Independent Review

Fredericton Police Force Charles LeBlanc Libel Investigation

Bernard Richard, Q.C. November 2012

Independent Review Team: Bernard Richard Danielle Roy Megan Marie Kervin

Fredericton Police Force Charles LeBlanc Libel Investigation

November 2012

Printed in New Brunswick


Table of Contents
Glossary Acknowledgements Terms of Reference Introduction Context Facts (in chronological order) Analysis Conclusion Schedule A Bibliography 4 5 6 8 10 12 20 45 47 55


ADHD: Attention-Deficit / Hyperactivity Disorder Alleged victim: The constable who filed a complaint after learning of derogatory remarks published about him by Charles LeBlanc CCC: Criminal Code of Canada CCLA: Canadian Civil Liberties Association Charter: Canadian Charter of Rights and Freedoms Crown: Any member of the Department of Justice and Attorney General, including regional Crown Prosecutors, who was at any time involved in the process DSM-IV-TR: Diagnostic and Statistical Manual of Mental Disorders (fourth edition, text revision) published by the American Psychiatric Society FPF: Fredericton Police Force Investigating Officer: The lead investigator on the libel complaint file ISP: Internet Service Provider MOU: Memorandum of Agreement


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 zone as 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.


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 Investigator’s discretion in conducting this review in accordance with these

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.


"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 LeBlanc’s 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: "It’s 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 the police force’s 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 force’s decision to pursue a criminal libel charge.


“Cops and bloggers; In our view: Fredericton Police Force has a perception problem”, Editorial, The Daily Gleaner (7 February 2012) page



Once the Crown’s 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 city’s 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 of the 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 individual’s 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 Force’s investigation following receipt of a complaint of criminal libel against Mr. LeBlanc.

Nathalie Des Rosiers, Canadian Civil Liberties Association Submissions to Bernard Richard for his review of the Fredericton Police Force’s conduct with regard to the arrest and investigation of Charles LeBlanc for criminal libel (29 August 2012), online: Canadian Civil Liberties

Association <>.


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 the political 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 the investigation. 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,

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 when he 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. LeBlanc’s 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.


Facts (in chronological order)
23, 201 June 23, 2011 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 constable’s two. June 27, 2011 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. LeBlanc’s “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. conduct. The complaint does not mention any particular inappropriate action taken by the constable or any physical contact between the


June 29, 2011 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. July 1, 2011 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. July 14, 211 Mr. LeBlanc submitted a second complaint to the FPF regarding the ticket and the issuing officer’s 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.” July 19, 2011 The alleged victim sent the investigating officer another email stating that he felt his credibility was being affected by Mr. LeBlanc’s blog postings, as “many people” were approaching him about the blog, which had over one million hits at the time. July 26, 2011 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????”


August 3, 2011 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 constable’s allegation that the July 26, 2011 post constituted defamatory libel. August 9, 2011 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. August 10, 2011 The investigating officer concluded the initial investigation, finding that Mr. LeBlanc’s post of June 27, 2011 did not support a charge of defamatory libel but that Mr. LeBlanc’s subsequent post of July 26, 2011 did. August 15, 2011 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. August 18, 2011 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. August 19, 2011 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.

September 7, 2011 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. September 9, 2011 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.) September 14, 2011 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 officer’s Undertaking and refusing to enter into a judge’s Undertaking. September 16, 2011 Mr. LeBlanc entered into an Undertaking in order to be released. September 22, 2011 A constable who was present when Mr. LeBlanc’s ticket was issued gave a statement stating that he did not witness any physical contact between the issuing officer and Mr. LeBlanc. October 12, 2011 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

again posted comments that stated that the constable touched Mr. LeBlanc’s “private parts”. October 13, 2011 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. October 17, 2011 The investigating officer received confirmation that there were no McNeil disclosure issues for the alleged victim. October 28, 2011 and November 21, 2011 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 holder’s name and address, in both cases, matched Mr. LeBlanc’s. December 12, 2011 A second Crown Prosecutor advised that an Information to Obtain a search warrant would be required. January 18, 2012 The same Crown Prosecutor approved an Information to Obtain a search warrant, prepared by the investigating officer and authorized by a Provincial Court Judge. January 19, 2012 Upon discovering that the Information to Obtain required an amendment to include the attendance of RCMP Tech Crimes, the investigating officer amended

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. LeBlanc’s 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. February 1, 2012 The CCLA wrote to the FPF Chief outlining several concerns regarding Mr. LeBlanc’s 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 CCLA’s 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."


