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 17^th 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.

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