he understands the implications of publishing the testimony. He refuses to reveal his source but says that he has a contact who has a contact inside the Montreal room where the testimony is being given. The publication ban does not restrict Americans from publishing or broadcasting the details of the in camera hearings. Still, the blogger joked that he isn't planning any vacations soon to Canada. "It's an interesting story. It's fascinating," he said. "First off, I think it's a terrible thing that you guys can't publish this. This is the type of thing that a free press exists for is to hold their government accountable. ..... It should be you guys reporting this."</blockquote>
ss - April 4, 2005 3:31 pm
Do Canadians realize how many Americans would be proudly going to jail on principle if this happened in the U.S? The fact that everybody is backing down is proof of Canada's withered sense of freedom.
Alan - April 4, 2005 3:58 pm
We have a number of tyoes of secrecy that are not common in the USA and I suspect the opposite is true. For example, members of juries may not divulge what was discussed in the jury room. Also, the courts often make family law cases subject to publicaiton ban as well as preliminary inquiries. Are not Grand Jiry proceedings in the USA under a level of secrecy?<p>There has been no withering of freedom as this is a common practice of the courts of both countries.
Alan - April 4, 2005 11:28 pm
This interest is getting very weird:<p><center><img src="images/2005a/refer1.JPG"></center>25 referrals in 5.5 minutes. Busiest ever. It is even blocking out the refer spam.
Alan - April 4, 2005 11:48 pm
Here is another graphical representation of data in this matter:<p><center><img src="images/2005a/sitemeter040405.gif"></center><p>Nutty.
Alan - April 5, 2005 12:06 am
More graphs. Seeing as the last two are from meters that only pick up about 20% of activity - no RSS - this is busy:<p><center><img src="images/2005a/refer2.JPG"></center>
Alan - April 5, 2005 7:20 pm
More silliness:<p><center><img src="images/2005a/stats5apr.JPG"></center>
Alan - April 5, 2005 7:30 pm
This is just for my grandkids' scapebooks:<p><center><img src="images/2005a/stats5apr1.JPG"></center>
Alan - April 6, 2005 9:59 am
As of 2:16 am EST, this post has had 4138 hits and has been the entry page for 2997 visitors. That is roughly 62 hour or 3720 minutes. Nut-tay.