Former Current publisher goes on trial

Whenever a magazine publisher goes on trial for a criminal offence, that’s big news. However, when the justice system goes to great lengths to try someone for one of the least serious offences in the criminal code, that’s bigger news again.

Last week saw the beginning of the mischief trial against Mark Smith, the former publisher of Current magazine (and, it should be disclosed, a former business partner of mine, though we haven’t stayed in touch).

Smith is charged with defacing the campaign signs belonging to Kevin Breen, during the municipal election of 2005. Someone had gone to great effort to produce labels that matched the colour and font of Breen’s slogan, changing it to read ‘A record of lying’ (photo by Greg Locke).

I understand that it cost Breen $160 to print new labels to cover up the offending word. Otherwise, no one was hurt by the crime. The police reaction is, therefore, a little out of proportion to the seriousness of the act itself.

I do not suggest that police ignore crimes involving damage to property. In fact, this is precisely my point. I have heard stories over the years about inadequate police response to crimes involving break and entry, theft and property damage. I am sure you’ve heard them too.

It happened to Mark Smith’s defence lawyer, Bob Buckingham, on the same weekend that the Breen signs were defaced. There was a rash of vandalism to property up and down his street, with considerable damage (certainly more than $160) including a sign that was torn from the front of his building.

“I picked up the sign and maintained it because I am familiar with fingerprint work,” Buckingham said in an interview. “But they wouldn’t take it for fingerprints because it was ‘exposed to the elements.’ Now they were wrong, but that was their line. Later on they got a suspect and I offered to give the sign to them in case the suspect had a record, but they still wouldn’t take it.”

Interestingly, the police did check the Breen sign for fingerprints that night, even though it had been exposed to the elements as well. “They did fingerprinting and nothing came up… so they sent it to the RCMP Latent Fingerprint Lab (in Ottawa) to check into it. They said this was common practice.”

The fact that they took fingerprints at all, for a crime with $160 in damage, is surprising to me. During their investigation, the police also followed Smith for some time. Please correct me if I am wrong on this, but I suspect that many more serious crimes involving theft and property damage do not get investigated as extensively as this. Buckingham said that, right from the start, the police threw themselves into the investigation “with great gung ho-ness”.

“You had the police officer reporting continuously and constantly to Breen on every little aspect and component of the investigation,” Buckingham said. “They went out of their way to please him. Why they did that is all speculation. It could be related to who’s who in the power structure, municipally and provincially, but that’s pure speculation.”

And what of the evidence itself? The fingerprinting came up with no match for Mark Smith, though they did find a print belonging to someone else – which doesn’t help the Crown’s case at all. However, they were able to prove that Smith ordered and paid for the sticky labels that were used in the commission of this crime.

But that is not enough.

Perhaps the police were unaware that Smith operates a graphic design services company and could easily have brokered this print job on behalf of a client. It is not a crime to design and order labels imprinted with the word ‘lying’; the onus is on the Crown to prove who actually affixed the labels to the signs. This, combined with some shaky testimony from Breen on Wednesday, adds up to a flimsy case indeed. How it even made it to court I will never know, but I am curious about what this trial will cost taxpayers.

Based on the evidence presented to date, Buckingham has asked the judge to deliver a directed verdict, which would essentially mean the case is tossed out. That application will be heard in April.

(As a sidebar to this story, I illustrated a cover for Current in March 2006, lampooning former police chief Richard Deering. That was my last contact with Smith. My first thought was ‘Is there a police vendetta because of this cover?’ I am pretty sure the answer is no. First, the cover appeared more than six months after the municipal election. Second, the police did not make the connection to Smith or Current until well into their investigation, after investing significant time in the case. So I don’t think their investigative zeal was motivated by a grudge against Current.)