Friday, February 06, 2009

Conservatives drop Cadman suit, Harper gets "personality" back

As you know by now, late on Friday afternoon (where the government dumps all the stories they'd rather not get too much play) the news broke that the Conservatives have dropped their $3.5 million libel lawsuit against the Liberal Party over the Cadman affair.

Stephen Harper has dropped a $3.5-million defamation suit against the Liberal party over the Cadman affair.

A terse news release says the prime minister and the Federal Liberal Agency of Canada have agreed to settle all issues related to the suit.

The action has been dismissed without costs awarded to either side and both parties have agreed not to comment further.

While there will be no public commentary and no costs awarded, I've been working my sources in Ottawa and I've learned some of the terms of the resolution. It relates to this:

Harper's initial defamation claim was for $2.5 million but it was subsequently boosted last July by another million dollars for "misappropriation of personality."

I can exclusively report that, after much pleading, the Liberals have agreed to return Stephen Harper's personality in exchange for his dropping the lawsuit. Harper plans to have it dry cleaned over the weekend, and will again have a personality by Monday. Unfortunately, it's the same personality he had before we took it, so don't get your hopes up.

(BACKGROUND: My past Cadman affair posts:
*Why release non-relevant affidavits? Here's why
*Liberal Party, Give Harper back his personality right this minute!
*The Conservatives’ independent tape expert was a Republican donor and organizer
*Cadman tape: What's the motive, means and opportunity?
*Cadscam isn't over
*I'm not surprised
*Weston's Cadman theory still sounds legally infeasible to me
*Stephen Harper threatens to sue one third of Canada's population
*Harper can’t take a punch, threatens libel lawsuit
*Jodi Cadman: I burst into tears
*Charles Adler: Maybe it's Chuck Cadman's fault
*The Cadman affair continues, more information and more questions
*The Conservative allegedly tried to buy Chuck Cadman off)

But seriously, folks. Remember all the bluster from the Conservatives when they launched this lawsuit, backed by the bestest lawyer ever, and how they were going to make those dastardly Liberals pay for their lies? If you've forgotten, Paul Wells has a handy reminder. And a handy Cadman affair refresher timeline.

So, while the two sides say they won't be talking about this, what can we take from the Harper dropping the lawsuit?

I'd speculate it means there was probably more truth to the Liberal allegations than Harper was willing to admit, and what's more, Harper believes the Liberals were going to be able to prove it in open court. Remember, the onus wasn't on Harper to prove the comments libelous. The Liberals had to prove they weren't libelous. If Harper's calling it quits, a logical scenario would be him deciding the Liberals could made that case (in open court) and he was probably going to lose. Would also explain why his super-awesome lawyer jumped ship awhile ago.

There are other possibilities, but they don't hold water.

Maybe Harper had a change of heart decided to be a nice guy, and forget the whole thing? Unlikely to the point of laughable. Maybe the parliamentary privilege extending to the Web site argument looking like it would hold? Again, unlikely. If that were the case, Harper would scream blue murder and wouldn't have had no-commenting as part of the terms of dropping the suit.

No, I think it's the “both parties have agreed not to comment further” bit that is telling. Harper wanted out because he wasn't going to win, and was going to be embarrassed.

So, if that's so, you ask, then why did the Liberals agree to the no comment thing? Why not keep fighting, embarrass him, etc? That's a good question. The simple answer is money.

Even with a losing case, the Conservatives have the deep pockets to drag this thing through the courts for years if they want to. The Liberals, very much, don't have the money. As much as I'd love to see Harper on the stand in open-court, a lengthily discovery process, etc., a look at our fund raising numbers shows we don't have the money for that. So, for the Liberals, it makes sense to stop paying legal bills and devote those limited resources to organization. And remember, even if we're confident of an eventual victory, there's no guarantee we'd get our legal costs back.

And that's another argument in favour of the first scenario. Even with an iffy case, Harper and the Conservatives could have bled us dry on legal fees for months, which would play well with their goal to destroy the LPC as a functioning political party. The fact they're deciding not to is telling.

But this is all speculation on my part. We don't really know how or why it was ended. But we do know this: The Liberals have issued NO APOLOGY here, and NO RETRACTION.

Anyway, with the lawsuit now behind us, there are still many unanswered questions in the Cadman affair, and Harper has still yet to offer a credible explanation for what was said on the infamous audio recording:

Zytaruk: "I mean, there was an insurance policy for a million dollars. Do you know anything about that?"

Harper: "I don't know the details. I know that there were discussions, uh, this is not for publication?"

Zytaruk: "This (inaudible) for the book. Not for the newspaper. This is for the book."