February 21, 2012 The Chief wrote to the CCLA declining to respond to questions that are related to an ongoing criminal investigation. February 29, 2012 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. March 13, 2012 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." April 4, 2012 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 General’s obligations with respect to the public interest." April 5, 2012 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."


April 19, 2012 A Crown Prosecutor advised the FPF that he could not approve the charge under section 301 of the Criminal Code against Mr. LeBlanc. May 3, 2012 That opinion was confirmed by the Director of Specialized Prosecutions and sent to the investigating officer via fax. May 8, 2012 Mr. LeBlanc’s seized property was released.


If this independent review is being conducted, it is because the handling of the FPF Charles LeBlanc libel investigation matter has raised questions from municipal 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 individual’s 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: 1. Should the FPF have undertaken an investigation of the alleged victim’s complaint given the history of its relationship with Mr. LeBlanc? 2. In light of the free speech provisions of the Charter and previous court decisions, was it reasonable to pursue charges under section 301 of the Criminal Code of Canada?


A-1 R.v. Lucas, [1998] 1 S.C.R. 439 (the case involved defamatory libel against a police officer).


3. Once undertaken, was the investigation carried out according to acceptable standards of policing? 4. What role did the Crown play in the Mr. LeBlanc’s investigation? 5. Are FPF members sufficiently trained and prepared to deal with citizens who present with particularly challenging personality traits or mental disorders?


1. Should the FPF have undertaken an investigation of the alleged victim’s complaint given the history of its relationship with Mr. LeBlanc? 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 Brunswick’s police forces (see graph below).


Thirtieth Annual Report of the New Brunswick Police Commission 2010-2011, online: New Brunswick Police Commission

<>. Page 22.


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 such complaints, 2 of which were filed by the same FPF member regarding Charles LeBlanc’s blog post and/or public utterances. The last one of these resulted in the investigation which is the subject of this review.

FPF Statistics 2007-2011 Complaints about force members Complaints by force members Defamatory libel complaints 157 13 8

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 of brushes 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

minds of some at least, the view that something had to be done. Mr. LeBlanc’s 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. LeBlanc…was simply plying his trade, photographing the demonstration for inclusion in his blog when he was arrested”. Many considered the judge’s comments as a sort of validation of Mr. LeBlanc’s credentials as a member of the press. While there were mixed feelings about how best to deal with Mr. LeBlanc, FPF’s 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 constable’s 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.


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 relating to the conduct of a member of a municipal or regional police force;  the ensuring of consistency in disciplinary dispositions through

maintenance 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 of policing 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 Royal Canadian 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.


Even if some type of "advisory" body could very well be useful as a sounding board for these types of cases, it is neither practical nor cost-efficient to envision one serving each of New Brunswick’s nine police forces. What is more readily feasible is the full implementation of a Memorandum of Understanding (MOU) that has been around since 2009.5 This MOU between New Brunswick’s police forces is primarily intended to ensure independent investigations when allegations are made against police officers. The precursor to the MOU is another agreement called the UFIT (Use of Force Investigative Team.) That agreement outlined the scope of investigations, including allegations of excessive force by police officers as well as allegations against mayors, councillors, judges, upper management, etc. Although the primary intent of the agreement is as stated above, it also allows for any situation where "the perception of independence of an investigation may be compromised". The section entitled "Purpose of the Agreement" reads as follows: 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 independence of an investigation to be compromised. In Article 1 (Definitions), the following can be found: 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
See Schedule A attached.



