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“Authoritarian” is such a loaded term: Liveblogging the Cadman injunction hearing


 

9:30:45 AM
Hi everyone! I’m back! Not only am I back, but just a few short hours after tumbling out of a Westjet plane, I’m sitting outside an otherwise entirely unextraordinary courtroom, waiting for the first open hearing in the Cadman trial to get underway. This morning, lawyers for the Prime Minister will attempt to persuade the judge to toss out that affidavit filed by the Liberal Party last month — you remember, the one with all those ugly words like “authoritarian” — arguing that the aforementioned PM is acting like a great big bully by trying to gag the party from using the Cadman tape as a defence in the upcoming libel suit, which looks like it might end up in front of a judge right in the middle of the election campaign.

Which you can’t think was exactly how Stephen Harper envisioned the whole thing playing out when he decided to get all litigious earlier this year, but you know how events have this annoying habit of transpiring. (And really, in this case, he won’t really be able to complain about the timing, since he *is* the guy threatening to drop the writ.)

I have no idea whether I’ll actually be allowed to blog from inside the courtroom, by the way – the bailiff took my berry away when I tried to do just that during an in and out hearing last month – but if worse comes to worse, I’ll take notes and post a play by play after the fact.

This is exciting, isn’t it? Much better than huddling outside 24 Sussex waiting for Gilles Duceppe to come out and shake his head sadly over his meeting with the PM, which will happen later this morning.

9:46:41 AM
Still a few minutes to go before the hearing gets underway, but I’ve ventured inside the sanctum of justice itself. Richard Dearden is here – the captain of Team Harper, in case you’ve forgotten – which means that the huddle of intensely scribbling lawyers outside the courtroom must be members of Team Liberal Party.

I do love the whole tradition of making lawyers wear robes to court, incidentally. It makes it so much easier to pick them out in a crowd. Not that there’s actually a crowd here right now — it’s pretty much me, the clerk and the opposing armies — but still.

9:54:33 AM
Yay, more media! Juliet O’Neil has turned up, and was able to answer my most immediately pressing question — am I allowed to sit in one of the front-ish rows, which have audio feeds. Yes, apparently, which is a relief — not that I’m expecting much French, but some lawyers are ridiculously soft-spoken.

10:01:15 AM
More media trickling in, and still no sign of the judge. I’m not sure how lackadaisical these things tend to be as far as starting on time, but nobody looks particularly worried. Well, not about that. Lots of tense faces all around, but that’s probably not all that unusual even in non-unprecedented political defamation trials of the century.

10:10:09 AM
The wheels of justice seem to be grinding slowly this morning – we’re still waiting for the judge to show up. And just as I typed that, he appeared at the door, resplendent in robe, red banner and — weird little sun-shaped crest.

With an Oyez Oyez and a God Save the Queen, we’re on.

10:12:53 AM
Or — not. Apparently, the lawyer for some unidentified party in an entirely unrelated case has jumped the queue, and is pestering the judge about a proposed settlement, and cross-motions, and a bunch of other fascinating yet entirely irrelevant issues. One side seems to want the judge to step aside from any settlement discussions, and the other doesn’t think that’s necessary. That’s the gist, and the judge seems to be leaning towards the latter.

10:16:48 AM
Just a technical note on the vaguaries of technology – so far, nobody has objected – or even seemed to notice – my furious berryclicking, but my network connection keeps wavering, so this may be less live than I’d hoped.

10:18:42 AM
And we’re off. Dearden starts off by making sure everyone has the right bundle of papers, and the judge tells him that, by the by, something — I suspect the original copy of the tape — will be delivered to Florida later today. There also seems to be a Virginia-based expert involved.

10:20:50 AM
Finally, onto the Russell affidavit, and apparently, there is a clerical error in the factum. Rearden explains that It is paragraphs 9-16 and 19-25 that he wants removed, which apparently include references that are “scandalous”, including mentions of CP Rail, the Mulroney libel suit against Thibault, and a few other tidbits.

10:23:58 AM
Dearden lists off the various reasons why scandalous evidence can be struck – irrelevance, guilt by association, that sort of thing – which are, he suggests, attempts to “taint” the instant matter. Oh, and also, affidavits that contain legal arguments can be redacted, or struck.

