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April 29, 2005

Riddell Threatening to Sue Maderblog

Remember Allan Riddell? He was the Conservative Party candidate for Ottawa-South in the 2004 general election. Shortly before the election, allegations emerged that Mr. Riddell had been caught driving without a driver's license. I noted those allegations in my predictions for the election outcome in Ottawa-South.

This afternoon I received an e-mail from Soloway, Wright LLP of Ottawa, which you can read, with attachments, here (note: .pdf file). Soloway, Wright - being Mr. Riddell's lawyer - demanded that I remove the part of the above-noted post containing the said allegations, in light of the fact that Mr. Riddell has demonstrated, through successful litigation and written confirmation from the Ontario Ministry of Transportation, that the allegations are untrue. Here is the substantive crux of the letter:

Mr. Riddell's license was not under suspension when he drove on June 17 as he had legal authority to be driving. His fine had been paid, and his suspension already lifted, prior to his getting behind the wheel to drive, a fact which has now been officially confirmed in writing by the Ontario Ministry of Transportation.
Soloway, Wright also included in their letter a retraction printed by the Ottawa Sun on November 28, 2004. The letter from the Ministry is dated March 30, 2005.

I've been living in Texas since August 17, 2004, and so today's letter was the first indication I've received - aside from Riddell's cotemporaneous public protestations - that the information I posted last June was inaccurate. I have amended the post at issue to indicate that the information was inaccurate, and I post here now in order to emphasize that fact.

As a law student, a blogger and a politically-interest Canadian, not to mention a potential litigant, I find this situation extraordinarily interesting. I have two immediate and conflicting reactions. On the one hand, I'm terribly sympathetic to Mr. Riddell, whose election loss was probably due in part to the popular dissemination of information that now turns out to be false. The letter from the Ministry indicates that the situation at the time was, at the very least, confused; but that does not alter the fact that Riddell suffered from a widespread assumption that he'd done something that he did not in fact do. There's a lesson there about the impact of the news media - mainstream and blogosphere alike - on local politics.

At the same time, I can't help but wonder who's been giving Riddell political advice. Without in any way admitting any wrongdoing on my part, I assume that his legal advice is sound - although I would expect that no one at Soloway, Wright is particularly aware that they've threatened to sue an impecunious twenty-two year old law student living in Texas. But before allowing his lawyers to send letters threatening legal action, Riddell the politician should have at least made a basic inquiry into the identities of potential recipients. Although I (correctly) anticipated that Riddell would lose last year's election, it ought to have been clear to anyone who read the post in question that I would have preferred that he win. The most casual reader of my blog will know that I am generally sympathetic to, if not entirely supportive of, the Conservative Party of Canada. That being the case, a simple e-mail from Riddell or his political staff would have been sufficient to prompt me - without admitting any liability - to remove the allegation in question.

Instead, Riddell has conflated law and politics. That's a shame. As a private individual, Riddell of course has a perfect right to pursue his legal options to their fullest, and that includes a blanket request that all potentially defamatory statements be retracted. But as a politician, Riddell should think twice. Yes, threatening to sue every last blogger - and I can't imagine smaller fry than maderblog - will clear the legal deck in anticipation of an upcoming nomination battle. Now Riddell will be able to wave process in the face of anyone who so much as suggests past impropriety on his part.

But threatening legal action also says much about the character of a man who would be an M.P. It says that when an argument fails, a court-order will suffice; that if character cannot be demonstrated by words and persuasion, it will be enforced by decision and remedy.

That's certainly true in the private realm. Perhaps that's the kind of outlook you want in a politician as well. But not me. Not me.

Posted by David Mader at 07:16 PM | (4) | Back to Main

April 26, 2005

Power Over Principle

Paul Martin's Liberal government teeters on the brink of collapse, rocked by allegation after allegation of corruption and influence-peddling which, taken together, represent a damning story of self-interest, gross disdain for the Canadian public and quite probably an active and widespread criminal conspiracy touching the highest executive, legislative and even judicial offices of the land.

And how does NDP leader Jack Layton respond to this outrage?

By joining the government, of course.

The NDP needs to be hammered hard over this, from sea and unto sea. 'Jack Layton Sold You Out' - I want to hear that slogan's been plastered on every telephone pole in every Prairie riding. I want voters to know that when confronted with a morally bankrupt governing party, Jack Layton's overarching thought was how to wring pennies from a desperate crook.

Now this is all easy for me to say; I think the NDP are ideologically suspect even when they adhere to principle. But I wonder what my favorite social-democrat thinks of this shameless cash-grab. Even if the ends are worthwhile, are they worth propping up a government that is fundamentally unfit to govern? I think - and certainly hope - that the question answers itself.

The best justification I can imagine for Layton's beggaring of the budget in his own interest is that he expects an election within a year - ten months at the latest, if Martin is for some reason to be held trustworthy - and so believes that if the government is doomed, it may as well go down funding some worthwhile programs. But if he believes that the government will fall because it deserves to fall, why sustain it for a minute longer that it would otherwise be sustained - if not for gross partisan advantage? And if he believes that the government ought not to fall, why only prop it up on condition of payment?

'Jack Layton supports the Paul Martin Liberals. Do you?' Every billboard in BC; every riding in the Prairies.

Posted by David Mader at 09:30 PM | (4) | Back to Main

April 21, 2005


Harper highlights:

My fellow Canadians, we have all just witnessed a sad spectacle - a Prime Minister so burdened with corruption in his own party that he is unable to do his job and lead the country, a party leader playing for time, begging for another chance.

