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Supreme Court Rules cops can be publicly criticised for improper actions

Judgment reversed for Anne Derrick and Burnley Jones

Burnley (Rocky) Jones

July 20, 2017 - Anne Derrick is now the eighth full-time Court of Appeal judge in Nova Scotia. She graduated from Dalhousie Law School in 1980 and was first appointed as a judge of the provincial and family courts in 2005.

Activist lawyers Anne Derrick and Burnley (Rocky) Jones were duty-bound to speak out about an illegal search of three poor black girls, Nova Scotia's top court has ruled, overturning last year's $345,000 decision against the outspoken pair.

In a startling reversal of fortune, Nova Scotia's Court of Appeal struck down one of the province's highest defamation awards yesterday.

In a 2-1 decision, it ruled Jones and Derrick, who claimed at a 1995 news conference that Const. Carol Campbell-Waugh 'strip-searched' three 12-year-olds over a stolen $10, had the right to speak out publicly about the issue.

'If constitutional rights are to have any meaning, they must surely include the freedom of persons whose Charter guarantees have been deliberately violated by officials of state agencies, to cry out loud and long against their transgressors in the public forum, and in the case of children and others less capable of articulation of the issues, to have their advocates cry out on their behalf,' Justice Elizabeth Roscoe and Chief Justice Constance Glube wrote.

'(Jones and Derrick) had a duty to speak about the events at the school, the complaints filed against the respondent and the Charter breaches they reasonably understood had taken place.'

Justice Jamie Saunders disagreed, arguing the statements were 'a very grave defamation.'

Campbell, who now goes by her married name of Campbell-Waugh, is still a police officer and works with the patrol section.

She sued the well-known lawyers after the news conference, claiming they painted her as a racist and tarnished her reputation. She said she didn't strip-search the girls, but only asked them to pull their pants and underwear away from their bodies to reveal the $10 one of them had hidden in her underwear.

Anne Derrick

A Nova Scotia Supreme Court jury agreed, ordering Derrick and Jones to pay $240,000 to compensate for Campbell-Waugh's damaged reputation and hurt feelings, and more than $105,000 for legal costs. So far, she has received $100,000 of the money from Jones and Derrick's liability insurance. Yesterday's decision would see Campbell-Waugh paying more than $105,000 in legal costs to Jones and Derrick.

Campbell-Waugh wouldn't comment yesterday. Her lawyer, George MacDonald, said they will consider asking for the right to appeal to the Supreme Court of Canada.

He added the decision doesn't change the jury's finding that Derrick and Jones made false statements about her.

'All that the Court of Appeal has said is that Anne Derrick and Rocky Jones can hide behind the cloak of privilege. They can make these untrue statements in these circumstances, and Carol can't recover damages,' MacDonald said.

Derrick said she's 'really ecstatic' about the decision. She and Jones had always argued they were blowing the whistle on a systemic problem, not calling Campbell-Waugh a racist.

'(The ruling's) a principled reasoning of a case that was shot through with principle in the first place,' she said. 'It certainly cast a long shadow' '

More . . .

Until yesterday, Anne Derrick was worried she could be sued a second time if she spoke publicly about the defamation ruling against her and fellow lawyer Burnley (Rocky) Jones.

Although it didn't make her question her outspoken approach to the case that got her sued, Derrick said losing the defamation case did make her worry she'd be less able to take on other public-interest cases like it.

'It's like having a cold air going down your back. It certainly cast a long shadow across me. How could that be otherwise?" Derrick said yesterday.

After the original May 2001 ruling, some worried activists would refuse to speak out against misconduct or injustice for fear they would suffer the same fate as Derrick and Jones.

Advocate for the powerless

'For lawyers like Rocky Jones and Anne Derrick, who advocate on behalf of people who don't have power, I think it had to send a chill,' Stephen Kimber, head of the University of King?s College journalism school in Halifax, said yesterday.

He compared Jones and Derrick's comments at the 1995 news conference with lawyer Eddie Greenspan's defence of Gerald Regan in the former premier's 1998 sex-crimes case, noting Greenspan often denounced Regan?s accusers to the news media.

'That was considered good advocacy,' Kimber said.

'(Yet) when you start saying the police don't treat everybody equally, then we?ve got a whole different set of rules.'

Civil libertarian Walter Thompson, a Halifax lawyer, said yesterday the ruling seems to give lawyers the right to argue their cases outside the courtroom, as well as inside.

'It would advance the notion of fair comment into the public forum,' Thompson said.

'I think that increases our free speech. I'm sure the police officer feels yeah, at my expense.?'

Strip-search suit settled Parties mum on details in Halifax case

A second lawsuit stemming from a white police officer's controversial search of three black Halifax students in 1995 has been settled out of court, but none of the parties is saying why.

In September 1995, the girls - then students at St. Patrick's-Alexandra School - and their mothers filed a lawsuit against Const. Carol Campbell-Waugh, the then-City of Halifax, its school board and St. Pat's-Alexandra vice-principal Peter Wicha.

"The matter has been resolved so that there will not be a trial," Stephen Kingston, lawyer for the school board and Mr. Wicha, said Monday. "Without trying to be impolite, I'm just unable to comment further."

Terms of the settlement may never be known. Mr. Kingston would not even say if the "resolution" reached is confidential.

A 10-day jury trial of the case was to begin Feb. 5 in Nova Scotia Supreme Court in Halifax.

"I can confirm that the matter is not going ahead in February, and that's all that I can confirm," said Murray J. Ritch, the lawyer for Halifax Regional Municipality, Halifax Regional Police and Const. Campbell-Waugh.

As of Monday afternoon, no draft order of a settlement had been filed with the court for a judge's approval.

A school board spokesman said Monday he would not have been aware of any settlement being reached because the matter was in the hands of the insurer, through the school insurance program.

