What if there were real penalties for legal ‘delay of game’?

It’s been eleven months since the Nova Scotia mass shooting and the Crown and the Mounties are still doing their best to make sure we can’t find out what happened in the investigation. Perhaps it’s time there were consequences.

Before the 2019-20 season, the National Hockey League changed its rules around what are known as “coach’s challenges.” For those of you don’t give a flying puck about hockey, I’ll skip over most of the details you don’t need to know — but perhaps a little background might be helpful to my larger point. Which is not about hockey.

Once technology — slow motion, replays, multiple video angles — made it easier for every TV viewer to know for almost certain whether a player had really scored a goal legitimately, the league began allowing referees to review, and coaches to challenge, those on-ice, in the moment, blink and you missed them calls in certain limited circumstances.

The trick, of course, was to prevent frivolous challenges from coaches just trying to slow down the other team’s momentum or give their own players a chance to regroup after a goal against. For the league’s brass, however, the reality that games could drag on interminably while the referees and the league’s video control centre replayed and reconsidered every possible video angle threatened an even worse potential commercial consequence. Frustrated fans might simply tune out. If that happened, broadcast sponsors might stop ponying up millions of dollars in advertising to peddle their beer and cars, and then… well, where would Canadian identity be?

When the reviews began in 2015, a coach who challenged a call on the ice — and lost — simply cost his team their one timeout during the rest of that game. Since teams often didn’t take a timeout during a game anyway, it wasn’t a big deal and didn’t do much to deter questionable challenges.

So, in 2019, the league upped the ante. A coach’s failed challenge now costs his team a two-minute penalty for delaying the game. If the coach challenges a second goal in the same game, and is wrong again, the penalty doubles. Given that close to 20 per cent of goals in hockey games are scored with one team playing with a man advantage, that penalty could sting.

Consequences changed behaviour.

During the COVID-truncated 2019-20 season, in fact, the number of coach’s challenges fell by a whopping 41 per cent while the percentage of successful challenges increased from 38 per cent in 2018-19 to 57 per cent. As hockey journalist Dan Rosen noted on nhl.com, “It’s clear that the fear of a penalty has caused a dramatic decrease in the number of challenges.”

So why am I telling you all this?

On Friday in the Examiner, editor Tim Bousquet wrote about his frustrations trying to unseal search warrants — and the information police submit to the courts to obtain them — in connection with the RCMP investigation into last April’s Nova Scotia shooting rampage.

In the aftermath of what became the largest mass murder in Canadian history, the Examiner joined what began as a nine-member media consortium “pursuing a lengthy and costly court battle to get the search warrants related to the mass murder investigation unsealed.”

Uh… wait a minute. Wasn’t that issue settled nearly 40 years ago?

In 1982, the CBC’s Linden MacIntyre, then a Halifax-based journalist, went to court to challenge a justice of the peace’s refusal to hand over search warrants used to seize documents in a political corruption investigation.

In a ground-breaking decision, Justice Peter Richard, a trial judge of the Nova Scotia Supreme Court, ruled that once a search has been carried out, the warrant and its supporting documents must be made public. The [provincial Court of Appeal] granted even more access, opening warrants to inspection regardless of whether they had been executed and requiring public hearings when police apply for a warrant.

The case ultimately reached the Supreme Court of Canada, which adopted a middle course in its January 1982 judgment. By a margin of 5-4 the court rejected the notion that applications for warrants should be vetted in public, since this would give suspects a chance to hide or destroy evidence. But Justice Brian Dickson, the future chief justice who wrote the majority judgment, declared that warrants are public documents once a search has been conducted. Dickson made one exception – to protect innocent parties, he ruled that a warrant should remain private if the search did not yield evidence.

