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Independent Review
Fredericton Police Force
Charles LeBlanc
Libel
Investigation
Bernard Richard, Q.C.
November 2012
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Bernard Richard
Danielle Roy
Megan Marie Kervin
Fredericton Police Force
Charles LeBlanc
Libel Investigation
November 2012
Printed in New Brunswick
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Table of Contents
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Glossary
Attention-Deficit / Hyperactivity Disorder
The constable who filed a complaint after learning of derogatory
remarks published about him by Charles LeBlanc
Criminal Code of Canada
Canadian Civil Liberties Association
Canadian Charter of Rights and Freedoms
Any member of the Department of Justice and Attorney General, including
regional Crown Prosecutors, who was at any time involved in the process
Diagnostic and Statistical Manual of Mental Disorders (fourth
edition, text revision) published by the American Psychiatric Society
Fredericton Police Force
The lead investigator on the libel complaint file
Internet Service Provider
Memorandum of Agreement
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Acknowledgements
Having conducted similar reviews in the past, I am well aware of how much they
disrupt the usual conduct of business. They take us outside of our comfort zoneas we open our inner sanctum to an unfamiliar process and unfamiliar people.
I want to express my gratitude to former FPF Chief Barry MacKnight and Acting
Chief Leanne Fitch for their open and full cooperation with the review. Without
any hint of hesitation, they made themselves available to me and facilitated
access to staff and information. Several others, including academics from both
Fredericton based universities, provided viewpoints and shared research. They
invariably helped me look beyond the immediate issue and encouraged me to
consider the bigger picture. The Canadian Civil Liberties Association submitted a
brief which contained thoughtful and well-researched input on significant issues.
Finally, I want to thank Megan Marie Kervin, recently admitted to the Bar, for the
quality of her support and commitment to the effort. It would not have been
possible for me to complete the task without the research, support and advice
she provided.
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Terms of Reference
The Terms of Reference of the independent external review shall be:
Part I
(1) To review and investigate all aspects of the conduct of the Fredericton Police
Force in regards to the criminal libel investigation of Mr. LeBlanc with respect to
process and procedure as these matters relate to the administration of criminal
files, the municipal police force and the good government of the municipality.
Part 2
(1) To make any recommendations which the Investigator may deem
appropriate and advisable in the public interest and as a result of the review.
(2) The Investigator shall be authorized:
(a) to conduct a review of the criminal libel file of the Fredericton Police
Force concerning Mr. LeBlanc;
(b) to adopt any procedure or methodology that the Investigator may
consider expedient for the proper conduct of the review;
(c) to consult with respect to formulating recommendations;
(d) to engage the services of professional advisors in the conduct of the
review;
(e) to grant any individual who satisfies the Investigator that he or she has
a substantial and direct interest in the subject-matter of the review an
opportunity to make a statement or provide a written submission;
(f) to inquire into and obtain copies of any policies or procedures of the
Fredericton Police Force which relate to criminal investigation matters; and(g) to ask any questions which the Investigator considers necessarily
incidental or ancillary to achieve a complete understanding of these
matters.
(3) Further to 2(g), and for the purpose of providing fair notice to those
individuals who may be required to provide information without infringing on
the Investigators discretion in conducting this review in accordance with these
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terms of reference, it is anticipated that the review may include:
(a) an examination of all relevant circumstances and facts which
precipitated the opening of a criminal libel file; and
(b) the basis of and reasons for making the recommendation to proceed
with the subject investigation.
(4) All documents received by the Investigator are to be treated as confidential,
unless and until they become part of the public record as exhibits to a report.
(5) In his report, the Investigator shall refrain from expressing or reaching
opinions regarding the civil or criminal liability of any person or organization
and shall ensure that the conduct of this review does not jeopardize any
ongoing criminal investigation or Police Act, S.N.B. 1977, c. P-9.2 proceeding.
(6) The Investigator is directed to submit, on an expedited basis a final report of
his findings and/or recommendations made pursuant to Part 1 to the Chief
Administrative Officer. The report must be in a form appropriate for release to
the public, subject to the Right to Information and Protection of Privacy Act,
S.N.B., 2009, c. R-106, and other laws.
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Introduction
"Injustice anywhere is a threat to justice everywhere."
Martin Luther King Jr.(1929-1968)
On January 19, 2012, a team comprised of eight Fredericton Police Force and
RCMP Tech Crimes civilian members attended at Charles LeBlancs home and
seized his computer, camera and other items in execution of a search warrant.
The warrant had been issued as part of an investigation conducted by a
Fredericton Police Force Detective Corporal into an allegation of defamatory libel
reported by, and respecting, a Fredericton Police Force Constable. Mr. LeBlanc
was arrested, questioned and later released but the operation drew considerable
public attention. In a February 7, 2012 editorial, The Daily Gleaner had this to
say: "Its not a great leap to suggest that the FPF dislikes Mr. LeBlanc as much as
he dislikes them." The editorial concludes by asking this question: "Who is the
victim and who is the aggressor in this complicated case?"1
Mr. LeBlanc, also known as the Blogger, maintains a blog concerning local
political affairs in Fredericton. He attends many events and locations and
considers himself press. He has had a presence in the Fredericton
political/media sphere for years during which time he has had frequent clashes
with many individuals, including law enforcement officers.
Although charges for criminal libel were never actually laid against Mr. LeBlanc,
the Canadian Civil Liberties Association and law and humanities professors
picked up the case immediately after the search warrant was executed.
City Councillor Jordan Graham also expressed concern on his own blog about thepolice forces robust intervention calling it "an attack on civil liberties." Mayor
Brad Woodside later added his voice to the matter calling for an independent
review of the forces decision to pursue a criminal libel charge.
1 Cops and bloggers; In our view: Fredericton Police Force has a perception problem, Editorial, The Daily Gleaner(7 February 2012) page
c6.
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Once the Crowns decision not to proceed with charges was formally shared with
the Fredericton Police Force in a May 3, 2012 letter, police Chief Barry MacKnight
quickly announced an independent third-party review of the matter. Soon after,
he handed over responsibility for the review to the citys Chief Administrative
Officer. On June 25, 2012 the Terms of Reference for the review were made
public.
The fundamental question to be answered here is not whether freedom of
expression ought to be protected. It has been long settled that it must be. The
real question is whether there are limits to this fundamental right. That Mr.
LeBlanc or anyone else can vehemently criticize how the Fredericton Police Force
or individual officers carry out their public duties is undeniable. There are some
who have argued that it is an occupational hazard, that "the ability of members ofthe public to speak freely in critical or emphatic ways about state agents must be
safeguarded in a democracy"2. Others, including the Supreme Court of Canada,
have said that willful and false attacks on an individuals reputation are not
protected by the Charter.
The other question of course is whether the criminal justice system has any
business at all in the area of defamatory libel.
This review proposes to examine those questions and the conduct of the
Fredericton Police Forces investigation following receipt of a complaint of
criminal libel against Mr. LeBlanc.
2 Nathalie Des Rosiers, Canadian Civil Liberties Association Submissions to Bernard Richard for his review of the Fredericton Police Forces
conduct with regard to the arrest and investigation of Charles LeBlanc for criminal libel (29 August 2012), online: Canadian Civil Liberties
Association .
