Persecution of Charles Leblanc

Persecution of Charles Leblanc

The latest attempt by a coalition of Fredericton’s security forces to silence Charles Leblanc marks another milestone in his accidental mission as a crusader for press freedom.  This effort will prove to be as ill-fated as the one recently concluded and for the same fundamental reasons: it is ill-motivated, unsupportable in law, and essentially contrary to democratic principles and the public interest.

To recap:

• In June 2006, Charles was arrested and charged with obstruction of justice by the Saint John Police at a protest against the Atlantica conference where Irving Oil President Kenneth Irving was speaking.  CBC footage showed that the arrest was in bad faith as Charles was merely taking pictures with the other journalists as protestors tried to storm the conference.  Charles was acquitted after a trial in November 2006.

• A week after the Atlantica conference, Charles was banned from the legislature buildings and grounds and served with an unsigned “Barring Notice”.  The exact grounds for the ban have never been publicly disclosed.

• In April, 2009 Charles was arrested for being on the legislature grounds while covering a protest and given a court date to face charges.  No charges were ever laid.  Before and after the incident, Charles continued his journalistic coverage of events at the Legislature, and has been on the Legislature grounds hundreds s of times since 2006 without incident.

• In April, 2011 Charles testified at the trial of Fredericton Const. Stephen Stafford on a charge of assault.  In 2009, Charles had videotaped 3 Fredericton Police officers subduing an intoxicated man outside a bar.  Stafford was acquitted after an expert from the Atlantic Police Academy testified that the force used, which broke vertebrae of the victim, was reasonable.

• During the summer of 2011, Charles was repeatedly accosted and ticketed by Fredericton Police for minor by-law offenses which are routinely ignored by police and citizens.  The incidents all originated from Daniel Bussières, Sergeant-at-arms for the Legislature, and Const. Fred L’Oiseau of the Fredericton Police Force, both of whom have been frequently vilified in Charles’ blog.

• On January 16, 2012, Charles was persuaded by police officers to plead guilty to a charge of disturbing the peace in relation to his protest against earlier police harassment.

• On January 19, 2012 the Fredericton police arrested Charles and seized his computer on a search warrant based on defamatory libel under section 301 of the Criminal code, an obsolete offence already deemed unconstitutional by Courts in four other provinces as contrary to the right to free speech under the Canadian charter of Rights and Freedoms.

• On May 4, 2012 after almost four months of pondering the matter and just over a week before municipal elections, the Crown indicated no charge would be laid due to the unconstitutionality of section 301.  Charles’ has requested a public inquiry into his arrest on criminal libel, which Attorney General Marie Claude Blais has indicated is possible.

• On May 16, 2012 Charles was arrested on the grounds of the legislature by the Fredericton Police on a complaint of assault, while waiting to take a picture of Energy Minister Margaret-Ann Blaney as she left the legislature upon resigning for personal reasons.

Although there has been no official explanation of the event, the arrest appears to be based on the 2006 Barring Notice which banned Charles from the “legislative precinct” indefinitely, on pain of a charge of assault for trespass.  According to his blog, Charles received a tip that Blaney was resigning her position and seat, and went to the Legislature early to photograph her.  While waiting outside the building, two security guards from the Legislature, accompanied by a non-uniformed Fredericton police officer, grabbed Charles by the shoulder and pushed him against the wall.  Daniel Bussières approached and shouted that Charles would be charged with assault.

The current campaign to put Charles behind bars is fraught with constitutional, legal and political difficulties which render its chance of success no greater than past efforts.