This is not how a prime minister should act.

Mr. Martin received his mandate by holding an election before any of the facts of the sponsorship scandal were known.

Last May, it was Mr. Martin's decision to shut down the public accounts committee in its attempt to get to the truth.

It was Mr. Martin's decision to call an election last year before a single witness had been heard by Justice Gomery.

And it was Mr. Martin's decision to turn a blind eye to it all when he was minister of finance.

Do Canadians really believe that the number two man in a government now under a cloud of corruption, is the person to clean up that mess today?

Do Canadians really believe that the Gomery inquiry would be operating if the Liberals had won a majority?

And do you really believe that the Liberals will ultimately prosecute themselves, and hold their own to account?

I don't believe that. I don't think you believe that.

I hope not. But Harper has more faith in us than I do.
However the partisan politics of the next election play out, the Liberal Party of Canada has done tremendous damage to this country's institutions, particularly in Quebec.

Never forget that the sponsorship scandal is not a Quebec scandal.

It is a Liberal scandal that took place in Quebec, a Liberal scandal that took place in Quebec in the name of Canada and in the name of national unity.

The Liberal Party has turned federal politics in Quebec into a choice between separation and corruption.

And one thing is now clear-the Liberal Party can no longer speak for federalism in Quebec.

Yes - yes to this whole section. What the Liberals have done is not treason in a legal sense, but it is treason in an ideological sense. Whatever it is that Canada stands for, whatever idea it represents, the Liberals have actively undermined by placing in its stead cronyism, crime and corruption of the worst sort.
Fellow Canadians, Mr. Martin's speech tonight was not about saving this country. It was about saving the Liberal Party.
That was apparent. But I disagree with this:
That's a question for the voters to decide, but let me assure you there's no need to save this country. There's only a need to move it forward.
No. It is broken, and unless it is fixed, this embarrasment will become the norm. This is not a time to move on. This is a time to renew.

Posted by David Mader at 09:43 PM | (2) | Back to Main


What a pathetic character is Paul Martin:

Let me speak plainly: What happened with the sponsorship file occurred on the watch of a Liberal government. Those who were in power are to be held responsible and that includes me.

I was the Minister of Finance. Knowing what I've learned this past year, I am sorry that we weren't more vigilant -- that I wasn't more vigilant. Public money was misdirected and misused. That's unacceptable. And that is why I apologized to the Canadian people a year ago...
Oh, well in that case, forgiven and forgotten, Paul.
Let me emphasize that point: If so much as a dollar is found to have made its way into the Liberal party from ill-gotten gains, it will be repaid to the people of Canada. I want no part of that money.
Well, a cast of characters have testified under oath that far more than a dollar has made its way to the Liberal Party. So, Paul, you're accusing them of perjury. Care to do that under oath yourself? No, of course you don't. There's a right against self-incrimination, after-all.
As prime minister, I will never hesitate to describe what happened on the sponsorship file for what is was -- an unjustifiable mess.
An 'unjustifiable mess'? An 'unjustifiable mess'!! Is that all this is to you, Paul? A 'mess'? A 'mess' just like all the other 'messy' business of governing, only this one was unjustifiable?

It was a bloody criminal conspiracy, you fool.
If the opposition forces an election before then, that is their choice. But I believe we can do better. I believe we can -- and we should -- use the coming months to pursue the public's business.
The sponsorship scandal is, apparently, none of the public's business. You heard it from the Prime Minister's mouth.
When I was young, I practically lived here in the Parliament Buildings. My father was a cabinet minister in four Liberal governments. He taught me that those who serve in public office have a duty to protect the integrity of government.
And herein lies the problem. Paul Martin is infantile, immature and irresponsible. He credits his office to entitlement, and he traces his qualifications to his pedigree. Daddy isn't here to save you, Paul. He isn't here to show you what to do. I'll give you a hint, though. Resign. It would be your first and only worthwhile act as Prime Minister.

Posted by David Mader at 09:36 PM | (1) | Back to Main


A good place to start would be to figure out who the crooked judges are and to impeach them. It's certainly my impression that the federal bench is, by in large, distinguished and upright. But as long as there remain on the bench individuals who have participated in this scandalous activity, the reputation of the entire judicial system is cast into doubt. Of all the branches of government, the judiciary depends for its success most strongly on the confidence it enjoys in the minds and the hearts of the people. A doubtful judiciary is no judiciary at all. If the Canadian bench is to be saved, the crooked judges must be exposed and expunged.

Posted by David Mader at 11:34 AM | (1) | Back to Main


I read the news today. Oh boy:

Mr. Corbeil said the people who received the cash payments were part of a larger group of party supporters who worked at the Liberal Party's headquarters in Montreal during the election campaign. He said most of that larger group were lawyers, engineers or accountants from major firms, which he said hoped to reap federal contracts after the election.

"They don't want to get paid right away, they want to get paid later," he said, noting that many of the lawyers have since been named to the bench.

In other words, the Canadian bench is, in some degree, crooked.

Here is what the Liberal Party has wrought: the national police force is politically compromised; the federal bench is politically, and possibly criminally compromised; and the offices of the Privy Council, being the ministries of the crown, are both politically and criminally compromised.

It goes without saying that the Liberal Party must be cast from office totally and without reserve; indeed, it is not clear to me that the Liberal Party as a corporate entity should not be subject to criminal and civil liability and perhaps even barred, as a corporate entity, from future political participation. But if our federal bench is compromised - if Canadians can no longer trust either their Parliament nor its ministers, nor their courts of law - then our system of government is broken. An election will not fix it.

