A Nova Scotia scandal magazine is once again in legal hot water, after allegedly violating a publication ban in a child-protection case.
Halifax-based Frank Magazine and its managing editor, Andrew Douglas, face three counts of identifying people who were subjects of a hearing held under the province’s Children and Family Services Act [pdf], which prohibits publishing the names of any child or relative involved in such a proceeding. The charges were brought in a private prosecution by one of the subjects, whose name is covered by the ban. (CANADALAND has interviewed the woman and verified her statements but is withholding any identifying information.)
Douglas denies that he violated a ban.
Frank, which touts itself as “a bi-weekly magazine of news, satire, opinion, comment, and humour based in Halifax,” has always revelled in salacious scandal. In the course of covering one such story just over two years ago, though, they published background information on a woman in an apparent effort to discredit her.
Managing editor Douglas got what he thought he needed from a source and wrote that there had previously been allegations of abuse levelled against the woman’s ex-husband. Without naming his source or offering evidence to substantiate the characterization, Douglas implied that the complaints were dubious and had originated from the woman.
But the source may not have informed Douglas that there had been a hearing held under the Children and Family Services Act.
When the woman, a single mother looking to protect her kids’ identity, pointed that out to Douglas, it didn’t deter him; a few months later, Frank removed the paywall from the original article and, this year, published the names in further stories.
Last month, after failing to convince authorities to enforce the ban, the mother launched a private prosecution against Douglas and Frank‘s parent company, Coltsfoot Publishing. A judge agreed that she had sufficient evidence to proceed.
Frank started in 1987 and has had a tradition of fearlessly tweaking the noses of the rich and powerful. They still do that from time to time — and pride themselves on printing stories that nobody else will — but critics have accused them of punching down on recent occasions, such as with victim-blaming in the Rehtaeh Parsons case and mocking the First Nations people who want to remove the statue of Edward Cornwallis in Halifax. Although originally connected to the Ottawa Frank through co-founder David Bentley, the two publications now only share the same name.
The mother had first reported the alleged violation of the ban to Nova Scotia’s Department of Community Services shortly after Frank’s original post appeared, but says that someone there told her the law applied only to departmental staff. Once they realized their mistake, however, they referred her to the RCMP, who incorrectly told her that they didn’t have jurisdiction.
“I called everywhere looking for answers, and I fully expected one of them to say, ‘Call here, explain, and they will take care of it,’” the mother tells CANADALAND in an interview. “One person told me, ‘No one has ever been stupid enough to actually breach such a ban,’ and they had no idea how to help.”
The woman then hired a lawyer, who drafted a legal opinion confirming that the RCMP are in fact responsible for enforcing this law. The lawyer’s research included case law that the mother presented to the RCMP.
But, as Nova Scotia RCMP spokesperson Cpl. Jennifer Clarke explains in an email to CANADALAND, “Our investigators proceeded on advice by the Crown and determined that there was insufficient evidence to lay a charge.”
Citing solicitor-client privilege, Clarke would not reveal what the Crown had told investigators.
Chris Hansen, a spokesperson for Nova Scotia’s Public Prosecution Service, said the decision to lay charges lies with the police and that the Crown only offers advice.
When Douglas allegedly breached the ban a second and third time earlier this year, the woman reported it and spoke to a different Mountie. The mother said the officer gave her short shrift and wouldn’t listen even though she had new evidence. He then encouraged her to file the charge herself — so she did.
“It’s not a matter of deciding this was the route to take, it was the only route,” the mother said. “Doing nothing was not an option. My children deserve to be protected by the laws put in place meant to protect their privacy, just like any other child. The law is clear and was put in place to do just that.”
The Crown can now decide to stop the prosecution, take it over, order a stay and review the charges, or do nothing and let it proceed.
Although seldom used, private prosecutions have a long tradition in British and Canadian law. Recently, a woman in Harrietsfield, Nova Scotia, charged a recycling company for polluting after the province failed to take action. In Toronto last month, political strategists Warren and Lisa Kinsella brought criminal charges against a neo-Nazi newspaper for allegedly uttering threats.
