Tuesday, July 08, 2008

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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Anonymous said...

Exactly! They couldn't have hoped for a better headline. Or did they ask for this one?

And for the record, Tom Zytaruk was absolutely not using a blue pen on the day in question either. ; )

bigcitylib said...

True, but only one Canwest paper reported on it (plus Kadey, who debunked the thing) so it obviously didn't work that well.

Kwil said...

Is irony the juxtaposition of this story with the one immediately prior?

I think so.

Jeff said...

BCL, we'll see if any of the other Canwest papers pick it up or not. Hopefully they'll change the head if they do.

Kwil, funny. Hopefully people don't trust this headline, which I'm sure Juliet didn't write. Journalists rarely write the headlines for their pieces, that's usually done by copyeditors on the page.

Mike514 said...

Let's not miss the real story here: Judging by Jeff's posted screenshot, McFlurries now come in Rolo flavour.

Can we please stick to this important subject?

Mike514 said...

But in all seriousness:

Jeff states "they seem to be going after the journalist, Tom Zytaruk, in a way they haven’t before."

Well, yes, that makes some sense. What did you expect? That the Tories would immediately post slanderous headlines on their website (and then get sued for them)? Instead, they've done the research, and critiqued whatever was warranted.

Jeff said...

They've come in Rolo for some time mike, you really need to keep up on the news more. I prefer the Caramilk, but McFlurries are really just a poor man's Blizzard.

As for Zytaruk, their absence of impugning his credibility has been a major hole in their case here. They've been claiming nefarious doctoring occurred, and he's the only one with means, motive and opportunity to have done such a thing. But they've purposelessly avoided trying it to him because, since there's not a shred of evidence to support that, he'd sue them. He might still have a case anyway because a reasonable person could easily infer they were impugning him even without naming him, but I'm no lawyer.

So they've been looking for evidence and have come up empty, because you can't find evidence of fictional events that didn't occur. So they come up with these affidavits that dispute something he didn't say, hoping just blowing will impugn his credibility without getting themselves sued. And while it might help in the court of public opinion (ie, the headline) in the court of law I think it changes nothing.

Mike514 said...

Full disclosure: I'm lactose intolerant. So I wouldn't know what McFlurries have been around since I would never buy one.

However, I don't doubt that Blizzards are far superior :)

On the less important subject of Zytaruk, I also am not a lawyer, which makes it more interesting: How does the average non-lawyer public (i.e. you and I) perceive the whole thing? It'll be interesting to see how it all pans out... But then again, can we really consider ourselves part of the "average public" with our obsessive love affair of politics? :)

Jeff said...

There's how the public sees it and how the law will see it, do very different things of course.

Most non-partisans aren't paying attention, nor care. It seems this battle is being waged to prevent the Libs from using this as a club in ads when they will be paying attention, during an election campaign. I think some of those that are vaguely listening might be swayed by the headline, or at least doubt planted. But they're more inclined to believe Zytaruk than Harper because of the absence of motive. We know why Harper would allegedly have condoned what's alleged: he wanted Cadman's vote to defeat the Libs. They can try to discredit Zytaruk but without motive it remains hollow: why would he be lying, people will ask. And the further the Cons go down the road to ascribing motive to Zytaruk to discredit him, the higher the risk he'll toss back a lawsuit.

The bigger issue on the public perception side though is that Harper has yet to offer a credible story on the whole Cadman drama.

Legally it's a whole different ball of wax. Normally I'd say the Libs are up shitcreek. The onus is on the defendant to prove the libel is true, not the plantiff to prove its untrue, and that's I thin impossible to do to a legal standard. And I think the statements in the suit go well beyond fair comment.

However, I'd suspect the Liberal defence will hinge on parliamentary privelege, and here the Liberals have a good case. The statements were made in the House of Commons and therefore shielded from libel law, and then reprinted as news releases/news articles on the Liberal Web site. The media can report on statements made in the HoC and be protected by the privilege when quoting libelous statements. Does the same privilege extend to news stories on political party Web sites? How about bloggers?

That's the question the court case may well hinge on. And while it's far from a foregone conclusion, I like the Lib's chances. And as a blogger, I hope they win this one, as it could have a chilling effect on the political blogsphere.

Mike514 said...

Hmmm... Zytaruk's absence of motive...

Let's see: The man writes a book, releases an interesting taped conversation just days before the book hits the shelves, and then sells copies of the tape for 1500$ each.

Nope, no motive here...

"why would he be lying"
I'm not saying he's a liar, but sensationalism sells. If he can hint that there was something shady going on, he can sell many more books.

And if there was something really shady going on (and I mean really downright this-is-obviously-a-bribe shady), why not release the tape to the media years ago? Why wait until a few days before your book is released to... oh, right. There's that "motive" again.

But keep hoping, Jeff. Put Zytaruk on a pedestal and disregard everything I say. I may disagree with you, but I will always wish you the best.

Jeff said...

That would be one motive Mike, you're absolutely right. And it is an obvious theory, which should make you wonder why we haven't been hearing it from Harper, Kenney et. al.

It's because the Conservatives can't introdice it without evidence, either in court or in the public opinion arena. If they had such evidence they would, don't you think? But they don't.

Without evidence a court would dismiss the theory and not consider it. And if they did it in public? If the Cons even suggested what you are he would immediately sue them for libel. And unless the Cons could prove that he did doctor and lie to sell books, he would win a few million dollars in the lawsuit for the damage to his reputation as a journalist. And since he's not a public figure, the Cons would have no fair comment defence. They'd lose badly, and they know it.

That's why the Cons have been so circumspent not to make the accusations to motive that you suggest Mike, and have been focusing the bulk of their attack not on Zytaruk, but the Liberals.

It has nothing to do with pedastals, ans everything to do with the law.

Mike514 said...

To address your comment about the Liberal defence hinging on parliamentary privilege: it's an interesting point. But how would that work?

(neither of us are lawyers, so let's have some fun speculating)

Let's say we were politicians, and I accuse you of accepting a bribe in the House of Commons. It was totally out of the blue, no justification whatsoever, no evidence, just a crazy random comment that perplexes everyone. Even I am surprised by what I said. I don't know, maybe it was a hot summer day and the heat really got to me, and I couldn't cool down with a Rolo McFlurry because of my lactose intolerance. But hey, we're protected by privilege, so you can't sue me.

Now, in your opinion (it seems), I have carte blanche to repeat that crazy baseless accusation on my website and during interviews outside of parliament. All I have to do is innocently claim that I'm merely "reporting" what I said earlier under privilege, and are therefore immune to lawsuits.

Is that fair? How far does privilege extend? Can I repeat any crazy slanderous comment outside the house, and use the shield of immunity to protect me from lawsuits? What if an MP merely whisper slanderous comments to himself in the House, with the sole goal of repeating them outside claiming he is merely "reporting" what was said under privilege? Does that defense hold up? I would hope not, but again, we're not experts.