A most interesting letter of legal opinion written on Nov. 20, 2012, by former Supreme Court Justice, Ian Binnie, popped up with the latest regurgitation of Gas Plant e-mails. Justice Binnie replies to David Livingston, McGuinty’s former chief of staff asked about the possibility of suing opposition members citing outrageous allegations made by PC leader Tim Hudak and MPP Todd Smith in Question Period in October of 2012.
Hmmm this sounds familiar – like The Nexterror SLAPP lawsuit against Esther Wrightman where she is accused of unfairly competing with NextEra by referring to the company as Nexterror. McGuinty got good advice and, unlike Nexterror, he followed that advice. The letter of opinion is a reality lecture wherein Justice Binnie, with rather dry humour, paints out the possible scenarios and why for Dalton, this notion of suing his enemies is not a good notion at all.
Justice Binnie begins, “Many of the allegations…are in our view clearly defamatory…the law provides a low threshold. It is protective of reputations.” That sounds promising. He further states, “Mr. Hudak’s statement is also defamatory”
Hudak had said: “Not only did Dalton McGuinty misuse a billion dollars of taxpayer’s money, he tried to paper over it, cover it up (and) keep the details from the public.” Remember, this was written on Nov.29, 2012. As it turns out, what Hudak said isn’t too far off the mark.
Justice Binnie lays out what the opposition would use as defence.
The Defence of Fair Comment
- the comment must be on a matter of public interest
- the comment must be based on fact
- the comment must be cognizable as opinion rather than a simple allegation of fact
- the test is whether any person…could honestly express that opinion on the proved facts
- was the comment made as a result of “malice” – expressed another way, is it the “honest belief” of the person expressing it or is there some other malicious intent.
Binnie then quotes from Simpson vs. Mair (2008) , a case which amongst other things, thoroughly dispensed with the idea of “fair-minded comment”,with the purpose of never again seeing it raised as the basis of argument. “Political partisans are constantly astonished at the sheer unfairness of criticisms made by their opponents (but) Trenchant criticism which otherwise meets the “honest belief” criterion ought not to be actionable because… it crosses some ill-defined line of “fair-mindedness.”
Binnie then points out that in an earlier case, Cherneskey vs. Armadale Publishing (1979), Justice Dickson wrote, “The basis of our public life is that the crank, the enthusiast, may say what he honestly thinks as much as the reasonable person who sits on a jury.” So, Dalton, are we over this fairness BS?
The Alternative Defence of Qualified Privilege
Justice Binnie reminds McGuinty that statements in the legislature and even comments outside the legislature are protected by the defence of “qualified privilege”. He goes on to note that McGuinty was the beneficiary of just such a case in 2000 when he accused Environment Minister Tony Clement of corruption for writing a letter of support in a matter before the OMB. With a cast like this, blowing and sucking comes easily.
The Defence of Justification
Now things get really sticky. Justice Binnie observes, “Defamatory words are presumed to be false. Truth furnishes a defence….We expect that the defendants here would plead justification and that the resulting litigation would lead to a media circus…a very intrusive discovery process…On a motion for production of third party records…attempts would be made to access a great many more ostensibly confidential or privileged materials…we think a defamation action would prolong the media controversy and do…more harm than good.”
Whew!!! Was he ever prescient!
Parliamentary Privilege Issues
Apparently McGuinty considered going to court to seek some sort of intervention/direction to fix the bad behavior of the opposition in Parliament. Here Justice Binnie warns McGuinty that there is a long history of the the Courts not telling the legislature how to run its affairs, “If the House is to be reined in, it must be done by a vote in the House itself.”
A Panel of Experts “Wise Persons”
Next on the list of notions is a proposal to strike a “panel” to consider the propriety of the activities of the opposition. I’m assuming that this is something that McGuinty would like – it has the halo of “fairness” administered by a wise man. Sighhhh, Justice Binnie wonders who such a wise man might be. He ponders a list of suitable candidates, but clearly he doesn’t believe there’s much chance that such a person would “side with the government” and spank those naughty opposition members.
The Final solution
In the end, it was simpler to just run away.
Bullies always do.