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. I. RECOMMENDATION That the City of Fredericton and its police force take steps to promote the adoption of policy guidelines for the full implementation and use of the MOU creating the New Brunswick Integrated Investigation Team (NBIIT).


2. In light of the free speech provisions of the Charter and previous court decisions, was it reasonable to pursue charges under section 301 of the Criminal Code of Canada? 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 the competing 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"
R. v. Gill, (1996) 29 O.R. (3d) 250 (Ont. C.J. – Gen. Div.) R. v. Prior, (2008) 292 D.L.R. (4th) 412 (Nfld. & Labrador S.C. – Trial Div.) 8 R. v. Finnegan, (1992) A.J. No. 1208 (AB Q.B.) 9 R. v Lucas, (1995), 129 Sask. R. 53 (Sask Q.B.) 10 R. v. Osborne, (Cause No. S/CR/08/02)
6 7

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. Osborne’s protest followed a custody order rendered by Guerette 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. Osborne’s behavior and attaching pages from a psychological assessment that had been prepared for the purpose of Mr. Osborne’s 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. Osborne’s 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 12

Lucas, Supra
P.A. Downard (Contributor), “Defamation in Canadian Law – Defamation and Freedom of Expression – HDE-9 - A Balance Struck”

Halsbury’s Laws of Canada (3 August 2012), online: LexisNexis Canada Inc. <>.


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. There is 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
R. v. Zundel, [1992] 2 SCR 731



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. Were there other CCC options? 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 person’s 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. LeBlanc’s 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

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 section 301. 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.


The Criminal/Civil Law Dichotomy in R. v. Lucas [1998] Directing the complainant towards civil proceedings (which might include attempting to obtain an injunction against Mr. LeBlanc) could also have been considered but this seems not to have been part of the equation. On this particular point even the SCC, in Lucas, expresses in no uncertain terms that criminal libel prosecution can be justified, whether or not a civil remedy such as damages is sought: It is true that Canadian Law Reform Commissions have reached a different conclusion on the utility of the criminal defamation provisions. However, for the reasons noted earlier I cannot accept their position that the civil law adequately protects the reputation of individuals from defamatory attacks. Further, to accept the position that because offensive conduct can be pursued through private litigation it cannot be prosecuted criminally would seriously undermine Parliament’s authority to determine what conduct amounts to a public wrong. As far as defamation is concerned, civil and criminal processes can effectively co-exist. The criminal offence is not overbroad or ineffectual simply because a civil remedy exists.14 The Court considered the issue of whether the defamatory libel provisions in the Criminal Code go too far given the availability of the civil law remedy in libel, which also protects the reputation of individuals. The Court found that reputation cannot be protected adequately through the use of civil law alone. The parallel but distinct civil and criminal laws concerning defamatory libel reflect the view of Parliament that while victims of such wrongs may well deserve to be compensated, perpetrators who willfully and knowingly publish lies deserve to be punished for their grievous misconduct. Though both are meant to deter, the criminal and civil law serve different purposes. Criminal law serves to recognize society’s intolerance of an act through punishment. Civil law serves to compensate those harmed for injuries suffered at the hands of another. Criminal law treats all crimes as offences against society with the state prosecuting the offender in a public forum. The interests of the state are paramount while the interests of victims are peripheral. In the civil process, the victim confronts the wrongdoer.

R. V. Lucas, [1998] 1 SCR 439; CanLII 815 (SCC), par. 76


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: 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 and contempt. 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.