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Context
There is a history of difficult interaction between the Fredericton Police Force and
Mr. LeBlanc. Putting it in diplomatic terms, Mr. LeBlanc is a keen observer of thepolitical and social scene in Fredericton. He can be found at most public events
and he is not shy about using his video camera and asking questions. He can be
very persistent and that, clearly, makes some people uncomfortable. He
considers himself a member of the press and publishes much of what he collects
and the opinions he holds about various issues on his blog.
Mr. LeBlanc has been banned from the New Brunswick Legislature and, as a
result, has an ongoing feud with the Sergeant-at-Arms there. Anyone who pays
any attention to his blog has read and seen his persistent attacks on this
particular officer of the Legislature, a former member of the RCMP. There have
been a number of occasions where Fredericton Police Force members have been
called in to respond to complaints involving Mr. LeBlanc and the Legislature.
On one occasion, Mr. LeBlanc was present and took a video of a late-night arrest
outside a club in downtown Fredericton. The incident was violent and it is
believed that the same video was instrumental in the laying of a charge of assault
against a Fredericton Police Force member. Mr. LeBlanc was called as a witness at
the trial but the officer was eventually acquitted.
Mr. LeBlanc spent many days in front of the Fredericton Police Force station
between mid-August and September 2011. He used a bullhorn to express
anti-police slogans and views. He pointedly singled out the officer who had
issued him with a by-law infraction ticket on June 23rd of that year. By the time
this protest started, the investigating officer had already decided that his public
utterances were sufficient to justify a criminal libel charge and had begun theinvestigation. So while the bullhorn "caper" clearly did not cause the investigation
to be instigated, it surely did not endear Mr. LeBlanc to the Fredericton Police
Force and to the member of the force who had filed three separate complaints
against him for criminal libel.
All this points to a strained relationship at best, though it was not all bad. In fact,
the Fredericton Police Force and its former Chief were among the very few that,
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for some time at least, considered Mr. LeBlanc as a member of the press. They
included him on a mailing list for press releases and responded to his questions.
This "recognition" ended when his criticism of the Force grew after the June 23,
2011 incident.
Nonetheless, the list of well publicized and fairly disagreeable encounters
between Mr. LeBlanc and the Fredericton Police Force has caused some to ask
whether the issuing of the by-law infraction ticket might have been an act of
provocation. Mr. LeBlanc is known to suffer from ADHD (he has talked about it
publicly), he is easily excitable and this particular constable had been a
participant in some of his previous run-ins with the Fredericton Police Force. As
well, riding a bicycle without a helmet is a fairly common occurrence and a
low-level offence and the constable was already engaged in an operation whenhe paused to call Mr. LeBlanc over from the other side of King Street and issue the
ticket. Had it been another cyclist, would the same decision have been made?
The exercise of police discretion by its very nature is highly subjective and so
shedding an objective light over this incident and the subsequent decision to
investigate Mr. LeBlancs boisterous reaction to it is not an easy task. And since
neither Mr. LeBlanc nor the offended police officer agreed to participate in the
review, inferences were drawn and judgments were made from all that
surrounded the matter and from the several individuals who provided answers to
questions.
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Facts (in chronological order)
23, 201
While providing backup for a police operation on June 23, 2011, the alleged
victim saw Charles LeBlanc riding his bicycle on the sidewalk without wearing a
helmet, called Mr. LeBlanc over and gave him a ticket for the by-law infraction.
Mr. LeBlanc took a video recording of the incident with his cell phone.
Mr. LeBlanc submitted a complaint to the FPF regarding the ticket and the
constables conduct. The complaint does not mention any particular
inappropriate action taken by the constable or any physical contact between the
two.
Mr. LeBlanc posted to his blog a copy of the ticket, comments about the constable
and photo-shopped caricatures of the constable with the Sergeant-at-Arms of
the New Brunswick Legislature. In the blog post, Mr. LeBlanc recants his version
of the incident, remarking that he felt furious and degraded and alleging that
the constable touched Mr. LeBlancs private part with his knee while giving him
the ticket. In the same post, Mr. LeBlanc calls the constable a Fascist Cop and
alleges that he had improper motives for issuing the ticket. Accompanying the
post is a photo of the constable characterized as a boy superhero acting under
the direction of the Sergeant-at-Arms, who is characterized as Superman. The
video does not show any physical contact or inappropriate action by the
constable.
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The same constable complained that the blog post constituted defamatory libel
and reported it to the Fredericton Police Force. A file was opened and assigned
to a Detective Corporal to investigate.
The alleged victim sent the investigating officer an email stating that Mr. LeBlanc
posted an altered picture of him and a third party photo-shopped over portable
toilets.
Mr. LeBlanc submitted a second complaint to the FPF regarding the ticket and the
issuing officers conduct. In this complaint, Mr. LeBlanc states that when the
constable handed him the ticket, he touched Mr. LeBlanc inappropriately, by
placing his knee on his private part. The complaint was dismissed by the FPF
Chief as being vexatious, frivolous and not made in good faith.
The alleged victim sent the investigating officer another email stating that he felt
his credibility was being affected by Mr. LeBlancs blog postings, as many
people were approaching him about the blog, which had over one million hits at
the time.
Mr. LeBlanc again posted remarks about the constable on his blog
stating: Wow!!!! The Fredericton Police Force Allowed Sexual Predators in this
city for the last 7 years???? Wow!!!! Many organizations with kids must be in
great danger, and, next to a photo of the constable: Hey? If they support
Sexual Pervert Quebecois Const. in touching the private Parts of a citizen in this
City? What else can happened????
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The alleged victim sent the investigating officer an email (second complaint) with
links to the July 26, 2011 post. At that point, a second file was opened to
investigate the constables allegation that the July 26, 2011 post constituted
defamatory libel.
After a conversation with the Crown, the investigating officer requested the
assistance of RCMP Tech Crimes on the steps required for the technological
component of the investigation.
The investigating officer concluded the initial investigation, finding that Mr.
LeBlancs post of June 27, 2011 did not support a charge of defamatory libel but
that Mr. LeBlancs subsequent post of July 26, 2011 did.
Mr. LeBlanc protested outside the Fredericton Police Force station, shouting into
a bullhorn that the Fredericton Police force employs sexual perverts that the
constable who issued the ticket was a faggot and that he does not like
Quebecois or that constable.
The alleged victim filed another (third) complaint after hearing Charles LeBlanc
on August 17, 2011 using a bullhorn in front of the police station and referring to
him as a sexual pervert.
The investigating officer met with a colleague to discuss the technical
components and circumstantial evidence that would be required to prove the
criminal libel charge.
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A Crown Prosecutor advised the investigating officer that a search warrant should
be executed to prove the technical component of the charge. She also advised
that proof that the defamatory libel is false would be required to prove criminal
libel. She concluded that a warrant would not be approved at this stage of the
investigation.
The investigating officer requested that a "McNeil package" be prepared on the
alleged victim. (A McNeil package contains discloseable disciplinary and
misconduct records for an officer and includes a criminal record inquiry.)
Mr. LeBlanc was arrested for causing a disturbance after several days of protest in
the vicinity of the FPF Queen Street station. He was remanded into the custody of
the Saint John Correctional Centre pending a show cause hearing scheduled for
September 16, 2011 after refusing to be released on a police officers
Undertaking and refusing to enter into a judges Undertaking.
