Friday, March 14, 2008

Quick thoughts on libel

As we all know, yesterday Stephen Harper decided to go ahead with his unprecendented libel threat, filing a $2.5 million statement of claim against the Liberal Party relating to comments on the Liberal Web site over the Chuck Cadman scandal. And the Liberals reiterated their bite-me Steve.

Actually, he half went ahead with his threat, and he half backed-down. The original threat named Stephane Dion, Michael Ignatieff and Ralph Goodale; only the Liberal Party is named in the statement of claim. Seems pretty obvious that Harper's lawyers felt their case wasn't strong enough against those individuals to proceed, which would seem to say something about the legal soundess of his case overall.

Also, I see the Conservative talking points as left by their armies on the message boards say Harper's lawyers are super smart, and so Harper wouldn't be filing the statement of claim if he wasn't totally going to win and the case wasn't air tight.

Well, the Liberals have lawyers too. They also have no money. So, let me ask you this. Given the Libeal Party's recent total aversion to risk taking of any kind, and our precarious finances, do you really think they'd have told Harper to shove it on this if they thought he had a case? Would the Liberals really have decided to role the dice on a weak case? Of course not, they'd have apologized quickly. Remember the Dimitri Soudas libel threat, Dion apologized lickedy-split.

With the Liberals actually deciding to fight this, and Harper already backing off half his threat, I think it's safe to say the Conservative case is probably far from a slam dunk. And not very good politics either.

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11 comments:

ALW said...

Seems pretty obvious that Harper's lawyers felt their case wasn't strong enough against those individuals to proceed, which would seem to say something about the legal soundess of his case overall

Well, no, what it says is that they assessed what they thought was sound, and what wasn’t, and jettisoned the latter. They cut loose the risk and are going with the surer thing. If they thought his odds were bad, they wouldn’t have proceeded at all.

I don’t see how it’s a talking point to observe Rick Dearden’s record on prosecuting libel cases. It’s just like pointing out statistics in sports: if someone puts up the numbers, they are probably good at delivering the goods.

I think the excitement of the prospect of finding something that could actually stick to Harper has clouded the Grits’ judgment on this. That, coupled with the unbearable optics of being seen to roll over yet again has let them to stick their neck out on this. Think John Tory and religious school funding. Yeah, exactly.

rufous said...

One of Harper's 'frontmen' (wish I could remember who - he's probably been 'disappeared' by now) on tv justifying Harper's libel suit against the liberals: 'his (Harper's) integrity is on the ground' - he probably meant on the line, but Freudian slips being what they are...

bigcitylib said...

Its a stunt, and frankly one that won't play well outside of the Tory base. The whole "It only looks stupid but Harper is playing a deeper game." line is wearing thin.

I'm just happy Harper's helping keep this one on the front pages.

Scott Tribe said...

As usual, ALW lets his partisanship get in the way of his judgement.

Fact is, this case won't be heard for years.. 1 election or 2 might pass before it gets a judgement.

That, and the fact Harper is trying to claim that the tape everyone hears him speaking about 'financial considerations" is Grewal'ed, makes his claim rather dubious.

Gayle said...

"If they thought his odds were bad, they wouldn’t have proceeded at all."

You are being rather naive here. It actually is not up to the lawyer. It is up to the client.

"I don’t see how it’s a talking point to observe Rick Dearden’s record on prosecuting libel cases."

Doean anyone know anything about this other than what they read on Kinsella's blog? (DOes Kinsella even practice law anymore?)

In any event, this is the stupidest argument out there. If he does win all his cases, all that means is he settles too soon and that makes him a bad lawyer, "reputation" aside.

I know a prominent lawyer in Edmonton who has the reputation of being a great lawyer. In fact, he is an expensive lawyer with mediocre legal skills and excellent marketing skills.

Mark Francis said...

People would do well to read the Claim and carefully compare it to the stories posted in the liberal website. I will do so this weekend.

Harper is trying to claim that the LPC can't defend against this because the material was published with malice... but he has not yet produced any evidence of malice.

Even with Canada's backwards libel law, the plaintiff must prove malice. Without proof of malice, the LPC, at first glance, has a decent defense under Conditional Privilege and certainly Fair Comment. This is also an important case which could finally lead to a Reynolds/Sullivan-type libel defense which is sadly lacking in Canada. (This defense allows us more leeway when questioning the public actions of public figures. Many people assume Canada already allows this -- not true)

My first glance at the LPC articles showed them to be reasonable comment on Hansard content. Furthemore, it is very true that Harper knew of allegations of a bribery attempt back in 2005 -- Dona Cadman told him! There may be semantics at play here: Did Harper "know" because he was involved, or did he "know" because Dona Cadman told him?

I'm also thinking Harper is hoping to dig through LPC documents acquired through Discovery in order to stitch together a malice claim.

And all this crap about "Harper is going to win because he sued" is just that: Crap!

If every lawyer were right, every trial would end in a tie.

And lawyers' clients all the time pursue torts they can't win. The point is to up the ante in order to negotiate.

ALW said...

It’s always a knee-slapper to be accused partisanship from a guy like Scott Tribe, who makes Jason Cherniak look like an open-minded swing voter.

I don’t suppose it occurred to you, Scott, that the purpose of this lawsuit might not be instant political benefit for purposes of winning an election. I realize that your mind is irreducably focused on how to score partisan points that will yield political dividends tomorrow, but that may not be what Harper’s after here. He might just be genuinely offended that he’s been called a criminal, and he’s going to hold the appropriate parties to account for it.

If the relative success of strategic decision making between the Tories and Liberals over the last few years is any indication, I don’t know why everyone asserts Harper is being dumb in pursuing this. I recall the Liblogosphere was also deeply convinced that the framing of Dion as a wimp was going to flop as well. So I will take the ability of partisan Gritbloggery to accurately predict future political fallout with a grain of salt.

Mark Francis said...

"...the framing of Dion as a wimp..."

...is an excellent example of malicious libel. A deliberate, national ad campaign done with the sole purpose of defaming a public figure. Even a Fair Comment defense would melt away, the malice is so clear.

thekillerhip said...

"As we all know, yesterday Stephen Harper decided to go ahead with his unprecendented libel threat"

Dion already sued Duceppe for libel so not completely new.

Mark Francis said...

Many MPs have sued each other for libel. What is unprecedented is the PM doing it to the Official Opposition .

A BCer in Toronto said...

alw, we'll see if the Liberals have overreached. I thought so at first, then I learned all the comments Harper is taken issue with are quotes from QP, which makes it a whole other kettle of fish.

Frankly, I think Harper overreached with his initial threat, expecting Dion et al to back down. When they didn't, he felt he couldn't puss out, so he went ahead with a scaled-down filing. In my biased view, I think he's just going through the motions at this point.

Oh, and when it comes to the prediction abilities of political blogspheres, according to the conservosphere at this point every Liberal should be doing hard labour in a penal colony and Harper should be ar 105 per cent in the polls, so yeah. Let's just say the prognostication skills of the entire blogosphere aren't 100 per cent.


Mark, the malice issue sounds interesting. I'll look forward to your deeper analysis of the filing.