So Sue Me
Thoughts?
UPDATE: According to the National, Harper is asking for "2.5 million plus costs and GST".
Well, all I can say, is thank God for Jim Flaherty! That GST cut the Liberals abstained on might be saving them $25,000.
posted by calgarygrit at 9:00 p.m.
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42 Comments:
Given that:
- courts of law rely on strict rules of evidence,
- all of the allegations in Harper's statement of claim are provable facts (in fact they are part of the public record for all to see),
- all of the statements the Liberals have made about Harper, all of them, are based on innuendo, hearsay and conjecture
- hearsay innuendo and conjecture will not be accepted as evidence of the facts alleged,
- the knowing USE of innuendo and conjecture as the sole basis of publicly declaring someone implicated in criminal conduct will be considered by the court as an aggravating factor,
There's a very high probability that Harper will be successful.
There's also a moderate to high probability that the unnamed "jane and john doe's" will, through the discovery process further implicate high ranking liberals, including even Dion himself, given standard protocols on approval of party website and the fact that the statements have remained with the full knowlege of the highest members of the Liberal party.
By Anonymous, at 9:35 p.m.
I look forward to the proceedings. This will be easy enough for the Liberals to defend against. All they have to do is provide some evidence to back up their claims. Well, good luck with that. Liberal voters will no doubt thank the Liberal fundraising canvassers for helping them donate tons of their cash to Harper that the Liberals so desperatley need.
By Anonymous, at 9:43 p.m.
After reading the whole thing, I've decided that it seems to be very bad news for the Liberals. We see to have acted pretty irresponsibly with this issue. They were so keen to nail Harper that they neglected to study everything in enough detail.
Did some CPC members attempt to bribe Cadman for his vote? It seems so. Did Harper know about/authorize it? I highly doubt it. And that's where things get messy for Dion and Co.
By Brandon E. Beasley, at 10:14 p.m.
I heard Harper talking on those tapes..what were the "financial considerations"..Giving money to help in an upcoming election for Cadman...is someone absolutely out of their mind.he had a very short time to live..come on , now. We Liberals need to stick together, cause it is not as cut and dry as they think.
By Anonymous, at 10:14 p.m.
Far be it from me to disagree with the partisans above, but I doubt this lawsuit will go anywhere.
Since this case ultimately reduces to a "he said/she said" situation, the Liberals need do more than argue that they were expressing an opinion logically derived from the sordid nature of the situation. We have only Harper's word on this, and you can't prove libel when the plaintiff's best defence is that he himself claims that he was unaware of anything untoward.
By JG, at 10:20 p.m.
As an addendum, the Liberals do not have to prove that they are correct, merely that their interpretation of the events as stated in the cited articles was valid supposition in light of the conflicting arguments.
I expect that this will be seen as par for the course for political rhetoric and that, moreover, no evidence of damage to Harper's reputation (ha!) will have occurred.
By JG, at 10:22 p.m.
$2.5 million in damages!!!!! Wow! Brian only claimed $2.1 million.
By Anonymous, at 10:25 p.m.
For that matter, many of the statements quoted in that notice are taken from the Hansard. It doesn't suddenly become libel if a transcript of a parliamentary debate appears off the website of Parliament.
By JG, at 10:25 p.m.
Josh:
.....uhhhh, it'll be alright....I mean.....publicly declaring someone complicit in criminal conduct.....that's like...totally ok......because....hansard......er.
(nervous laughter turns to open trembling as Josh takes another drag of a cigarette that already burning into the filter)
....I mean, I have a cousin, who said something like that at a party, and he wasn't sued....so you know....am I right or am I right....huh guys...you with me?...
By Anonymous, at 10:34 p.m.
I have skimmed the statement of claim, and though I have no particular experience in defamation law, I make the following observations, none of which should be considered legal advice or opinion.
It is notable that Harper's statement of claim does not name Dion, Ignatieff or any other Liberal MP who made the allegedly defamatory statements in the House as defendants.
I suspect Harper was advised that if he named the individuals as defendants, they would immediately bring a motion to strike the claims against the individual MPs on the grounds that the statements in the House would be privileged and hence could not be the basis of a claim. Such a motion would be likely to succeed and the claims would be dismissed. I therefore suspect Harper decided it wasn't worth it to sue the individual MPs since there was a high probability that the claims against them would be struck anyway.
