Law Times

www.lawtimesnews.com Page 2 march 17/24, 2008 / Law Times NEWS Lawyers are largest occupation group among MPs convention by also voting in favour of the government to allow the debate on the Liberal budget to continue. The notice of libel from Harper's law- yer, Richard Dearden of Gowling Lafleur Henderson LLP in Ottawa, claimed the statements on the Liberal web site meant and "were understood" to mean Harper was an accomplice to an attempted bribe and that the prime minister was "dishonest, unethical, immoral and lacks integrity." In a $2.5-million lawsuit filed by Harper's lawyers in Ontario Superior Court on March 13, the documents named only the Liberal party and did not mention Dion or the other two MPs. This suggests he will pursue his libel suit against only the party and not the politicians. Jennings, a former member of the Quebec police commission who has remained a member of the Quebec bar since her first election to the Commons in 1997, says libel threats have become a practice of the Harper government, along with other forms of rhetorical intimida- tion on the House floor. The tactic first emerged when the Opposition last year began asking questions about the possibility that Afghans who were being detained by Canadian soldiers in Afghanistan were being tortured by Afghan secret police after the Canadians handed them over to Afghan soldiers. "When an MP gets up, whether it's a Liberal, a Bloc, or an NDP, to ask a legiti- mate question about what's happening to Afghan detainees that the Canadian military has captured as suspected Taliban supporters, what happens to them and what responsibil- ity the Canadian government has in insuring their international rights are respected, we get called Taliban supporters," she says. Ottawa lawyer Tom Conway, who represented former Conservative party member and lawyer Alan Riddell in a libel action against Harper, says the threat of legal action against individual Liberals is surprising as a recent and novel devel- opment in Canadian federal politics. But he adds it is also unusual because Harper claimed, successfully, that parlia- mentary immunity prevented him from being compelled to appear for discovery when Riddell sued him over a contract dispute with the Conservative party. "Here he is serving a notice of libel on the leader of the Liberal party, who enjoys the same immunity from civil proceed- ings that Mr. Harper had," Conway tells Law Times. "One has to seriously ques- tion the motivations behind that libel notice. Is Mr. Harper really aggrieved by what Mr. Dion said, either in or outside the House of Commons, or is he simply trying to shut down the debate?" Harper's notice of libel, against Dion, Deputy Liberal Leader Michael Ignatieff, and Liberal House Leader Ralph Goodale, is the latest in a recent spate of libel threats and actions that MPs or former MPs and political staff have launched. In another controversy, Dion apolo- gized to Harper's deputy press secre- tary, Dimitri Soudas, after he questioned involvement by Soudas in a contract dis- pute between a Montreal developer and the Department of Public Works. Former Conservative prime minister Brian Mulroney served a libel notice against Liberal MP Robert Thibault last November as the controversy over Mulroney's past relations with German lobbyist Karlheinz Schreiber began. Former Liberal Treasury Board president Reg Alcock sued Saskatchewan Conservative MP Tom Lukiwski for alleging Alcock had given his campaign manager a job with the Canadian Wheat Board. That case was settled out of court last year in Alcock's favour, Lukiwski says, and may be a precedent that prevents the Liberals from obtaining funding from the Commons for the lawyers politician might have to retain to defend themselves in these types of lawsuits. The party was considering the request, but Rob Walsh, chief law clerk for the Commons, says the management board of MPs that makes such decisions is inclined not to fund legal costs when MPs take each other on through the courts. "Within the House, the board is say- ing, in effect, 'Hey guys, if you're going to go after each other, the inequities as well as the equities flow," says Walsh. If they wish, the Liberals could look for pro bono assistance from the sea of lawyers that can be found in the Commons. Lawyers make up the largest single occupation group among MPs, a total of 43 among the 308 members. 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DD LT RXQTHZH-01 Online ad 3/5/08 1:37 PM Page 1 Continued from page 1 LT Complex balancing act from top court plied undertaking rule "does not extend to bona fide disclosure of criminal conduct," wrote Bin- nie. The chief constable of the Vancouver Police Department, the attorney general of Canada, and the attorney general of Brit- ish Columbia, along with Douc- ette, are named as respondents in the SCC case. The Supreme Court disagreed with the B.C. appeal court's deci- sion and the province's attorney general's argument that an "im- plied undertaking" rule doesn't exist in B.C. Binnie also noted that the po- lice could obtain the discovery information using a subpoena or search warrant: "However, if at this stage they do not have the grounds to obtain a search warrant, it is not open to them to build their case on the ap- pellant's compelled testimony," wrote Binnie. "It would be quite wrong for the police to be able to take advantage of statutorily compelled testimony in civil litigation to undermine the appellant's right to silence and the protection against self-incrimina- tion afforded her by the criminal law," wrote Binnie. The court noted that there are times when the implied un- dertaking would be overridden, such as in the midst of "im- mediate and serious danger" to the public, or if contradictory testimony was given in other proceedings. The party seeking such an exemption would have to show that the public interest was greater than the need to de- fend the values that the implied undertaking stands for, which in- clude privacy, protection against self-incrimination, and the effi- ciency of civil litigation. Binnie wrote that the B.C. attorney general's application to alter the implied undertaking aimed to "sidestep the appellant's silence in the face of police in- vestigation of her conduct. The authorities should not be able to obtain indirectly a transcript which they are unable to obtain directly through a search warrant in the ordinary way because they lack the grounds to justify it." Weslowski says she's unaware of any other cases that ponder how to deal with the issue of protection of discovery informa- tion in the midst of parallel civil- criminal proceedings. "It's a novel point — I think one of the first times the Su- preme Court of Canada has con- sidered this issue," says Weslows- ki. "It dealt with the issue of the undertaking before, but they've not dealt with it in the context of disclosing discovery transcripts to the police." Ross says the case forced the Supreme Court to perform a complex balancing act. "On the one hand you've got the privacy rights of individu- als involved in civil proceedings, together with the object of effi- cacy in civil proceedings to have expeditious and fair resolution of civil proceedings . . . On the other hand you've got to balance the rights of the state to investigate matters of alleged serious criminal conduct. "It's a question of where you draw the line, and in this case, this is the first time the courts have addressed that drawing of the line," says Ross. Michael Morris, lead counsel on the case for the attorney gen- eral of Canada, says he was glad to see the court inserting a num- ber of important caveats around the limitations on implied un- dertaking. "There are circumstances when the public interest and pub- lic safety remains paramount," says Morris. "We think that's an important limitation put on the court. "Any lawyer that's involved in civil discovery where there are is- sues potentially involving crimi- nal conduct are going to have to be aware of this decision, because it clearly is going to be the law, in respect of what the scope of the implied undertaking is, for some time." Morris says implied undertak- ings are codified in Manitoba, Prince Edward Island, and On- tario, while all other jurisdictions in Canada rely on the common law for the protection. "You have a lot of develop- ment within those jurisdictions, and not a lot of certainty with re- spect to the scope of the implied undertaking," he says. "This judgment, I hope, will bring some consistency with respect to what that rule, of relative recent vintage, is in an important con- text." Continued from page 1 LT Within the House, the board is saying, in effect, 'Hey guys, if you're going to go after each other, the inequities as well as the equities flow.' DON'T COURT DISASTER Keep up-to-date on the latest judicial developments by reading Law Times CaseLaw on pages 17 -19

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