3. Once undertaken, was the investigation carried out according to acceptable standards of policing? There are two general occurrence files at the FPF that have as their origin the June 23, 2011 event which led to Mr. LeBlanc being ticketed for not wearing a bicycle helmet. The same detective was asked to investigate both incidents including one which was quickly set aside as not meeting the threshold for criminal libel. That first file was opened after a June 27, 2011 post on Mr. LeBlanc’s blog. In that post, he accused the ticket issuing officer of being a "fascist cop" and published photoshopped unflattering photos of him. Notes from the file sum up the investigating officer’s overall impression of the matter. Section 299 of the Criminal Code of Canada defines defamatory libel as a matter that is published, without lawful justification or excuse, which is likely to injure the reputation of any person by exposing him to hatred, contempt or ridicule, or that is designed to insult a person. The issue here is that as police officers we are expected to be subject to ridicule and insult by the nature of our work and with whom we interact. The constable is clearly upset by Mr. LeBlanc’s tirade over getting a ticket and it is my opinion that he is justified in his feelings. In the end, after reviewing the Supreme Court of Canada conclusion in Lucas15 the decision is made not to pursue a charge. The file notes put it this way: "In this matter no evidence exists within the criteria of the Criminal Code of Canada to support a charge of defamatory libel and this conclusion is backed by case law." The decision is confirmed by a "quality reader*" and is taken virtually simultaneously with the opening of a second occurrence file. (*Note : a "quality reader" is a senior officer who reviews investigation files and helps determine if their treatment is in accordance with prevailing standards, laws and policies). The second file is opened as the nature of the posts on Mr. LeBlanc’s blog escalate in content and become more personal and unrelated to the alleged victim’s work as a police officer. A July 26, 2011 post is singled out for attention. In it, Mr. LeBlanc clearly ups the ante. Here is some of the text from that post:


Lucas, Supra


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 the private 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

providing access to information far beyond what was needed for purposes of this specific investigation. The Canadian Civil Liberties Association’s 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 Crown’s review. On the other hand, CCLA’s position that "a non-specific search on an individual’s 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 personal information. In many respects, a computer gives access to more personal information than exists anywhere else in a person’s 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. LeBlanc’s privacy but there was a distinct possibility of that happening. Just as concerning is that in its efforts to obtain information from Mr. LeBlanc’s 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

child sexual exploitation. Given that the form is intended for the purpose of this type of disclosure and the form also indicates is it [sic] required for this purpose, [we] subsequently provided the subscriber information with the understanding is [sic] was intended to be used for that purpose. My team would not use this form to disclose IP address information under any other circumstances. All other types of non-exigent criminal investigations require the police to obtain a production order or search warrant to obtain subscriber information linked to an IP address. This egregious error gives credence to those who see this part of the investigation as an attempt to find something more serious to be used against Mr. LeBlanc. Obviously, several members of the FPF were questioned about the use of this form. The response provided was that it was a "poor cut and paste job." But, with respect, it is more than that given that the use of the form is exclusive to child sexual exploitation offences and should only be used for that purpose. The only possible alleviating consideration to be given for this "poor cut and paste job" is the inevitable conclusion that a search warrant requested for the same purpose would have undoubtedly been approved and this would have met the ISP’s policy concerning release of personal information. All other requests to or through the Crown to obtain the necessary evidence, including a search warrant to enter Mr. LeBlanc’s premises and seize his computer, were approved. There is no reason to believe that a request to obtain Mr. LeBlanc’s IP address would have received a different treatment. In all other respects, the investigation met the highest of standards and does not give rise to any particular concerns. II. RECOMMENDATION That in all FPF requests for search warrants respecting computer data, every effort should be made to specifically describe the information sought. III. RECOMMENDATION That the FPF provide to all its members a briefing with clear instructions relating to the proper use of the "Letter of request for account information regarding a child sexual exploitation investigation".

4. What role did the Crown play in the Mr. LeBlanc investigation? 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 that only 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

This "uncredited" article relies on the following two reports: Discretion to Prosecute Inquiry, British Columbia, Stephen Douglas Owen,

Chairman, (1990,) Commissioner’s Report, Vol.1 at 25. See also Royal Commission into the prosecution of Donald Marshall Ir., Inquiry Report, Vol.1 at 232


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 doesn’t 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 wasn’t 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 review’s 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 don’t always work as we would like them to.

