Why release non-relevant affidavits? Here's why

There have been two threads buzzing with comments today over at Inside the Queensway about an affidavit filed by Dona Cadman related to the Stephen Harper libel lawsuit against the Liberal Party over the Chuck Cadman affair.

From reading ITQ's coverage of the statements and the who said what and when it seems pretty clear to me the Conservative are blowing smoke here; none of their alleged inconsistencies alter the essential facts of the case, change what Stephen Harper is heard to say on the Tom Zytaruk tape, or shine light on just what the Conservatives allege was doctored from the tape, and how that would change the meaning of what Harper is heard to say.

What I did find tangentially new with this latest development (and again, thanks for keeping the story of your attempt to secure the vote of a dying MP by offering to “replace financial considerations he might lose due to an election” alive) is that they seem to be going after the journalist, Tom Zytaruk, in a way they haven’t before. Indeed, they’ve generally avoided attempting to impugn his credibility previously. In the infamous “doctored tapes” presser they avoided saying just whom they allege did the doctoring, when their timeline only seems to allow opportunity to Zytaruk and/or his publisher. How far will they go down this road before Zytaruk might decide he has a libel case?

Anyway, I’d been wondering earlier just what the Con strategy was here, denying things no one said happened on points not pertinent to the actual issues at hand. But then I saw this headline, and all was clear:


Lazy headline writers is what they were banking on, and lazy readers. Many people will just read the headline, or the head and the lead. What’s this? His widow denies the author’s story they’ll say. And that will be filed away as a mark against the allegations in their consciousness.

Nevermind she’s not denying the relevant points of the allegations, just that they talked inside the house. Something it's unclear he ever really even claimed, and that doesn't matter anyway. They’ll just see “widow denies” and move on.

So, all in all, a good bit of short-term communications and media management by the Conservatives, all for the cost of an affidavit.

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Is Harper opening himself up to a potential libel suit?

That’s the thought I had when I read Kady's blog-entry about the part of the Stephen Harper libel statement of claim in which Harper alleges the digital recording of his interview with reporter Tom Zytaruk had been edited, presumably to make Harper look bad.

Says the filing:

21. The digital copy of Mr. Zytaruk’s interview of Mr. Harper is incomplete with the result that Mr. Harper’s answers as reflected on the digital recording are not provided in their entire context. The digital recording of the interview does not contain the beginning of the interview. Several of Mr. Zytaruk’s questions are inaudible. There is inconsistent background noise in the digital recording of the interview. At one point, an edit occurs in the digital recording and some unknown audio content of unknown length is missing from the digital recording. The digital recording of the interview ends while Mr. Zytaruk is talking but has not completed his sentence.

As Kady writes:

The unstated, but obvious, implication is that this was done deliberately. But who, exactly, is being accused of doctoring the tape? The author and/or publisher? The Liberals? Someone else entirely?

It seems somehow unfair to allow an allegation like this to stand, unchallenged, despite the damage it could do to the reputation of the parties named - not so much the Liberal Party, which will at least have the opportunity to defend itself in court - at least, if the case goes forward - but Zytaruk and his publisher, who haven't (yet) been named in any action, despite repeated appearances in the statement of claim, which includes the text of an email sent by the publisher to a journalist who was working on the story.

Conservative operatives and talking heads have regularly been raising questions about the veracity of the recording. And it could lead to trouble. They should be careful to avoid implying Zytaruk might have maliciously edited or doctored the tape. I don’t see, if such a thing was done, whom else they’d contend would have done it. It was Zytaruk’s recording, it was his publisher that released the excerpts, and he wasn’t come forward to claim any evil doings with the recording were perpetrated by a third party. So whom else would the Conservatives contend is the mystery editor? Gurmant Grewal?

All a journalist has is their reputation and their integrity. If it was being implied that I, as a journalist, was doctoring or editing recordings out of context, that would seriously damage my reputation as a journalist and my ability to do my job, and I would have to look seriously at a libel action to defend myself.

Unless the Conservatives have some evidence here, they may be entering shaky ground. Wouldn’t it be ironic if they got hit with a libel suit relating to their own libel suit?

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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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Let's go discovering

It seems like Stephen Harper plans to go ahead with its libel lawsuit against Stephane Dion et al. Or at least he says he does, he hasn't filed anything yet. But I believe him. I looked straight into his eyes and I saw he was telling the truth. So to court we go, some time in the next few years anyway.

The Conservative bloggers and commenters have been all a twitter since the libel gauntlet was dropped about the discovery process, where they expect to subpoena all kinds of juicy stuff from the Liberals. Like Pierre Trudeau's little black book. We also know who was behind the grassy knoll and trust me, you'll be surprised.

They forget though that discovery goes both ways.

