The Price of Activism

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Everyone who thinks Halifax police, investigating an alleged theft of $10 at a junior high school in south-end Halifax, would be likely to strip-search three 12-year-old girls from wealthy, white families, raise your right hand.

If you keep your hand down, you're entitled to your opinion, but in Nova Scotia, you'd better keep it to yourself.

After six weeks of trial and two-and-a-half days' deliberation, a jury last week awarded Halifax police Constable Carol Campbell-Waugh $240,000 in damages against two activist lawyers who made similar comments at a news conference.

That's nearly a quarter of a million dollars for suggesting Campbell-Waugh's actions illustrate something most blacks and many whites believe is self-evident: that police in Nova Scotia don't always treat poor black kids the same way they treat rich white kids.

But George MacDonald, the affluent south-end lawyer who won the judgment, insists the case has nothing to do with free speech.

Anne Derrick and Rocky Jones represented three 12-year-old black girls whom Campbell-Waugh subjected to an intrusive, illegal body search in 1995. The girls, students at St. Patrick's-Alexandra School in Halifax's North End, were suspected of stealing $10 and hiding it in their panties.

They say Campbell-Waugh made them pull down their panties. Campbell-Waugh contends she only told them to take off their shoes and socks and pull their pants away from their bodies so the bill would fall to the floor. Campbell-Waugh failed to advise the girls of their right to legal counsel.

I think most parents would be outraged to discover their 12-year-old daughters had been subjected to either procedure. The parents of these girls were, but they didn't have the kind of money it takes to hire lawyers. So Jones and Derrick, who have long, admirable records of representing dispossessed clients, took their cases for free.

They held a news conference to announce they were filing a formal complaint against Campbell-Waugh for violating the girls' constitutional rights.

The complaint ultimately succeeded to the extent that Campbell-Waugh was reprimanded and forced to apologize to the girls - two years later - for not observing their constitutional rights.

During the news conference, Derrick and Jones never used the words "racist" or "racism." But Campbell-Waugh contended that by suggesting white girls from an affluent neighbourhood would not have received the same treatment, they implied she was racist and ruined her reputation. She also denied her actions constituted a strip search, and sued the lawyers for defamation. The Metropolitan Association of Police Professionals, which represents HRM cops, almost certainly underwrote the suit.

Though they can only be guessed at, the legal costs for the defendants probably approach $300,000 each. Add the judgment and a share of MacDonald's fees, and the bill will likely approach $1-million. All for suggesting the episode illustrates the role race plays in police treatment of youngsters.

The Barristers' Society's insurance plan will cover all these costs, but whether it will underwrite an appeal is questionable. The Supreme Court of Canada, which sets sharp limits on damage awards for crippling injury or death resulting from negligence, has rejected limits on damages for hurt feelings arising out of defamatory words.

If a drunk driver renders you quadriplegic, the most you can get is a bit more than $350,000. Remember the incompetent surgeon whose botched breast reduction surgery caused a Bridgewater woman grotesque scarring and disfigurement, not to mention the pain and medical risk of repeated surgery? The Nova Scotia Appeal Court reduced her award to $35,000. But Campbell-Waugh gets a quarter-million for hurt feelings.

This is a preposterous outcome, and a society that valued free speech would not allow it to stand. Nova Scotia is not such a society.

Though I find Jones's and Derrick's record of sticking up for society's underdogs admirable, not everyone admires it. Lots of Nova Scotians prefer to ignore the role racism plays in our institutions, and they're just as happy to have a jury shut these two up. Many lawyers are grumbling about the impact their defence will have on insurance premiums.

Now consider the elderly Mi'kmaq woman whose granddaughter's partially clad body was discovered on the shore of Sydney Harbour last Sunday morning.

Hours after an autopsy revealed the cause of death as drowning, Cape Breton Regional Police closed the file. The dead woman's grandmother wondered whether they would have been so quick to do so had the victim been white.

An elderly Mi'kmaq probably doesn't have enough money to be worth suing. But the Halifax Chronicle-Herald, which has pursued the story with admirable tenacity, may now fall under the sights of the Nova Scotia Police Association, which represents CBRM police. If you can shut up two of the province's most persistent activist lawyers, why not shut up the press, too?George MacDonald is a versatile chap. He served as chief counsel to the Marshall Inquiry, whose bedrock conclusion was that racism lay at the heart of Junior Marshall's wrongful conviction for murder: police racism, and racism throughout the justice system.

To reach that conclusion took nineteen years, eleven of which Marshall spent in prison.

Derrick represented Marshall at the inquiry. Jones is one of the province's few black lawyers. A decade after the Marshall Commission reported its findings of police racism, they have effectively been fined a million bucks for asserting that an illegal search of three 12-year-old black girls suggests police might still have a problem with racism.

And Nova Scotia courts have once again reverted to the position that all's well with our fair province, and woe betide anyone who claims otherwise.

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