17 18

Osborne, Supra
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 <>.


5. Are FPF members sufficiently trained and prepared to deal with citizens who present with particularly challenging personality traits or mental disorders? 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. On the 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. LeBlanc’s 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









American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders , Fourth Edition, Text Revision. Washington, DC,

American Psychiatric Association, 2000.


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 the veracity 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.


CCLA Brief, supra


For example, in a very recent decision21, the NB Court of Appeal referred to a "cluster of cases" involving a particular kind of litigant "who is under the mistaken impression they have an unfettered right to pursue their self-interests without regard to the rights of the opposing party…". And later in the same paragraph: Regrettably, it only takes a few to grind down the pace at which justice is delivered in this Province and to stretch the patience of all judges who, as a matter of fact, are truly committed to ensuring that all litigants are provided with meaningful ‘access to justice’. It would be unfair to lump all of these issues together but they are not entirely unrelated. The fact remains that persistent, libelous and sometimes disturbed individuals pose a tremendous challenge to public service providers. To "Respond directly", as the CCLA suggests, could in some cases actually escalate the tension and result in a worse situation. An overreaction to bloggers may very well lead to an overreaction by bloggers. After all, bloggers do not need permits or licences to blog, there is no code of ethics or rules that need to be followed. The nature of the internet and social media makes it difficult to manage in any event as we have seen from recent disturbing events in other parts of Canada. Just recently in London, Ontario, eight girls were arrested as part of an investigation that revealed that a high school student had been the target of physical, emotional and cyberbullying. The eight suspects have been charged with criminal harassment. In the same week, Amanda Todd, a 14 year old BC girl committed suicide after being bullied on the internet. This event and others prompted one radio commentator to lament the "damage that can be done with a mouse".22 Education authorities and politicians of all stripes have united in an effort to curb this pervasive and damaging form of bullying to which teenagers are particularly vulnerable. Though it is a matter outside the scope of this review, it is likely to be a growing concern in years to come.
21 22

André Murray vs. The New Brunswick Police Commission , 50-12-CA and 57-12-CA, at para.10.
Q with Jian Ghomeshi, CBC Radio (19 October 2012), online: <>.


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" in 2009-2010. 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. LeBlanc’s 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.

IV. RECOMMENDATION That the FPF provide all its members with enhanced mandatory training on dealing with Emotionally Disturbed Persons, including education on mental disorders, available services and intervention techniques. V. RECOMMENDATION That the FPF give consideration to including in its staffing complement resources with appropriate training, knowledge and experience in dealing with Emotionally Disturbed Persons. VI. RECOMMENDATION That the FPF develop a policy for responding to Emotionally Disturbed Persons, which includes a strategy for managing communications when clients publish false and/or libelous information. VII. RECOMMENDATION That the FPF ensure that members who are the targets of unfair and potentially harmful criticism stemming from the execution of their duty have access to the help and support they require.


"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 deeds—Mr. LeBlanc’s incessant and personal attacks on the Legislature’s 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 constable’s 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 their motives, 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


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.


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 the mutual 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

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 team comprised 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.


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;

I. Report monthly to the Joint Management Team regarding the conduct and status of the investigation. II. Appoint members to the NBIIT as required from both the host and independent agency. III. Oversee the investigative activities of the NBIIT. IV. Facilitate requests regarding personnel, equipment, support services and specialized services. V. Monitor resources, including finances, required by the team and acquire same as necessary. VI. Monitor the overall performance of the investigative team. VII. Conduct regular briefings on the progress of the investigation within the team. VIII. Make decisions regarding follow-up activity or procedure as required. IX. Be responsible for signing off on all correspondence relating to the status of the investigation. X. Present the final report to the Joint Management Team. The Primary Investigator will be appointed by the Team Commander and be responsible for duties as per the Major Case Management Model. The File Coordinator will be appointed by the Team Commander and be responsible for duties as per the Major Case Management Model. The Investigative Support Team will be drawn from the independent agency and the host agency as required by the investigative team in consultation with the Joint Management Team.


