|
Zakreski now works for CBC. He was
convicted
and given an absolute discharge, but paper found guilty and fined,
Jan. 3, 2003 | See also Jo-Lynne Sheane
On this page: Judge sends SP, reporter
to trial on alleged breach of publication ban: Charges relate
to Nov. 1999 story containing details of Montgomery death Lori Coolican. Dec. 7, 2001 Saskatoon StarPhoenix
(below) | Part
of Zakreski's original feature | Newspaper
and Reporter Charged with Violating a Publication Ban | The
same day Zakreski was indicted, the Supreme Court of New York
came down with an important ruling
in favour of free speech
Reporter on the other
side of the law
Lori Coolican,
Saskatchewan News Network; Saskatoon StarPhoenix , December 11,
2002
BATTLEFORD
- Dan Zakreski has seen hundreds of people climb into the witness
box with the prospect of a criminal record looming over their
heads like a shadow on the courtroom wall.
In more than
20 years as a journalist, he never thought he would be one of
them.
And so, as
his two-day trial began in Court of Queen's Bench here Tuesday,
Zakreski seized his chance to get the full experience. Rather
than taking a chair next to his lawyer, he chose the prisoner's
dock -- a place where murderers, rapists and crooks of all stripes
have sat for decades.
He didn't have
to stay there for long.
Crown prosecutor
Dan O'Hanlon closed his case against Zakreski and his former
employer, The StarPhoenix, without calling a witness to the stand.
In this case, there are few disagreements about the facts, but
several over the meaning of the law.
Zakreski and
the newspaper are accused of violating a publication ban ordered
by Queen's Bench Justice Gene Ann Smith at the March 26, 1999
sentencing of Serena Nicotine.
Nicotine is
serving a life term for her role in the murder of North Battleford
community home operator Helen Montgomery. Her co-accused, Catherine
Mackenzie, was awaiting a jury trial when Smith banned the media
from reporting contents of a statement of facts read into the
record at Nicotine's sentencing.
Publicizing
the statement could jeopardize Mackenzie's right to a fair trial,
Smith ruled.
Ten months
later, Zakreski wrote a lengthy article entitled, "When
teenagers kill: The deadly effects of fetal alcohol syndrome
on our society".
It described
the horrific scene of Montgomery's death, with details that had
not been published before. The Crown contends they were similar
to details in the banned statement.
His information
came from the oral testimony of witnesses at an earlier hearing
in 1998, and from conversations with people directly involved
in the case -- not from the banned statement, Zakreski testified.
In the end,
Mackenzie never went before a jury. She pleaded guilty to second-degree
murder last April and received a life sentence.
The story was
discussed several times by decision-makers at the StarPhoenix
before it was published, editor Steve Gibb told court. The newspaper
often consults a lawyer if there are doubts about legal issues
involved with stories.
When closing
arguments are delivered today, the Crown is expected to argue
none of that matters.
Regardless
of where Zakreski's information was obtained -- from the statement,
from another court hearing or even outside the courthouse, it
could not be published without violating Smith's order, O'Hanlon
told reporters.
"It is
my understanding from reading the case law that the superior
court of record has the ability to make an order banning publication
of facts, wherever obtained, for the purposes of obtaining the
fair trial of an accused or co-accused," he said.
The StarPhoenix
trial is the second time in a month that media outlets and the
province's justice department have met each other in criminal
court over a publication ban.
The CBC is
in the midst of a trial, accused of violating a ban protecting
the identity of a complainant in the Jack Ramsay sexual assault
case. In that instance, the Crown admits the woman's identity
was broadcast at her request.
Describing
his experience in court as "jarring," Zakreski said
he doesn't feel like a target.
"It's
just a part of the job," he said.
StarPhoenix reporter
Dan Zakreski ordered to stand trial for breaking publication
ban
|
injusticebusters say: The function of the court is to administrate
justice and show the public that justice is done, not to protect
individual victims from  embarassment.
The function of the media is to scrutinize court proceedings
and to investigate discrepencies and publish their reports. If
journalists come up with information and insights which can assist
the process, so much the better.
Zakreski's
investigation of fetal alcohol syndrome and his subsequent article
was very much in the public interest. The profile of Serena Nicotine
did not make her look "innocent" as Helen Montgomery's
daughter complained but rather lent invaluable insight into a
phenomena which Mary
Ellen Turpel-Lafond had brought to public attention and was then
criticized for stepping beyond what some considered the proper
bounds of her office as a judge.
injusticebusters fully support Dan
Zakreski in his defence of his right to do his job. We hope his
acquittal will send a sharp message that judges should be extremely
reticent about granting non-publication orders and that journalists
must not be hampered from investigatng the truth and then telling
it.
|
Judge sends SP, reporter
to trial on alleged breach of publication ban: Charges relate
to Nov. 1999 story containing details of Montgomery death
Lori Coolican.
