Wednesday, June 24, 2015

Brian McMullan Finally Under Oath

Brian McMullan occupied the position of Mayor of the City of St. Catharines for two terms, from 2006 through to 2014. He decided not to fight for re-election in 2014 and left his position under a cloud of questions. During his term in office censorship was a key to his survival. The main local newspaper, The Standard, had its senior reporter Marlene Bergsma lie in print during then Mayor Brian McMullan's 2010 re-election campaign. Later, reporter Grant LaFleche ignored all the details of a failed attempt at intimidation by Brian McMullan of a fellow Niagara Regional Councillor, Andy Petrowski. Grant LaFleche was present at the courthouse, spoke with Brian McMullan's lawyer, and still did not find anything that was of public interest. Now this farce finally comes to an end and Brian McMullan's lawyer, Christopher Bittle, of Lancaster, Brooks and Welch has filed for a court date in an attempt to shut down the truth, even though McMullan is no longer in office.

On April 14th 2015, the Superior Court of Justice issued a Notice of Trial between Brian McMullan and Alexander Davidoff, publisher of Mayorgate, set for July 7th and 8th 2015, in Small Claims Courtroom #2. Finally, Brian McMullan will be put under oath; no political language to maneuver with in answering questions which had demanded attention for a long time.

In Canada there is still a belief in the unbias principles of law that truth and equality will prevail. Canada as a society had to deal with issues surrounding the current Bill C-51 and diminishing rights to freedom of speech, but as Canadians we have been able to do so in open public debate. This in itself is testimony to the strength of our democratic foundation. Brian McMullan has used the law as a thug uses a club to threaten and intimidate into silence what is the truth. Now at his own hands he has provided the one forum which he cannot silence or bully.

It has been a long road. In 2011 Brian McMullan used Christopher Bittle and the law firm Lancaster, Brooks and Welch to issue a threat. Mayorgate's response was clear and simple: the threat was made public and the evidence equally public. Brian McMullan, Christopher Bittle, and Lancaster, Brooks & Welch LLP backed off.

Our democracy is based on a principle of freedom of speech. The Supreme Court of Canada not only confirmed this most treasured principle but went further to enhance the protection of our freedom particularly as it relates to journalists and what is to be considered fair comment. In 2008 the Supreme Court of Canada handed down its judgement in the WIC Radio Ltd & Simpson case, and then again in 2009 with another case, Grant v Torstar Corp, changing the landscape of libel and slander actions. Even though defence against such legal action had been dramatically strengthened, SLAPP suits (Strategic Lawsuit Against Public Participation) are still a weapon of harassment and intimidation.

SLAPP suits are a simple thing: they are tools of intimidation and harassment used to silence not only freedom of speech but also the free flow of information. As children we are taught to ask questions when there is anything that puzzles us and never feel embarrassed to do so. As adults we are simply encouraged to shut up. Asking questions may be natural to us human beings but they become a bother to some and can definitely be dangerous to the one asking them. Journalists thrive on asking questions and providing commentary which stimulates discussion, which then stimulates more questions. If this cycle was not considered dangerous or uncomfortable by some there would be no SLAPP-sters.

Brian McMullan is a SLAPP-ster, Christopher Bittle is a SLAPP-ster but only small time, as this action was filed in the Small Claims Court. The whole concept of the judicial system is designed so that its lowest tier, Small Claims Division, provides for speedy resolution of grievances. McMullan's Notice of Action was first served on July 7th 2014, that is almost a year ago, or at least would be a year at trial date. As a matter of fact it would turn out to be an anniversary gift and this time I, as publisher of Mayorgate, would say “it's what I've always wanted” and mean every word of it.

As a step towards potential resolution of a claim and prior to a trial, both parties are required to appear at a mandatory settlement conference, in this case it was set for December 9th 2014. Originally the settlement conference was set by the court for October 20th but Christopher Bittle found conflict with his schedule. A mandatory settlement conference requires that both the plaintiff and defendant appear, but on December 9th there was no sign of Brian McMullan. No reason was given, but then McMullan's contempt for the law had surfaced more than once in the past, and as the defendant it was within the Rules of Civil Procedure to demand an adjournment till such time that McMullan appeared in person. I had no intention to settle anything, even though Christopher Bittle's demands were greatly reduced on behalf of his client, unless McMullan withdrew his action in full. This settlement conference ended with a statement by Bittle that a trial date would be applied for by his client.

It took months, in actuality over four months, before the application for trial was filed. No sooner had a trial date been set by the courts that an email arrived from Christoper Bittle's assistant. Once again there were problems with schedules and an adjournment was requested, this time to late August depending on the judge.

A trial will finally open the doors to truth being released. Christopher Bittle bragged that he was going to have many of the documents in my Statement of Defence dismissed; apparently the volume of material had frightened him. Maybe he forgot that it was his client who opened Pandora's Box with his accusations and under law I have the right to ask questions on everything that he brought up in his Statement of Claim and Notice of Action.

The SLAPP-ing began on July 7th 2014 with McMullan's Notice of Action. In this Notice of Action Christoper Bittle claimed, “The above noted allegations are false and are presented as fact without any evidence of support.” Full evidence of support lies in the hundreds of pages of the defence statement and the questions about to be raised at trial relating to the evidence, where answers will be given under oath. Bittle claimed further, “You have alleged the following conduct on the part of Mr. McMullan that is false.” Again Bittle, on behalf of his client called me a liar. Finally this claim by Bittle, “Your articles wrongly state an allegation of an affair as truth and use that as a basis to malign Mr. McMullan's character. These allegations are untrue.” Again calling me and my website, Mayorgate, a liar.

