Vancouver Island Blogger Found Guilty of Violating Judge's Publication Ban
By Louise Dickson
April 15, 2014
A Victoria man learned Monday that people writing on blog websites can't get away with posting information that breaks a court-ordered publication ban.
Blogger Gregory Hartnell was found guilty of breaching a publication ban on evidence at the preliminary inquiry of a Roman Catholic priest, later convicted of sexually touching a young person.
Victoria provincial court Judge Wayne Smith found Hartnell failed to comply with a judge's order prohibiting publication of evidence at Father Phil Jacobs' preliminary hearing in November 2011.
At the start of the inquiry, Judge Evan Blake made an order under section 539. (1) of the Criminal Code directing that the evidence heard not be published, or broadcast or transmitted in any way until the accused is either discharged or, if ordered to stand trial, the trial has ended.
Smith found Hartnell, who attended the first day of Jacobs' hearing, transmitted two postings containing explicit allegations to Sylvia's Site on Nov. 8 and Nov. 9, 2011.
The public website, run by Sylvia McEachern, covers sex-abuse scandals and betrayals of trust in the Roman Catholic Church in Canada.
McEachern testified that she saw the first posting, was concerned it violated the publication ban and immediately edited the post. The first unedited post was on her site for less than 30 minutes, she testified.
The next day, Hartnell transmitted a second post. This one was on Sylvia's Site for a longer period before McEachern saw it and edited it.
Although the defence suggested Hartnell and McEachern were working together, Smith did not accept that McEachern was performing any sort of editing function on behalf of Hartnell.
"He had direct access to her site and could post without being moderated and that is in fact what occurred on each of these occasions," said Smith.
McEachern was concerned about her website's legality, its handling of defamation and publication bans, Smith found. She did not usually edit postings unless she was worried about a legal issue.
"It was only then she would perform an editorial function so that a sexual perpetrator would not go free on a legal technicality," said Smith.
The judge noted that it was only after the second posting that McEachern suggested Hartnell contact her directly by email so that she could consider his comments for editing before posting them publicly.
Smith said he was satisfied Hartnell violated Blake's publication ban when the postings were transmitted to Sylvia's Site. He said he was also satisfied beyond any doubt that Hartnell was aware of the publication ban "and what followed was an intentional act of publication."
The case has been adjourned to allow the defence to challenge the constitutionality of Section 539. (1) of the Criminal Code. If the section is upheld, Hartnell will be convicted and will proceed to sentencing. If the section is struck down, Hartnell won't be convicted.
Jacobs, who was parish priest at St. Joseph the Worker in Saanich from 1997 to 2002, was convicted of touching a young person between the ages of 14 and 18 for a sexual purpose. The 63-year-old received a five-month conditional sentence, followed by two years' probation.
Jacobs was acquitted of three other charges, including sexual assault and two counts of sexually touching a person under 14.