We require a revolution - a peaceful revolution, to be sure, a democratic revolution, but a revolution nonetheless. We must examine closely how our institutions as they currently exist not only allowed but encouraged the governing party to abuse its discretion and engage in this outrageous activity; and we must examine how our institutions allowed and encouraged them to do so without any public or private oversight.

Canadian democracy is broken - fundamentally, deeply. It is not irreparable; but an election is no fix. A governmental order wherein the leader of the plurality party in the lower house controls, directly and without effective check, executive and legislative power, and who controls the appointment of the judiciary, is no representative democracy. It is no democracy worth saving. It is no surprise that such a crooked system promotes crooked people who engage in crooked acts.

It starts with us - with the people of Canada. The people are the first check, and the most basic - and we can hope and pray that the check is exercised unmercifully against the men and women of the Liberal Party sitting in Parliament, who should be cast out of the temple of our government and allowed never to return. But the people are not the last check. Until our democracy is reformed, Canadian government will remain unchanged: a criminal ministry, a crooked bench, a failed and shameful project.

Posted by David Mader at 10:34 AM | (0) | Back to Main

April 20, 2005

Fun Fun Fun

I'm with Adam. My two favorite lines from recent press:

Canadian Press: 'The surprise announcement crowned another brutal day for the minority Liberals.' Ouch.

And from Conservative leader Stephen Harper: "When each group of Liberals calls the other group of Liberals crooks and liars, does it really matter which one we believe?" Brilliant.

Posted by David Mader at 08:57 PM | Back to Main

April 19, 2005


"To preserve one's life is generally speaking a duty, but it may be the plainest and highest duty to sacrifice it. War is full of instances in which it is a man's duty not to live, but to die. The duty, in case of shipwreck, of a captain to his crew, of the crew to the passengers, of soldiers to women and children, as in the noble case of the Birkenhead; these duties impose on men the moral necessity, not of the preservation, but of the sacrifice of their lives for others, from which no country, least of all, it is to be hoped, in England, will men ever shrink, as indeed, they have not shrunk."

- Lord Coleridge, Regina v. Dudley and Stephens, 14 Q.B.D. 273 (Queen's Bench, 1884)

Posted by David Mader at 10:20 PM | Back to Main

Breaking the Tie

Andrew Coyne is blogging up a storm on AdScam - click and keep scrolling.

I don't have anything intelligent to add regarding the sponsorship scandal at this point, but part of one of Coyne's posts caught my eye. He quotes at length from an article discussing the possibility that all three independent MPs would vote with the government and the NDP to oppose any non-confidence motion (or any other vote that would trigger an election). If that were to occur, and if all Conservatives and Bloqists were to vote in favor of such a motion,

a tie would be broken by Commons Speaker Peter Milliken who traditionally would vote to maintain the status quo.
Interesting way to describe the principle - that the speaker should 'vote to maintain the status quo.' This issue - the power of the legislative tie-breaker - is one that fascinates me. (Yes, I'm a nerd that way. But you knew that.) Here's what I wrote about it last fall:
[I]t has long been my firm belief that a quasi-executive officer who possesses the tie-breaking vote in the legislature should always, if called upon to cast that vote, cast it in the negative. In the US this vote is possessed by the Vice President who, as President of the Senate, may break a tie in that house. There are good arguments for allowing the Veep to break a tie in favor of the President's party, but it seems to me that a bill that does not have the support of a majority of the legislature should not become a law.
The question - a question I hadn't really thought about until now - is how this principle applies to a situation of minority control.

The Globe article seems to assume that just as a speaker should vote against a government bill that lacks the support of a majority of the house, so should he vote against an opposition bill that lacks the support of a majority of the house. Sounds good so far.

But what about when the bill goes directly towards the perpetuation of the governing party, of which the speaker is in some sense a member? In that case, opposing an opposition bill is tantamount to voting in favor of a government that lacks the support of a majority of the house. If a bill that lacks such support should fail on a vote by the tie-breaker, why shouldn't the government itself fail in a similar circumstance?

The Globe article offers an answer in the form of a justification for the practice: the speaker votes 'nay' in instances of a split house in order to maintain the status quo. In cases of government - or opposition - bills, the status quo does not involve the creation and existence of the proposed law, and so the proposed law fails. Similarly, in cases of non-confidence motions, the status quo involves the governing party maintaining power, and so the attempt to remove it from power fails.

Fair enough. But is the the principle in question merely a procedural principle - votes should maintain the status quo - or does it, as I seem to have subconsciously suggested in my earlier post, involve a substantive element regarding the exercise of executive power by a member of the governing party? Perhaps a speaker should oppose a government bill not in order to maintain the status quo but because by voting in favor he would be employing an executive power in order to further the partisan objective of the governing party, and because such an exercise of executive power would represent a circumventing of the legislative opposition. In other words, perhaps the principle is a traditional balance on the power granted to governing parties in assigning to their number a quasi-executive power. Without such a check, a governing party could govern even without a legislative majority, and its government would be sustained only by the exercise of the quasi-executive power of the tie-breaker. That seems, at least on its face, contrary to basic notions of representative democracy.

If that's the true justification for the principle at issue, then in an instance of no-confidence (or some such), the speaker would appear to be tradition bound to vote for the motion, rather than against - since a vote against the motion would, in this instance, be akin to a vote for the partisan interest of the governing party, and since its effect would be to sustain a government that lacked the support of a majority of the legislature only by virtue of the exercise of a quasi-executive power by a member of that party.