Harper: "Um, I don't know the details. I can tell you that I had told the individuals, I mean, they wanted to do it. But I told them they were wasting their time. I said Chuck had made up his mind, he was going to vote with the Liberals and I knew why and I respected the decision. But they were just, they were convinced there was, there were financial issues. There may or may not have been, but I said that's not, you know, I mean, I, that's not going to change."

Zytaruk: "You said (inaudible) beforehand and stuff? It wasn't even a party guy, or maybe some friends, if it was people actually in the party?"

Harper: "No, no, they were legitimately representing the party. I said don't press him. I mean, you have this theory that it's, you know, financial insecurity and, you know, just, you know, if that's what you're saying, make that case but don't press it. I don't think, my view was, my view had been for two or three weeks preceding it, was that Chuck was not going to force an election. I just, we had all kinds of our guys were calling him, and trying to persuade him, I mean, but I just had concluded that's where he stood and respected that."

Zytaruk: "Thank you for that. And when (inaudible)."

Harper: "But the, uh, the offer to Chuck was that it was only to replace financial considerations he might lose due to an election."

Zytaruk: "Oh, OK."

Harper: "OK? That's my understanding of what they were talking about."

Zytaruk: "But, the thing is, though, you made it clear you weren't big on the idea in the first place?"

Harper: "Well, I just thought Chuck had made up his mind, in my own view ..."

Zytaruk: "Oh, okay. So, it's not like, he's like, (inaudible)."

Harper: "I talked to Chuck myself. I talked to (inaudible). You know, I talked to him, oh, two or three weeks before that, and then several weeks before that. I mean, you know, I kind of had a sense of where he was going."

Zytaruk: "Well, thank you very much."

Looks like work for one of our fine parliamentary committees to me.

ELSEWHERE, On the blogs

*“The truth is that this will prove to be in court the biggest mistake the leader of the Liberal Party ever made” Stephen Harper
*Tories: "Err...on second thought..."
*Harper's Cadman lawsuit a monument to political censorship
*My guess is you’ll hear crickets chirping over at Blogging Tory Central HQ.
*BREAKING: Cadscam Lawsuit Settled - No Apology!
*Cadman suit dropped
*Settled, but not forgotten
*Conservatives capitulate on Cadman
*Harper Lawsuit Pulled - No Liberal Retraction Requested
*How much have Conservative donors spent on Harper's failed Cadman lawsuit?

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Steve V said...

"Harper gets "personality" back "

Wow, if that ain't a booby prize.

Also Jeff, point of clarification, you should never dry clean cardboard. Just saying.

Gauntlet said...

Remember, the onus wasn't on Harper to prove the comments libelous. The Liberals had to prove they weren't libelous

That's not exactly right. The Conservatives have to prove defamation. It's just not a hard test to pass.

From what I have seen of the statement of claim, it was probably a statement of fact, which means the only defense is truth, which the Liberals would have to demonstrate after the Conservative demonstrate defamation.

Now here's the thing. If the Liberals knew they were going to be able to demonstrate truth, they had nothing to fear from the lawsuit except costs. And they were likely to be awarded costs, anyway.

The risk of losing your own costs (because you're going to win, so you won't have to pay theirs) is an investment in a great marketing campaign. Just get a friendly lawyer, and a payment plan.

And if they had evidence capable of proving it, they would have shared it. That's what they did with the rest of their evidence.

What evidence did they have of this? Only the tape recording. No other evidence except hearsay.

So if the Liberals settled, it's probably because they were uncertain whether or not they could demonstrate the truth of the statements. Specifically, that Harper was aware that individuals had attempted to bribe chuck Cadman.

The Liberals, if their uncertain of winning, also have to consider the risk of paying the Conservatives' costs, over which they have absolutely no control.

If it was settled without further comment, it is because neither side was sure of victory.

And frankly, that is the right thing to do. It diminishes the democratic debate to defame people. And unless you can prove something is true, it's defamation. When one side lowers the bar, the other side replies in kind.

So hopefully, this settlement represents a willingness of both parties to class it up a notch.

Mark Francis said...

The Liberals most definitely not have to prove 'truth.' If you read what the Liberlas posted, it was really just a repeat of Hansard. Lots of accusations, lots of questions, all justified based upon what Harper did say on that tape.

What it defamatory? Yes. But libel isn't defamation. Libel is unjustified defamation. You can defame a person with false fact in Canada, and still not be guilty of libel.

Was it reasonable for the Opposition to ask these questions, and make accusations? Was it reasonable for them to communicate the exchange to the public?

The answer is, legally, likely 'yes' to both.

Ofcourse, in practice, that would hvae depended upon the judge. They can be quite predictable. However, I doubt Harper wanted this matter scrutinized further.

This was a classic SLAPP suit (Strategic Lawsuit Agaisnt Public Participation) meant to intimidate the Liberals and to defame them.

Paul said...

Does this mean that the Liberals won't be talking about this mess in parliament, as well?