Uncover - S11: "Carrie Low VS." E5: Unstoppable

Episode Date: November 2, 2021

Carrie faces shocking roadblocks in her criminal case, including a publication ban prohibiting her from telling her story publicly, unless she hides her identity. But she refuses to back down. For transcripts of this series, please visit: https://www.cbc.ca/radio/uncover/carrie-low-vs-transcripts-listen-1.6218432

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And then I learned through communication with Carrie, you know, one, she was wearing all white. Two, it was... Sorry, I'm losing my train of thought already. You were going to say the second location. Yeah, two, there was a second location that wasn't properly documented. That's Constable Jarrell Smith talking. It's been two months since he last met with Carrie at the cafe.

On a sunny day in May, they get together again, this time with a new member of Carrie's legal team, Harry Critchley. You can hear his fast typing in the background. We're sitting in a basement office of Elizabeth Fry, where Critchley works. Smith is committed to testify on Carrie's behalf as she prepares to bring her complaint of misconduct to a hearing before the police board. This could deliver her an opportunity she's been searching for,

the chance to sit across from the supervisors in the SAIT unit and to tell them her side of the story, face to face. Critchley is hearing Smith's version of events in detail for the first time. The sound quality is poor in this tape. I was recording with consent on my phone, but only for reference. After a minute and a half, realizing I'd already heard and recorded all the details Smith was sharing, I turned the phone recorder off.

This will be the last time, Carrie says, she and Smith would meet as friends and allies. The next time she will see him will be in a courtroom, but instead of sitting beside her as she thought he would, Smith will be sitting on the side of the man accused and charged in Carrie's rape. I'm Maggie Rahr, and this is Carrie Lowe vs versus Episode 5, Unstoppable. It begins with a phone call. In July 2021, after two years of working side by side, Carrie is alerted that Constable Smith had met in person with Mark Bailey, the lawyer who represents the man accused in Carrie's rape. Smith has been on leave from the

RCMP since 2018. After Carrie filed a complaint about the handling of her case, the RCMP produced a report in which the investigator concluded Smith was in, quote, Carrie says she can't understand why Smith would meet with Bailey. So she calls Smith on the phone and they talk. Carrie says he apologizes for not telling her he was meeting with the accused's lawyer. She says he tells her he felt it was the only thing he can do to protect her. I meet up with Smith after all this takes place

at the same cafe where he and Carrie sat just two months earlier, where I watched as they shed tears together and offered thank yous. This time, I was just trying to understand what was going on. Yeah, it was my only option. The police, everything that had happened to me this far, and you know, everything was shut down. And I thought that if I went to the Crown's office and said something, that police would be called and or security would be called

and that I wouldn't be most, I wouldn't be believed. I wouldn't be believed. Standing outside the cafe, Smith tells me that what he believes is the truth needs to come out and that he believes this is the only way to make that happen. Later that afternoon, I receive a flurry of texts from Smith. He writes that he doesn't want to participate in the podcast anymore, and that he will no longer speak with Carrie.

Smith's communications with defense lawyer Mark Bailey lead to another development in Carrie Lowe's case. Now, Bailey is arguing that the rights of his client, the man charged with sexual assault and forcible confinement, have been violated throughout the investigation. What we know is that Bailey intends to use what Smith has shared with him to mount a charter challenge. This is a legal action that can be taken to protect citizens when it is believed that government or government-ruled agencies have violated the

Canada Charter of Rights and Freedoms. If a judge finds that a charter right has been violated by police, evidence gathered by the police may be excluded from the trial. And in this case, the defense is requesting a stay in proceedings, which means that this trial would not go forward. Carrie tells me she doesn't fully understand what has taken place. Her lawyers say the same. In July, Carrie Lowe attends criminal court with her legal advocates. Yeah, I arrived with Emma and Mike Dahl.

Of course, we were checking and we were sat down. I did notice Jarrell, and I noticed he was sitting in a side room with defense counsel and the defendant. And in that moment, I just, I was heartbroken. You know, for someone who had been on my side or, like, believing in me for these last two years and then literally sitting with the defendant, I just, it's kind of hard to put really words to the emotions because there's so many mixed emotions. I felt betrayed, heartbroken, you know, questions running, why? Why is this happening?

What is going on? Carrie says just seeing Constable Smith across the room makes her feel unsteady. Almost like a panic attack starting. So it's like heat shooting from the bottom of my feet to the top of my head. And I was just, you know, chest closing in, hard to breathe. And then I think the tears started. I was obviously nervous, not sure what was really going to happen in court. Just feeling confused, didn't have answers, didn't know what really was happening.

