ON THIS PAGE: Judge sends SP, reporter
to trial on alleged breach of publication ban: Charges relate
to 1999 story containing details of Montgomery death (below) | Part
of Zakreski's original feature | Newspaper
and Reporter Charged with Violating a Publication Ban
ON THIS SITE: The same day Zakreski was indicted, the Supreme Court of New York came down with an important ruling in favour of free speech
Zakreski was convicted and given an absolute discharge, but the paper found guilty and fined.
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.
Serena Nicotine is serving a life term for her role in the murder of North Battleford community home operator Helen Montgomery. Her co-accused, Catherine McKenzie, 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.
OFFSITE: CBC news July 31, 2014 Catherine McKenzie wins day parole
Publicizing the statement could jeopardize McKenzie'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, McKenzie 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.
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.
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 McKenzie, who helped notorious teen killer Serena Nicotine murder North Battleford community home operator Helen Montgomery in 1997.
Both McKenzie 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.
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."
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 McKenzie. The StarPhoenix and Zakreski have pleaded not guilty. Nicotine and McKenzie 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 McKenzie 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)