I have my doubts about the claims against John and Jane Doe or any other Liberal party employee who was involved in the posting of the allegedly defamatory stories on the Liberal web site. Provided they were acting within the scope of their employment, I am doubtful they would be personally liable. The vicarious liability of an employer for the acts of its employee may be different in the defamation context, however. I do not know enough to say one way or another.
Also, before this action goes to trial, Harper will have to undergo discovery (as will the defendants, of course). This means he will be required to answer, under oath, all sorts of questions posed by the Liberal party's lawyers. As well, he will have to turn over all relevant documents. Parties to litigation are not supposed to use discovery evidence for any purpose other than the litigation, which means handing it over to the media in advance of trial would be a big no-no. But given that the statement of claim was given to the media within hours of being issued, it's likely lots more will be leaked along the way. I'm not saying the discovery process will turn up any smoking guns in Harper's e-mail, but there's probably lots of stuff in Harper's files that he doesn't want in the hands of the Liberals.
And of course, if it goes to trial, Harper will likely have to testify. Assuming he's still PM at the time, surely everyone can appreciate the gong show that would be a sitting PM being cross-examined in open court by lawyers for the opposition party.
As a result, I don't think either side is going to do well out of this. This is going to be a very expensive piece of litigation if it goes all the way, and the winner will only recover a fraction of their costs. Harper may succeed at trial, but that's at least 2-3 years in the future. In the meantime, he's initiated a legal proceeding that will keep the Cadman story in the news when it might have otherwise died a week ago. Legally, he may be on solid ground. Politically, I'm not so sure.
Conclusion: There will likely be a settlement on confidential terms before this gets too far along.
By Anonymous, at 10:58 p.m.
Well, chuckles, I don't much care what happens to the Liberals, but I don't like the chilling effect this might have or the precedent it sets. It's akin to something that might happen in a pseudo-democracy like Singapore.
I don't smoke either.
By JG, at 11:19 p.m.
Also, before this action goes to trial, Harper will have to undergo discovery (as will the defendants, of course).
Well since Harper is the one who initiated this action, it only makes sense that he already knows that. Why would he risk a supreme egg-on-face moment by telling the nation that Dion has made the biggest mistake of his political life.....if he truly had nothing, which would inevitably be found out during discovery?
So of course Harper has answers to the Liberal questions on the matter. And when it all comes out in court, the Liberals are the ones that will end up looking foolish. I can't say that this will help Dion when he needs all the help he can get at this point. That is, if Dion is even leader by the time this all comes to a head in court.
By Anonymous, at 11:31 p.m.
Ahh yes the horrible precedent.
True enough.
The last thing any society which espouses decency, fairness, and justice, wants is the inability to publicly proclaim that fathers, husbands and community leaders have committed a serious criminal offence, based on no real evidence whatsoever but solely with the specific intent to publicly smear them for selfish partisan reasons.
By god, what sort of horrible society would we live in if we can't do that with impugnity.
By Anonymous, at 11:32 p.m.
I'm just speculating, but the press a few weeks ago said that MPs who are sued (presumably in the course of their duties) can turn to Canada for legal representation. I doubt that this holds true for a political party. Could this be a smart move on the part of the Conservatives, i.e. by naming only the party (and Jane and John Doe) they are removing a potential flash-point with the Canadian public. Just a thought...
Mark Radke
By Anonymous, at 11:44 p.m.
Well since Harper is the one who initiated this action, it only makes sense that he already knows that. Why would he risk a supreme egg-on-face moment by telling the nation that Dion has made the biggest mistake of his political life.....if he truly had nothing, which would inevitably be found out during discovery?
What if he was banking on the Liberals caving when he sent his demand letter?
Perhaps he thought Dion would apologize immediately, but then Dion called his bluff, forcing Harper to commence a claim lest it look like he was just blowing smoke.
And what if he's now hoping that this settles before discovery, which won't happen for at least 6-8 months?