Dec. 7, 2001 Saskatoon StarPhoenix
A North Battleford
judge ordered The StarPhoenix and one of its veteran reporters
to stand trial on charges of breaching a court-ordered publication
ban with a story published two years ago.
Provincial
court Judge David Kaiser ruled Thursday that while there was
no direct evidence showing where reporter Dan Zakreski got some
of the information presented in the article, "it would be
entirely open to a trier of fact to infer that the whole story
or some part of it" was derived from a statement that was
subject to a publication ban.
"It is
not necessary for me to decide if the trier of fact would infer
such a conclusion, provided that it is a conclusion that could
be reasonably drawn from the evidence," Kaiser remarked
in his written decision.
No date has
been set for the trial, which will likely take place next year
in Battleford Court of Queen's Bench.
Zakreski has
written for The StarPhoenix for nearly 20 years, earning a promotion
to senior investigative reporter for Saskatchewan's chain of
daily papers in March 2000. He has never been charged with a
criminal offence.
The prospect
of going on trial is "a little unsettling obviously, even
though I believe we're right. It's serious stuff," he said.
"I look
forward to having my chance to present the story in court and
explain what we were doing. We're going to win. We are right."
Zakreski was
charged alongside the newspaper last September with breaching
a ban imposed by Queen's Bench Justice Gene Ann Smith in the
case of Cathy Mackenzie, who helped notorious teen killer Serena
Nicotine murder North Battleford community home operator Helen
Montgomery in 1997.
Both Mackenzie
and Nicotine, who were 15 years old at the time, eventually pleaded
guilty to second-degree murder in adult court and are serving
life sentences.
As the charges
against them proceeded through the courts in 1998 and 1999, several
judges in different jurisdictions imposed bans on publication
of evidence revealed in court.
The Crown alleges
a Nov. 27, 1999 article by Zakreski, entitled When Teenagers
Kill: the Deadly Effects of Fetal Alcohol Syndrome on Our Society,
violated a ban ordered by Smith because it disclosed details
of Montgomery's stabbing death.
The committal
for trial did not come as a surprise. Preliminary hearings are
much different from trials and do not involve proof beyond a
reasonable doubt, said StarPhoenix lawyer Grant Currie.
Under the Criminal
Code, the maximum penalty for breaching a court order such as
a publication ban is two years in prison.
Fetal alcohol syndrome
linked to crime: Almost half of young offenders suffer from birth
defect
By Dan Zakreski,
The Saskatoon Star Phoenix, March 10, 1998
As many as
half the young offenders appearing in provincial court may be
there because their mothers drank during pregnancy, says Royal
University Hospital psychologist Josephine Nanson.
The youths
are born with fetal alcohol syndrome (FAS), and they move undiagnosed
through the criminal justice system. Given the nature of their
affliction, they often reoffend when released.
Nanson said
the situation will only worsen unless action is taken to address
their medical condition and steps are taken to prevent women
from drinking when pregnant.
"We have
207 we can identify (with full-blown FAS). We're talking about
more than a $300-million cost to our society, and those are just
the ones we've identified," she said.
"We're
talking about a disorder that's very common in this province.
It affects a large number of individuals and most that we've
identified are under 25. They're young people and there are at
least 1,000. Probably more." Nanson based the cost to society
on an American study which pegged the cost of treating those
with FAS at about $1.5 million per case. Her assessment has tremendous
implications for how the criminal justice system handles youth
in custody, says University of Saskatchewan law professor Tim
Quigley.
"It's
analagous to the mental disorder defence, in the sense that we've
said that people who are affected should not be punished in the
usual criminal justice sense," he said.
"Are these
victims just as much affected by something over which they have
no control, and are they deserving of punishment?"
Saskatchewan
Legal Aid Commission lawyer Kearney Healy says Nanson's suggestion
strikes to the basic principles of criminal justice.
"The criminal
justice system is based on the premise that people understand
there are rules, why they have to be obeyed, and if they aren't
obeyed then society has the right to come up with any number
of options," he said.
"All of
those things are irrelevant to these kids. It's got nothing to
do with good or bad - they just don't see it the same way."
Nanson and
four colleagues jointly authored a 1996 study on fetal alcohol
syndrome in Saskatchewan.
They examined
207 cases over a two-year period and concluded the incidence
of FAS had not dropped in the province during the past 20 years,
despite efforts to inform the public of the dangers of drinking
while pregnant.