Mr. LeBlanc entered into an Undertaking in order to be released.
A constable who was present when Mr. LeBlancs ticket was issued gave a
statement stating that he did not witness any physical contact between the
issuing officer and Mr. LeBlanc.
The alleged victim sent the investigating officer an email with links to a post of
October 11, 2011 from another blog hosted by Mr. LeBlanc where Mr. LeBlanc
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again posted comments that stated that the constable touched Mr. LeBlancs
private parts.
A second officer who was present when Mr. LeBlanc was issued the ticket gave a
statement stating that he did not witness any physical contact between the
constable and Mr. LeBlanc.
The investigating officer received confirmation that there were no McNeil
disclosure issues for the alleged victim.
The investigating officer sent Law Enforcement Requests to Mr. LeBlanc's Internet
Service Provider via email requesting the name of the account holder associated
with IP addresses associated with the original blog posts and the secondary blog
posts. The account holders name and address, in both cases, matched Mr.
LeBlancs.
A second Crown Prosecutor advised that an Information to Obtain a search
warrant would be required.
The same Crown Prosecutor approved an Information to Obtain a search warrant,
prepared by the investigating officer and authorized by a Provincial Court Judge.
Upon discovering that the Information to Obtain required an amendment to
include the attendance of RCMP Tech Crimes, the investigating officer amended
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the Information to Obtain, had it approved by the Crown Prosecutor and
authorized by the same Judge.
The search warrant was executed. Present during the execution of the search
warrant were: one officer to record videos from Mr. LeBlancs blog, one officer
for language, one officer for transport, two officers for scene security, two RCMP
Tech Crimes civilian members for technical expertise and the investigating officer
as lead. Mr. LeBlanc was offered service in English or French. He chose French
and received service in that language; he was advised that he was being arrested
for defamatory libel under section 301 of the Criminal Code. Mr. LeBlanc was
transported to the police station and put in contact with a lawyer. After speaking
with the lawyer, Mr. LeBlanc was placed in a holding cell.
Mr. LeBlanc was interviewed prior to his release. He admitted that he posted the
comments that formed the basis of the alleged offence. Mr. LeBlanc was
released on several conditions, which included his undertaking not to
communicate directly or indirectly with the alleged victim unless his assistance is
required in an emergency situation and to abstain from publishing any
derogatory comments or materials concerning the alleged victim.
The technical analysis of the material seized pursuant to the search warrant
concluded that Mr. LeBlanc was the person responsible for the content of the
blog.
The CCLA wrote to the FPF Chief outlining several concerns regarding Mr.
LeBlancs arrest, the execution of a search warrant at his home, the seizure of his
computer equipment and the pending charges for criminal libel. The letter
related the CCLAs view that "s. 301 cannot withstand constitutional scrutiny"
and, later, that "...the use of police resources in this kind of investigation may
place a chill on expression and discourage members of the community from
speaking out on public issues that matter to them or criticizing the police even
when such criticisms are valid and may ultimately benefit the public."
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The Chief wrote to the CCLA declining to respond to questions that are related to
an ongoing criminal investigation.
The CCLA sent a follow up letter to the Chief reiterating its concerns and pressing
a request made in the earlier letter for statistics regarding criminal libel
investigations carried out by the FPF.
The Chief responds to the CCLA specifically with regards to statistics indicating
that there have been, since 1988, 12 complaints of criminal libel filed with the
FPF of which "10 were concluded without charge, and 2 cases are still under
investigation."
A letter from a University of Toronto law professor was sent to the Attorney
General. It stated that "it is the responsibility of the Attorney General to ensure
that charges not go forward in relation to a provision of the Criminal Code that is
unconstitutional, to do so would unfairly subject the accused to a lengthy trial
process and be contrary to the Attorney Generals obligations with respect to the
public interest."
Three University of New Brunswick law professors wrote to the Attorney General
advising that section 301 of the Criminal Code has been found unconstitutional
in "at least three jurisdictions" and to "urge [the Attorney General] to take steps to
ensure that this matter is addressed before the court appearance of Mr. LeBlanc,
which is scheduled for April 20, 2012."
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A Crown Prosecutor advised the FPF that he could not approve the charge under
section 301 of the Criminal Code against Mr. LeBlanc.
That opinion was confirmed by the Director of Specialized Prosecutions and sent
to the investigating officer via fax.
Mr. LeBlancs seized property was released.
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Analysis
If this independent review is being conducted, it is because the handling of the
FPF Charles LeBlanc libel investigation matter has raised questions frommunicipal leaders, academia, the media and the public. Many facets of the
relationship between Mr. LeBlanc and the FPF deserve our attention because, as
many observers have aptly put it: citizens must be able to trust their police
officers to do the right thing and not abuse the considerable power they have
over us.
New Brunswick residents feel safer knowing that, in most instances, we are
protected by professional and well-trained men and women whose job it is to
watch over us and to uphold the law. It is in many ways a sacred trust that can be
easily shattered. And when it breaks down, we are all a little less secure.
"Freedom of expression" is one of the fundamental freedoms contained in the
Canadian Charter of Rights and Freedoms. Every Canadian is free to make public
comment and is afforded considerable range in that regard. However, this right is
not absolute. The SCC has put it this way. "The protection of an individuals
reputation from wilful and false attack recognizes both the innate dignity of the
individual and the integral link between reputation and the fruitful participation
of an individual in Canadian society."3
Against this backdrop, five questions have been framed in an attempt to address
the critical issues that are now in the public domain:
3 A-1 R.v. Lucas, [1998] 1 S.C.R. 439 (the case involved defamatory libel against a police officer).
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Questions
It is not rare for complaints to be filed against police officers. The nature of the
work required of them leads to their involvement in tense situations. From 2007
to 2011, 157 complaints were received regarding FPF members. All were
subjected to internal investigations and resulted in a wide variety of outcomes for
the officers concerned. Citizens have the additional option of filing complaints
with the New Brunswick Police Commission (NBPC). In its 2010-2011 Annual
Report4, the NBPC notes that it received 129 complaints that year concerning New
Brunswicks police forces (see graph below).
4Thirtieth Annual Report of the New Brunswick Police Commission 2010-2011, online: New Brunswick Police Commission
. Page 22.
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While the FPF does stand out in the NBPC 2010-2011 report, it has been pointed
out that several "habitual" complainants in Fredericton routinely file complaints
identifying multiple officers. Each is treated as a separate complaint and has the
effect of increasing the total. The NBPC has indicated that its own review of the
complaints has not resulted in major concerns.
It is much less common for police officers themselves to file complaints but it
does happen. After all, they are citizens as well who can be victims of theft or
property damage, for example. During the same 2007-2011 period, there were
13 occurrences where a police officer was the complainant.
Another unusual aspect of this investigation is that it involved a complaint of
defamatory libel. The same 2007-2011 period shows a total of 8 suchcomplaints, 2 of which were filed by the same FPF member regarding Charles
LeBlancs blog post and/or public utterances. The last one of these resulted in
the investigation which is the subject of this review.
Of the 8 complaints or occurrences, none resulted in charges being laid.
