Some genie, some bottle

July 22, 2008 Globe and Mail

An Ontario Court of Appeal judge reinstated a publication ban on Shawn Brant's preliminary inquiry on Friday, out of a misplaced concern that if the media are allowed to publish evidence the Crown wants to protect, the "genie will be out of the bottle." Fortunately, the judge set the genie free by the end of the day.

The genie in question was Ontario Provincial Police Commissioner Julian Fantino, who took part in negotiations to end a blockade of parts of Highway 401 and a railway line near Kingston during last year's national day of action. His officers placed a wiretap on the Mohawk activist's cellphone without a judge's authorization. Mr. Brant is charged with mischief and breach of his bail conditions.

In his conversations with Mr. Brant, the OPP Commissioner told him, "I don't want to get on your bad side but you're going to force me to do everything I can within your community and everywhere else to destroy your reputation." Commissioner Fantino later ordered Mr. Brant to end the blockade "or you will suffer grave consequences."

Whether Commissioner Fantino knew about the wiretap is unclear. In his testimony at Mr. Brant's preliminary, he says he was told about the wiretap on June 28, 2007, before his conversations with Mr. Brant, but then he says he found out later.

One Criminal Code section allows for a wiretap without authorization in an urgent situation where there isn't time to ask a judge. But in this case, the OPP knew about the planned blockade days in advance.

Mr. Fantino also testified at the preliminary hearing that there were sniper teams in place during the standoff.

The Crown lawyers had asked for the sealing of all this evidence.

The existence of the wiretap, the presence of sniper teams and Mr. Fantino's direct participation in negotiations are all of interest to the public. None of this evidence should have been covered by a publication ban, because none of it impairs Mr. Brant's right to a fair trial.

Publication bans are always granted when an accused asks for one in a bail hearing or a preliminary inquiry. Mr. Brant did not want one on either occasion. Where the Crown asks for a ban, and one is granted over the objection of the accused, as happened at Mr. Brant's preliminary, the ban seems to protect the police, rather than serving either the accused or the public interest.

To her credit, Madam Justice Gloria Epstein removed the ban after meeting with lawyers for the CBC and Mr. Brant late on Friday. Apparently, neither of these parties had got enough notice of the Crown's application. By lifting the ban, she served the public interest as well as the accused.