Eighty-six
per cent of those diagnosed with FAS were of aboriginal origin.
University of Saskatchewan community health and epidemiology
professor Brian Habbick cautions against painting it as a problem
only affecting Natives.
"Alcoholism
is more prevalent in disadvantaged populations. We should pay
attention to that," he said.
Children afflicted
with full-blown FAS display both physical and mental characteristics.
Those with partial FAS may not have the physical abnormalities,
but they display the same behavioral and psychological problems.
These include
a low IQ, difficulty in learning from experience, poor judgment,
poor cause and effect reasoning and an unawareness of the consequences
of behavior.
These are the
very attributes that can lead to crime, Nanson said.
"They
are very impulsive and do things that are not well thought out,
and they get into significant difficulty from that," she
said.
"The malicious
intent is seldom there. I find they're exploited by more talented
criminals to do some of the running, if you like, and they're
more likely to get caught."
Nanson said
a study done at Sunnyhill Hospital in Burnaby, B.C. found up
to 40 per cent of the youth in custody had alcohol exposure during
pregnancy. Given the results of the Saskatchewan FAS study, she
said it's fair to extrapolate similar numbers here.
"There
is an increasing number of cases reaching the courts because
we've been diagnosing this for about 20 years. Those individuals
are now in adolescence and adulthood, and at a prime age for
when they're going to be involved in the court system,"
she said.
"It presents
tremendous challenges, and I'm not sure the courts always understand."
Habbick added
that, given the strict diagnostic criteria used in the study,
"you're only looking at the tip of the iceberg.
"For every
full case of fetal alcohol syndrome, there are four out there
with the partial effects."
Healy says
his personal experience working with youth as a legal aid lawyer
supports Nanson's assessment.
"All too
often, I find there are children who aren't able to moderate
their behavior in even the most obvious ways, even when there
are strong rewards," he said.
"Instead,
they are doing things that are going to cause them a great amount
of personal pain, for no gain. When I see them, I've got to think
there's something going on there."
Shirley LeClaire
of Social Services' Family Service Bureau says "there's
been a longstanding history in our community of not giving this
the attention it needs.
"It's
one of the areas where there's not a lot of attention paid, especially
fetal alcohol effects, because you don't have the physical attributes,"
she said.
"The whole
area of FAS and fetal alcohol effects is significant because
the way that our system is set up to deal with kids is obviously
not going to work for them."
One of the
ironies is that children with FAS often make model prisoners,
Nanson said.
"In terms
of the justice system handling individuals with this, one of
the things they fail to understand is that FAS people do very
well in structured environments," she said.
"Often
people are fooled in the early stages of treatment into thinking
somebody is doing really well, not realizing that they're doing
really well because all the opportunities for them not to do
well are taken care of in a structured program.
"There
is a point where the individual with FAS falls apart again."
Newspaper and Reporter
Charged with Violating a Publication Ban
Valerie Montgomery-Bull
was devastated in November 1999 when she read a Saskatoon StarPhoenix
newspaper article about the teenage girl who murdered her mother.
The article was entitled 'When Teenagers Kill: the deadly effects
of Fetal Alcohol Syndrome,' and was written by StarPhoenix reporter
Dan Zakreski. Montgomery-Bull believes that the article made
Serena Nicotine look innocent and contained details about the
crime that she herself did not know. She was very upset about
it and believes that journalists and the media should both be
held accountable for their work.
Both Dan Zakreski
and the StarPhoenix have been charged with two counts each of
breaching publication bans im-posed by judges in the case against
Serena Nicotine and Catherine Mackenzie. The StarPhoenix and
Zakreski have pleaded not guilty. Nicotine and Mackenzie were
both 15 when they murdered 58-year-old Helen Montgomery in 1997.
Helen operated a community home for troubled youths and had taken
Serena and Catherine into her care.
The girls eventually
pleaded guilty to second-degree murder in adult court. Nicotine
received a life sentence without parole for 7 years and Mackenzie
has yet to be sentenced. A preliminary hearing is scheduled for
November of this year. Zakreski and the StarPhoenix are confident
that they will be vindicated. They insist that the newspaper
did not use information from the hearings, which were subject
to publication bans.
Valerie Montgomery-Bull
is encouraged that criminal charges have been laid and is hoping
that some justice results. May 2001 (from a Victims' Rights website)
Zakreski's
piece on Scandal of the Century
| July, 2002: Dan Zakreski report" Missing
woman and a murder lead to eerie conclusions | See
also Tisdale case
|
Truth can never be
told so as to be understood, and not be believ'd. William Blake, The Proverbs of Hell