10:26:11 AM
The judge wonders if he’s aware that the court has previously found that this kind of relief is fairly unusual, at least at the appellate level, except under extraordinary circumstances. He may have to ask himself if this is one of those “extraordinary” circumstances in which the Russell affidavit should be struck.

Dearden is fine with that, he says, and points to various other cases where the court struck out material that “tried to taint” a party to the proceeding with “absolutely totally unrelated events” — such as, in this case, bribery cases that have been proven to be true, unlike here.

10:31:38 AM
The prejudice of associating Harper with bribery scandals that were proven to be true, Dearden suggests, qualifies as so extraneous as to be expungeable – particularly given the allegations of “criminal” actions against the PM by the Liberal Party.

More arguments from Dearden – all sorts of affidavits struck, in whole or in part, from all sorts of cases. He has a low-key, but entirely self-assured manner, although so far, he’s not exactly setting the courtroom aflame with passion, as far as his rhetorical flair.

10:42:58 AM
According to Dearden, as per the Masters case, political scientists shouldn’t tell judges how to do their job — it should be presumed that they’re fully aware of the law, which means affidavits shouldn’t contain “legal advice” from non-lawyer expert witnesses. In the case of Russell’s affidavit, Dearden suggests, there is “definitely” sufficient grounds to suppress certain particularly pernicious paragraphs before the preliminary hearing.

The judge wants to know how these particular paragraphs are “scandalous”, so Dearden obliges: material that is “clearly irrelevant” can be scandalous if it impugns the behaviour of a party. In unrelated cases, presumably, suggests the judge – but Dearden reminds him that using “bribery scandals” to restrain the use of a “doctored audiotape” is so extraneous that it is prejudicial to the Prime Minister.

10:49:43 AM
Russell’s affidavit isn’t about whether the tape was doctored, notes the judge – it’s about the effect on parliamentary democracy of launching libel suits like this one. It doesn’t have anything to do with whether or not the tape is authentic.

Ah, but this injunction motion isn’t founded on the libel action, points out Dearden, but “misapprehesion of persobnality.” “He’s talking about the libel action,” he reminds the judge – which isn’t even “in play” here.

10:54:19 AM
The judge seems a bit sceptical of “carving up” the argument against the Russell affidavit, and wonders if Dearden is implicitly conceding that it may be wholly admissable as far as the question of the risks to democracy posed by libel action.

10:55:13 AM
Shoutout to the ExplainTheTapeMobile and website, which – as per Dearden – was what provoked the injunction request – which isn’t seeking to stop the Liberals, or anyone else, from making allegations inside or outside the House, he insists. They just can’t use the PM’s voice on a “doctored tape.” But if that tape is an “accurate representation” of what Harper said to Zytaruk, it would be fair comment, points out the judge. There is a “real impact” on the libel issue over whether the tape is legitimate.

Dearden, not surprisingly, doesn’t see it that way — this has nothing to do with fair comment, or truth, or the claims made by the website on whether Harper knew about the offer; this is about a possibly-doctored tape that misappropriates his client’s voice. So – really, that is kind of about truth, isn’t it?

11:03:53 AM
More citations, more past rulings on “inflammatory rhetoric.” There was, apparently, a similar-ish case involving allegations made by animal rights activists and anti-hunters against the Spring Bear Hunt, but the judge still seems cautiously sceptical as to whether that applies in this case.

Dearden, however, is aiming to persuade him. Bring on the cross-tabs, and the line-by-line analysis of the affidavit itself, starting with Russell’s reference to the Pacific scandal. “The point of these paragraphs,” he avers, is that these “past, proven libel scandals” are no different than today’s attempt by the PM to seek an injunction, even though past prime ministers did no such thing, and didn’t sue for libel, either.
The fundamental premise, Dearden concludes, is that there are “comparable circumstances” here.

Back to the judge: From a “plain reading” of Russell, *he* doesn’t see an attempt to equate Harper with these past bribery scandals; what he’s arguing, to the judge’s mind, is that these sorts of allegations have always been dealt with in Parliament, not through private legal matters.