Carrie tells me she hopes to learn more about the proposed charter challenge that the accused's lawyer is set to bring forth. But instead, nothing is submitted in court. Kerry says throughout the hearing, she and Smith do not make eye contact. Thinking that, you know, I had this person who was on my side and met several times with Emma and I and my team

and working towards the one common goal. And I just feel betrayed completely because there was a different way to handle this situation, I believe. And I just totally feel betrayed by him. Bailey asks for more time to prepare his client's charter challenge. The judge grants it and a date is set to revisit the matter in early August. Court concludes, but carry isn't done.

And at one point he, towards the end of the closing of the court hearing, he walked out and I leaned to my team and I said, I'm going to go try and talk to him. And when I went out, he had already left the courtroom. So when I went out, I went out to the main hallway and I saw him walking across and I said, Jarrell, can I talk to you for a minute? And he just started screaming at me, stay away from me, get away from me. I don't want to talk to you. Security had to rush in and he left the courthouse. Carrie tells me all of this is shocking and traumatizing.

I had open communication, you know, with Jarrell for two years, you know, we were texting, we were calling, we were emailing. From day one, said he was with me all the way. And just to have that communication cut off and just not understanding why and looking for answers was really difficult. Because he had been so, you know, what I thought, very transparent with me. Anytime I had a question, I could reach out and he would tell me. We sat down and we talked about our harms through this whole thing together, our vulnerabilities, our anxieties, our fears. It's just so hard to put into words that feeling of not knowing, not understanding, not having his words to say, you know what, Carrie, I'm doing this.

So it's difficult, yeah. Emma Halpern says she too is left with many questions. I don't know. I don't understand it entirely. It is absolutely clear that the harm it has caused Carrie is undeniable. None of us have had a chance to really understand or talk to him. This isn't the first time since I began reporting on this story. A lawyer involved has said to me, this never happens. Now Halpern is echoing that statement again.

Every aspect of this situation has been unprecedented, and in fact, all the lawyers involved throughout the process have. That is a theme. I've been saying that, you know, this has never been done before. We don't know. You know, this is unprecedented. And lawyers don't like to say that they don't understand or they don't know. It's not a typical way of being.

And yet I would say that everyone in this circumstance is saying, this is not something we've ever seen before and we don't entirely know how to address it. Meanwhile, the criminal trial is on hold. So I feel, again, I've been victimized by a police officer who literally has taken it to his own advantage and not even thinking about how I would feel about it or even consider working with me and my legal team and how we address any concerns or issues he had had or whatnot. concerns or issues he had had or whatnot. So again, I feel like, you know, it's been traumatic for me to deal with because, you know, the control is gone again for me. Carrie's face is expressionless. She looks as if she is physically weighted down. In more than two years of working on this story, I've never seen her like this. This is a criminal trial and this person, for me, should stand trial and whatever the outcome is,

the outcome is. And for someone to come in and try and hijack this whole process is I I don't have words I really I guess at the end of the day don't have words to describe how hurtful it is so for me it's been traumatic because it's I mean I didn't leave my house for nine days. In 2017, it felt like drugs were everywhere in the news. So I started a podcast called On Drugs. We covered a lot of ground over two seasons, but there are still so many more stories to tell.

I'm Jeff Turner, and I'm back with season three of On Drugs. And this time, it's going to get personal. I don't know who Sober Jeff is. I don't even know if I like that guy. On Drugs is available now wherever you get your podcasts. and a call from the Nova Scotia Public Prosecution Service. They say that there's a publication ban in Carrie Lowe's case. This means no one can identify Carrie or share details of the case that could identify her. Even Carrie herself is prohibited from talking about her story publicly, unless she hides her identity.

I called the court several times throughout my reporting, specifically in the summer, to ask if any such documents had been filed. I was told there were none. And after more than a year and a half communicating with the Crown and specifically discussing the risks of airing this podcast, Kerry has not been told about any publication ban in her case. I was the one to tell her the news. When I got the call from you on September 1st, the day before court,

to say, hey, like, you know, CBC just got an email and there's this letter from the prosecutor's office that there's this publication ban, it felt like the 11th hour. I knew this was coming out and just feeling like, what the hell? When I called the Crown, I very much disclosed how upset I was. And I said to the Crown, I said, you know what, you guys put this on, take it off. I don't want it. You have the power to put it on, you can take it off. And they refused and said, there's a process to follow here. And I said, what process is that?