All this points to the Charles LeBlanc case being a fairly singular situation
because it involved:
a complaint filed by a police officer; a part of the Criminal Code which does not come up often (Criminal Libel);
and,
a high-profile alleged "offender" who has had more than his fair share ofbrushes with the same force.
According to officials interviewed and common knowledge, Mr. LeBlanc has
proven to be a constant challenge for law enforcement officers. The bullhorn
episode on a downtown street lasted several days and likely cemented, in the
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minds of some at least, the view that something had to be done. Mr. LeBlancs
presence at crime scenes and at recovery operations along the Saint John River
and his constant online commentary was considered abrasive by people both
inside and outside the force.
All of this leads us to ask whether this particular investigation should have been
carried out by an authority independent of the FPF. Since the 2006 Atlantica
protest in Saint John, Mr. LeBlanc had come up in FPF management meetings. At
the Atlantica event, Mr. LeBlanc had been charged for obstructing justice and
later acquitted by Provincial Court Judge William McCarroll. In his 20-page
written decision, Judge McCarroll wrote that Mr. LeBlancwas simply plying his
trade, photographing the demonstration for inclusion in his blog when he was
arrested. Many considered the judges comments as a sort of validation of Mr.LeBlancs credentials as a member of the press. While there were mixed feelings
about how best to deal with Mr. LeBlanc, FPFs former chief took a fairly tolerant
view, including him on the FPF media mailing list for example.
When questioned directly about the investigation, the former police chief
unequivocally defended the decision to investigate the complaint and seek the
search warrant. His arguments are summed up in the following paragraph.
When a police officer feels he or she is a victim of a crime, there is a duty to
respond as for any other complainant; the FPF is not to pass judgment as to
whether any complainant should or should not feel hurt by an alleged crime.
A file is opened, it is assigned to an officer, they verify that such a crime
exists, check the elements required and lay a charge, if appropriate. In other
words, there is no higher or lower threshold for complaints filed by officers.
This being said, the former Chief also made it clear that in hindsight, it might
have been a good idea to farm this particular investigation out. There is no
escaping the conclusion that the offended constables complaint and the ensuing
investigation should indeed have been "farmed out". There was too much history
with the force, too many incidents involving this same officer and Mr. LeBlanc was
too often in the public sphere to avoid the perception that the FPF could not be
totally impartial in its consideration of the case.
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This is what was ultimately done with the assault complaint filed after an
occurrence at the Legislature in May 2012 and it should have been the preferred
option here.
Some provinces have created special investigative agencies for complaints
involving police officers. They relate to allegations of criminal behaviour and
would have been of no use in this case. In fact, they are usually limited to more
serious offences.
As well, all provinces have agencies similar to the New Brunswick Police
Commission which, according to its latest published annual report, has the
following mandates:
the investigation and determination of complaints by any person relatingto the conduct of a member of a municipal or regional police force;
the ensuring of consistency in disciplinary dispositions throughmaintenance of a repository of disciplinary and corrective measures taken
in response to Police Act violations;
the investigation and determination of any matter relating to any aspect ofpolicing in any area of the Province, either on its own motion, or at the
direction of the Minister of Public Safety; and,
the determination of the adequacy of municipal, regional and RoyalCanadian Mounted Police forces within the Province, and whether each
municipality and the Province is discharging its responsibility for the
maintenance of an adequate level of policing.
While these mandates certainly allow citizens to file complaints regarding police
professional conduct, the NBPC is not an "advisory" body for police forces dealing
with complex cases such as this one. It reviews complaints of alleged police
misconduct after the fact but does not provide advice on how or whether
investigations should be carried out.
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matter and/or the subjects involved, may be perceived by the public as
lacking independence if conducted by the police agency of jurisdiction.
The second definition of incident clearly includes situations like the one faced
by the Fredericton officials in the Charles LeBlanc matter.
This MOU, accompanied by clear policy and criteria for application of its
provisions, would be helpful to police forces dealing with situations like the
present one, where there are allegations that the agency of jurisdiction (in this
case the Fredericton Police Force) was not in a position to conduct an
independent investigation. While its use has been restricted to date to cases
involving serious incidents as envisaged in the first definition, maintaining public
confidence in the independence of police investigations is just as important.
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In the brief it submitted to the review, the CCLA outlined the decisions of courts
in Ontario 6 , Newfoundland and Labrador 7 , Alberta 8 and Saskatchewan 9 all
finding section 301 to be unconstitutional. A court in a fifth jurisdiction, New
Brunswick10, came to the same conclusion. While none of these decisions came
from an appellate court, none were appealed; that in itself tends to confirm the
prevailing opinion regarding this section, i.e. that it is unconstitutional. It
appears not to be able to withstand the test of the Charter in that "the harmful
effects of these provisions on freedom of expression are disproportionate to any
benefit they may be said to achieve."11 The purpose of the test is to balance thecompeting rights of "protection of reputation, emotional security and privacy on
the one side, and the protection of freedom of expression on the other."12
The case against prosecuting under section 301 is daunting yet the FPF and its
investigating officer did not veer from this course. The alternative of
investigating the complaint under section 300 (another section of the Criminal
Code but more difficult to prove) did come up, however briefly, but it was not
retained. Obviously, the constable targeted by Mr. LeBlanc was upset with what
was being published about him. And who could blame him? It is hard to imagine
anything more offensive to a police officer than being called a "sexual predator"
6R. v. Gill, (1996) 29 O.R. (3d) 250 (Ont. C.J. Gen. Div.)
7R. v. Prior, (2008) 292 D.L.R. (4th) 412 (Nfld. & Labrador S.C. Trial Div.)
8R. v. Finnegan, (1992) A.J. No. 1208 (AB Q.B.)
9R. v Lucas, (1995), 129 Sask. R. 53 (Sask Q.B.)
10 R. v. Osborne, (Cause No. S/CR/08/02)
The accused, Stephen Charles Osborne, was charged with defamatory libel under s. 301 as a result of displaying derogatory statements on
placards in front of the Provincial Court Building in Saint John. Mr. Osbornes protest followed a custody order rendered by Gu erette J. that
was unfavourable to Mr. Osborne. After Mr. Osborne had been picketing several months, on December 17, 1999, Guerette J. wrote a letter
of concern to Chief Justice David Smith outlining Mr. Osbornes behavior and attaching pages from a psychological assessment that had
been prepared for the purpose of Mr. Osbornes custody hearing. Guerette J. indicated that Mr. Osborne suffers from Borderline Personality
Disorder, that he distorts reality, that he is a compulsive liar and, according to his wife, he can be violent. On January 3, 2002 Chris Morris
of the Saint John Police Force swore Information No. 47543 stating his belief that Mr. Osborne committed three counts of criminal libel
under s. 301. From the Indictment and Amended Indictment, it appears that Mr. Osbornes protest was directed at Guerette J. p ersonally.
Several proceedings arose from this matter, prolonging it, but not specifically relating to the criminal libel charge. Cause No. S/CR/08/02
concludes with the Hearing on August 27, 2004. An excerpt from the transcript of that Hearing (in lieu of a written decision) appears in the
court file. On page 2 McIntyre J . finds s. 301 unconstitutional referring to R. v. Finnegan, [1992] A.J. No. 1208 and R. v. Gill, [1996] O.J. No.