Dearden, who is getting progressively more animated as the morning goes on, reminds the judge that in *those* cases, the prime ministers in question had admitted to the respective wrongdoings — they were caught, he notes, and in one case – Mackenzie King, he thinks – even apologized.

It’s am “absurd and ludicrous” proposition that just because former prime ministers didn’t sue for libel, this PM shouldn’t sue for libel, argues Dearden. What if this had been a breach of contract, or another tort? And yet Russell “pulls out” these sordid past bribery scandals, and it’s just not fair to do so.

11:19:00 AM
The judge muses that it would also be interesting to find out if it’s actually true – Russell’s assertion that no politician has sued for libel. Dearden points out that it’s not: what about Stephane Dion’s libel claim against Gilles Duceppe, which was eventually settled. As for all the stuff about “choking off debate” in Parliament, that goes to motive, and has no place in an expert affidavit.

The Russell affidavit – or at least, the allegedly scandalous paragraphs – smear the PM’s reputation, which is contrary to the decision in Hill, which reinforced the importance of one’s reputation in public life

The judge, however, doesn’t think that Russell is trying to impugn the PM on the issue under dispute, but on his decision to go to court in the first place. Dearden seems to be getting a little bit frustrated. The PM has the same rights as anyone in this country: to defend his reputation, and that of his family. If a PM can’t turn to the courts when accused of criminal wrongdoing, it would be a “revolutionary change” to common law.

11:32:52 AM
Dearden notes that there is still “absolute privilege” for anything said within the House or Senate, or in committee — but not if you post allegations of criminal wrongdoing, like, say, a bribery scandal, on a website.

Russell isn’t saying that politicians should never be able to sue in court, the judge counters — just not if it’s a “political matter.”

None of us are here to opine on *that* contention, the judge reminds him – this is about whether Russell should be allowed to make that argument in an affidavit.

11:37:16 AM
And with that – a twenty minute break, which means Red Bull and fresh air. See you
back here at noon.

11:55:30 AM
And we’re back. Apologies, by the way, if this seems a bit scattered – court hearings seem to go so much more quickly than committees. That or I’m out of practice after a week of enforced berry-restriction and non-blogging.

11:57:19 AM
Dearden is back up, and is moving onto what I hope is his final argument — the inclusion of legal opinions in an expert affidavit; to wit, the Mulroney suit against Robert Thibault. Harper, Dearden says, had no involvement in that case; Mulroney wasn’t even an MP at the time that he sued Thibault, and it’s all extraneous and irrelevant to the proceedings, which is why it should be struck out.

The judge asks if he has any comment on the last sentences in the affidavit, in which Russell calls the Thibault suit a dangerous precedent, which could force an MP off a committee via legal action outside Parliament.
Dearden reminds him that none of those parties – Mulroney, Thibault – have any involvement in this proceeding, and can’t respond to the assertons put forward in the affidavit.

“Expert opinion on the law of Ontario,” Dearden suggests, does not belong in an affidavit. The judge wonders what law, exactly, Russell is attempting to instruct him on — this is about privilege. It’s not just Ontario law, shoots back Dearden – it is any instruction on what the common law says. The judge wonders: Not even related to a Charter case? No, says Dearden. These are *legal* arguments on where the law should go – that shouldn’t be allowed in an expert affidavit.

12:08:20 PM
What Russell is saying is that privilege would extend *outside* the House, argues Dearden – that would change the law. Say it outside, and you aren’t protected – that’s where the law stands today, but Russell is suggesting that the court shouldn’t support that anymore. “It doesn’t need to be in this affidavit, and it shouldn’t be in this affidavit.”

Doesn’t that thesis engage some of the privilege issues of the libel suit, though, wonders the judge – who seems to be giving Dearden a fairly rough ride, but I bet he’ll be just as quietly sceptical when the Liberal lawyer speaks; they always seem to take the other side of the argument.

Dearden points out that he’s going to be in court later this year on exactly that issue — extending the qualified privilege defence. This would be the same as if he got a professor or expert to submit an affidavit defending *his* position, and the court would just laugh at him. “It’s just not on,” he insists. Maybe they would welcome it, suggests the judge – but Dearden disagrees. “It’s not a legislative fact.”

