Chief McIsaac Invokes (and Ignores) the Sub Judice Rule

I’ve been doing some reading about the sub judice rule — you know it, I’m sure you do, it’s the rule invoked by public officials who say, “I can’t comment on that, it’s before the courts.”

Peter McIsaac

Cape Breton Regional Police Services Chief Peter McIsaac (photo via CBRPS website)

My research was inspired by Cape Breton Regional Police Services Chief Peter McIsaac, who both invoked and ignored the rule during in his year-end interview with CBC Cape Breton’s Information Morning.

First, the invocation. Host Steve Sutherland asked McIsaac to name some “highlights” of 2016 for the police force and McIsaac cited the laying of charges in the 10-year-old murder of Harold “Buster” Slaunwhite. This led to a discussion of the local force’s cooperation with the RCMP on the investigation, which led McIsaac to say:

I can’t get into specifics, Steven, because that’s before the court and I’m not going to get into techniques that could jeopardize policing going forward.

Next, the ignoration, a word I just made up. Sutherland asked the chief about the Wade Lavin case — a case that is very much still before the courts, as Judge David Ryan has reserved decision to March 23.

Lavin is a CBRPS corporal who sent emails to several media outlets in July 2015 accusing senior CBRPS officers of misusing credit cards and questioning why 13 of those officers (including the chief) had assigned cars while regular officers sometimes had to use their personal vehicles for police business. Lavin, a union chief steward at the time, sent the emails from an account he set up in the name of Staff Sergeant Ken O’Neill. Lavin’s been charged with identity theft, forgery, uttering a forged document and conveying a false message.

Sutherland asked McIsaac why, given that Lavin had admitted to sending the emails, the force chose to pursue criminal charges rather than in-house disciplinary action. Rather than invoking the sub judice rule, McIsaac got quite chatty:

Well, as a police officer, you certainly should know the law in relation to stepping outside of it. When an individual impersonates another person, particularly another police officer, and relays false messages to the public and the media…

[At this point, Sutherland interjected to remind the chief that the falsity of the information Lavin shared has yet to be proven in court.]

Well, yeah, that’s right but certainly the evidence was there to proceed with an investigation, right? And that’s exactly what we did there. And I can tell you some of the stuff in the email was related to myself personally, and I was disgusted with it, I found it defamatory and slanderous and I’m gonna tell ya, I’m just not gonna stand for it. And that’s why I asked for an investigation.

Sutherland asked why, if he felt he’d been defamed, McIsaac wasn’t pressing defamation charges, to which our chief gave the following, measured reply:

  Who says we’re not?

 

Under Judicial Consideration

Okay, so what is the sub judice rule and how does it apply to McIsaac’s comments? According to an article on the subject by Lorne Sossin, dean of the Osgoode Hall Law School, and Valerie Crystal:

The term sub judice 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. The sub judice rule is part of the law of contempt of court, specifically ex facie contempt, which refers to contemptuous acts committed outside the courtroom. This is often referred to as the common law rule of sub judice. Occasionally, aspects of the rule have been codified, and this may now be referred to as statutory sub judice. The sub judice parliamentary convention, a separate but related restriction, prohibits members of parliament from commenting in the House of Commons on matters that are before the courts. This convention has been codified in Ontario in the Standing Orders.

The point of Sossin and Crystal’s article is that the rule is not well understood in Canada and tends to be invoked both too broadly and too narrowly:

It has been invoked where it should be ignored where public officials have sought to avoid public comment employing the rule as an explanation. It has been ignored where it should be invoked where public officials have sought to influence adjudicative proceedings.

McIsaac both invoked and ignored it in the course a single interview: invoking it to avoid discussing police techniques and ignoring it to tell us he’s been slandered and defamed and that the information shared by Wade Lavin, whose case is before the courts, is false.

That seems to me like textbook cases of “too broad” and “too narrow,” all in the space of 10 minutes.

 

Note: Sossin has discussed the sub judice rule with Robert Hiltz of Canadaland and Jim Brown of CBC’s The 180.

 

Featured image: Blind Justice by Tim Evanson CC BY-SA 2.0, via Wikimedia Commons

 

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