On Friday night, in Calgary, I spotted tweets by the Prime Minister of Canada and the Minister of Justice about the verdict in the trial of the “man” who shot Colten Boushie in the back of the head with a semi-automatic handgun at point-blank range. It was, for the record, an appalling, disgusting, truly unjust verdict.

The Prime Minister and the Minister of Justice, however, decided to offer comments on the verdict and the victim. They did this before the Crown had made a decision on an appeal.

On Saturday morning, I raised the matter with my class at the University of Calgary’s Faculty of Law. To a one, my students expressed tremendous sympathy for the young victim and his family. To a one, they also expressed concern – as I did – that the Prime Minister of Canada (generally) and the Minister of Justice (specifically) would comment while there was still the possibility of an appeal.

“Have Trudeau and Wilson-Raybould harmed the Crown’s position?” I asked.

To answer that, you need to know what the sub judice rule is.

The sub judice rule is a rule of court, a statutory rule, a parliamentary convention, and a practice that has developed in the interaction between media and public officials…

The term subjudice literally means “under judicial consideration” or “before the court or judge for determination.” At its most basic, the sub judice rule prohibits the publication of statements which may prejudice court proceedings.

That is from a lengthy Dalhousie Law Journal legal analysis of the rule. On the face of it, the comments by the Prime Minister and the Minister of Justice were, indeed, statements on a court proceeding.  But was the court proceeding still underway? And, if so, were they statements that could prejudice a court proceeding?

Our highest court has mainly left it to provincial appeal courts to figure out what the sub judice rule means.  Our provincial courts, meanwhile, have said there must be a clear intent to interfere with a trial.  And/or, there must be a real and substantial risk of prejudice – beyond a reasonable doubt – to the administration of justice.  And/or, if the comments were made in good faith to inform the public about a matter of pressing importance, no contempt finding follows.

Looking at those appeal court rulings, you’d be moved to say that Trudeau and Wilson-Raybould could safely say what they did.  But I’m not sure you’d be right.

That’s because they’re not just individuals – they are the two most senior and powerful lawmakers in Canada.

Here in Ontario, to cite just one recent and local example, cabinet ministers have resigned because they named young offenders.  Those were cases of statutory contempt, however, where there was a clear and written prohibition about naming a young offender.  But what about a situation like the Colten Boushie case?  What do the courts say?

Here’s one case that is right on point:

Comments made by higher level members of government, such as Ministers, may be seen to have more impact. This was illustrated in the case of Director of Public Prosecutions v Wran, in which the Premier of New South Wales stood in front of a court house and publicly stated that an accused was innocent. The Court of Appeal found him guilty of contempt, giving weight to his position as Premier, which would increase the newsworthiness of his prejudicial comments.

My view is that the Prime Minister and the Minister of Justice should not have commented – not because of the sub judice rule, per se, but because of paradox.

This is the paradox: because of their positions – because of the powers with which they’ve been entrusted – Trudeau and Wilson-Raybould may have hurt the very thing they (and most of us) desire:

Justice for the dead boy named Colten Boushie.

Comments (18)

Should the governments of Canada and Nova Scotia name something after a neo-Nazi?

It’s not a hypothetical question.

Fall River, Nova Scotia (pop. 11,526) is a little community in Halifax’s regional municipality.  By all accounts, it’s a lovely spot, and the locals are nice.  If you go hiking on a trail in the area, you may spot a bear or a bobcat or the occasional coyote.

Tillmann Brook runs alongside such a trail.  According to Natural Resources Canada, who oversee such things, Tillmann Brook’s name is designated as “official.” The decision apparently goes back to 1999, and would have been made by something called the Geographical Names Board of Canada, with some participation by Nova Scotia’s government, too.

Tillmann Brook is a river, basically, that flows from Soldier Lake into Miller Kale.  There’s a little waterfall on it, and people are known to regularly hike there to take a look.  What’s less known, however, is whether any of the visitors – or even locals – are aware of the origins of Tillmann Brook’s name.

Because there’s a problem with its name – and John Mark Tillmann is the problem.  He’s proud of Tillmann Brook’s name change, and he has even been known to pose beside a Tillmann Brook sign for a photograph.