The fact that Harper has commenced litigation doesn't mean that his case is airtight. People start litigation all the time despite knowing that there are legal and factual weaknesses in their case. That doesn't prevent them from commencing a claim, though it might prevent them from taking it all the way to trial.
By Anonymous, at 12:04 a.m.
"The fact that Harper commenced litigation doesn't mean his case is airtight".
That is absolutely true.
The fact that all of Harper's allegations in his statement of claim are completely true and easily proveable, is the reason his case is air tight.
By Anonymous, at 12:09 a.m.
Hi Josh,
You're onto what I think will be the nub of the Grit's defence, but I doubt it will hold up. The issue is parliamentary immunity and who enjoys its protection. It's long established that MPs (and MLAs) have have immunity for things they say in the House or committee but the immunity evaporates the moment the pass over the threshold into the foyer (where the reporters lurk).
Reporters also enjoy parliamentary immunity if they "faithfully" report what was said in the House (or committee). It's a common-law construct that hails from the mater country. However its a very limited immunity. MPs are not protected from legal action if they repeat what is said in the chamber, even if its word-for-word. An MP does not enjoy immunity even if he/she/it takes Hansard out into the foyer and reads it aloud. There are technical reasons for this that hail back to the Glorious Revolution but in the end it comes down to common sense. The immunity is attached to the place, and to allow a politician to simply read defamatory statements into the record and then repeat them at his leisure would be to countenance bootstraping of the first order. In any event, there are actually decisions about the limits of immunity that apply specifically to situations where a member repeats something said in the chamber outside the doors. They don't bode well for the Grits.
Reading through the Statement of Claim, it looks as though the Grits are going to try and claim that their party website enjoys parliamentary immunity when it describes its website offerings as "news". It should be good for a larf although I don't imagine that it will sit too well with the CBC, CTV and the Globe and Mail. I think they will want an opportunity to appear in court to challenge any such defence.
By Anonymous, at 12:17 a.m.
Harper admits being told in 2005 by Dona Cadman that there was an attempt to bribe Chuck Cadman. The big question which will likely come out of this if there is a trial is what Harper did at that point.
If you read what went on in the House, as cited on the Liberal website, this is one of the key points that the Liberals are getting at.
Now, this material is still available on Hansard, and was broadcast all over Canada via the Parliamentary channel, and broadcast and commented on extensively by and in the media, without referencing the Liberal website.
It is absurd to claim that the Liberal website has damaged Harper's reputation.
The fact that our outdated and aristocratic libel law allows this claim does not detract from the obvious analysis that this lawsuit is purely political, and is thus an clear attack upon our Charter-granted Freedom of Expression.
Other true democracies have long since modified their libel to avoid exactly this kind of vexatious lawsuit, recognizing in law that public figures do their business and discussion publicly, for the greater good. (Curious? Check out LINK for the UK re-write of libel law, which ours is likely to head towards if there is any sanity left in Canada; Wikipedia has a good overview; how various jurisdictions deal with libel suits being used to silence people -- known as SLAPPs; and, finally, my libel lawyer in BC argues for reform of our libel laws here)
If the Liberal Party is out of line, that judgment should not be up to a judge years down the road, but by Canadians NOW.
If Harper truly is worried about his reputation, then the time for him to act is now, not years later.
So far, it appears that after Harper learned that someone in his Party tried to bribe Cadman, Harper, our PM, responded by doing nothing at all.
Such a man does not deserve a good reputation.
By Mark Richard Francis, at 12:19 a.m.
The fact that Harper has commenced litigation doesn't mean that his case is airtight.
Do you honestly think for one second that Harper's lawyer (whose firm specializes in libel cases, and in which many libel cases they've tried, not lost a single one) would advise his client to proceed if they didn't believe that there was an overwhelming chance of coming out on top?
Come now......
By Anonymous, at 12:46 a.m.
I'll add a bit more to the discussion by pointing out the three key defenses the liberals will truly rely on:
Conditional privilege: Content quoted from Hansard cannot be libelous unless it is done so maliciously. Furthermore, like the media, the Official Opposition provides a key service to the public, and should only be subject to a libel claim when malice is demonstrated.