I'm not sure where I come down on this question - I think the Globe's 'status quo' argument has merit chiefly in its simplicity, but I think my own (admittedly convoluted but, I think, ultimately solid) balance-of-power argument has its merits too. Comments are open.

(Note that it would be possible to face a split house not because any one party lacked a majority but because members of a majority party cross the floor to vote against their government. It seems inconceivable today, but I'm quite sure it happened when Chamberlain's government fell, and it's perfectly consistent with true and robust parliamentary democracy. My inquiry is limited to a case such as we have in Ottawa, where a 'governing coalition' of the Liberals, NDP and independants together hold precisely the same number of seats as the two other opposition parties together, so that the speaker is a member of the plurality party.)

Posted by David Mader at 06:52 PM | (1) | Back to Main

Yea, But...

Does anyone in the Canadian blogosphere actually believe a word Warren Kinsella says? Does anyone with even a passing acquaintance with his website doubt that he would say whatever needed to be said in order to advance his own interest?

Oh, and for an ostensibly patriotic Canadian, Kinsella certainly has an American-style love of litigation. No doubt I'll be told whether or not this post is actionable.

[Hat tip: Daifallah]

Posted by David Mader at 05:47 PM | Back to Main

April 14, 2005


Andrew Coyne is hammering away at the Liberals - just click and keep scrolling. But make sure you read this post. In brief: the Prime Minister claimed, in sworn testimony before the Gomery Commission, that he 'hardly knew' a certain key figure in the Adscam scandal, that if they had met it would have been on 'political or social occasions' and that the meetings, if any, were too insubstantial to be worthy of recollection before the inquiry.

But here's the thing: a witness at the Commission has just testified that he sat a table over from Martin and this key figure - Claude Boulay - and that he overheard them discussing, apparently in detail, a government program that received millions of dollars in government money.

Conservative leader Stephen Harper has suggested, in the House, that the Prime Minister may have purjured himself before the Commission. Alas that the Canadian national police force is politically compromised.

And regardless of whether the Tories are ready for prime time, this government must fall.

Posted by David Mader at 09:01 AM | Back to Main

April 12, 2005

Damned by Faint Praise

The Times takes a look at the Conservative Party manifesto:

The document released yesterday is rather light on words, but is designed to convey certain central campaign messages. It suggests the Conservatives are evolving, over time, from a dysfunctional rabble to a more modern and plausible political party....

Mr Howard is a politician of genuine weight who is well qualified to serve in high office. Can the same be said of senior members of the current Shadow Cabinet, let alone those more distant from the spotlight? As Peel would have agreed, government can be as much about the quality of people as the character of ideas.

In other words, the Tories are on the right track, but aren't there yet. A safe non-endorsement for a hung parliament, I think.

Posted by David Mader at 10:12 AM | Back to Main

McKay Gets One Right

The Toronto Sun reports:

Canada's national police force can't be trusted to conduct a wide-ranging investigation into new criminal allegations made at the AdScam inquiry, Conservative Deputy Leader Peter MacKay suggested yesterday....

"There's already been significant examples of where the RCMP have been too -- and I emphasize too -- closely linked to the Prime Minister's Office," MacKay said, recommending the Quebec or Ontario provincial police conduct a probe instead.

Absolutely right. The RCMP's political connections have degraded the trust Canadians once had in the institution; that loss of trust is yet another stain on the Liberal record.

Posted by David Mader at 09:54 AM | Back to Main

A New York Story

NealeNews brings us a story that is at once tragedy and quintessential New York:

A trailblazing breast cancer surgeon and researcher at Memorial Sloan-Kettering Cancer Center was killed yesterday morning when a private ambulance mowed her down on her way to work.

Dr. Jeanne Petrek, 57, clung to life for hours after a group of brawny construction workers lifted the ambulance off E.64th St. and plucked her from underneath, witnesses said...

Barefoot and blood dripping from her nose, Petrek was trapped as onlookers dialed 911. Eight workers lifted the vehicle by hand and rested it on two thick metal poles taken from their scaffolding project, witnesses said.

Handyman Paul Mahoney, 42, clutched Petrek's hand as he helped carry her across the bloodstained street.

"I said, 'Are you okay? Can you hear me?'" Mahoney recalled. But Petrek's eyes stayed shut.


Posted by David Mader at 09:41 AM | Back to Main

More Poll Numbers

CTV has an Ipsos-Reid poll showing the Tories at 30% against the Liberals at 27%. The Liberal number represents a 10% drop from two months ago. But the Tories have only picked up four points, and the NDP two; the other four points, we might infer, represent the Quebecois swing to the Bloc, who now lead the Grits in Quebec by thirty percent. This is partly a function of the Grits' traditional strength in Quebec; the Tories are neck-and-neck in Ontario. But I think it's also a consequence of the Tory strategy of offering themselves as a default, rather than a principled, alternative. Conservatives are so terrified of being demonized for asserting conservative positions that they've convinced themselves that simply not being Liberals will be enough.

It may be enough this spring. But then what? Lacking a coherent governing philosophy, a Tory government will inevitably either disappoint by being more conservative than expected, or disappoint by being the same old story. Canadians may have a good reason to vote Tory next month. But the Conservative Party is giving them absolutely no reason to vote Tory thereafter.