According to the Rules of Civil Procedure, once an action begins with a Notice of Action, regardless of what tier in the court system, nothing changes in that action. In October 2014, Brian McMullan had the full divorce file sealed from public access. Sealing a divorce file is not an easy thing particularly as there are no small children involved. McMullan himself was only a mayor, a public servant and nothing more. What were the grounds which McMullan had presented to have the seal enforced? The actual divorce filing by Mrs. McMullan was made public on the internet, was that disclosed to the judge before a decision was handed down?

The tag team of McMullan and Bittle made the accusation in their Notice of Action that the allegation of an affair between Brian McMullan and former Regional Councillor Debbie Zimmerman was false. This accusation was made even after the copies of a divorce filing was made available publicly on Mayorgate. Everything that is in the sealed divorce file is potential evidence for my defence and will be unsealed.

The Court of Appeal for Ontario had placed a heavy evidentiary burden on litigants who seek non-publication and sealing orders, M.E.H v Russell Williams 2012 ON CA 35 (Doherty, Armstrong, Hoy, SSA). In addition, the Supreme Court of Canada requires an applicant to prove both necessity and proportionality. R v Mentuck (2001) 3.5. C.R. 442. 2001 SCC 76 at para 32.

A publication ban of court proceedings should only be ordered when:

a) such an order is necessary in order to prevent a serious risk to the proper administration of justice because reasonably alternative measures will not prevent the risk; and

b) the statutory effects of the publication ban outweigh the deleterious effects on the rights and interests of the parties and the public, including the effects on the right to free expression, the right of the accused to a fair and public trial, and the efficiency of the administration of justice.”

At the end of it all Richard G. Dearden a partner with Gowling Lafleur Henderson LLP in Ottawa had summarised the whole issue of seals on court records with, “The Court of Appeal for Ontario has affirmed that family law proceedings are not different from any other type of civil proceeding. Openness is the rule. Secrecy is the exception. Litigants have an extremely high evidentiary threshold to overcome to obtain any secrecy regarding Court proceedings and records filed in Court files.

In this case what had McMullan, Mr. or Mrs., provided to the Motion Judge that satisfied the Dagenais/Mentuck test for obtaining non-publication or sealing orders, as set by the Supreme Court of Canada, or the heavy evidentiary burden imposed by the Court of Appeal for Ontario? Now the question of proper administration of justice faces the demands of absolute openness of all potential evidence in order to present a fair and proper defence against accusations made by Brian McMullan.

In this case there is no question of media hounding the poor thing, wanting to publish personal or embarrassing details; McMullan had and still has absolute control over what is published by the only real newspaper here. Censorship had been the key to the two terms in office for Brian McMullan and can be easily proven, even to a panel of judges. The McMullans do not have any small children and as far as emotional embarrassment is concerned, that is not enough to seal any documents. Divorces happen every day for all kinds of reasons, so what makes the McMullan divorce a national secret?

Fear is the only possible motivator, but fear of what? It is not of 'the media,' so is it fear of Mayorgate? Does the divorce prove that McMullan lied in court documents? Do the divorce files prove that the threat and harassment of Mayorgate was planned and calculated? It will now be up to the Court of Appeal of Ontario to decide if this seal is going to remain. The administration of justice will not be blocked and evidence removed from the accused by this sealing order. Christopher Bittle may find conflict with his schedule as far as a trial date is concerned and no objection has been raised against an adjournment, but there will be no trial till the divorce file is unsealed and made available for open review by the accused in this SLAPP suit. Brian McMullan has only one other choice – withdraw his action against Mayorgate.

As a final attempt to request documentation that should be available for public inspection, on June 16th 2015, I went to the Family Law Division Enquiry Counter in the St. Catharines Courthouse. Prior to making my approach I researched the Public Prosecution Service of Canada website to understand what is required to be filed in an application for a sealing order. It stated that “an application for a sealing order must be accompanied by appropriate supporting documents, a) a notice of application; b) an affidavit in support, disclosing sufficient reasons why the order should be made and the conditions sought in the order; c) a draft order.

My request was simple, to review the Sealing Order as handed down by the Judge with all its conditions and reasoning. First I spoke to the Information Services Lawyer, Gary Bracken, who confirmed that I would be within my right to make this request. He was told that I had been refused by the staff on the enquiry counter before. This was hard for him to believe, so he walked over to the counter with me. At the time, the judge was speaking with two women in the back of the office; Mr. Bracken confirmed that this was her court. One woman at the counter got up to leave and refused to speak to me, the second said that as the file was sealed, the Order was sealed. She refused any attempt at requesting a review of the Order and went so far as to say that the Order would not have anything in it that I was looking for! Gary Bracken, was shocked and said that they “were protecting or covering their butts.” Who have these enquiry staff got to be afraid of, or why? Who were they willing to lie for?

The Court of Appeal for Ontario will unseal this file and this insane breach of procedure will end. Every word of what happened on June 16th 2015 can be proven and all the details will be sent to the Minister for the Attorney General of Ontario. McMullan's legacy will be brought to an end in a courtroom, the rest is his choice.

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