12:15:48 PM
Finally, Dearden gets to the bit about this sort of thing being characteristic of “authoritarian” and “totalitarian” governments, but almost as an afterthought; it all goes to the argument against having political scientists offer advice on what the law ought to be. All this stuff should be in the factum, not an affidavit.

12:17:36 PM
I really wish I’d been sufficiently prescient to grab a datesquare on the way here. This is going much longer than I thought it would – and I’m assuming we’ll hear a fairly lengthy and lively defence of the affidavit from Team LPC.

12:19:09 PM
The judge points out that this so-called (my word, not his) “legal argument” that Russell is allegedly making “sounds more like an editorial.” If he were to agree that “significant parts” of the affidavit do go to legal issues, he wonders, what would be the harm in allowing it to be submitted, and then let the judge give it whatever weight he or she believes it deserves?

It’s prejudicial to the PM, insists Dearden. When it comes up, and is covered by the media -“who are here today, doing their job” – it links Harper to these past scandals. “It impugns the behaviour of the Prime Minister …. It just shouldn’t have been there In the first place, and now is the time to get it out of there.”
Also, what about all those Liberal MPs who he’ll want to cross-examine about *their* libel suits, like, say, Stephane Dion? That would mean a very long cross examination period.

12:24:46 PM
Finally, Dearden wraps up, but there’s one more lawyer on the speaking list for Team Harper – Wendy Wagner, who just wants to go into a little more detail on striking privileged statements, which is “right and proper.”

Settlement privilege, to be clear, which has come up – of course – during any number of past cases, and has led to affadavits, or at least portions thereof, being struck out for offending the evidentiary rules.

She has a long blonde ponytail, and a manner so measured and methodical that she makes Dearden look like Atticus Finch. Not that it’s necessarily a *bad* thing — this is, after all, a procedural hearing; she’s not trying to save an innocent man from the gallows — but it does make it far too easy to be distracted by what’s going on in the background, as far as the judge, who is flipping through binders and looking thoughtful.

12:40:29 PM
More about privilege. So much more – including a case involving the then-minister of Supply and Services — remember Supply and Services? Those were the good old days – and a contract with Lockheed Martin. Basically, it goes to the rules of using Hansard quotes – and whether parties could admit certain extracts held within a particular period of time, for the limited purpose of providing what had been said on a given day. The judge, however, was unconvinced, and the evidence was rejected, because the privilege belongs to the House, not an individual member, and the statements were not made under oath.

12:47:50 PM
A long – and actually quite interesting – tangent about a similar case involving the Hill case, and the Church of Scientology, and an MP who had “consistently attacked” the church in the House of Commons – the *British* House of Commons, to be clear, although this was a Canadian case – in which the court found that the principle for privilege is “entirely clear” – the proceedings of Parliament should not be impeached or questioned in any other court.

12:51:36 PM
I wonder if it’s a good sign or a bad sign that the judge hasn’t asked her any more questions, but is just letting her read the entire argument without interruption.

12:53:42 PM
Wow, McCain went for the Chick Veep Choice after all! Weren’t the media all but certain it was going to be that veto-happy Pawlenty guy? Sometimes I really wonder why anyone listens to us at all — we’re not only so often wrong, but so adamant about it.

12:56:52 PM
Finally, she gets back to the affidavit, and suggests that it relies on the presumption that debate over the Cadman affair was continuing along entirely normal political lines until the PM threatened to sue Stephane Dion, at which point it took an “unprecedented turn,” thereby using Harper’s statement in the House to back up his assertion that he was trying to transfer this to a legal forum.

12:59:26 PM
Yikes. I’m running low on battery power – honestly, I had no idea this hearing would run for so long, and I have a horrible feeling that it’s going to drift into the afternoon.

1:00:29 PM
Oh, there’s the judge: He suggests that privilege goes beyond just what words were used, but to use it as the basis for an action. She – Wagner – doesn’t see it that way; it’s being used in defence of Russell’s main argument, which is that the suit was launched to squelch political debate.
1:09:21 PM
Wagner winds down, and the court ajdourns until 2:15, at which point we’ll hear from the Liberals, I guess. Meanwhile, I’m going to try to track down a berrycharger, and lunch – not necessarily in that order. See you back here this afternoon!