Article 5: Financing I. Office supplies and clerical support will be the responsibility of the host agency. II. If secure office space is not available, the NBIIT will seek approval from the Chief of Police (or delegate) or the Commanding Officer (or designate) to rent office space. III. Vehicles and operational equipment are to be supplied by individual departments for their respective members. IV. If specialized services are required (e.g. Identification Services or Police Service Dog Sections), they may be made available from any of the Parties involved in the investigation. V. Each of the participating Parties shall be responsible for the salaries of their personnel. All additional expenses including overtime, allowances and travel expenses will be the responsibility of the host agency at rates to be agreed upon by the Parties involved. VI. Fees for service will not be charged between the Parties to the NBIIT investigation. Article 6: Operation of Vehicles I. For the purposes of this agreement, it is understood that the Parties to the investigation will supply, for the use of NBIIT, owned, rented or leased vehicles which will be suitably insured. II. Police motor vehicles being operated by NBIIT members shall not be involved in duties other than those pertaining specifically to the NBIIT. III. Whereby any vehicle assigned to NBIIT is operated by a member of a department other than the department which owns, rents or leases the vehicle: (a) Damage to vehicles provided by any Party which results from the negligence of the operator while acting within the scope of his/her duties of employment shall

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.


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 of investigations 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:

-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 Police Force_______________________________________ 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____________________


Audio Recordings

Q with Jian Ghomeshi, CBC Radio (19 October 2012), online:
<>. Cases

André Murray vs. The New Brunswick Police Commission, [2012] N.B.J. No. 211. R. v. Finnegan,(1992) A.J. No. 1208 (AB Q.B.). R. v. Gill, (1996) 29 O.R. (3d) 250 (Ont. C.J. – Gen. Div.). R. v Lucas, (1995), 129 Sask. R. 53 (Sask Q.B.). R.v. Lucas, [1998] 1 S.C.R. 439. R. v. Osborne, (Cause No. S/CR/08/02). R. v. Prior, (2008) 292 D.L.R. (4th) 412 (Nfld. & Labrador S.C. – Trial Div.). R. v. Zundel, [1992] 2 SCR 731.
Secondary Sources American Psychiatric Association, Diagnostic and Statistical Manual of Mental

Disorders, Fourth Edition, Text Revision (Washington, DC: American
Psychiatric Association, 2000). 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< ml>.

“Cops and bloggers; In our view: Fredericton Police Force has a perception problem”, Editorial, The Daily Gleaner (7 February 2012) page c6.

Discretion to Prosecute Inquiry, British Columbia, Stephen Douglas Owen, Chairman, (1990,) Commissioner’s Report, Vol.1 at 25.

“Fredericton Blogger’s Arrest Attack on Civil Liberties” CBC News (24 January 2012) online: CBC News <>. Nathalie Des Rosiers, Canadian Civil Liberties Association Submissions to

Bernard Richard for his review of the Fredericton Police Force’s conduct with regard to the arrest and investigation of Charles LeBlanc for criminal libel (29 August 2012), online: Canadian Civil Liberties Association
< -review>. P.A. Downard (Contributor), “Defamation in Canadian Law – Defamation and Freedom of Expression – HDE-9 - A Balance Struck” Halsbury’s Laws of

Canada (3 August 2012), online: LexisNexis Canada
<>. Royal Commission into the prosecution of Donald Marshall Ir., Inquiry Report, Vol.1 at 232. “Terms of Reference – Criminal Libel Review – Charles LeBlanc” (26 June 2012), online: City of Fredericton < vestigation_termsofreference_charlesleblanc_eng_jun-26-12.pdf>.

Thirtieth Annual Report of the New Brunswick Police Commission 2010-2011,
online: New Brunswick Police Commission <>.


Websites Charles LeBlanc, “Charles Other Personality” online: <>.