Fiske v. Nova Scotia Gaming Corporation

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May 15, 2000

Lawyers can talk to the media about their cases!

On the morning of Monday May 8, 2000 Mr. Justice David Gruchy of the Nova Scotia Supreme Court, in this trial involving high profile witnesses, ordered counsel before him not to speak to the media during the course of the trial. Alan Parish, Counsel for Southam and CBC appeared before him in the afternoon asking him to reconsider based on principles in guidelines released by the Canadian Judicial Council in 1990, Dagenais v. CBC, the Charter, and the lawyer's ethical duty to assist the media in reporting cases. The judge, relying on lessons he drew from the Supreme Court of Canada's comments on the conduct of Morris Manning in the defamation case Hill v. Scientology, confirmed his earlier order.

The order spawned media criticism by local columnists, Stephen Kimber and Parker Barss Donham, of the Halifax Daily News, one of whom used it as an example of two tiered justice in Nova Scotia. The media comments caused counsel for the plaintiff, Bruce MacIntosh, to reconsider his silent acceptance of Justice Gruchy's order during the earlier proceedings.

On Monday May 15, Mr. MacIntosh addressed the court at length with a review of the lawyer's obligation to assist the media, particularly in reporting on complicated cases. He made numerous references to "What can lawyers say in public", a recent article by David M. Brown in the December, 1999 Canadian Bar Review and asked the judge to reconsider his earlier order. Justice Gruchy indicated that he did not consider his earlier order to be a publication ban in the usual sense but rather an order to control the process of his court. He confirmed his agreement with the numerous quotations from the Brown article used by Mr. MacIntosh. He then rescinded his earlier order, indicating he would rely on the experience and discretion of counsel to conduct themselves appropriately.

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