2:05:28 PM
Okay, slight change of plans – in order to preserve the rapidly dwindling battery power remaining in my poor, out of shape berry, I’m going to be updating slightly less frequently than before, since — harnessing all those magical internet electrons takes more pixiejuice, or something. I’m not a physicist, I’m just a liveblogger. Here’s hoping this won’t go all afternoon, or my chronicling of events may have a cliffhanger ending.

2:16:17 PM
One more lawyer to go – and I’m not sure of her last name, although I believe her *first* name is Odette. Yeah, that’s not very helpful — I’m getting good at rising when the judge comes in, at least. Oh, and she’s representing the Liberal Party. That’s important too. And since I commented on the ponytail of the counsel to the applicant, I’ll note that she has wonderfully spiraling corkscrew curls.

2:20:16 PM
She kicks off her argument by noting that there are significant Charter issues, but at the moment, she’s going to focus on the specifics of the requested injunction, because of the potential to stifle public debate. Her position is that it would be “premature” to decide the matter today, since they don’t have all the evidence regarding the injunction.

She begins her argument by countering what Dearden had to say about the rights of a politician to take legal action when he or she believes they have been libelled, she points that this isn’t a case of individuals suing each other; this is the Prime Minister suing the Official Opposition. As for the “efficiencies” of dealing with it now, or waiting for the main motion, she reads from one of the rulings that Dearden brought up earlier; in that case, the judge hearing the motion to bar the affidavit decided it wouldn’t be appropriate to reject the affidavit now – he’d rather leave it to the judge in the case to decide how to deal with it.

She also disagrees that any of the paragraphs cited this morning fall into the extraordinary category that would merit being rejected so early in the case.

Basically, her point is that the standard for throwing out irrelevant evidence on the grounds that it is “scandalous and vexatious” is “extraordinarily” high, and this doesn’t meet the threshold – so why expunge those paragraphs now?

2:33:40 PM
More picking away at the cases cited by Dearden – mostly to distinguish those decisions from this case, since in at least one example given by Team Harper, there was far more dispute over the evidence, and in another, there was a separate motion that made it necessary to deal with the question earlier rather than later.

2:35:35 PM
The defamation case was sparked by two posts on the Liberal website, but the injunction is based on the alleged .”misappropriation” of the PM’s voice via the tape – but the same tape appears on several media websites, yet the only target for the injunction would be the Liberal Party.

Which does seem a bit odd, really – everyone else in the world can use the tape with unfettered legal freedom, just not the Liberals.

2:40:01 PM
The claim that this represents a misappropriation of personality, she notes, is unprecedented as well. These are not “watertight claims” – the injunction and the lawsuit – and will probably be dealt with at the same time by the judge hearing the main case.

She also takes issue with the characterization of the Russell affidavit as offering a legal opinion, not surprisingly – although that didn’t seem to do much to convince the judge to grant the motion when Dearden brought it up this morning.

2:44:23 PM
By a strange coincidence, she – this lawyer, that it is – and the other counsel to the Liberal Party acted on behalf of Masters earlier, in the very same case cited by Dearden – and were unsuccessful in seeking to block the use of the Green affidavit, using the very same arguments put forward by Dearden. “Small world,” she notes.

For his part, the judge points out that the Green affidavit has a very different “tone” than that taken by Russell.

If I had to guess – and I’m terrible at this stuff – I’d say that he’s leaning towards leaving the affidavit in, at least for the moment.

2:50:19 PM
Finally, on the question of deference to the judge, she points out that this is a political scientist giving his opinion – not an attempt to persuade the court on the law. Only in the most “egregious” cases should these paragraphs – or the entire affidavit – be stricken; if there is any question as to whether it should be admissable, or carry any weight, it should be allowed in.