1299. McIntyre J. discharged the charges against Mr. Osborne.
11 Lucas, Supra
12 P.A. Downard (Contributor), Defamation in Canadian Law Defamation and Freedom of Expression HDE-9 - A Balance Struck
Halsburys Laws of Canada(3 August 2012), online: LexisNexis Canada Inc. .
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and that "many organizations with kids must be in great danger." If you are a
police officer in a small community, these kinds of allegations, repeated many
times over in the "blogosphere", are bound to leave a mark.
Inspired by the decision in Zundel13, the CCLA argues that "The constitutional
protection of freedom of expression is content neutral and protects vulgar,
crude, ridiculous, offensive, unpopular or distasteful speech". (10) As far as
section 301 is concerned, that certainly seems to be the case. That is likely
because section 301 limits the right to make true statements that may be
embarrassing or offensive to someone about whom they relate, or to make an
honest mistake in public speech without criminal repercussion. Section 300, on
the other hand, only limits that freedom at the point where such expression
amounts to deceitful remarks meant to cause a person reputational harm. Thereis a significant difference between the two, as the SCC took great pains to point
out in the Lucas decision.
There are others who support the need to protect the Charter freedom of
expression provision from criminal law purview. Several UNB law professors also
expressed to us their strongly held opinions on section 301. In early April, they
had written to the Attorney General urging her to intervene because "a
prosecution for defamatory libel is neither likely to result in conviction nor can it
be said to be in the public interest to subject an individual to prosecution under
an unconstitutional law". At about the same time, a University of Toronto
professor also wrote the Attorney General making essentially the same argument.
The CCLA had shared its views directly with the FPF Police Chief.
By May 1st, the Crown (Public Prosecution Services) had obtained its own legal
opinion from outside counsel. It confirmed what many others had already been
saying, that prosecuting Mr. LeBlanc under section 301 was not likely to be
successful. In a letter to the investigating officer dated May 3, 2012, the Crown
representative put it this way:
As you are aware it has been our practice to provide second opinions where
the investigating agency or the complainant are not content to accept the
original opinion on its own. In this particular case, I reviewed the opinion as
well as the case law that our counsel relied upon. Given that the opinion in
13 R. v. Zundel, [1992] 2 SCR 731
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this file is that Section 301 would not withstand Charter scrutiny, and further
given that that opinion has already been reached by several other Courts in
other provinces, I am of the view that there would be no point in returning
this matter for a second opinion.
That put an end to the section 301 prosecution.
The UNB law professors and the CCLA both argue forcefully that criminal law is
not an appropriate tool for this sort of complaint. In a useful brief, the CCLA adds
that "the ability of members of the public to speak freely in critical or emphatic
ways about state agents must be safeguarded by a democracy".
The CCLA argues further that even when the libelous speech is known by the
publisher to be false (section 300 of the CCC), the Charter should prevail. This
argument is largely based on a Law Reform of Canada 1984 Working Paper.
Unfortunately, the CCLA brief barely mentions the leading Canadian case on the
matter, the SCC decision in Lucas. Lucas establishes that section 300 was, and is,
available where the Crown can prove the accused persons subjective intent to
defame and knowledge that the libelous statements made were known to be
false, by the person making them, when made. This likely would have required
making an inference as to Mr. LeBlancs subjective state of mind based on all the
circumstances of the case. The inference can be drawn from what he did or said
or knew. His conduct prior to publication, at the time of publication and after
publication may all be assessed. Since common law factors may be used to
interpret section 300, the following factors may also be considered: existence of
a prior relationship between the parties, whether Mr. LeBlanc volunteered
information or spoke from a sense of duty or to advance a legitimate interest, and
whether he made similar defamatory statements on previous occasions.
In the matter at hand, the fact that Mr. LeBlanc claimed that the constable had
touched his "private part" and that a video of the ticket-issuing incident was
proof of that would also be relevant. That he failed to mention that any physical
contact had occurred between the two when he filed a complaint against the
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officer on the day of the incident, that none of several bystanders came forward
to corroborate his claim, that two other officers at the scene signed statements
indicating that no physical contact had taken place and, that the video in question
gives no indication whatsoever that any physical contact occurred could all be
used to try to show that Mr. LeBlanc knew that his alleged libelous accusations
were false. The fact that the two had had previous encounters might also be used
to establish intent to harm.
When questioned on the availability of section 300, the investigating officer
responded that it was considered and that the Crown was consulted on the
matter but felt that it would be harder to prove and that it was a matter for the
courts. This is confirmed in the police investigation file notes. There is no doubt
that the threshold is higher for section 300 than it would have been for section301. But at least the SCC has found section 300 to be constitutional, a much
better place to start.
In the Crown file, the only discussion of section 300 came up very late in the
process. When the legal opinion was being prepared, counsel queried as to
whether section 300 should be looked at. An email exchange between Crown
lawyers states as follows: "our request from the police only asked for an opinion
on section 301 and we should only provide that opinion." In the legal opinion that
soon followed, counsel summed it up this way.
The Supreme Court in Lucas, supra, went to great lengths justifying s. 300 of
the Criminal Code based on the need for proof of falsity or should have
known to be false. The same argument cannot be made regarding s. 301 of
the Criminal Code and I would not want to be the one arguing that s.301 of
the Criminal Code is demonstrably justified in a free and democratic society.
Other options such as criminal harassment and hate propaganda were clearly not
available in the case at hand.
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The existence of parallel criminal and civil sanctions ensures that those who
commit criminal acts are properly punished. The criminal negligence provisions
constitute an important deterrent and uphold appropriate community standards.
At paragraph 72, the Lucas decision likens the criminal libel provision to those of
criminal negligence, stating:
...no one would argue that because an individual can seek monetary
compensation for the damages occasioned by a negligent person there
should be no corresponding public expression of society's profound
disapproval of egregiously negligent conduct. ...Although it is important to
recognize the right of the person defamed to sue for monetary damages it is
equally if not more important that society discourage the intentional
publication of lies calculated to expose another individual to hatred andcontempt. The harm addressed by s. 300 is so grave and serious that the
imposition of a criminal sanction is not excessive but rather an appropriate
response.
Another reason for the parallel existence of both a criminal and a civil remedy for
defamation is the recognition of the problems and weaknesses that exist in civil
proceedings. Civil proceedings are too expensive for many Canadians and have
little effect on penniless defendants. At paragraph 74, the Lucas decision states
that those who work as social workers, police officers and nurses, are especially
vulnerable to criminal libel, and require protection that only the criminal law can
provide. A criminal prosecution may help restore the reputation of these
individuals, and is especially important in circumstances where civil proceedings
are not feasible.
In conclusion, the court remarks that to accept the position that because
offensive conduct can be pursued through private litigation it cannot be
prosecuted criminally would undermine Parliament's authority to determine what
conduct amounts to a public wrong.
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WOW!!!! THE FREDERICTON POLICE FORCE ALLOWED SEXUAL PREDATORS IN
THIS CITY FOR THE LAST 7 YEARS????
WOW!!!! Many organizations with kids must be in great danger.
Since the Fredericton Police no longer acknowledged me as Media? I can't get
my answers????
