Law Times

LAW TIMES / JUNE 16, 2008 with a new way of shutting up opposition MPs. Filibusters and walking out on committees was not enough; now the Conservatives are launching libel actions to silence the Liberals. The tactic is proving most effective. Libel chill is turning into le- gal freeze in the Commons. The Conservative government is even less accountable. The Liberals call it "a funda- mental attack on freedom of po- litical expression." No. 1: Chuck Cadman Affair. Prime Minister Stephen Harper files a $2.5-million libel suit against the entire Liberal Party of Canada over a web site allegation (since withdrawn) that Harper knew about a $1-million insurance policy bribe offered to the cancer-stricken Cadman to change his vote in 2005 to defeat the Liberal government. At issue is a tape recording Lib- erals have of him telling a reporter there were "financial consider- ations" but that he didn¹t know the "details." Conservatives say the tape has been doctored. The case has yet to get to court. If Harper doesn't control the tape, the Liberals will use it against him during the next election; the results could be devastating. No. 2: Chris Froggatt, Environ- ment Minister John Baird's chief of staff suing Liberal MP Mark Hol- land for $3 million. Froggatt says Holland sug- gested in several media interviews that Froggatt had "interfered or at- tempted to interfere" with a possi- ble RCMP police investigation into what role his boss Baird might have played in the Larry O'Brien affair. Baird's friend, Ottawa Mayor Larry O'Brien was charged Dec. 10 by Ottawa police with attempted bribery and purported influence- peddling, in an alleged scheme to remove a rival mayoralty candidate in the 2006 municipal election by offering him a federal job. Froggatt says he did call up the lead police investigator on Dec. 11, but it was only to get clarifications about news reports, not to interfere in the police investigation. The case has yet to be heard. Holland has hired Heenan Blai- kie LLP. The Conservatives, who control the Board of Internal Economy, refuse to pay Holland's legal bills, breaking an old tradi- tion of paying for lawyers to de- fend MPs sued for things they say related to their work. Holland can't bark anymore and is forced to pay for his own muzzle as well. Welcome to the new way of doing politics in Ottawa. "A dictator would be envious of the tools in the hands of the prime minister," Holland told a reporter. No. 3: Former prime minister Brian Mulroney sues Liberal MP Robert Thibault for $2 million for repeating erroneous accusa- tions about Mulroney outside the Commons. Thibault is the Liberals' top man on the ethics committee in the investigation into Mulroney's George Bush say? U p to its neck in political scandals, the Harper government came up What would The Hill By Richard Cleroux dealings with arms dealer Karl- heinz Schreiber. But Thibault said on Mike Duffy's CTV show that Mulroney had taken hundreds of thousands of dollars from Schreiber while he was still prime minister. Not true. Mulroney admits he took the money, but he was only an MP, no longer prime minister. Enter Mary Dawson, the Commons' ethics commissioner, a recent Harper appointment. She rules that because there's a defa- mation suit against him, Thibault can't talk about Mulroney, or about Schreiber, or the money, or the lawsuit, or even sit on the eth- ics committee. Thibault might lose the case, she rules, and might have to pay money to Mulroney, so therefore Thibault has a "private interest" in the com- mittee investigation. And that puts him in conflict of interest. Even sit- ting on the committee is "furthering his private interests," she rules. So Thibault is off the com- mittee and Liberals have lost their best man. It's a preposterous ruling, in- credibly bad. The civil law has trumped parliament; the personal interest of a litigant goes before public interest. Taken to the extreme, every last MP might be shut up. Libel lawyers would replace MPs; depositions would replace debate. The govern- ment would rule behind a legal for- tress and nobody could talk. Any MP could be shut up by anyone with $1,000 and a lawyer. Just file a statement of claim for def- amation and call up Ms. Dawson. She'll do the rest. The case doesn't even have to come to court. Even Dawson admits maybe the rules should be changed. The oppo- sition tried to change the law in the Commons, but the Conservatives fought off the challenge. Dawson's ruling could destroy Parliament. Recently Conser- vative House leader Peter Van Loan stood in the Commons and called the Liberals "sympathizers of the Taliban." His colleagues began repeating the claim out- side the Commons. Inside the Commons, there is parliamentary immunity from def- amation; outside there is not. Being called a Taliban sympathizer is not nice. It doesn't help re-election. If the Liberals were nasty, all the Conservatives who are repeat- ing the Taliban insult could be sued and no longer allowed by Dawson to debate their beloved Afghan war. Parliament would be more silent than Kandahar on a Saturday night. Imagine the Conservatives unable to speak out about the Afghan war. What would George Bush say? LT Richard Cleroux is a freelance reporter and columnist on Parlia- ment Hill. His e-mail address is richardcleroux@rogers.com. www.lawtimesnews.com COMMENT Heed chilling warning A s a lawyer with 30 years of practice acting for media clients, it sad- dened me to read about the spectacle in Vancouver earlier this month where the British Columbia Human Rights Tri- bunal parsed the content