Posted by David Mader at 09:05 AM | Back to Main

April 11, 2005

Rats? Are We Sure That's the Word We Want to Use?

Ontario Liberal caucus leader Sam Bulte:

I find it unfortunate that people who are supposed to be members of the team choose to [consider crossing the floor].

What's that old adage, you know: 'When the ship is sinking the rats are running.'

Good thing the Liberal Party doesn't accept rats.

Incidentally, someone should give the Minister this guy's number. Maybe they could commiserate.

Not that I'm counting anyone's chickens.

Posted by David Mader at 06:51 PM | Back to Main

Grits Hit Hard by Scandal

Adam Daifallah points to some pretty remarkable poll numbers from Ekos in the TorStar. The Liberals have bled votes to all of the other parties - including, in some regions, the Greens - and nationally trail the Tories by eleven percent. I don't think 36% would be enough to give the Tories a majority, but it would certainly give them a government. Of course the current government should fall not because of the polling numbers but because the Liberal Party is unfit to govern for even a moment longer. Time to kick the bums out.

Posted by David Mader at 09:03 AM | Back to Main

April 10, 2005

Pastoralism, Nostalgia and Civilization

Via Arts & Letters Daily, an interesting essay on the romanticization of the past. This is a topic that fascinates me, and while I'm not entirely persuaded by the essay's thesis - that romantic nostalgia as manifest in pastoralism and the like evinces an ongoing reaction by the naturally wild and violent human spirit to the necessary restrictions of sedentary civilization - there's certainly a lot to provoke thought. I'm particularly intruiged by this:

Reaching back a bit further we find that as early as 700 BC the Greek poet Hesiod felt humanity’s heroic days were past and that he lived in an era of lamentable decline. In the Golden Age (which Hesiod says was long before his own time) men were naturally peaceable, and for that reason there was no war. Nor was there any foreign trade or travel to confuse us with luxuries: everyone stayed home happily knitting their own sweaters, and no-one fussed about Paris or Pierre Cardin. Among other attractive features of the Golden Age, the people were vegetarians, made everything out of wood, and because they were naturally good their communal society was free of conflict and required no lawyers.
I emphasise the vegetarian aspect because I seem to recall learning that vegetarianism was a hallmark of antedeluvian life - certainly of life in the Garden. The secularist will undoubtedly take this to mean that the Bible, written in the millenia bracketing Hesiod, reflected this same early nostalgia; but the faithful could equally legitimately take it to mean that the root of our nostalgia is the ingrained knowledge of the loss of Paradise.

And perhaps, theology aside, there's no real difference; perhaps, in other words, it's a chicken-and-egg conundrum, pointing invariably towards the same end: a common pre-historical blessed state of freedom, if not peace. Are we attracted to it, as the essayist seems to suggest, because in achieving peace we had to surrender some of that freedom? Or are we attracted to it because in excercising our freedom we surrendered some of that Peace?

Posted by David Mader at 05:13 PM | Back to Main

April 06, 2005

Blogroll Additions

Some additions to the blogroll:

First, if there's one thing that Maderblog just loves it's an Anglosphere election. The Mother of All Parliaments is up for grabs on May fifth, and in anticipation I've added a slew of British media election sites and reporter blogs. Latest news: YouGov's most recent SkyNews Poll has Labour and the Tories tied at 36%; all the polls show a Conservative surge down the stretch into the campaign (see here, but note that the site is dynamic and so the link is only good until the next slew of polls come out.)

Second, if there's another thing Maderblog just loves it's random news. Nick Denton of Gawker fame has launced Sploid, a tabloid-esque version of Drudge. If such a thing is possible. Folks are calling Sploid a challenge to Drudge; I don't see why it has to be a competition. The more news-aggregators the better!

Posted by David Mader at 11:16 PM | Back to Main

You Know What I Want in a Potential Government?

Crass political opportunism:

The Conservatives will decide whether to trigger an election after a publication ban is lifted on shocking testimony at the sponsorship inquiry, deputy Conservative leader Peter MacKay says.

The sensational details delivered by Liberal-friendly ad executive Jean Brault could become public this week.

And the Tories will judge whether the wave of public anger over the sponsorship scandal becomes enough of a deluge to carry them into office, MacKay suggested.

"If they lift the publication ban, then and only then will we be able to assess how the public reacts to it - but the directions it's going right now, it's extremely serious," MacKay said.

"The more serious the allegation, the more serious the evidence that comes forward (will be) impacting on the fortunes of the government and our opinion on whether we would support any kind of motions that would trigger an election."[...]

MacKay agreed the Liberals might have staved off an immediate "crisis" that could topple their government. But he quickly added that the Tories will be watching the polls before deciding whether to continue propping up the government.

How about deciding whether to continue to prop up the government based on whether the government continues to deserve, in the eyes of a principled opposition, being propped up?

I guess that would require a principled opposition, and not a bunch of folks who just think they deserve to govern and are just waiting for the people to recognize their inherent worth.

Posted by David Mader at 10:48 AM | Back to Main

Blair Drops the Writ

Tony Blair has asked Her Majesty to dissolve Parliament and hold a general election on May 5. My brother Dan sends me two interesting items: first, a poll showing Labour with only a three point lead over the Tories; and second, a sleek website suggesting a theme for the Conservatives in the upcoming campaign.

