Courtroom 117!

Good Day Readers:

Last year Winnipeg lawyer Murray Trachtenberg (Posner & Trachtenberg - www.ptlaw.mb.ca; mtrachtenberg@ptlaw.mb.ca) was granted a publication ban in the taxpayer financed Manitoba Metis Federation's alleged defamation lawsuit against the now defunct www.CyberSmokeSignals.com.

Court ordered publication bans are difficult to manage at the best of times but even more so in the age of the internet. While we strongly disagree, the law is the law and must be respected. However, here's where it gets tricky. The ban applies only to Pre-Trial Conferences and Case Management Meetings but not to Motion Hearings which are open to the public, mainstream media and bloggers. Issues raised at MHs can very easily spill over to matters discussed at a P-TC or CMM. Therefore, the "publication ban line" is not only very fine but also easily blurred.

We consultated outside sources on the contents of this posting and believe it does not contrevene the ban - that is not our intention. Unfortunately, we've had to heavily edit our comments because of yet another legal threat from Counselor Trachtenberg regarding a document.

In our opinion, this is yet another attempt to bully, intimidate and harass a self-represented Defendant - of which there have been many.

On August 21, 2009 a Motion Hearing was held to consider a request to amend my original Statement of Defence Filed in April of 2005. Mr. Trachtenberg had used The Queen's Bench Rules and Act to have much of the Defendants' S of Ds expunged before a Court Master that same year. The Statements had been prepared without benefit of legal representation. However, a decision on this Motion has been reserved pending a ruling on a second of mine currently before the courts asking for access to MMF internal documents essential to the preparation of a vigorous defence. These were turned over under Court Order to the "possession, care and control" of Murray Trachtenberg (May of 2006) after he filed a Motion for such.
Subsequent Hearings were held on September 14 and 17, 2009 to discuss my Motion for access to the aforementioned MMF material.

Suffice it to say, we're researching procedures surrounding the sealing of documents by the Court. Based on initial conversations with a cross section of individuals, this appears to be a grey area about which sources we contacted for the most part were somewhat unfamiliar. Upon review of the Queen's Bench Rules (144 pages) and Act (34 pages), bearing in mind we have no formal legal training, we were able to find only one direct reference - QBA PART XIII section 77(1) Sealing confidential documents:

The court may order that a document be sealed and is not a part of the public record of the proceeding.

Presumably case precedent law exists which serves to further define and clarify the procedure involved. Once the Court orders a document(s) sealed, apparently a requirement exists that the media be advised. We have been advised there are 101 throughout Manitoba on the list. Other questions we're looking at include:

(1) How detailed is the information provided to the media? Does it, for example, include the case file number, type of document and the name of who submitted it or does the notice simply state there has been a sealing order issued?

(2) Do arguments exist whereby a Party opposing the media notification requirement could be successful?

(3) Can an accredited member of the media file a Motion to argue for access to the document(s)? If successful are there any restrictions?

(4) Is the sealing order lifted at time of trial or does it remain permanent?

We'll continue to share the results of our research as a public service. The next court appearance will be October 7, 10:00 a.m. which I believe to be a Motion Hearing continuation of those held August 21, September 14 and 17 of this year.

Sincerely,
Clare L. Pieuk