And they said, you'll have to, you know, get an attorney, you know, file an application and present it in court. And I said. In the September 2nd court date set for a hearing in which defense lawyer Mark Bailey is expected to share more information about his client's charter challenge, is expected to share more information about his client's charter challenge, Kerry decides to attend herself and asks the judge directly to have the publication ban on her identity removed. But Judge Theodore K. Tax declines to decide on Kerry's request that day, and the matter is put over to be resolved at a later date. After this, Kerry met in person with the Crown.

Emma Halpern and Harry Critchley were there with her. Together, the three of them describe a tense meeting. Carrie tells me that she asked the Crown why no one had ever alerted her to the existence of the publication ban. I met with them after and said, like, why didn't you tell me? And they were like, well, we just assumed you knew because you have a legal team. why didn't you tell me? And they were like, well, we just assumed you knew because you have a legal team. Publication bans can be imposed

without the knowledge or consent of the victim. If the Crown opposes the lifting of a publication ban, even if the request comes from a survivor themself, chances of a court lifting the ban are almost non-existent. The Crown did not disclose their position. The Crown reminds Kerry in this meeting of the importance of securing her own legal representation. We have to remember in Canada that we didn't used to have publication bans.

That's advocacy expert Sunny Mariner. She says publication bans were actually created to protect survivors of sexual assault. Advocates who fought hard to be able to ensure that there were publication bans that were brought in in Canada under that general umbrella that we call rape shield laws. And the reason for that was because survivors were experiencing that by having been a victim of a crime, they were also being made more vulnerable to both social stigma, legal stigma. They had a violation of their privacy rights. Releasing a name in court made survivors unwillingly the objects and recipients of that public scrutiny. So it was very much based on centering what the survivor wanted

and the survivor's choice in terms of whether or not they wanted people to know that they'd survived sexual violence. Mariner says although the intent of publication bans from inception was to protect survivors and encourage people to report, she says the victims of sexual assault are often left out of the conversation entirely. Survivors generally, they're not even really informed or communicated with around publication bans. So even though they're supposed to center the survivor, they've become so routine within the court system

that very often survivors don't even know that they're going to happen or that they exist or that they have to be applied for by the crown or any of that information. They're frequently not told any of that. So often the publication ban is something that the survivor is just experiencing as opposed to something that they've specifically asked for. So with survivors that I've supported, they're feeling like they've become an object through the courts. They're not a real person. They don't have a name. They don't have a history. They don't have an identity. Just this year, the Waterloo Region Record newspaper reported that an Ontario woman who was sexually assaulted by her ex-husband in a case the court called, quote, an extremely serious and violent attack

was charged for violating a publication ban. She was ordered to pay a fine for sharing the sentencing transcript with a small group of family friends. The $2,600 fine included a victim's surcharge. A judge granted an appeal. The Crown did not apologize to the victim, but did not proceed further.

In another Ontario case this year, first reported by the Toronto Star, sexual assault survivor Morel Andrews had to fight to have a publication ban overturned, which prevented her from discussing the details of the attack she endured, even in her personal life. The ban was put in place without her knowledge or consent. Mariner says Carrie Lowe's case is different

because of the timing. She says most survivors apply to have a publication ban lifted after the verdict, so in her words, they can speak their own name. Carrie has not wanted that publication ban in place throughout the course of this legal case. She's already been open with her name in the public sphere. And rather than her being engaged in a process of consent or discussion about whether or not that publication ban would be something that she'd consider protective or something that she would consider useful to her, instead she found herself actually being, I would say, effectively muzzled under it as well. And also then still has to realize that

once again choice has been taken away and consent has been taken away. Thinking back on all the stages of Carrie's battle, I'm reminded of an afternoon last summer. This was before Carrie learned about the publication ban, before Smith decided to stop working alongside her, when it seemed this enormous fight against the system might finally be nearing an end. So we made a plan. It felt like it could be a final interview. On a blistering day in June, during an early heat wave, Carrie and I left the city together

and went to the beach. Look at this. This is amazing. Should we go put our feet in? Yes, I am. Let's do it. Salt water is my suntanning lotion. It's the best suntan lotion ever. Salt water is my suntanning lotion. It's the best suntan lotion ever.

Salt water. As we approach the surf and the sand becomes wet and cooler, I notice something catch the light on Carrie's hand. It reminds me of the amethyst she wore around her neck on the first day in court. Oh, my ring. Yes. Oh, my ring, yes. So, this was a gift to myself, and I'm not usually one to buy anything, especially jewelry for myself. But I had to fly out to Toronto for work less than a week after the rape, and there was a kiosk area where they sell jewelry.