The received wisdom on this side of the pond, especially among conservatives, has been that the Tories were essentially write-offs, having opportunistically (or possibly and more worryingly, ideologically) opposed the Iraq war without convincing the British people that they represented a viable alternative. The recent polls may suggest that the anti-war stance is finally paying off for the Tories; more likely, I'd wager, is that the British public is simply becoming disenchanted with the spin-heavy Labour government after eight years.

As someone commented - not sure who - a Blair loss will undoubtedly be interpreted as a referendum on Iraq, while a Blair victory will mean business as usual.

Posted by David Mader at 08:25 AM | Back to Main

April 05, 2005

Really, Really Cool

Google Maps now has a sattelite image feature.

I'm telling you, these guys are taking over the world.

[Hat tip: Volokh]

Posted by David Mader at 05:10 PM | Back to Main

Canadian Press Reaction Round-Up

The Globe and Mail and the National Post both have articles discussing the publication ban from the blogger angle; the Post seems to hold that naming the American blog at the center of the controversy would itself constitute a violation of the ban, while the Globe seems to disagree.

The Toronto Sun has more on the governments decision over whether to press contempt-of-court charges against bloggers who "reproduc[ed] excerpts of Montreal ad exec Jean Brault's testimony and provid[ed] a link to a U.S. blog featuring more extensive coverage of the hearing," in the words of the paper.

The Ottawa Citizen editorializes on the uselessness of a publication ban in the internet age. And Andrew Coyne discusses the absurdity of it all:

It's just absurd. You cannot publish the proscribed testimony on the Web? Okay, maybe that's fair, if other media are under the same order. But to threaten people with prosecution just for linking to a site that does? Or linking to a site that links to that site? Or -- I cannot believe I am writing this -- even for uttering their names? What's the punishment for this blasphemy, I wonder: stoning?

Suppose, instead of a website, the ban were broken by an American newspaper: the New York Times, say. Would the police seize all copies of this samizdat publication? Would they prosecute corner newsstands for carrying it? Would we be forbidden from telling Canadians which newspaper had broken the ban?

Good question.

Posted by David Mader at 11:29 AM | Back to Main

The Publication Ban II - Reinterpreted and Reapplied

This post is an attempt to clarify and consolidate my analysis from yesterday. Once again, I must emphasize that I am not a lawyer and that nothing on this blog should be taken as legal advice of any sort.

Yesterday I was troubled by Justice Gomery's reference, in his definition of the term 'publication ban,' to Part XV Section 486(4.9) of the Criminal Code. I noted that a 'publication ban' under Section 486 applied only to the identity of the privileged party, and not to the testimony of such a party. That could not apply to Gomery's ban, however, as he explicity extended protection to the testimony of the three named witnesses.

It seems clear to me, after a good night's sleep, that what Gomery meant by his reference to Section 486(4.9) was that his own 'publication' ban, applied to the testimony of the witnesses, should be applied in the same manner as a Section 486(4.9) ban is applied - that is, specifically, it should be applied so as to prohibit the publication of 'any evidence taken, information given or submissions made.'

Note that the version of Gomery's order available online contains an interesting mistake; whether the mistake is Gomery's or the webmaster's is unclear. Gomery quotes Section 486(4.9) as follows: 'no person shall publish in any way (…) any evidence taken...' The ellipses are in the wrong place; the Section actually reads: 'no person shall publish in any document or broadcast in any way...' [Emphasis mine.] What makes this so unusual is that Gomery goes on to specifically define 'broadcast' - the term ommitted by the misplaced ellipses - to include 'a posting on the Internet.' Unusual, to say the least.

Anyway, what we're left with is an order from Gomery that no person may publish, broadcast and/or post on the internet any evidence taken, information given or submissions made, which is more specifically defined as any testimony, any written evidence presented or referred to during their depositions, or any representations by counsel with respect thereto.

Brian Neale did none of the above. If he is liable in an action for comtempt of court, it must be because a hyperlink to a document containing privileged information, although the text of the link contains no such information, constitutes a 'post on the internet' or a 'publication' under Gomery's ban.

A number of people have chimed in on the subject - I recommend J. Kelly Nestruck's irreverent take. The Gomery Commission itself, through a spokesman, appears to argue that anyone who allows privileged information to be spread about violates the ban. I suggested yesterday that this 'passive' interpretation need not be the only approach. Now I venture my own:

Gomery's ban, by its terms and by the intent those terms evince, applies to the substance of the testimony delivered to the Commission by Brault, Guite and Coffin. In redefining 'broadcast' to include 'posting on the internet,' Gomery clearly meant to address the publication of testimony itself to a website.

Were Ed Morrissey to be subject to Canadian jurisdiction (and note that he may be), he would clearly be in violation of the ban. But based on the language of the order, Brian Neale clearly would not be.

The idea that any link which could result in a reader discovering web-published testimony is, as Nestruck notes, ridiculous. The challenge is therefore to determine what 'degree of link' constitutes an effective publication of the information contained in the target page.

My immediate inclination is that a link to a page actually containing such information - for instance, a link directly to Morrissey's blog-post containing the information, or a link to Morrissey's index page when that page contains such information - would constitute a broadcast of the information under the ban. My immediate inclination is that a link to a page that itself links to substantive testimony would not.

The difficulty is that the internet works by infinite degree. If Neale is in violation because he linked directly to Morrissey's representation of the testimony, is Google in violation because it also links to Morrissey's post? It certainly would be under the Commission's 'passive' approach. In fact, a passive approach would also hold a link to a page - such as Instapundit - which in turn linked to information to be a violation.