2:52:56 PM
See, I told you: the judge admits that he’s puzzled by the relevance of Russell’s observations; he’s opining about the evils of libel actions, as far as stifling debate, and he isn’t sure he sees the link between that, and the request for an injunction. It’s intertwined, says – Ariano. (I think that’s how you spell it; the judge finally referred to her by name.)

It is premature to make the judgment that it is irrelevant right now. If that’s the case, though, why shouldn’t he make the decision now? She can’t say what their arguments will be now, Ariano admits, but to strike the affidavit now would do “irreparable harm,” while leaving it in for the moment would not. “How do you debate the book,” she wonders – the statements within the book, that is – without the tape? It’s all intertwined.

The judge may decide the whole thing is irrelevant, she admits – but that’s up to him, and that decision doesn’t have to be made now.

Is this up to my discretion, whether that judge will get to see this, wonders the judge. Yes, it is.

3:03:15 PM
Charter issues cannot be decided in a vacuum, says Ariano – and, again, this injunction would only be against the Liberals. “They’re not going to CTV or the National Post and telling them to take it off the website,” she reminds the judge.

More about the Charter, and privilege, as the battery gage hits the red zone: the judge notes that Dearden seems to be making the case that this is policy advice, but Ariano argues that Russell is pointing out his concerns over what this kind of legal action can do, as a political science.

3:11:55 PM
Dearden’s head suddenly pops up midway through an exchange over the timing of the motion, after the judge notes that the parties will be expecting “a fairly quick decision” to say that actually, he may have a solution to that issue – but he’ll get to that later. I don’t like the sound of that “later”. It’s been a very unplannedly long day, y’all.

“Say that outside and I’ll sue you” could be an entirely reasonable thing to say, the judge notes – if someone is about to make a defamatory statement. That, however, is something that can be asked of Russell during cross examination.

Really, the judge notes, he should read every paragraph as though it begins with, “As a political scientist, my view is …” In fairness, as Ariano points out, Russell does say exactly that, throughout the affidavit, but he couldn’t start every sentence that way or it would be unreadable.

3:24:40 PM
The judge confesses that he doesn’t think Russell has any business ascribing motive to Stephen Harper’s political goals or motivations – no mor than would anyone else; political scientist or not. Ariano acknowledges that some phrases might be problematic, and the judge notes that one remedy would be redaction of certain sentences, although really, the judge hearing the main motion might just decide to disregard them.
It really does come down to his discretion, ultimately – and, of course, the faith this judge has in the discretion of his colleague.

3:30:02 PM
On to Russell’s reference to the Mulroney/Thibault lawsuit, and a shoutout to David Tilson, as the current Conservative MP who first demanded that he – Thibault – recuse himself from committee. (Presumably, the suggestion here is that Harper, as the leader of the party, was at least tangentially involved in the decision to go after Thibault on that issue.

3:33:18 PM
Finally – oh, how I love the word “finally” – on parliamentary privilege, Ariano argues that this injunction raises serious questions, and should be decided by the main judge. The PM, she suggests, has used the existence of the lawsuit that *he* brought against the Liberals to try to limit what the opposition can ask in the House.

3:33:18 PM
Finally – oh, how I love the word “finally” – on parliamentary privilege, Ariano argues that this injunction raises serious questions, and should be decided by the main judge.

3:37:33 PM
Interesting — apparently, cross-examination of the PM has already been completed. Did we know that? Did everyone else know that except me? Man, you leave for four days, and you miss everything.

That’s it for the Liberals, but unfortunately for ITQ – or, more precisely, the ITQ battery, both Wagner and Dearden have a few comments to make in response, which means a fifteen minute break.

Oh, and it’s Odette Soriano – that’s the name of the Liberal lawyer. I was close!

3:50:42 PM
We were just speculating outside as to Dearden’s “solution” to the time issue, and it struck us that he’s almost certainly going to suggest that the whole thing be postponed until after, say, October 14th-ish, since there’s no way the Conservatives are going to want the trial underway in the middle of the election. Yeah, we probably should have realized that before. I blame the stupour that has set in after a half hour hearing took over my entire day.

3:55:50 PM
Something just occured to the judge: aren’t hansard excerpts often filed in appellate cases? Yes, but this is different, says Wagner — who is back up. Those are usually in Charter cases, to discuss the legislative intent; this is in support of impugning a motive. You can’t take what someone says in Parliament and use that to speak to motivation; that goes directly to privilege.