"They would have made any decision to settle, and it wouldn't have involved the board," Doug Hadley said.

Diane McRae, a business manager with the school insurance program, said it is program policy that claims are confidential. "If it wasn't a court judgment, then it wouldn't be public record," she said.

The girls, now in their late teens, had claimed an undisclosed amount in damages, alleging breaches of their charter rights, false imprisonment, assault and battery. But the defendants claimed the girls - who were suspects in a $10 theft - brought the search on themselves and suffered no injury, loss or damages. They also said the girls were properly and reasonably detained by school authorities.

The girls' lawyer, Simon Gaum, could not be reached Monday.

And the mother of one of the girls said she needed to speak to Mr. Gaum before commenting.

Last May, a Supreme Court jury awarded Const. Campbell-Waugh $240,000 in damages in a defamation suit she filed against prominent Halifax lawyers Burnley (Rocky) Jones and Anne Derrick, who represented the girls. A judge also awarded the constable $75,000 toward her legal costs.

In June, Mr. Jones and Ms. Derrick will appeal both the verdict and the costs awarded.

The constable claimed she was defamed at a 1995 news conference when it was alleged she had strip-searched three 12-year-old black girls during a theft investigation at their school.

In media interviews, which were replayed during the trial of her lawsuit, both lawyers told reporters the search wouldn't have happened to white girls living in an affluent neighbourhood.

The officer was reprimanded by her superiors several years ago and later apologized for failing to remind the girls of their right to counsel.

Top court won't hear defamation appeal

Halifax lawyers Anne Derrick and Rocky Jones had a celebratory lunch Thursday to mark their victory in an eight-year defamation lawsuit.

On Thursday, the Supreme Court of Canada refused to hear a Halifax police officer's claim for damages in a controversial defamation case involving three black schoolgirls. The two lawyers were defendants in the lawsuit.

Const. Carol Campbell-Waugh was initially awarded $240,000 in damages - the highest defamation award in Nova Scotia history - but the judgment was overturned 2-1 by the Nova Scotia Court of Appeal. The dissenting opinion gave her the right to appeal to the Supreme Court of Canada.

"I am elated," Mr. Jones said Thursday. "I had lunch today with Anne. She is very pleased."

Ms. Derrick said she's happy to finally see the issue put to bed.

"I'm very happy that the Court of Appeal's decision has been left undisturbed," she said. "And I'm personally glad to be at the end of this road."

The case was sparked by a widely publicized 1995 incident in which Const. Campbell-Waugh, who is white, searched three 12-year-olds suspected of stealing $10 at a Halifax school.

Ms. Derrick and Mr. Jones later filed a complaint about the officer's conduct, denouncing what they characterized as a strip search and saying it wouldn't have happened if the girls had been white and from wealthy families.

Const. Campbell-Waugh claimed she hadn't strip-searched the girls but only asked them to pull their underwear away from their bodies so she could look for the missing $10. She found it on one of the suspects.

The officer also maintained she'd been defamed by the suggestion she acted out of racial motives.

A judge and jury sided with Const. Campbell-Waugh, but the Appeal Court struck down both the monetary award and the legal basis for it.

It said the search met the legal definition of a strip search. It also said the comments by the lawyers were covered by qualified privilege and they had an ethical duty to call public attention to a case that involved a possible violation of the Charter of Rights and Freedoms.

"There are certain things in society that are wrong. You have to stand up and say 'This is an injustice' and you have a right to say it," Mr. Jones said.

"I hope that in the policing community there is an awareness that there must be respect for rich, poor, black and white. These children were treated in a certain way because of race and class."

Asked if the experience has changed the way she practises law, Ms. Derrick, a veteran advocate for the underdog, said she's more aware of the potential pitfalls.

"It certainly brought home to me how vulnerable advocates can be," she said.

Const. Campbell-Waugh isn't discouraged by the outcome, her lawyer said Thursday.

"She has been vindicated, despite the high court ruling which prevents her from collecting damages," Hugh Wright said.

"It was never about money for her. She brought this case to get her reputation back and she has that.

"A jury of her peers from our community found she was defamed and that jury finding was untouched. Carol Campbell was, and is, fully vindicated."

Mr. Jones said he believes the motives for the lawsuit went deeper than the allegations by Const. Campbell-Waugh.

"I think it is no secret that across the country at this time, the police are fighting to get more power and included in more power is shutting down dissent," he said.

"I think that somewhere there was a decision made that this is the case where, if they could get Rocky Jones and Anne Derrick and shut us down, because of our personae, that it would have a chilling effect throughout the advocacy community."

He estimated it cost about $500,000 for Const. Campbell-Waugh to bring the lawsuit.

"What an incredible waste of money, time and emotion. For all of us, for both Anne and myself and the young girls, to have gone through this for eight years because someone wanted to send a message," Mr. Jones said.

"If the (police) union paid for it, I am sure there are a lot of police officers who are questioning it."

Mr. Wright denied Mr. Jones's allegation and refused comment on whether the union funded his client's legal action.

"I think that is really a mischaracterization of the case," he said.

"The (Nova Scotia) Court of Appeal has decided it is more important for lawyers to speak out even if they are wrong and even if they damage someone's reputation than it is for someone to recover damages. Obviously my client doesn't agree with that but that's the law, in Nova Scotia anyway," he said.

The Municipal Association of Police Personnel, which represents Halifax Regional Police officers, was vocal in defending Const. Campbell-Waugh.

"The jury found that Carol was defamed and she deserves her reputation back," association spokesman Const. Mike Balcom said. "She has been vindicated and neither the Appeal Court nor the Supreme Court of Canada's decision change that."

The families of the three girls sued police after the strip-search incident and later settled out of court for an undisclosed amount.