So there, are, I think, three general positions, on a continuum. The most lenient, from a blogger's perspective, is the literalist approach: one cannot 'post to the internet' any privileged information, but links to such information, being beyond the language of the ban, are beyond regulation. The mid-point would hold as a violation any 'affirmative' action which directed readers to internet-posted information, but would hold 'passive' links to sites containing the information to be beyond regulation provided no affirmative action was taken to draw attention to the link. The strictest standard would hold as a violation any 'passive' link to a site containing the information.

I would hold by the first, most lenient interpretation, not only because I think we should take judges, like statutes, at their word, but also because the third position would require the judicial regulation of every actor involved in the provision of internet access (right back to the service provider) and because the second position is irrational in the context of the internet. As I say, though, the Gomery Commission appears to take the strictest approach.

Posted by David Mader at 09:03 AM | Back to Main

April 04, 2005

The Publication Ban

[DISCLAIMER (19:30 CDT): I'm flattered by the attention given by the blogosphere to my post on the legalities of the Gomery Commission's publication ban; however, given some of the responses, I must make the following clear:

I am not your lawyer. I am not a lawyer at all, and I am not at all familiar with Canadian law. I am a student at an American law school. DO NOT rely on this post in determining your conduct vis-a-vis the publication ban. Nothing in this post should be taken as legal advice of any sort, and the author makes absolutely no guaranty as to the quality or accuracy of its interpretation of the law.]

Here is the ruling by Mr. Justice Gomery:

The expression "publication ban" as it is used in this decision, should be taken to have the meaning those words have been given in subsection 486(4.9) of the Criminal Code, which states that "no person shall publish in any way (…) any evidence taken, information given or submissions made at a hearing", in this case, a hearing of the Commission. In my interpretation of this disposition, "broadcast" includes a posting on the Internet.

The word "broadcast" means "broadcast to the public", so that a publication ban would not prohibit a television broadcaster such as CPAC from continuing to capture the television images and sound of the Commission's proceedings, and from transmitting them to the media room and other in-house outlets, as it does at present...

I order

(1) That the testimony of Jean S. Brault, Paul Coffin and Joseph Charles Guité before this Commission of Inquiry during Phase 1B of its hearings, and any written evidence presented or referred to during their depositions, or any representations by counsel with respect thereto, shall be the subject of a publication ban as that term is used in subsection 486(4.9) of the Criminal Code, to remain in effect until the completion of the trial of the witness concerned before the Superior Court of Quebec, when the jury is sequestered to deliberate, unless ordered otherwise in the meantime...

Here's Part XV of the Criminal Code of Canada, which includes the Section 486 (4.9) to which Gomery refers for his definition of the ban:
Unless the presiding judge or justice refuses to make an order under subsection (4.1), no person shall publish in any document or broadcast in any way

(a) the contents of an application referred to in subsection (4.3);

(b) any evidence taken, information given, or submissions made at a hearing under subsection (4.6); or

(c) any other information that could identify the person to whom the application relates as a victim, witness or justice system participant in the proceedings.

Now I'm not a lawyer; and I'm not a student of Canadian law; but I am a Canadian, and I am a law student, and it seems to me, without expressing a hard opinion, that the publication ban does not, by its terms, apply to Brian Neale.

First, note that Section 486 (4.9) tightly defines what may not be 'publish[ed]' or 'broadcast': 1) the contents of an application of a certain type; 2) 'any evidence taken, information given, or submissions made at a hearing'; OR 'any other information that could identify the person...'

Gomery both restricts and expands this definition: he restricts it by referring explicitly to subsection (b) (and so, by the language of the statute, excluding the other possible categories of banned information); and he expands it by stating that "'broadcast' includes a posting on the Internet."

In sum, then, the ban that applies to Brian Neale is as follows: he may not 'post[] on the Internet' 'any evidence taken, information given, or submissions made at a hearing.'


'Information' is not defined, best I can tell, in the Criminal Code. In the rest of Part XV, it is used generally in the context of information which would identify the party whose testimony is privileged. (An alternative reading of Section 486 (4.9) could lead to the application of this limited interpretation - the ban could be said to be on a) the contents of an application; b) any evidence taken, etc; or c) any other information, which three categories describe information that could identify the person &c. But I don't think that's the correct reading).

There are therefore two questions at the end of the day: 1) did Neale's sentence, reproduced above, constitute a 'broadcast' of 'information' under Section 486 (4.9)(b)? 2) Does a hyperlink constitute a broadcast of all of the information contained in the target document?

Regarding the first, I have a hard time believing that criminal liability would attach to a statement that conveys no specific, or even generally specific, information testified at the hearing. At most, Neale's is a statement regarding the character of certain information. But the publication ban does not prevent a discussion of the nature or existence of information; if so, the ban itself and every attempt at its enforcement would constitute a violation. Rather, the ban limits itself to the broadcasting of the information actually testified. Had Brault testified, 'I allege corruption at the highest levels of the Liberal Party,' Neale would be in contempt. But characterizing the information is of a different degree, if not an entirely different character (and I think it may be of a fundamentally different character), than the broadcasting of the information itself.

Regarding the second question - whether a hyperlink constitutes a broadcast - I'm going to hold off; this post is long enough, and that's a subject that deserves some consideration.

MORE (13:50 CDT): Colby Cosh, who has a much firmer basis in Canadian law, discusses the issue here.

UPDATE (14:30 CDT): In my original analysis I overlooked the fact that Justice Gomery himself provides a potential definition of 'information' in the context of Section 486(4.9): 'the testimony of Jean S. Brault... and any written evidence presented or referred to during their depositions, or any representations by counsel with respect thereto....'