The Legislative Ban

The Legislature “Barring Notice” was issued under an ancient constitutional principle by which the Legislative Assembly has the power to control its own processes free from Court oversight even under the Canadian Charter of Rights and Freedoms.  This includes the right to exclude “strangers” i.e. non-members from the legislative precinct:

Given that legislatures are representative and deliberative institutions, those privileges ultimately serve to protect the democratic nature of those bodies.  (Ref re Remuneration of Judges of the Prov. Court of P.E.I. [1997] 3 SCR 3 at para.101)

The legislative body needs this legal protection or immunity to perform its function and to defend and vindicate its authority and dignity.  The Members of the legislative body enjoy these rights and immunities because the legislature cannot act or perform without the unimpeded use of the services of its Members.  (Maingot, Joseph.  Parliamentary Privilege in Canada.  2d ed. (House of Commons and McGill-Queens University Press, 1997) at 12)

In issuing the Barring Notice, the Legislature of New Brunswick has taken an expansive view of its constitutional privilege.  However, the exercise of a power as draconian as excluding a voting citizen from the House of Assembly must be carefully crafted to remain consistent with the authority granted by the unwritten principles on which it is based.  AS stated by the Supreme Court of Canada in the New Brunswick Broadcasting Co. v. Nova Scotia (Speaker of the House of Assembly), [1993] 1 SCR 319):

I conclude that the exercise of their inherent privileges by members of the Nova Scotia House of Assembly is not subject to Charter review....It should be noted here that this does not mean that the members of legislative assemblies can exercise parliamentary privileges with absolute immunity.  First, the courts can still review the validity of claims of privilege to the same degree they have always done.  That is, they can pronounce upon the existence or extent of a particular privilege.  Second, even if the members are not accountable to the judiciary with respect to the exercise of parliamentary privileges, they are, obviously, still accountable to the electorate.

The interpretation and adaptation to modern realities of unwritten constitutional principles is a subtle task with many possible pitfalls.  Without attempting to be exhaustive or claiming to be learned in the matter, a few potential problems come to mind.

The power resides in the Legislative Assembly, not in the Government.  It is exercised by the Speaker on behalf of the Legislature.  It is my understanding that the Speaker does not consult the Assembly, but follows the recommendation of the Legislative Administration Committee.  On the surface, this seems to be a reasonable means by which the Legislature can act through a representative, namely, the Speaker.

However, the Speaker did not himself issue the Barring Notice.  That was apparently done by Sergeant-at-Arms Dan Bussières.  This apparently minor act of delegation or sub-delegation of authority may be excusable as merely administrative in nature, although it would be far preferable from the point of view of a concerned observer that the authority of the Speaker himself appeared on an official act of the Legislature, particularly where an arcane and exceptional parliamentary privilege is being exercised.

A real problem presents itself where the Barring Notice goes beyond a mere ban and invests wide discretion in the Sergeant-at-Arms in the invocation and enforcement of the ban.  Such delegation of a constitutional power may itself invalidate the Barring Notice and will certainly bring into question the particular events that led up to the arrest of Charles on May 16.

The issue of delegation of such important discretion is coloured by the many contextual aspects of the Barring Notice that have been questioned.  The Legislature claims the privilege of secrecy in the issuance of the Barring Notice, yet has from time to time issued various explanations none of which amounts to support for a clear principle which would justify the permanent exclusion of a citizen from the Legislature and the widest possible geographic territory. 

The most commonly cited reason is that Charles is noisy and harasses employees, absent any specific allegations to which Charles could respond.  Is the Barring Notice merely a roundabout means to control an alleged harasser by selectively invoking the criminal law of trespass and assault?  Unfortunately, the Sergeant-at-arms himself has become personally and emotionally involved in the allegations of harassment against Charles bringing into question his impartiality in enforcing the Barring Notice on oddly timed and very infrequent occasions.

Trespass and Assault Charges

The enforcement of the Legislative ban is contained in the closing words of the document as follows:

If you choose to disregard the directives and authority of House officials, I will have no alternative but to but to seek your removal by the police authorities from Parliament Square grounds.  Your refusal to comply forthwith may be deemed to be an assault, contrary to and in violation of Subsection 41 (2) of the Criminal Code of Canada.

Section 41 of the Criminal Code reads as follows:

41.(1) Every one who is in peaceable possession of a dwelling-house or real property, and every one lawfully assisting him or acting under his authority, is justified in using force to prevent any person from trespassing on the dwelling-house or real property, or to remove a trespasser therefrom, if he uses no more force than is necessary.