Was this arrange by the old Boys Club at Kingsclear???
Many questions??? Too bad the Police will not answer questions about this
issue.
Hey? If they support Sexual Pervert Quebecois Const [name] in touching theprivate Parts of a citizen in this City?
(A photoshopped image of the Constable is posted along with the text.)
This post was immediately considered to be libelous and likely sufficient to
justify an investigation under the Criminal Code. Soon later, Mr. LeBlanc began
protesting, with the help of a bullhorn, outside the FPF station.
The investigation itself is not terribly unusual from this time forward. The focus is
on gathering the evidence required to build the case. To that end, the RCMP are
consulted regarding elements of evidence that may be required because of the
technology aspects of the alleged crime (use of computer). Suggestions are made
and followed up on. Very early on, there are consultations with superiors on the
force as well as with the Crown. This is no doubt because the charge is one that
rarely comes up, the complainant is insistent and a colleague, the alleged
perpetrator has a public profile and the whole matter is being played out in
public. No one raised any objections or even warning flags about pursuing under
301 of the Criminal Code but frankly, even if the investigator had been steered
towards section 300 because it has passed the Charter hurdle, the same
investigation would have been followed, requiring the same gathering of
evidence, using the same police techniques and resulting in a very similar file
being presented to the Crown once complete.
One concern is regarding the breath of the search warrant and its potential for
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providing access to information far beyond what was needed for purposes of this
specific investigation. The Canadian Civil Liberties Associations assertion that
the warrant was based on an unconstitutional law is debatable. After all, as was
discussed before, section 301 has not been challenged at an appellate level, here
or elsewhere in Canada. And section 300 remained a viable option right up to the
Crowns review. On the other hand, CCLAs position that "a non-specific search
on an individuals personal computer is incredibly invasive" is very convincing. As
it writes in its brief:
Computers can store anything and everything from family photographs to
banking records to intimate correspondence. Passwords and internet
connectivity can give a user access to bank records, blogs, Twitter and
Facebook accounts, and countless other repositories of personalinformation. In many respects, a computer gives access to more personal
information than exists anywhere else in a persons life.
There is no reason to believe that, in this case, the search went beyond what was
required for the investigation being conducted or, for that matter, that anything
was found that might have compromised Mr. LeBlancs privacy but there was a
distinct possibility of that happening.
Just as concerning is that in its efforts to obtain information from Mr. LeBlancs
Internet Service Provider (ISP), the FPF used a request form that is reserved for
requests pertaining to child sexual exploitation offences. This is such a blatant
misrepresentation of the nature of the investigation that we requested a
response from the ISP as to why they provided the information asked for since the
title of the form used had been modified to state that it pertained to a libel
investigation. Below is their response:
The form is designed for the purposes of facilitating disclosure of subscriber
information linked to an IP address for child sexual exploitation offences
only and is used by law enforcement agencies across Canada to request
subscriber information linked to an IP address from various internet service
providers. It appears to me in this case that the officer from Fredericton
Police has modified the template version of this form indicating in the title
section that the investigation is with respect to libel. The section below that,
however, clearly indicates the investigation being undertaken is related to
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New Brunswick is one of only 3 jurisdictions in Canada that provides pre-charge
screening (Quebec and British Columbia are the other two).
Pre-charge screening refers to a formal process whereby a Crown prosecutor is
responsible for pre-charge approval (i.e. whether a charge will be officially laid
and will proceed to court).
In the other jurisdictions, charges are subject to review only after they are laid.
A 2010 article16 describes the four main arguments advanced in support of a
pre-charge approval process as follows: it is fairer to the accused, it ensures thatonly cases with a reasonable prospect of conviction will proceed, it is more
efficient because fewer mistakes will occur in the laying of charges, and the
decision whether to prosecute is more objective.
In the LeBlanc case, we can safely say that pre-charge screening prevented
charges from being laid after it became evident to the Crown that section 301 of
the Criminal Code "would be determined to be in violation of the Charter of
Rights if a prosecution were initiated there under". The interviews with FPF
officials, the insistence of the complainant and the history of the relationship
between Charles LeBlanc and several members of the force lead us to the obvious
conclusion that charges would have been laid had Crown approval not been
required.
Unfortunately it took almost 9 months, execution of a search warrant and
significant public and academic outcry before the process was halted. When
queried about the delay, the Crown offered a number of explanations: necessity
of finding a Crown Prosecutor with bilingual capabilities, concern for perception
of bias if local Crown resources were used given a history with Mr. LeBlanc, and,
workload issues.
The execution of a search warrant is of course a serious event. When several
16 This "uncredited" article relies on the following two reports: Discretion to Prosecute Inquiry, British Columbia, Stephen Douglas Owen,
Chairman, (1990,) Commissioners Report, Vol.1 at 25. See also Royal Commission into the prosecution of Donald Marshall Ir., Inquiry
Report, Vol.1 at 232
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members of a police force show up at your place of residence and begin
searching the premises, it is not a good day. With this in mind, one wonders if the
screening process should not take place before such a significant intrusion is
carried out. This is particularly true when the offence complained of is one which
is rarely filed and even more rarely prosecuted. When asked, the Crown response
was that approval of a search warrant is essentially a "gate-keeping" exercise,
meaning that it doesnt require the level of consideration that comes later in the
process, once all the evidence has been gathered.
Fair enough, but this was not an ordinary file. In fact, it was so unusual to deal
with a criminal libel investigation that few even remembered the only New
Brunswick case having dealt directly with the issue.17 And it wasnt mentioned in
the legal opinion.
The same 2010 article referred to above cites opponents of pre-charge screening
as saying that Crown control of the process leads to an erosion of police
independence, the making of decisions behind closed doors rather than in open
court and a pre-empting by the Crown Attorney of the role to be played by the
courts in the criminal trial process. As well, some police and federal investigative
agency members in jurisdictions with pre-charge screening find the process
cumbersome and inefficient and believe it could be eliminated entirely.18
In hindsight, it is trite to say that a more timely response by the Crown on section
301 possibilities could have avoided Mr. LeBlanc and the FPF an unpleasant and
needless process. At the very least, it could have realigned the investigation with
regard to the only alternative criminal law option available, a section 300 criminal
libel prosecution.
While Crown involvement is outside of the reviews mandate, it does point to the
fact that there were opportunities to cut off the process long before it was placed
in the public eye. To some extent, it should also remind us that there are checks
and balances along the way to the courthouse, even if they dont always work as
we would like them to.
17 Osborne, Supra
18 Attorney General of Canada, PPSC Survey of Investigative Agencies in the Provinces 2008(Report on Findings and Conclusions) (Ottawa:
Public Prosecution Service of Canada, 2008) online: Public Prosecution Service of Canada
.
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Mr. LeBlanc has publicly acknowledged that he suffers from ADHD. He has been
an outspoken advocate on this issue for many years. He is obviously highly
functional despite his condition, having produced a blog for several years now.
ADHD is a mental disorder described in the DSM-IV-TR19 as a condition mostly
present in children but that can persist to adulthood. One subtype of ADHD is
characterized by hyperactivity and impulsivity. In some individuals, the condition
may include low frustration tolerance, temper outbursts and excessive and
frequent insistence that requests be met.