Fair Comment: though not necesarily accurate, if the the opinions are fair and reasonable, then there's no libel unless the opinion was maliciously made. (it is possible in Canada for two people to publish the exact same opinion, word for word, and for one to be nevertheless libelous and the other not, based upon a judge's interpreted on intent -- queue the Ezra Levant supporters screaming "though crime" -- Hello?)
Note the statement of claim failed to cite evidence of malice in the publication of the material. It merely makes the claim, but the onus is on Harper to prove malice. Without proof of malice, all of the defenses remain.
And yes, libel law in Canada is reverse onus (guilty until proven innocent), but when malice is claimed, the plaintiff still must prove it.
Finally, as I linked to in my previous message, other jurisdictions, such as the UK and New Zealand, have recently modified their libel law in such a way as to allow this exact sort of commentary. There's little doubt in my mind that the Liberals will push this defense, and that the court will have to consider that other "free and democratic" societies have modified their libel law to accommodate this essential speech.
You don't have to be a fan of the Liberals to recognize that political speech is essential to good governance, and is the right from which all our other rights and freedoms flow.
By Mark Richard Francis, at 12:55 a.m.
Do you honestly think for one second that Harper's lawyer (whose firm specializes in libel cases, and in which many libel cases they've tried, not lost a single one) would advise his client to proceed if they didn't believe that there was an overwhelming chance of coming out on top?
First, any estimate of Harper's "chances" (insofar as any lawyer gives odds) is going to be highly qualified at this stage. Harper's lawyer no doubt gave an opinion as to the strength of Harper's case and advised Harper of the risks involved. That opinion would necessarily be qualified because at this stage the lawyer does not have all of the facts (for example, they don't have the whole tape, which is going to be a key piece of evidence).
Secondly, no competent lawyer will tell you that you have an "overwhelming chance of coming out on top". Litigation is inherently risky.
Thirdly, the decision to proceed is the client's, not the lawyer's. Harper's lawyer may have told him that his claim is unlikely to succeed, and Harper may have decided to proceed anyway, say, for political reasons. We simply don't know. I repeat, you cannot infer anything about Harper's likelihood of success from the fact that he commenced litigation.
By Anonymous, at 1:14 a.m.
“Harper may succeed at trial, but that's at least 2-3 years in the future. In the meantime, he's initiated a legal proceeding that will keep the Cadman story in the news when it might have otherwise died a week ago.”
You can’t buy this kind of publicity. Shades of Adscam. And, the law allows defendants to recover costs.
“Do you honestly think for one second that Harper's lawyer (whose firm specializes in libel cases, and in which many libel cases they've tried, not lost a single one) would advise his client to proceed if they didn't believe that there was an overwhelming chance of coming out on top?”
Hmmm! Does Kai Wolf have the numbers? How many have they lost? How many have they started and dropped?
By JimTan, at 1:35 a.m.
“Do you honestly think for one second that Harper's lawyer (whose firm specializes in libel cases, and in which many libel cases they've tried, not lost a single one) would advise his client to proceed if they didn't believe that there was an overwhelming chance of coming out on top?”
Poor Kai. I almost feel sorry for you.
Do you honestly think for one second that ANY lawyer, even those that specialize in a particular area of the law, would turn down a fat, juicey retainer paid by a client even if his case is weak?
Come on now. These are lawyers we are talking about.
What lawyer would turn down the Prime Minister as a client? You cannot buy that kind of advertising for your firm.
(And no, I do not think there is anything unethical about a lawyer accepting a retainer to fight a case that lawyer believes is weak, so long as that lawyer has given that opinion to his client).
By Gayle, at 2:03 a.m.
Mrs Cadman has not said who made an offer, just that an offer was made. Perhaps she just assumes who made the offer. Bet she wishes she had kept her mouth shut. Why no action against Paul Martin for sitting on this supposed crime for 2 years. Isn't that a crime in itself.
By maryT, at 2:17 a.m.
Every Canadian should be disgusted this action is taking place. Based on what was brought before parliament and subsequently the Canadian public the liberals are more than justified in pursuing their attacks on the government. They would be negligent in doing anything less.
Not unlike a short time ago when the tables were turned the other way. As the attacks made then by the conservatives against the government did serve the best interest of the nation so do these attacks serve the best interests of democracy. If there is nothing to hide the government should not be afraid of a full inquiry into the affair.