When contacted for this story, Douglas scoffed at the notion that he violated a publication ban. In the 2015 article, Douglas mentioned that Community Services had been involved with the family but did not write anything about a hearing.
“If all I wrote about that was Community Services [getting involved], it would hardly break a publication ban,” Douglas said in a phone interview.
He did mention a hearing in a later story, but a family-law expert says that’s a moot point.
“It seems to me that that’s a skimpy argument,” says Rollie Thompson, a professor at Dalhousie University’s Schulich School of Law, who was one of the two co-authors of the Children and Family Services Act in 1990. “Section 94(1) of the CFSA is broadly phrased and doesn’t require referring to a proceeding under the act.”
Douglas said he did not attend the hearing, but “had a source on that, that was familiar with the matter, so I would certainly stand by what I wrote.”
CANADALAND has reviewed evidence presented at the hearing that refutes the assertions Douglas put in his articles that the complaints were “unfounded” and made by the mother. The hearing was initiated by Community Services after a medical professional providing care to a child in the family contacted one of their caseworkers. Furthermore, the hearing resulted in the mother getting sole custody of the children and the father being allowed only supervised access.
Canada’s open-court principle allows reporters to attend family court hearings involving children, but they can’t identify anyone when doing so. Once a hearing is over, the court documents are sealed, and if a decision is published, only initials are used to describe people involved in the hearing.
In addition to publishing the names of the mother and father, Frank also published the name of a relative of the children who were subjects of that hearing. They also printed additional information about the parents that allegedly served to identify the children. That information included the name of the tiny Nova Scotia community where the mother lived, where she attended school, her hometown, the number of children in the family and their gender breakdown, where the father worked, and what he did for a living.
Though the children aren’t named, that’s not necessary in order for there to be a breach. The CFSA prohibits publication of anything that serves to identify someone who is the subject of a hearing.
“If you’re identifying the parent, you’re identifying the child,” says Monique St. Germain, general counsel for the Winnipeg-based Canadian Centre for Child Protection.
Douglas, however, disagrees and said what he wrote “would hardly break a publication ban.”
“If I know something about how publication bans work — and I think I do, considering what I went through last summer — the fact that it wasn’t obtained from court or a court source changes the water in the beans quite a bit,” he said.
Last summer, Douglas was charged with violating a publication ban on evidence presented at the preliminary inquiry of Christopher Garnier, who was charged with the murder of off-duty Truro police officer Catherine Campbell. The charge in that case was dropped because Douglas got the information from leaked documents and wrote his story before the ban was imposed at the preliminary inquiry.
St. Germain said the ban under the Children and Family Services Act is different than the one that applies to preliminary inquiries.
Thompson says this type of provision exists in every child-protection statute in Canada and has been upheld in Charter challenges.
“This is rock-hard, this is what we do to protect kids,” says Thompson, who also wrote an annotated version of the Act.
“The purpose of the section is to protect families and children — children in particular — from publication about allegations of child abuse and neglect against their parents,” Thompson says.
Because it’s not a Criminal Code offence, Thompson is not surprised the RCMP didn’t know how to proceed.
“The police would struggle with this one,” he says. “An ordinary police officer may not be the best person to be talking to.”
Thompson laments the decision to not lay charges and prosecute.
“If you do prosecute, it does provide an opportunity for two things: one is for the law to be clarified, and, second, it’s an opportunity to make sure the public is more broadly aware of this issue,” Thompson says.
These are the first charges ever brought under this section of the Act. Douglas is scheduled to be arraigned in Halifax Provincial Court on Monday, July 24.
Even if the private prosecution is successful, the mother says, there is no undoing the harm that’s already been done.
“It’s too late to put the genie back in the bottle for my children, but by acting on this breach, I intend to make sure my kids know someone fought for their rights when the system wouldn’t.”