Monday, March 03, 2008

Harper can’t take a punch, threatens libel lawsuit

While Conservative apologists always call us crybabies and sissies when Liberals even hint at threatening a lawsuit when a Conservative says something even remotely libelous, I’m sure that won’t stop them from getting firmly behind their man Deceivin’ Steven:

Prime Minister Stephen Harper shot back at the Liberals over the Chuck Cadman affair Monday, filing a notice of libel suit against Liberal Leader Stéphane Dion and two other top members of his caucus.

Court documents obtained by CTV and The Globe and Mail say two articles published on the Liberal website were “devastatingly defamatory.”

The notice of libel, which also names Liberal Deputy Leader Michael Ignatieff and House Leader Ralph Goodale, takes on the Opposition for saying that Mr. Harper knew Conservative party officials attempted to bribe Mr. Cadman to vote against a Liberal budget in the spring of 2005.

You can read the actual libel notice here (pdf). It contains the allegations. I reviewed the notice and the news releases in question. At last check they were still on the Liberal Web site. You can Google the headline to find them, I’m not going to link to them for obvious reasons.

Reviewing the notice and the articles, as much as it pains me I think Harper probably has a case. It looks to me like the Liberals did step over the line.

I’ll note that I don’t buy all of the allegations in the libel notice, however. Some of them appear to be statements and question from the HoC that were reprinted by the Liberals in the news release. As we know, speech uttered in the HoC is protected by privilege and isn’t actionable for libel. If I recall my semester of media law, that privilege extends to journalists reporting statements said in the HoC. If a news release is quoting statements said in the HoC, wouldn’t they be covered by the privilege?

That’s not the case with all the statements noted in the libel notice however, just a few as far as I can tell.

I’ve been very careful with all my wording when blogging on this affair, as anyone blogging (and commenting) on this should be too. But it appears to me that in several of the examples the Liberals may have flat-out said Harper committed a criminal act. And that’s trouble.

The best defense for libel is (usually) the truth. We can suspect something, sure, and we all have our theories about what happened in the Cadman affair, and about what Harper knew and when. But nothing has been proven. So flat-out saying he did something is verboten.

If the Liberals wanted to fight this we’d have to prove that the allegations were true. If what was said was true, there’d be no libel. Another libel defence is fair comment, but there's no such case to be made here IMO. So we’d have to prove not only that the life insurance policy theory is true, and constitutes inducement under the law, but that Harper was aware beforehand that such an offer was going to be made.

And that’s going to be difficult, if not impossible. Chuck Cadman is no longer with us, and based on my Law and Order-based knowledge of the rules of evidence while his confession to his family might possibly be admitted since he did pass on, its far more likely it would be excluded as hearsay, and since there would be no possibility of cross-examination. Any paper trail, if there was one, is likely gone. And if we ever do find out who was at the March 17th meeting in Surrey, it would be their word versus, well, no one’s since Dona and Jodi Cadman have no direct knowledge as far as the law is concerned.

Point being, while I think the Cadman allegations should be fully investigated by the proper authorities to air this thing as fully as possible and to uncover whatever evidence there is to uncover, I highly doubt any criminal charges will ever result. The judgment and any punishment in this case will be political, not legal, and the Canadian people will render their verdict at the ballot box.

In the legal realm, however, that leaves the Liberals up shit-creek on this libel suit. While I’d think that, in theory, they could decide to fight this and use the discovery process to try to pry documents out of the CPC and depose CPC officials under oath to see what they knew about any offer to Cadman, this could also be accomplished by a special prosecutor or the RCMP.

Again, as much as it pains me, I think the Liberals are going to have to eat this one, retract their statements and apologize. This does seem to be libel, and they have little to no legal possibility of proving their allegations as truthful. If they don’t apologize they leave themselves open to a hefty monetary judgment against them, money we don’t have and money the CPC will probably use to by TV ads attacking us for libeling the PM, or since its Harper personally me might use to buy a beach house near the Mulroneys in Florida.

Time for a Libel refresher

Has anyone briefed Stephane Dion, the Liberal caucus and the OLO communications staff on Libel law? Because most of these seem like pretty obvious and egregious violations. It’s not that hard to stay on the right side of the line, and yet it seems like they waltzed right across it.

It’s not the first time either. Just a few weeks ago Dion again made statements regarding Harper’s deputy press secretary, Dimitri Soudas that pretty clearly crossed the line. Soudas promptly slapped him with a lawyer’s letter, and Dion was forced to publicly apologize.

We should be hitting the Conservatives hard on the Cadman affair, on the Soudas thing, on lots of things. But know where the legal line is and do it intelligently, or else our legitimate case gets sidetracked and distracted by this legal crap. It’s amateur.