I mean, as I walked by the case on the counter, purple is my favorite color. I saw this big purple thing stick out and it caught my eye. So I looked and I'm like, oh my gosh, that is such a beautiful ring. So I said, this is it, this is my ring. And this is the first gift to myself after to sort of symbolize what happened to me and just a reminder that I need to take care

of myself now. Yeah. Yeah. I'm watching Carrie dip her toes into the water. There's a lightness about her. Something is different. She tells me the last time she went to the beach was in May. The date was exactly three years after she first reported the attack. There's an actual thing that people celebrate trauma anniversaries, right? And at first I thought it was weird, like why would I buy a ring to remind myself? I feel like now I'm at that point in my journey now. And this anniversary I ended up coming to the beach and I had the best day in a long time. I mean I did think about things, but I was able to get out, I laughed, I had fun. Like, it was just, you know, a good day.

That summer day on the beach feels like another lifetime. I can only imagine what it feels like for Carrie. I can only imagine what it feels like for Carrie. In early September 2021, Carrie secures a new lawyer to represent her as she seeks to have the publication ban overturned. A few weeks later, on a sunny afternoon, Carrie returns to court. The accused is not present, nor is Smith.

COVID restrictions have loosened, and I've been given special permission to attend court as a member of the media directly invested in the outcome of the publication ban. Carrie sits down next to me on the bench in the courtroom. There are a number of matters ahead of hers on the docket today. Carrie seems to be steadying herself as she waits. She takes deep breaths. She looks straight ahead. When the matter of the accused arises, Carrie's new lawyer, Alex Embry, introduces himself to the judge and argues on Carrie's behalf.

Embry tells Judge Tax that keeping a publication ban in place, one that is specifically meant to protect a victim when the survivor herself does not want it, is, quote, Kafkaesque and draconian. The Crown is present but not in person. They called into proceedings on the teleconference line. There is palpable tension in the courtroom. Everything becomes silent and Carrie is sitting perfectly still next to me. Then the judge asks the Crown what their position is. They announce they are in support of Carrie's request. Judge Tax tells the court if the Crown had not supported Carrie's wishes, he would not have come to his decision. But since they have, he announces, looking directly at Carrie. Ms. Lowe, the ban is overturned.

Carrie's shoulders lift and a smile beams across her face. Critchley puts his arm around her. This is a moment of relief. But only seconds later, Judge Tax turns the page resting in front of him and says, moving on to the matter of the calendar. The trial against the man accused in Carrie's case was supposed to happen in November of 2021, only a month away from this very date as Carrie sits in the courtroom. She knew that when Smith went to the defense and they mounted an abusive process application,

that in all likelihood, the trial would be delayed by a year. After a brief exchange between the Crown, the defense, and Judge Tax, he announces a date. November 2023. Carrie's head falls into her hands. She is sitting next to me, crying. As we exit the court, several lawyers are congratulating Carrie on the lifting of the publication ban. But her eyes are wet. She looks distraught. She will now have to wait another two years before the trial. After court, I join Carrie at the Elizabeth Fry Society offices to discuss everything that's taken place.

We're about to settle into a room and turn the recorder on when Emma Halpern tells Carrie that there's someone outside who needs help. It's a woman who's receiving services from Elizabeth Fry. She's crying in her car in the parking lot. Halpern asks Carrie if she feels comfortable going to talk with her. Halpern has a meeting she needs to sit in on and can't respond at the moment. Carrie is outside in a flash, nearly before the question was answered. She asks me, can you wait a minute?

I tell her of course and she disappears around the corner. Since last year, Carrie has been working directly with other victims, even though she herself has described experiencing many moments of suffering. She started a group called Survivors for Change. They gather once a month at the Elizabeth Frye office. The space itself is something like a hub for people who are experiencing trauma. There always seems to be someone arriving or leaving who has shown up in need. The same way, Carrie tells me, she once did in that first year working with Emma Halpern.

Now I'm watching as Carrie comforts someone else. She listens. She tells her she understands. They laugh. It is stunning to see Carrie take care of someone like this. When the conversation wraps up, Carrie smiles at me and apologizes, and we go upstairs to talk about the case. I'm a sexual assault advocate. I speak up and I want changes. And this is part of it. I never would have wanted a publication ban from day one. And then what's hurtful, more hurtful,

is the fact that I went to the Crown and said, you guys put this on, so you have the power to take it off. They said to me that there's a process. I said, well, what's the process? So I had to hire a lawyer, make an application, and come to court. How is that helping a victim now? If I didn't have the support I would have, most women don't have the finances to get a lawyer and fight these things.