For example, if this case proceeds I'll be very interested to see all e-mails, faxes, phone records and other corespondence between Ottawa and Surrey, as well as the sworn testimony of all parties involved, that led up to the issuance of this statement:

March 3, 2008
Personal Statement by Dona Cadman

I’m a little bit surprised at the level of reaction to the disclosures in Tom Zytaruk’s book and I guess that’s probably because it was put to rest in my mind, when I discussed the matter with Stephen Harper, 2 ½ years ago. At that time, I recall specifically asking him if he was aware of a million dollar insurance policy offer, that upset Chuck so much.

He looked me straight in the eyes and told me he had no knowledge of an insurance policy offer. I knew he was telling me the truth; I could see it in his eyes. He said, yes he’d had some discussions with two individuals about asking Chuck to rejoin the party, but he’d told them they were wasting their time trying to convince Chuck.

From that point forward…. I didn’t regard it as a “Party” initiative, but rather; the overzealous indiscretion of a couple of individuals…. whose identity, Chuck never revealed to me.

It all comes back to my conversation with the Prime Minister…. 2 ½ years ago. I want to be perfectly clear in that regard. Chuck liked, respected and trusted Stephen Harper. I like, respect and trust Stephen Harper. If I didn’t believe in my heart, that he was telling me the truth…. I wouldn’t be running as the Conservative Candidate for Surrey North.

Dona Cadman

Dido all e-mail, corespondance, fax, phone records and sworm testimony of those involved in the lead-up to this statement (H/T Quito):

FOR IMMEDIATE RELEASE

Statement from Mr. Dan Wallace
FOR IMMEDIATE RELEASE
March 2, 2008

Today Mr. Wallace issued the following statement:

“The May meeting date included in a soon to be released book about Chuck Cadman is inaccurate. Unfortunately, because of that error, some media are now reporting that there were two meetings, one on May 17 and another on May 19, 2005, between party officials - Doug Finley and Tom Flanagan - and Chuck Cadman. For the record, there was only the one meeting between my former employer, Chuck Cadman, with Doug Finley and Tom Flanagan and it took place in his private office on May 19th. As I have stated publicly last week, I was outside that room and not privy to the details.”

Were the issuers of these statements contacted by the PMO or a CPC official prior to the issuance of these statements? If so, who? What did they discuss? Where were these statements drafted? By whom? Were revisions suggeted? By whom? What were they? And so on. All perfectly valid questions for discovery, and answers will be legally required and compelled, and given under oath.

I think it might be very interesting to hear the answers. If this thing ever does go to court, that is...

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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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Bloggers and libel chill

I've added this video to my sidebar, and I wanted to feature it here too. It's a report from last night's CBC The National, and I think it's a must watch for anyone blogging on politics in Canada, or even commenting on blogs. Among those interviewed, and facing libel lawsuits as a result of their blogging, are Mark Francis of Section 15 and Kate Holloway, provincial Liberal candidate for Trinity-Spadina.

You can learn more at their Libel Chill.ca Web site, get a button for your blog to support their fight and/or make a donation to help them fight the lawsuit. Canada's laws are antiquated when it comes to libel and aren't suitable for the electronic information age. This is an issue that crosses party lines, and should be of concern to bloggers of any stripe.

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Free speech, the school yard and cyberspace

You may have read or heard about this story, particularly if you live in the Toronto area. It generated quite a bit of water cooler debate with my work colleagues on Friday:

Are teens crossing the line with online insults?
By ANTHONY REINHART and CAROLINE ALPHONSO AND RACHEL DELAZZER
From Saturday's Globe and Mail

Kicked out of school over online insults against a vice-principal, Brad Parsons, the face of free expression's latest fight, took his place in the sun outside his Toronto high school yesterday.

Brad, 16, was suspended from Birchmount Park Collegiate this week for starting an online chat group, on a website called Facebook, where students were invited to register their dislike of the vice-principal. Four students who actually posted the derogatory comments were also given the boot.

(more)

As I see it, there are a couple of different issues here. First of all, the free speech vs. libel issue. Without knowing exactly what was said by these students in the online forum, it is difficult to know if it crossed the legal line and constitutes libel.

But here's the bottom line question for me: if the incident did not take place on school property, or on a school-sanctioned field trip, then why is the school stepping-in here and meting out discipline? What is their authority to police what students do, no matter how distasteful, off school property on their own time? Isn't this really a matter for the parents?

Now, if school computers were used that's another matter, but there's no indication that was the case. Also, if the remarks were indeed libelous or criminal, then the school can avail itself of the legal remedies available in the justice system. But I fail to see what authority the school has here to suspend these students. If they don't wish to pursue legal remedies, punishment is up to the parents.

I'm not a parent, so perhaps I see things differently. A colleague at work is a parent and she agreed with the school's decision to suspend the students. Frankly, were I a parent I'd resent the school's intrusion. I'd feel it's my responsibility to teach my child right from wrong here, and punish if necessary.

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