of a cover story published in Ma- clean's magazine. The cover of the magazine read, "Why the future belongs to Islam" and "The Muslim world has youth, numbers and global ambition. The West is old, barren and exhausted. Mark Steyn maps the new world order." Inside was a short excerpt from Steyn's bestselling book. Under human rights codes anybody can file a complaint. In this case it was Naiyer Habib and Mohamed Elmasry, both Muslim activists and mem- bers of the Ontario-based Cana- dian Islamic Congress. They filed in British Columbia, presum- ably because of the breadth of the B.C. Human Rights Code, which prohibits any publication or statement that "is likely to expose a person or a group or class of persons to hatred or contempt because of the race, colour, ancestry, place of origin religion . . . of that person or that group or class of persons." Saskatchewan has an even broader provision prohibiting publications that tend to ex- pose a person or class of persons to hatred "or ridicules, belittles or otherwise affronts the dig- nity of any person or class of persons on the basis of a pro- hibited ground" but there is a freedom of expression declara- tion in the Saskatchewan code. The federal code covers inter- net postings and captures "any matter that is likely to expose a person or persons to hatred or contempt by reason that that person or persons are identifi- able on the basis of a prohibited ground of discrimination." Aside from the vagueness of the language in these codes and the prospect of forum shopping, there are a myriad of problems with these provisions. The intention of the pub- lisher is irrelevant. It matters not that, for example, the con- troversial Danish cartoons are published to show what led to the recent bombing of the Danish Embassy in Pakistan. Complainants needn't reside in or have any real connection in the province in which com- plaints are filed, nor are they required to testify or subject themselves to cross-examina- tion. Indeed they need not at- tend the hearings they initiated, even though they have become self-appointed class action rep- resentatives and spokespersons for entire communities. Truth is not a defence. That's right. It's not even a rel- Social By Alan Shanoff evant consideration. Having an honest belief in the truth of an item is not a defence. Why should it, if truth is irrelevant? Fair comment is not a de- fence. Nope, not even close. There is no prohibition on a multiplicity of proceed- ings. Complainants may file complaints in more than one jurisdiction — indeed com- plaints in respect of the same Maclean's item were filed in three jurisdictions. Evidence from racism ex- perts can be led to establish the underlying meaning of the words published. It doesn't matter what the publisher meant; what is important is what an expert says the words meant and the impact created by those words. And just how does one become qualified as an expert in racism? That's up to the tribunals. Of course the tribunals are not required to follow the rules of evidence and they can accept as an ex- pert anyone they wish — in this case they accepted a PhD in journalism and communi- cations. Oh, and forget about any coherent rules of evidence. Provinces with no jurisdic- tion over publications may still accept complaints, and there is nothing to stop any of these commissions from condemn- ing an item as racist while at the same time declining ju- risdiction — all this without holding a hearing. Indeed, that's what happened to Ma- clean's in Ontario. The spectre of the Maclean's Justice case is chilling. Win or lose, pub- lications, whether large or small, will engage in subconscious self- censorship. Smaller publications or publications with limited resources will surely engage in conscious self-censorship. How is an editor to know what might or might not offend the sensibilities of any identifi- able group? Any controversial statements about any religion or race are potentially subject to sanction if anybody finds them offensive. Writing about Chinese treatment of Tibetans or Tiananmen Square may offend some Chinese. Writing about the Armenian genocide may of- fend some Turkish. Writing about the Holocaust may offend some Germans. Earlier this month al-Qaeda took cred- it for the bombing of a Dan- ish Embassy in Pakistan. Ri- diculous as it may sound, there would be nothing stop the B.C. HR Tribunal from entertaining a complaint from an al-Qaeda supporter in respect of an edi- torial condemning al-Qaeda for the bombing. As a media law lawyer, I was often asked to give advice on the risks of publishing letters to the editor. Sometimes the let- ters expressed a narrow-mind- ed view towards identifiable groups. I always cautioned my clients about potential risks but concluded that the risks were minimal and that it was impor- tant for the newspapers to pub- lish the letters so that the public could be educated on the big- otry that existed in their com- munities. Even though some people might be offended by the letters, I felt that there was a greater good in having bigotry exposed and I knew that the let- ters would spark healthy public debate. No longer would I dare give such advice. As Julian Porter, counsel to Maclean's said in his closing argument to the B.C. HR Tri- bunal, "Beware." That chilling warning must be heeded. LT Alan Shanoff was counsel to Sun Media Corp. for 16 years. He currently is a freelance writer for Sun Media and teaches media law at Humber College. His e- mail address is ashanoff@gmail. com. PAGE 7

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