(2) A trespasser who resists an attempt by a person who is in peaceable possession of a dwelling-house or real property, or a person lawfully assisting him or acting under his authority to prevent his entry or to remove him, shall be deemed to commit an assault without justification or provocation.

The validity of the Barring Notice is a necessary element of establishing that Charles is a trespasser at on the legislative precinct.  Assuming that to be the case, the evidence known to date is unlikely to support a conviction against Charles.

Dan Bussières and his staff would have been well-advised to follow scrupulously the procedure set out in the Barring Notice.  Instead of giving Charles an opportunity to leave, he was grabbed and manhandled and had to visit the hospital.  That action cannot support a charge against Charles of assault, nor could it be said that the security corps used no more force than is necessary to remove Charles so there is a possibility that a charge of assault could lie against them.

No evidence has or is likely to be disclosed of the Legislature version of events.  Of course, Dan Bussières will likely have a different version of facts which will accord with what is found to be captured on the Legislature’s video surveillance tapes.  For his part, Charles’ camera was taken from him along with any evidence it contained, a repeat of police misconduct in the 2006 Saint John arrest that was specifically disapproved by in the judicial decision acquitting Charles:

...from a personal standpoint I can understand Sergeant Parks’ actions in deleting the picture.  From a legal standpoint however it is unacceptable.  The camera was never seized as evidence...legal access to the contents of the camera would be permitted only through a search warrant.  No warrant was ever obtained by Sergeant Parks, so he had no legal right to erase a picture from Mr. LeBlanc’s camera.  R. v. LeBlanc, 2006 NBPC 37 (CanLII)

Having violated Charles’ civil rights in taking his camera, assaulting him without provocation, and arresting him without justification, it is unlikely a Court would convict Charles for his actions at the Legislature on May 16.

Conflicts of Interest ad Bad Faith

A troubling aspect of the latest action against Charles Leblanc arises from questions about the ability of all key figures to act impartially in executing their constitutional responsibilities.  Perceptions of conflict of interest and bad faith are greatly exacerbated by circumstances:  the timing of this action immediately after the Attorney General concluded the  ill-conceived Fredericton Police action against Charles; the close relationship between the Legislature security corps and the Fredericton Police together with evident coordination of roles in accosting and arresting Charles; and the well-known personal antagonism between Charles and Dan Bussières.

The actions of Dan Bussières in this matter place the Attorney General and the Premier in an untenable position.  They have already issued lukewarm affirmations that the Fredericton Police’s criminal libel actions require close, impartial scrutiny by a provincially appointed inquiry.  Can members of the Legislature honestly pretend that this current action is distinguishable in its malevolent intent? 

Hopefully, they will not attempt to emulate Mayor Brad Woodside who disingenuously and inaccurately disclaimed any responsibility for the actions of his Chief of Police.  By a similar stratagem, Blais and Alward could invoke the constitutional distinction between the Legislative Assembly and the Government, and disclaim formal authority over The Legislative ban and resulting fiasco on May 16.  The catch is that both are leading members of a majority government, and influential members of the Legislative Assembly.  The proposition that political leaders who purport to effectively govern the Province are incapable of crafting a more practical, flexible solution other than resort to a criminal process fraught with constitutional difficulties challenges our confidence in the delicate balance that characterizes our system of government.

If they do not, Blais will have a more difficult decision as she is responsible for the administration of justice in the Province while also being a member of the Legislative Assembly.  Can Blais in her role as Attorney General of the Province impartially decide whether to lay and prosecute charges which have been brought against Charles by a body of which she is a member?  It is difficult to conceive how the Attorney-General can escape this conflict of interest or resort to an available alternative solution.

The practical reality is that constitutional principles which govern the delicate internal balances of our form of government are ill-suited to adjudicate disputes which import wholesale complexities of contested facts, conflicting principles and questions of motive, all of which figure prominently here.  Adjudication of such matters in a criminal court proceeding would become an absurdity, giving short shrift to important matters of state in the interstices of adjudicating minute factual issues relating to the liberty of a citizen.

