Bernard Richard - Independent Review-15-11-2012

7/29/2019 Bernard Richard - Independent Review-15-11-2012

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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


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


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

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Documents

Bernard Richard - Independent Review-15-11-2012