There is no intent here to judge Mr. LeBlanc based on his admitted condition. Onthe contrary, he is an example of someone who has surmounted the challenges
he faces and found a way to make his own unique contribution to our society. But
he is also a reminder that there are a growing number of diverse individuals who
live in our communities, interact with us on a daily basis and challenge our
institutions. The traditional answers do not work anymore. That much should be
clear to all. So we are left to consider new ways to tackle this diversity and those
who personify it. After all, they will continue to test the limits of our justice
system, our health system and our social safety nets to name but those. Many
with far more serious conditions than Mr. LeBlanc have similarly been left to fend
for themselves with few services available to help them. The criminal justice
system often becomes the default response to these individuals and it is
ill-equipped to respond adequately.
Among the most ardent defenders of Mr. LeBlancs right to freedom of
expression, there were some who offered "extralegal alternatives" for
"responding to persistent, unfair or libelous speech". The CCLA put it as follows:
Public institutions must move towards a model of responding to problematic
speech that engages tools outside of the law as a primary method of
response, and always choose actions and strategies that have the "least
chilling" effect on expression, using the law only when absolutely necessary.
The internet, in allowing for publication and dissemination of
19 American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, Text Revision. Washington, DC,
American Psychiatric Association, 2000.
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counter-information, has provided those affected by defamation an
important tool through which reputations can be defended and restored.
The advent of the internet does not change the duty of public authorities to
facilitate, and not stifle, the exercise of the right to freedom of expression.
Public entities have a wide array of alternatives available through which they
can respond to blog entries that contain misinformation about one of their
officers.
They can
1. do nothing and assume that members of the public are sophisticated
enough to make distinctions regarding the credibility of a speaker and theveracity of speech, and reach their own conclusions based on the
information available to them
2. provide help and support to employees who are the targets of unfair
criticism
3. use their own communication tools to respond proactively and indirectly
to correct misperceptions and change the message
4. respond directly to what they see as erroneous information to change the
message. They can use social media, websites, mailing lists, open letters,
and other modes of communication. They can ask for corrections from
bloggers or ask that their version be included in the blog.20
Others who took strong positions against the use of criminal law responses to
offensive speech as well offered that the lack of credibility of the speaker
should be a measure of the response needed.
It is true that FPF officials acknowledge that Mr. LeBlanc is one of several, perhaps
5 or 6, "chronic complainers" whose complaints are often unfounded and
vexatious. Although the numbers are small, they use up an inordinate amount of
resources and are a challenge to law enforcement. They also show up on the
radar of many institutions providing public services.
20 CCLA Brief, supra
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All police training now includes programs on mental health issues related to
Emotionally Disturbed Persons. When the matter was raised with the Acting Chief
of the FPF, she responded as follows:
I can further advise that the complexities of dealing with clients with mental
health issues is increasingly relevant in policing and is a recognizable theme
in various resolutions passed by the Canadian Association of Chiefs of Police
as an issue for consideration.
Yet before the Charles LeBlanc incident, the last in-service training on mental
health issues for FPF members was in 2005. It was supplemented by online
mandatory training on "Recognition of Emotionally Disturbed Persons" in2009-2010. It is worth nothing that in 2012, both FPF in-service training
sessions were focused on mental health issues, including a fall lecture on Police
Response to Emotionally Disturbed Persons.
The courts have also weighed in on the issue. Although none of the cases
examined are directly on point, they do underline the need for appropriate
training of police officers in regard to identifying and addressing the potential
problems posed by mental illness before a violent incident occurs.
While not suggesting that Mr. LeBlancs ADHD is a factor in his longstanding
difficult relationship with the FPF, a greater emphasis on appropriate training for
police officers in this regard could help diffuse and avoid escalating difficult
situations. It would also be in the best interests of both the individuals concerned
and society as a whole. While no one is above the law, no one wins when
behaviour caused by mental disability is criminalized. We need only recall the
case of Ashley Smith to realize the potential personal and social consequences of
not providing the right responses at the right time, not to mention the very real
costs in time and money.
More judicious use of the Mobile Crisis Unit, for example, could help de-escalate
incidents without resorting to the criminal law. As well, adding civilian members
to further enhance community policing efforts could prove effective. The FPF
already has social workers on staff who work with victims of crime; it should also
consider such resources for preventing crime and for developing even stronger
community relations.
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Conclusion
"Of all the words of mice and men, the saddest are, "It might have been."
Kurt Vonnegut
It is hard to know exactly what motivated a FPF constable to leave an ongoing
operation for which he was providing backup, flag down Mr. LeBlanc from the
other side of a busy downtown Fredericton street, have him cross over with his
bicycle so he could issue a ticket to him for not wearing a helmet. Was he simply
doing his job by enforcing a city by-law that had come up at Council and
committee meetings? Was it some kind of retribution for past deedsMr.
LeBlancs incessant and personal attacks on the Legislatures Sergeant-at-Arms,
his videotaping of a police intervention at a local nightclub which led to criminal
charges against a fellow officer or his abrasive and disrespectful attitude? Since
the constable declined an invitation to explain his decision, we can only
speculate.
What we do know is that it unleashed a somewhat predictable if totally
unsupportable and increasingly vicious series of rants by Mr. LeBlanc on his blog
and with the use of a bullhorn. The constable was progressively described as a
"fascist" (not deemed libel by the investigating officer) and later as a "sexual
pervert" (deemed libel). Mr. LeBlanc went so far as to say that Fredericton "kids
must be in great danger" with this particular officer as a member of the force.
While even some of the constables colleagues felt that he should consider the
lack of credibility of the source and simply "suck it up!", he was not pleased and,
as the record shows, was insistent that Mr. LeBlanc should be charged.
All things considered, the investigating officer and the FPF, whatever theirmotives, seemed well within their authority in pursuing criminal prosecution of
Mr. LeBlanc. A review of the entire record also shows that they obviously chose
the wrong section of the Criminal Code under which to investigate the complaint,
that the Crown did not provide timely enough advice to avoid execution of a
search warrant and that, save for one glaring mistake, the
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investigation was carried out in a deliberate, comprehensive and respectful
fashion.
It is not for this review to determine if any and all limits on freedom of expression
should be eliminated from the Criminal Code. There are valid arguments on both
sides of this issue. New technology, social media, troublesome trends in
cyberbullying cause some to doubt that civil law solutions are sufficient in
themselves to regulate the use of speech to cause harm. Others argue just as
strongly that even offensive speech should be protected in a liberal democracy.
The Supreme Court has spoken clearly enough so it is now up to legislators to
decide what role, if any, criminal law should play on this fundamental rights
question.
There is no denying that there is room for improvement in the way policing
services are delivered in Fredericton. Everyone agreed on that point. Improved
training and continuing professional development and hiring more specialized
human resources are part of the solution. Avoiding conflicting situations by
ensuring transparent and independent oversight and accessing legal advice when
required might be another. Police work and the use of individual police discretion
are inseparable so there will always be variances in how different police officers
exercise their duty, even within the standards established in the Code of
Professional Conduct. Inappropriate exercises of discretion can be avoided only
when the rules are clear and when training is consistent and sufficient.
In policing, as in other areas of public service, perception often becomes reality.