It is a travesty that an opposition party in parliament is to be subjected to a malicious, vexatious, and frivolous lawsuit for doing their job.
By Gary Taje, at 2:59 a.m.
If I was feeling stubborn enough and I searched through the thousands of news headlines relating to Gomery and Dingwall affairs I am sure I could come up with some news headlines that are just as salacious as what the Liberals are being sued for. This case is not going to sit well with the media.
This got me to thinking. Although it is true that such headlines of the type the Liberals have on their site are plentiful enough, one simply does not come across headlines such as the following everyday.
"The NDP Caucus Supports Child Pornography?"
"Paul Martin Supports Child Pornography?”
And one certainly simply does not come across anything like the following in the body of any news story.
"Today, Martin says he's against child pornography. But his voting record proves otherwise,"
I think the Martin should sue. After all, the Conservatives never apologized. Indeed, Harper had this to say about the headline.
CTV: Asked about the 'taste' of the headline, Harper said: "What's in bad taste is the Liberal Party's record on child pornography.”
In closing out, I got to thinking about something else. Will Harper say outside of the comfy confines of the House that the tape was altered? I am sure Mr. Zytaruk wants to know. Maybe someone in the meantime could take the Harper tape to Mr. Dash.
By Koby, at 3:08 a.m.
Wow, the CONnies all got fresh talking points and are in fine voice today, guess they had their Maalox this morning.
Whether it comes down to the tape or not -- and who would know more about tampered tapes than Stephen -- is moot. Harper is running the risk in public opinion by extending his 'get-tough' image beyond reason. Why won't he answer what 'financial considerations' incurred for a dying man? A re-election plan, an offer to be taken back (altho I'm thinking Harper should have been begging Cadman to take him back since there was no threat of another CON winning that seat with Chuck around)? Why was Harper so secretive and uncertain back in 2005, with the 'this is not for publication, right?' and the 'ums, ers and ahs' that any police interogator would tell you are sure signs of someone fibbing.
The CONs won't even answer in committee, but they'll send their latest stooge up to repeat ad nauseum about Mike Duffy's interview. Why be so selective? What about the CKNW interview which Cadman implies quite clearly that there was more on the table than just a membership? If Harper was to refer to the Duffy interview in court, would not the Liberal lawyer be perfectly permitted than to bring up the Cook interview?
Harper has become his own worst enemy. I don't think i can wait for his own soldiers to sink his ship. He's a danger to this country.
By burlivespipe, at 3:12 a.m.
I should have expanded the following "If I was feeling stubborn enough and I searched through the thousands of news headlines relating to Gomery and Dingwall affairs I am sure I could come up with some news headlines that are just as salacious as what the Liberals are being sued for."
I would like it to be read thus. "If I was feeling stubborn enough and I searched through the thousands of News headlines relating to Gomery and Dingwall affairs I could come up with some similarly salacious headlines used to draw readers in but then upon reading turn out to be nothing but a badly constructed reference."
By Koby, at 3:39 a.m.
at 18:41 on February 29, 2008, EST.
Steve Rennie, THE CANADIAN PRESS
OTTAWA - The voice of a cancer-stricken MP who died months after a historic confidence vote came back to haunt the Conservatives on Friday after a three-year-old radio interview surfaced in which Chuck Cadman says party officials made him financial overtures.
In a June 12, 2005, interview on Vancouver radio station CKNW, Cadman said the Tories did, in fact, make him financial offers days before the crucial vote.
"There was certainly some, you know, some offers made and some things along those lines about not opposing me and helping out with the finances of the campaign and that sort of thing. But, again, you know, that's all part of the deal that goes on. It's what happens, especially in a minority situation," Cadman says.
By JimTan, at 3:47 a.m.
"The fact that all of Harper's allegations in his statement of claim are completely true and easily proveable, is the reason his case is air tight."
Oh really? Including the statement that the tape was edited?
By Anonymous, at 3:59 a.m.
If the Liberals could prove anything, they would have voted down the budget and Dion would be taking measurements of Sussex drive in his head by now. If they can't prove anything, then the case has merit, while making Harper look petty.
By french wedding cat, at 5:12 a.m.