Oh, and outside and on the record, Dearden told the Citizen that he’ll likely seek an adjournment, since one of the expert witnesses will be in Europe over the next few weeks. Until after an election? “What election?” He asks, cryptically yet playfully.

Uh huh.

4:01:14 PM
That was pretty much Wagner’s only point, so now Dearden is up, and to save berrypower, I’m not going to retype arguments we’ve already heard, but if he has something new to say, I’ll include it. So far, he’s back on the “past scandal” issue, which, to be honest, doesn’t seem to interest the judge all that much.

Now he’s going on about “egregious”, and I’m going to do one last berry hotswap to get the last dwindling vestiges of power from the backup battery.

4:12:21 PM
A fascinating bit of foreshadowery during the swap – Dearden brings up the argument that only the Liberals would be enjoined from using the tape; in his view, anyone who knows of the existence of an injunction could, potentially, be bound. And who is to say that there *won’t* be future libel actions? Take note, CTV and National Post.

3:55:50 PM
Something just occured to the judge: aren’t hansard excerpts often filed in appellate cases? Yes, but this is different, says Wagner — who is back up. Those are usually in Charter cases, to discuss the legislative intent; this is in support of impugning a motive. You can’t take what someone says in Parliament and use that to speak to motivation; that goes directly to privilege.

Oh, and outside and on the record, Dearden told the Citizen that he’ll likely seek an adjournment, since one of the expert witnesses will be in Europe over the next few weeks. Until after an election? “What election?” He asks, cryptically yet playfully.

Uh huh.

4:01:14 PM
That was pretty much Wagner’s only point, so now Dearden is up, and to save berrypower, I’m not going to retype arguments we’ve already heard, but if he has something new to say, I’ll include it. So far, he’s back on the “past scandal” issue, which, to be honest, doesn’t seem to interest the judge all that much.

Now he’s going on about “egregious”, and I’m going to do one last berry hotswap to get the last dwindling vestiges of power from the backup battery.

4:12:21 PM
A fascinating bit of foreshadowery during the swap – Dearden brings up the argument that only the Liberals would be enjoined from using the tape; in his view, anyone who knows of the existence of an injunction could, potentially, be bound. And who is to say that there *won’t* be future libel actions? Take note, CTV and National Post.

4:19:34 PM
Dearden just dropped his bombshell – yes, he’s going to bring a motion for adjournment based on the constitutional issues that the Liberal Party plans to bring up; there are “tons of refusals and objections” – and a lot more cross-examinations, including of Howard White, the publisher of the book, and various other experts.

4:23:00 PM
Oh, and Dearden also plans to cross examine the audio experts, which seems to come as a surprise to the judge, although as Dearden points out, Palaire – the Liberal lawyer – has indicated that he, too, reserves the right. He figured both parties would file their respective analyses, and if necessary, submit a response to what the other produces.

Soriano definitely doesn’t seem keen on the idea of an adjournment, and notes that *her* client was pushing for a single audio expert.

The judge reminds everyone that there will be no cross-examining of audio experts by anyone unless he authorizes it.

He also notes that he remembers who was pushing for an urgent and speedy resolution of the issue, and it seems to have — changed somewhat since the motion was first brought.

“It’s our motion, and it may have to be adjourned,” insists Dearden. Soriano, meanwhile, is getting a bit impish. When Dearden claims he had no idea the Liberals would make this a constitutional case, she tells him that it’s been in their defence since May. The two then go back and forth about who said what, and who didn’t respond to requests for particulars by what date.

“With respect,” she says, this is just a “sideshow” to delay the hearing on the injunction. “This ought not to interfere with the schedule as it is currently scheduled.”

She gets the last word, and the judge informs the court that he’ll be reserving his decision, but he’ll get back to them as soon as he can.

And that’s — it. Wow. That got really exciting at the end, didn’t it? I’m glad I stuck around. Anyway, I have a dog to rescue from the kennel, and a Friday afternoon to enjoy – so I’ll see you all later.


 

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