This review, unpleasant as it may be, provides an opportunity for the City of
Fredericton and its police force to ensure that law enforcement in the
municipality is of the highest quality possible. In the end, that is the best way of
getting to a place where there truly is no difference between perception and
reality...and for all the right reasons.
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Schedule A
J Division Operational Manual
App. 54-2-1 - New Brunswick Integrated Investigation Team (NBIIT)Memorandum of Agreement (MOU)
BETWEEN:
Bathurst City Police Force, Beresford Nigadoo Petit-Rocher
Pointe-Verte (BNPP) Regional Police Force, Edmundston Police Force, Fredericton
Police Force, Miramachi Police Force, Rothesay Regional Police Force,
Royal Canadian Mounted Police (RCMP) J Division, Saint John
Police Force, and Woodstock Police Force
(hereinafter referred to as the "Parties")
WHEREAS the Parties agree that it is important to maintain public confidence in
the investigation of incidents involving police action resulting in death or bodily
harm or other incidents for which the perception of independence of an
investigation may be compromised if the investigation of a police action is
undertaken by the agency of jurisdiction;
AND WHEREAS an open, independent and thorough investigation is paramount to
maintaining public confidence;
AND WHEREAS an open, independent and thorough investigation to the fullest
extent possible is in the best interest of the persons involved;
NOW THEREFORE the Parties to this Agreement, in consideration of themutual covenants contained herein, agree as follows:
Purpose of the Agreement
This agreement between the Parties is intended to establish guidelines for an
integrated investigation of incidents involving police action or inaction resulting
in death or bodily harm or incidents which the public may reasonably perceive the
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independence of an investigation to be compromised.
No term or provision of this agreement shall be interpreted or applied so as to be
in conflict with any provision of the NB Police Act or the RCMP Act or any
successor act and the regulations there under as amended from time to time. Any
term or provision of this agreement that is in conflict with the NB Police Act or the
RCMP Act or any successor acts orregulations there under is void and of no effect.
Article 1: Definitions
I. Incident means:
- A death or serious bodily harm allegedly resulting from the use of force,negligence or an act or omission on the part of the police officer or other
responsible agent/employee (e.g. cell guard) of a police service, or
- Police action precipitating an investigation that, due to the nature of the matter
and/or the subjects involved, may be perceived by the public as lacking
independence if conducted by the police agency of jurisdiction.
II. Host Agency means the Party of the officer or responsible
individual involved in the incident.
III. Independent Agency means a Party not directly involved in the incident.
IV. Joint Management Team means the Chief of Police/designate and the
"J" Division Criminal Operations Officer/designate of the host or independent
agency, as the case may be.
V. New Brunswick Integrated Investigation Team (NBIIT) means a teamcomprised of members of the Parties involved in the investigation of
the incident.
VI. Team Commander means the member of the independent agency who will
be responsible for coordinating the investigative activities as per the Major Case
Management Model.
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Article 2: Activation of NBIIT
An investigation by the NBIIT will be undertaken upon a request by the "J" Division
Criminal Operations Officer (or designate) or the Chief
of Police (or designate) in the jurisdiction where the incident occurred.
Article 3: Role of NBIIT
The primary role of the NBIIT is to investigate incidents or any other incident
designated by the appropriate Chief of Police or the "J" Division Criminal
Operations Officer. Such investigations will be conducted in accordance with the
Major Case Management Model. In addition, the NBIIT will be responsible for the
following;
I. To conduct a thorough investigation into all aspects of the incident under
investigation.
II. To prepare a final report on the incident outlining the findings of the
investigation.
III. To determine from the information and evidence whether there has been any
violation of the Criminal Code or other federal, provincial or municipal statutes.
IV. To request the appointment of Crown counsel through Public Prosecutions for
consultation, if necessary.
V. To perform other related duties assigned by the Team Commander.
Article 4: Composition of NBIIT.
The NBIIT will follow the investigative principles of the Major Case
Management Model.
The Team Commander, in addition to coordinating the investigative
activities as per the Major Case Management Model, will be responsible
for the following;
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be paid for by the agency which employs the operator.
(b) Third party claims for bodily injury or property damage arising out of
accidents caused by the negligent operation of a NBIIT vehicle, shall be defended
and responded to by the owner of the vehicle, including any deductible or
self-insurance retention limits.
IV. Where damages or third party liability in the circumstances described in
paragraph III above result not from negligence of the operator but from the
negligence of the owner due to a fault, defect or improper maintenance of the
motor vehicle or other causes unrelated to the operator, the owner of the said
motor vehicle shall bear responsibility for all resultant damages, claims or third
party liability.
Article 7: Reports
I. Appropriate security pursuant to departmental policies and federal and
provincial legislation is to be afforded all correspondence resulting from the
investigation.
II. A standardized report will provided by the Team Commander to the Joint
Management Team on a monthly basis, or more frequently, as may be requested
by the Joint Management Team.
III. The results of the investigation are not to be released without the authority of
the Joint Management Team.
IV. At the conclusion of all judicial proceedings the original investigative file will
be turned over to the host agency.
Article 8: Prosecutions
It is the responsibility of the NBIIT to lay any charges resulting from the
investigation in the appropriate court of jurisdiction.
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Article 9: Discipline and Complaints
I. It is the responsibility of the Team Commander of the investigation to refer any
matters relating to discipline or related issues arising from the facts of the
investigation, to the Commanding Officer (RCMP) or the appropriate Chief of
Police.
II. Complaints from the general public on any activity involving members of the
NBIIT which cannot be resolved informally will be reported to: in the case of an
RCMP member, the Commanding Officer "J" Division (RCMP) or in the case of
another member, to the appropriate Chief of Police.
III. The host agency shall be permitted access to the file for purposes ofinvestigations under the Police Act or the RCMP Act.
Article 10: Liability
Each party shall be responsible for and hold the other party free and harmless
with respect to injury to or death of its own personnel, or for injury to or damage
to property of others respectively caused by or arising out of the negligence of its
own personnel.
Article 11: Media Relations
A Media Relations person will be appointed by the independent agency. In
consultation with the Joint Management Team, the Team Commander will
approve all media releases regarding the conduct and status of the investigation.
Article 12: Terms of Agreement
This agreement does not constitute a binding contractual relationship between
the Parties but is rather a record of intention of the Parties concerned. This
agreement comes into effect on the date of signing and remains in effect unless
terminated by either party on thirty (30) days notice. This Agreement may be
amended from time to time with the mutual written consent of the Parties.
Acknowledged and signed:
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-Chief of Police, Bathurst Police
Force_______________________________________
Date___________________
-Chief of Police, BNPP Regional Police
Force___________________________________
Date___________________
-Chief of Police, Edmundston Police
Force______________________________________
Date___________________
-Chief Of Police, Fredericton PoliceForce_______________________________________
Date____________________
-Chief of Police, Miramichi Police
Force________________________________________
Date____________________
-Chief of Police, Rothesay Regional Police
Force__________________________________
Date_____________________
-Commanding Officer, RCMP "J"
Division________________________________________
Date________________________
-Chief of Police, Saint John Police
Force___________________________________________________
Date____________________
-Chief of Police, Woodstock Police
Force________________________________________
Date____________________
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Websites
Charles LeBlanc, Charles Other Personality online: Blogspot.com
.