Political Considerations

Concerted official actions against individuals who have not actually committed a wrong seldom fuel the public respect for their public officials.  The most significant consequence of the Legislature action, as was the case with the previous City action, is the political fallout for New Brunswick politicians and officials.

Charles Leblanc is no saint.  He can be self-serving, loud, crude and pushy.  However, he has never during the time period in question been credibly accused of any action that would merit legal sanction.  This is the weak point in the Legislature’s campaign since 2006.  It has taken refuge behind an obscure constitutional immunity to avoid stating a case.  Instead of articulating clear, comprehensible grounds for the ban, it has resorted to generalizations, innuendo and rumour, hardly an approach calculated to reassure the public.

On the other side of the equation, Charles is a capable and committed amateur journalist.  He has recorded thousands of interviews with public officials, including most members of the legislature over several years.  All of his interviews are readily available for public viewing and are widely viewed.  Charles’ interviews are typically civil, relevant and revealing, often probing into controversial issues.  A great many citizens of Fredericton and elsewhere watch Charles’ blog for breaking news not available anywhere, including the police, politicians and mainstream media.

The persistent and obvious irony in all of Charles’ dealings with enforcement officials is that he can only benefit from the attention.  To lose face in the court of public opinion, Charles would have to be seen to commit a wrong that substantially exceeded the official wrongs perpetrated against him, an outcome he has avoided to date.

The big losers in this court are the well-paid staff including Sergeant-at-arms Dan Bussières, Legislature Clerk Loredana Catalli Sonier, Constable Fred L’Oiseau and Police Chief Barry MacKnight.  All are at risk of being perceived of one or more of the following: conspiring on a bungled scheme to get rid of a troublesome pest once and for all; acting in furtherance of a private interest rather than the public interest; failing to discharge their duties to act impartially in the public interest; trying to use black letter law for a purpose that was never intended; and consequently being unfit for the important official positions they hold.

Charles’ role in as a vocal critic of successive government agendas leads to an unsettling suspicion.  Almost universally MLAs and Ministers appear to embrace encounters with Charles and even to like him, but do they?  One may wonder if it was the politicians who secretly wanted Charles permanently silenced all along, accepting the ban in their name while the staff took the heat.  The continuation of the ban, and the latest proceedings that have been put in motion, can only further lessen any remaining fragments of public trust in our elected representatives.

An appropriate political response to the legislative ban was articulated by MLA Abel Leblanc who stated:

Specifically barring someone from the legislature is totally, totally wrong as far as I am concerned. I am here. I got elected by the people and you know he’s a person. If he comes here and asks me for anything, I do it for him.

The Government of New Brunswick should realize that it is not in the public interest, nor in keeping with modern reality, to ban from the Legislature citizen journalists who serve a valid public need in reporting and questioning the workings of the house of assembly where very few bother to venture.  The Legislature is not so solemn, nor so riveting, that it cannot handle a greater range of normal human behaviour than now seems to be tolerated in the ranks of visitors.

The Attorney General should put an immediate end to this destructive cycle and revert to the plan to investigate the controversial issues surrounding the activities of Charles Leblanc by a public inquiry.  Such a body would be a far more appropriate venue to delve into the thicket of issues brought about by modern technology and a pressing need to revitalize our democratic institutions.

Conclusion

This issue has festered for six years.  The invocation of the Legislative privilege against a law-abiding citizen, who exercises his constitutional right to participate in the democratic process as fully and enthusiastically as does Charles Leblanc, is repugnant to democracy.  The constitution is in place for the protection of the people against arbitrary actions of government.  The aggressive use of an obscure constitutional provision to exclude Charles from the legislative precinct taints rather than protects the dignity of the Legislative Assembly, a result directly contrary to the rationale for the privilege.

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The message here is politicians have to stop lying, and police have to stop lying and brutalizing the people.