As for Harper

I’m undecided on what I think of this as a strategic move by Harper. I can understand the urge to defend your reputation. And as I’ve said I think he has a case. At the least, a little libel chill might temper the ferocious Liberal attacks. At the most, he might get a chunk of cash out of already low Liberal coffers and deeply embarrass the party. So it distracts the focus and puts the Liberals on the defensive, that's smart.

However, as others have pointed-out this does prolong the Cadman story, and give it new legs and a fresh angle for the media to chew on. We’re going to see more stories exploring what Harper knew and when. More questions to Conservative officials for a detailed explanation. You could argue it makes him appear the bully with potentially something to hide, and questions whether he wants to get to the truth or not.

Perhaps most potentially damaging are these comments from CTV stenographer Bob Fife:

Fife said senior Conservatives have told him they feel the Liberals are getting too much traction from the Cadman controversy.

"They're going to get tough with him (Dion) and this is one instance where they're fighting back," he said.

That seems to imply that Harper is less concerned about clearing his name then he is about using the legal system as a political club to beat the Liberals with. Also, it underlines that the Cons are very concerned about this Cadman controversy; they fear it is starting to resonate with Canadians.

That’s perhaps the most telling thing here of all.

More thoughts from Warren Kinsella, The Grumpy Voter, Far and Wide, Quito, Nottawa, Scott's Diatribes, The Galloping Beaver, The Wingnuterer, Canadian Cynic, Kady O'Malley and, well, probably every other political blogger in Canada.

Recommend this Post on Progressive Bloggers


Sean Cummings said...

Fucking EXCELLENT posting.... I'm even going to blog about it.

Steve V said...

Jeff, I emailed you on this subject.

Anonymous said...

Not very Republican of Harper to decry lawsuits and then become a frequent flier and sue often.

What a baby.

bigcitylib said...

By the way, somewhere today I'm sure I read that Cadman's list of confidants now include his family plus "close friends". Did anyone else catch that?

Saskboy said...

We'll see if Dion et al can take a punch, and take it for the team. If they do, I'll have newfound respect. If they don't, they fail Canada in a big way.

Dante said...

I really think that the Liberals have failed Canadians yet again. It was their responsibility to ensure this was investigated fully. Holding government accountable is the job of the official opposition. They have now made themselves part of the story and if something illegal happened, it will likely be hidden by the image of the Liberals stepping in shit again. They really screwed this one up and I suspect have given the Conservatives a pass.

I'm not a Stephen Harper hater but I am wise enough to understand that government will not serve the people without credible opposition. The Liberals would be wise to demonstrate that they can be effective opposition before asking for the top job.

Mark Richard Francis said...

It's possibly fair comment to claim 'criminal acts' when a PM admits that he knew financial incentives were being offered to Cadman, even if it ends up nothing illegal was going on. Three things that help the Liberals here:

1. Fair comment applies on matters of public interest and need not be accurate, merely reasonable in the face of available facts.

2. Harper, a sitting MP and the PM has so far refused to explain what the phrase means.

3. And judge would be hesitant to rap the knuckles of the Leader of the Opposition on a matter which was already broadcast all over the country legally. It is frankly silly that the Party's comments outside the House would add to any damage already done from inside the House under Privilege. And any judge would be hesitant to interfere in the democratic process.

All that being said, there's a case to be made that fair comment doesn't cut it. In response to that, not all that long ago, a SCC judge did comment (I forget whom) that politicians should refrain from libel suits against each other. It was taken as a hint that a defamation Sullivan/Nelson defense could work in Canada. Heck, it's been accepted in every other democracy of note, including the UK and New Zealand, both which come from the same common law traditions.

I really hope Harper sues and Dion stands fast. Our libel laws are draconian and need revision.

Dave said...

Has anyone else stopped to think this might just be a publicity ploy? "SCANDAL! DECEIT! EVIL! Read it all right here in my new book."

Seriously, the fact the Dona Cadman is still with the PC party should be screaming volumes.

Mark Dowling said...

It's okay for Dion to sue Duceppe but god forbid anyone sue Dion. I'm not saying Harper's suit is valid, I'm saying Dion has no high moral ground.

• March 8, 2007: Stephane Dion suing Gilles Duceppe

• March 3, 2008 — Liberal news release: "What we are witnessing is yet another example of the Prime Minister silencing his critics and shutting down debate by threat and intimidation. This is what is known as a 'libel chill' - using the threat of a libel suit to remove an issue from where it should be rightfully debated: before the Canadian public. It is Mr. Dion's duty and responsibility to raise these issues before the Canadian public to get the answers they deserve."

Sponsorship fallout: Dion suing Duceppe

OTTAWA -- Lawyers representing Stéphane Dion are demanding to see the bank records of Bloc Québécois Leader Gilles Duceppe as part of a $400,000 lawsuit Mr. Dion launched before he became Liberal Party Leader in December.