But they're making me do that again. It's the time. It's too much. the time, it's too much. What does it mean to you to have this publication ban lifted? I feel free. I feel free in the sense that, and I think what maybe the legal system doesn't understand is how we internalize,

and each individual internalizes their own trauma and their own pain. So when I found these things happening to me I internalized them in my way and they were hurtful and they were hard for me. It's silencing me in my story and my truth, right? I've worked so hard to be open and honest, I have nothing to hide. And again, here's a system trying to shut me up. I've been silenced. I've been afraid to even say or tweet or do anything on social media. I've been afraid to talk to my support people. I've been afraid to say certain things in my peer support group. Because I've been afraid for three months that anything I said wrong or

indirectly not right that they're going to come after me and charge me like that's another harm on me that I've had to work through so today I feel free I feel a bit lighter and I'm going to speak out and this is why I'm doing this. doing this. Back in the summer, Carrie received an email from Staff Sergeant Scott McDonald. He wrote that some changes have been made in the SAIT unit, stating the department was reorganized in January 2021 and now operates under a different name. When Carrie received the email, she was expecting an update on her case. Instead, she discovered there won't be any. Staff Sergeant McDonald wrote,

No additional charges are being sworn against any other persons in relation to your file at this time. But Carrie is pushing ahead. She's working as a researcher with the Elizabeth Fry Society. Her advocacy work with other organizations fighting gender-based violence has led to invitations to speak on public panels and attend conferences. To this day, Carrie continues to facilitate the group she created, Survivors for Change. And her fight has already led to policy change. And her fight has already led to policy change.

When I first reported on Carrie's story back in 2019, she was preparing to take her case to the Supreme Court of Nova Scotia. Her complaint of police misconduct to the police complaints commissioner was refused at the point of filing because it did not fall within the six-month statute of limitations. Since then, and notably before Justice Anne E. Smith made her ruling instructing the police to hear Kerry's complaint, the province of Nova Scotia made its own decision. The government unanimously agreed to extend the statute from six months to one year. Nova Scotia Attorney General Mark Fury told the media his decision was a direct result of Carrie Lowe's case. Quote, In this case, we've had a victim who has been very public and has advocated appropriately that the timeframes be changed.

I think it's a reasonable request. the time frames be changed, I think it's a reasonable request. The Nova Scotia Police Act was updated January 15th, 2021. Meanwhile, the trial of the one man facing charges in Kerry's case will likely not be held until November 2023. That means it'll be five and a half years since Carrie first reported the violent attack to police. Now, the police board hearing, which was once tentatively scheduled for December 2021, has been delayed, at a minimum, for years. at a minimum for years. The process, which Carrie has said she hoped would allow her to come face-to-face with supervisors in the SAIT unit, cannot take place

until after criminal proceedings are complete. But Carrie's civil case is still alive. Timelines are unclear, and we may not know which specific officers will be named in the legal argument the police failed to carry. But lawyer Mike Dull says the case is, quote, 100% a go. I know I'm not going to get justice in the legal system. I'm not. The police completely screwed my case up from beginning.

There are still people who have not been arrested in my case. I don't feel they're ever going to be. So for me, I've had to find a way to heal. And for myself, I have found the more work that I put into in making change, taking my voice, my lived experience, and putting it into something better is where I'm getting my healing, where I'm getting my strength, and where I'm going to continue going on forward for the rest of my days. Watching and listening to Carrie, I sometimes don't know what to say. Carrie is like an unstoppable train.

This trauma has unearthed something in her. Resilience, yes, but something else. something in her. Resilience, yes, but something else. There is some kind of unlikely fortitude that lives inside of Carrie. Maybe it was always there, just waiting to burst out. I'm now finally at that point that I can actually embrace that and be like I am so grateful for these changes I've made because of this horrible thing that happened to me like there can be beautiful things happen out of trauma and I'm to it at that time in my life where it's like I'm coming into this new me and finding out how different I am from before and it's just I'm loving who I'm becoming now. This series is produced by Janice Evans and Nancy Hunter. He comes to life Artwork by Ben Shannon Fact-checking by Emily Mathieu Transcripts by Luke Parent, Frankie Fiorini, and Varad Mehta

Theme music by Aqua Alta Special thanks to Ken McIntosh, Andrew Leitao, Mike Trenchard, and the CBC Reference Library, as well as lawyers Stephanie Lapierre and Danielle Stone. as well as lawyers Stephanie Lapierre and Danielle Stone. Our senior producer is Chris Oak, and the executive producer of CBC Podcasts is Arif Noorani. If you enjoyed this series and want to help new listeners discover the show, please take some time to give us a rating and review wherever you listen.

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