Attorney General of Nova Scotia v. MacIntyre is one of a handful of important media law precedents to come out of Nova Scotia. Dickson’s ruling recognized that the business of Canada’s courts, with few exceptions, must be conducted in the public eye. “At every stage” of the court process, Dickson wrote, “the rule should be one of public accessibility and concomitant judicial accountability.” Public access can only be restricted “to protect social values of superordinate importance,” such as the need to protect innocent persons caught up in police investigations.

So, back to today. And the RCMP’s Portapique investigation.

Despite Justice Brian Dickson’s ringing declaration“At every stage, the rule should be one of public accessibility and concomitant judicial accountability” — the RCMP and the Crown immediately went full-black-marker on the court and redacted so much information the documents themselves, as Tim wrote in May 2020, “provide no new information.”

Which was why media organizations had to go to court at their own expense to try to force authorities to do what they were legally required to do.  And then back to court again. And again. Wrote Tim in November:

It’s a long, tedious process. In May, Judge Laurie Halfpenny-MacQuarrie ordered the release of seven highly redacted ITOs. We challenged the redactions. The judge developed a procedure such that in July, the Crown gave her evidence for why the redactions should stand — but that evidence was provided in a secret hearing that we could not be present for. A couple of weeks later, the judge signed off on a handful of unredactions. Included in those unredactions was the explosive claim by one of the informants that GW smuggled drugs and weapons from Maine and was selling drugs in Portapique and Economy. (The RCMP issued a statement saying this was not the case.) But otherwise, the unredactions were mostly minor matters. More important, the vast majority of redactions were not unredacted.

We appealed Halfpenny-MacQuarrie’s ruling about process, and a Supreme Court judge will hear the matter sometime in the new year. But in the meanwhile, Halfpenny-MacQuarrie’s process continues, and we’re at various stages of the next 18 ITOs.

Last week — closing in on a full year since the shootings — “we got to the end of the first seven (of I think 26) warrants, and that’s laid the court process for the rest of them, so hopefully we’ll soon start getting a lot more — I expect to receive the next six in coming weeks…”

Many of the too-few redactions that have been unredacted as a result of the media court process to date raise serious questions about what the Mounties and the Crown are really up to.

Consider that one of the two bits of new information released last week was the name of a University of Toronto anthropologist hired to look for human remains on the killer’s property.

Really?

And then, consider this. In July, the Crown asked that the password for the lock on the killer’s garage in Portapique be kept secret until the police investigation had been completed. At some point later — in one of those secret hearings? — the Crown asked that the redaction be made permanent.

Last week, the judge overruled the Crown, and “on this tiny, tiny item, we now know the password was… (drumroll]… GOLD.” Tim again:

Why on Earth this had to be kept secret is beyond me. The garage is burned down. The lock is destroyed and will never be used for anything else. The killer is dead. But the Crown made an argument that the password should be kept from the prying eyes of the public, and the judge had to, as they say in the courts, “turn her mind” to the issue and make a ruling.

In the process of turning her mind to the question, of course, the lawyers — for the Crown, the Mounties, the media — also had to turn their hand to writing briefs and making arguments, eating up valuable court resources while generating yet more billable hours for their various clients. Ca-ching, ca-ching.

The problem — back to my hockey analogy — is that there are no consequences for the Crown if it fails to disclose the kinds of information the Supreme Court already ruled belongs in the public domain.

Even if they don’t ultimately win each redaction in the courtroom, they will have ragged the puck — sorry! — long enough to delay meaningful disclosure and perhaps even dissuade those on the other side from pursuing their case.

It’s already had an impact. Two of the nine media outlets that formed part of the original media consortium in this case have since dropped out.

Would the Crown’s eagerness to hide information from the public have been curbed if it faced real consequences? What if the judge automatically awarded the other side full costs if it was clear the Crown was playing fast and loose with redactions? Better, what if Crown attorneys — who are paid out of the public purse and therefore don’t normally suffer personal financial loss for their decisions — could be personally fined for delaying the game and wasting the court’s valuable time.

It’s worked in hockey.

A version of this column originally appeared in the Halifax Examiner

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