Making a Nazi salute.

He’s a notorious sort of fellow, John Mark Tillmann is.  You may have even him on TV.  He’s perhaps better known for being a very successful art thief: in January 2013, police arrested him for just that.  Interpol, Homeland Security, the FBI and the RCMP and the Royal Newfoundland Constabulary were involved in the case – and found more than 10,000 artifacts at his home, including a letter written by George Washington, valued at more than a million dollars.

He thereafter pleaded guilty to charges of fraud, theft, possession of property obtained by crime, possession of a forged document, obstruction of justice and providing a false statement.  And he was granted full parole just three years later.

Born in Halifax in the Sixties, Tillmann was a handsome, charming fellow.  He grew up in a relatively affluent family.  He obtained a degree in marketing, and travelled to Russia, where he learned to speak the language.  While there, he married a beautiful Russian university student, and the two of them were a veritable Bonnie and Clyde, travelling all over Europe and the Americas, swiping art and artifacts.

Tillmann mainly stole valuable things, the police say, for kicks.  CBC’s Fifth Estate and American media have paid a lot of attention to his art heists.  Less attention, however, has been given to his political views.

That’s unfortunate – because John Mark Tillmann is a self-admitted Nazi fan.

When the cops finally showed up, they found Nazi paraphernalia all over his impressive waterfront home in Fall River.  There was a framed photo of Adolf Hitler in a window, which Tillmann called “a special spot in my home.” Tillmann says Hitler is “a great man – one of the greatest men in history.  A decent man.”

There were Nazi armbands and insignia and whatnot, too, all carefully maintained.

Asked about his Nazi leanings by the Fifth Estate in 2016, after he got out prison, Tillmann said: “I stand by that. I stand by that today.”

Oh, and there’s a Nazi flag that he’s position over a railing, too, where neighbours could see it.  Maybe he wanted them to see it.  In Fall River, in fact, there is a widely-held view that Tillmann – aided and abetted by his mother – successfully lobbied to get the brook’s name changed to Tillmann, to emphasize his German antecedents.  To make Jews feel uncomfortable.

“There’s a Jew who lives near there,” says Tillmann in a self-made 2011 home video.  “It’s an appropriate name to put near him.”  He then gives dark laugh.

So, how did all that happen?  How did a proud Nazi supporter get a name change – to, as he admits, make Jews feel uncomfortable?

The folks at the Geographic Names Board of Canada know all about the Tillmann Brook problem, but they say they can’t talk about it.  They refer a writer to Nova Scotia, who they say initiated the name change.

Nova Scotia’s Geographic Information Services, meanwhile, said a “support Specialist” would respond.  Days later, they still haven’t.

So: how was a known and notorious Nazi enthusiast allowed to pull a fast one on two levels of government – so he could upset Jewish Nova Scotians?  And, now that they know, will they clean up their mess?

Many questions.  In the John Mark Tillmann case, answers remain elusive.

 

Comments (4)

So, about the little exchange captured below. Was it a dumb thing to say?  Yes.  Will conservatives treat it like a war crime for months to come, which is also dumb?  Yes.  Naturally.

So, ten things.

1. Language changes all the time. 
2. Language changes because society changes.
3. Language evolves as people evolve.
4. Language changes because no two people experience stuff the same way.
5. We changed the anthem last week to make it gender-neutral.  No one died.
6. But: society shouldn’t have changes in the lingo dictated to them by the powerful. Ask indigenous people about that.
7. And: changes to the language shouldn’t be passed along in a patronizing, condescending way. And: MEN, STOP INTERRUPTING WOMEN!
8. Also: don’t let language do your thinking for you.  Ever, ever.
9. N.B.: imposing arbitrary language changes tends to divide people, not unite them.
10. His noster maximus anxietas, et bene facis. Which (I think) is Latin for: “If this is all we have to worry about, we’re doing okay.”

 

Watch Justin Trudeau Correct a Woman To Say ‘Peoplekind’ Instead of ‘Mankind’ https://t.co/FbFn2x3p5m pic.twitter.com/xLbjSTmwNL

— Mediaite (@Mediaite) February 6, 2018

 

Comments (44)