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Trudeau risks more by suing Scheer: defamation expert

Toronto lawyer and defamation expert Gil Zvulony says Prime Minister Justin Trudeau’s threat to sue Conservative leader Andrew Scheer over comments he made about the PM’s conduct involving ex-attorney general Jody Wilson-Raybould is “a bad move”.

Jason Unrau Montreal QC

Toronto lawyer and defamation expert Gil Zvulony says Prime Minister Justin Trudeau’s threat to sue Conservative leader Andrew Scheer for libel over a statement on the PM’s conduct involving ex-Attorney General Jody Wilson-Raybould is, “a bad move.”

“If I were a betting man, I’d bet on Scheer,” said Zvulony “It’s still very, very, very preliminary … but (Trudeau’s) sort of painted himself into a corner.”

On Sunday, Scheer held a press conference to publicize Trudeau’s threat to sue, stood by his March 29 statement and remarks—subject of the PM’s warning—before daring Trudeau to follow through.

“If he believes he has a case against me, I urge him to do so immediately,” Scheer told reporters of the March 31 letter Trudeau’s lawyer Julian Porter sent threatening legal action for “highly defamatory comments” in Scheer’s statement issued two days previous.

These include  characterizing the SNC-Lavalin scandal as government “corruption on top of corruption on top of corruption”, spurring four high-profile resignations in the aftermath of a February Globe and Mail story alleging Wilson-Raybould was dumped as attorney general for not bowing to political pressure to intervene in the Québec firm’s prosecution.

Scheer issued the statement March 29 after the Justice committee’s release of Wilson-Raybould’s secret recording and supplementary notes to her February appearance, when she testified facing such pressure by key figures in the Trudeau government, including the PM, over a period of four months in 2018.

But for Trudeau and his lawyer the statement was a bridge too far for their countenance.

“(It) is beyond the pale of fair debate and is libellous of my client personally and in the way of his occupation as Prime Minister,” his lawyer Porter writes. “This letter will be referred to in any subsequent action and is to be treated as a notice pursuant to s.5 of the Libel and Slander Act of Ontario.”

However, for Zvulony, who has successfully litigated defamation cases from either side of the fence, there are several reasons why Trudeau has little to gain by proceeding.

“There’s room to argue that what Scheer was doing was giving his opinion based on true facts. That’s number one, I think you would have a relatively strong case for defence of fair comment,” Zvulony told The Post Millennial. “And considering (Trudeau’s) an active prime minister, he’s got the bully pulpit and can get out there and comment on good speech and bad speech.”

“This battle because of what happened or not (regarding Wilson-Raybould), that’s for the House of Commons, that’s for the electorate (to decide). If there was a crime that’s for the RCMP. I don’t think that’s the realm of libel lawsuits,” he added.

Outside the House of Commons on Monday, few Liberals entering for question period would comment on their leader’s litigious intentions. Those who did, like Infrastructure minister François-Philippe Champagne and Border Security minister Bill Blair, portrayed Porter’s notice as an admonishment for Scheer and Conservative opposition members.

“I think it’s a good practice to remind everyone, although their comments are covered by privilege here, people should be perhaps more careful about what they say outside the House,” said Blair, echoing a similar statement Champagne made in French.

During question period, government House Leader Bardash Chagger – answering for the absent Trudeau – accused Scheer of “deleting defamatory statements” on social media, after being served notice, and spoke of the matter as destined for a courtroom.

“Anyone who knows the court system would know, the first step is putting them on notice… the process has already began,” Chagger said in several variations to QP bombardment by Conservatives over the matter.

If Trudeau does proceed, Zluvony said the PM could sue Scheer in any jurisdiction in the country, but that Ontario’s anti-SLAPP (strategic lawsuit against public participation) law would present initial challenges for the prime minister.

“It’s a law designed to prevent lawsuits where their real purpose is to stifle expression on matters of public interest and I think that’s where Trudeau is going to have a lot of difficulty,” he said. “If I were Trudeau, I’d find that jurisdiction that doesn’t have that anti-SLAPP law and sue there.”

According to Zvulony, SLAPP is but one of many hurdles for Trudeau’s legal team to prove their client was libelled and would expose the PM even more, including the discovery phase in which litigants must disclose evidence before facing a judge.

“The onus would be on Scheer to prove that (his statement) was true. So he would have to provide the evidence,” Zvulony said. “Now if the evidence is sitting in Trudeau’s office then (Scheer) can get that in the discovery process, so there is no trial by ambush.”

Other key figures who have been implicated, including Clerk of the Privy Council Micheal Wernick and Trudeau’s former top advisor Gerald Butts, could also be subpoenaed to provide statements under oath during the discovery phase.

If the case even gets to trial, there Trudeau would confront the most daunting test of all, given his position as the most powerful politician in Canada.

“The prime minister is going to have to show that the harm to him outweighs the harm to the public in allowing these words to be expressed,” he said. “In other words, the harm to the prime minister’s reputation outweighs the public’s right to hear these things and I think that’s a very difficult arguement to make.”

Zvolony said he tells his clients who want to sue for defamation to engage in it only as a last resort, when all other options to expunge a libellous publication or seek retraction for a slanderous public statement are exhausted.

“Trudeau’s lawyer is a top-notch lawyer but I’m really suprised,” said Zvulony. “Look, it’s a client’s decision but I think it’s a bad move. I tell my clients who want to sue for defamation, think of it like chemotherapy. You don’t take it for fun. You take it only if you have to.”

An instance of a sitting Canadian prime minister suing an opposition party or one of its sitting members for defamation is unique, but if Trudeau ultimately sues his case would not be the first.

In March 2008, then-prime minister Stephen Harper of the Conservatives sued the Liberal Party for $3.5 million over allegations party officials offered independent MP Chuck Cadman $1 million in exchange for the terminally ill member’s support to prop up Harper’s government in a 2005 confidence vote. The matter was later settled out of court.  

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