Yes the Liberals are flogging a dead hoarse and to some benefit to them themselves. However as I said before if I was feeling stubborn enough and I searched through the thousands of News headlines relating to Gomery and Dingwall affairs yet alone the tens of thousands of news stories published year in Canada I could come up with some similarly salacious headlines used to draw readers in but then upon reading turn out to be nothing but a badly constructed reference. The potential ramifications of such a suit for the press would be huge. However they pale into insignificance against what it could mean for the blogsephere. Harper suit is premised on a sharp distinction between “news” organizations and everyone else. Harper is in effect saying that the Liberals are not free to quote from Hansard because they are not a “news” organization. Protection does not apply to them. However, the implication of this is that bloggers too are not protected when quoting from Hansard. If the Liberals could be sued for quoting what Ignatieff said in the House, and Harper suite takes aim at just that, then so could I or any other blogger.
If the Liberals where smart, they would take aim at just that and encourage people to quote Goodadle et al on face book and on their blogs and anywhere they can think of. A false distinction between the news media and everyone else can only damage freedom of speech.
By Koby, at 6:12 a.m.
Harper had no choice but to file the suit, because to do any less would be an admission of guilt, and therefore be exposing himself to criminal charges.
By Anonymous, at 12:04 p.m.
All I can say is Harper had better hope he wins.
This type of lawsuit foisted on the Canadian electorate is risky enough. If it somehow comes back that he lied, he's finished.
By no means am I a legal expert, but his statement of claim does appear pretty solid. And he's got the Tito Ortiz of libel lawyers swinging for him.
By sir john a., at 12:20 p.m.
I will give Dion credit. He has to be the biggest flip flopper in Canadian politics at the moment. It was okay for him to sue Duceppe for libel but wrong for Harper to do the same? Its sad being a Liberal and having to defend Dion and the idiots in the Liberal caucus time after time. Man, I wish Jean would come back.
By Anonymous, at 12:42 p.m.
Trouble is, these things are so expensive and time consuming. . .
The Military Complaints Commission looking into the bad treatment of Afghanistan Taliban prisoners begins with a [2] Million$ price tag.
The government is stung into doing better. Couldn*t we let that go and save two Million dollars and more? = TG
By TonyGuitar, at 12:49 p.m.
Who are the Doe's and what did they do to upset Princess Harper?
Be careful Jane and John the boogieman is coming!
By Anonymous, at 3:53 p.m.
“If the Liberals could prove anything, they would have voted down the budget and Dion would be taking measurements of Sussex drive in his head by now. If they can't prove anything, then the case has merit”
Once again false!
The case is similar to Chretien’s Adscam. As long as Chretien’s cronies kept their mouths shut, Chretien was safe. Doesn’t mean that he was innocent. In fact, the LPC ‘retired’ him. And, the Gromery inquiry was necessary and good.
Similarly, harper may not be prosecuted. But, the inquiry and investigation will try to find the truth. Let Canadians judge for themselves.
Interestingly, harper is claiming that he knew nothing about any offer. Despite the tape. It won’t be difficult to throw doubt on his case.
By JimTan, at 7:17 p.m.
I really wonder if there is a single person in the world whose opinion on this matter has been influenced by the Liberal website. Can one find anyone who would say "I had a positive opinion of Harper, but then I looked at the Liberal website and it changed my opinion of Harper." Seriously.
For libel, wouldn't one have to show that there was damage done? Anyone who has a negative opinion of Harper because of the bribery allegations, is much more likely to have been influenced by hearing the tape of Harper, hearing the Cadman family's statements, and reading/listening to MSM.
This is not like Harper connecting Martin to child pornography, where people weren't thinking of Martin as a pedophile before Harper made his statement, and he was trying to get them to make that connection.
By Anonymous, at 7:00 a.m.
"Did Harper know about/authorize it? I highly doubt it."
A blogger who hasn't heard the tape? You must be kidding.
By Saskboy, at 1:33 a.m.
If Haper wins (which I think is unlikely), he scores big political points and cash. If Harper loses, he gets to rally against the liberal judges who ruled against him and, therefore, still wins some political points.
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By Anonymous, at 12:58 a.m.
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