To restate, then, substituting Gomery's specific definition for the broader language of the Criminal Code, the ban that applies to Neale - and by extension to all bloggers - is as follows: A Canadian may not 'post[] on the Internet' any 'testimony of Jean S. Brault,' 'any written evidence presented or referred to during [his] deposition[], or any representations by counsel with respect thereto.'

Again, Neale's substantive post was as follows: 'UNCONFIRMED SOURCE: GOMERY WITNESS ALLEGES CORRUPTION AT THE HIGHEST LEVEL OF LIBERAL PARTY' Note, for what it's worth, that Gomery doesn't prohibit the broadcast of private representations of testimony. Neale is only in breach if that sentence can be said to be the 'testimony of Jean S. Brault.'

Can it? I shouldn't think so. One who reads only that sentence (or indeed, this entire post) would have no idea of the activity that constituted the corruption at the highest level of the Liberal Party. Again, if Brault testified that "I allege corruption at the highest level of the Liberal Party," then Neale would have been broadcasting the testimony of Brault. But without a mention of the substantive issues that make Liberal activity corrupt, Neale cannot fairly be said to be broadcasting Brault's commission testimony. Simply put, holding Neale in contempt would establish a criminal liability for calling the Liberal Party corrupt.

MORE (16:28 CDT): Now I'm all mixed up. Gomery says that he uses the term 'publication ban' as it's used in Part XV of the Criminal Code, Section (4.9). But the term 'publication ban' in Section (4.9) - and indeed, in Section (4) generally - applies only to information that would identify the party seeking privilege. The 'publication ban' of Section (4.9) does not apply to the testimony of that party at trial.

Gomery specifically cites the language of (4.9)(b), which says - in full - '[no person shall publish in any document or broadcast in any way] any evidence taken, information given, or submissions made at a hearing under subsection (4.6).'

As any of my law professors would ask, what does subsection (4.6) say? 'The judge or justice may hold a hearing to determine whether an order under subsection (4.1) should be made, and the hearing may be in private.'

And what does subsection (4.1) say? 'A judge or justice may, in any proceedings against an accused other than in respect of an offence set out in subsection (3), make an order directing that the identity of a victim or witness -- or, in the case of an offence referred to in subsection (4.11), the identity of a justice system participant who is involved in the proceedings -- or any information that could disclose their identity, shall not be published in any document or broadcast in any way, if the judge or justice is satisfied that the order is necessary for the proper administration of justice.'

In other words, the 'hearing' language cited by Justice Gomery refers in the statute to a hearing held to determine whether a privilege should be granted to the participant in a trial for the purpose of protecting that participant's identity. The 'evidence taken, information given or submissions made' language refers to the substantive elements of such a hearing.

But Gomery notes that 'in this case, ['hearing' means] a hearing of the Commission.' He does not otherwise qualify the citation.

Does that mean that Gomery meant only to privilege the identity of the parties protected, and not their testimony itself? That seems hard to understand, given Gomery's later statement that "the sole issue which remains to be decided is whether or not there should be a publication ban with respect to the testimony of the applicants."

But then why the reference to Section (4.9) at all? I may be misreading the statute - but I don't think so. And my reading of the statute certainly corresponds to the generally observed practice in public trials involving, for instance, minor defendants, where the details are published in the press while the identities of the parties are not.

If Section (4.9) really does apply, as Gomery seems to suggest by explicitly invoking it in his ruling, then publishing the details of the testimony by one of the three privileged witnesses - namely, Jean S. Brault, Paul Coffin and Joseph Charles Guité - would be legal, while publishing any information that would identify which of the three gave the testimony would not. So are we all wrong - or was Gomery, a fine Justice, just a little sloppy? Or, more likely, am I misreading his order, or the statute, or both? I'm open, as always, to comments: mader-at-maderblog-dot-com.

UPDATE (20:11 CDT): A couple more pieces of interest. First, an article from the Toronto Sun contains this quote from Francois Perreault, spokesman for the inquiry: "Anyone who takes that information and diffuses it is liable to be charged with contempt of court.... Anybody who reproduces it is at risk." As to the second statement, Perreault's take on the law is uncontroversial. But his statement that the 'diffus[ion]' of the information is illegal is not so clear-cut.

The plain-language meaning of 'diffuse' is "to pour out and permit or cause to spread freely." If Perrault was choosing his words carefully, then he seems to be asserting that simply permitting the privileged information (whatever that is) to spread, without actually affirmatively causing it to be spread, would be contrary to the ban. But note that the term used by Gomery is 'broadcast,' which can be commonly defined as 'to make widely known.' That's a much more affirmative act (compare 'to allow to be made widely known').

So the question for bloggers remains: does posting a link - undoubtedly an affirmative act under Justice Gomery's definition - which does not in its terms disclose any privileged information but which directs a reader to a source that does disclose such information constitute a 'broadcast' of such information under the ban? The Commission obviously feels that it does, and the argument isn't half bad. But it needn't be the only approach.

Second, Tim Worstall notes that in many Common Law jurisdictions, an electronic document is understood to be published (and so subject to jurisdiction) where it is read, not where it is written. Even though I'm in Texas and my host is in Florida, I am subject to Canadian jurisdiction because (among other reasons) this web-page is being read in Canada.

Posted by David Mader at 09:28 AM | Back to Main

For Shame

On Thursday, Jean Brault testified at the Gomery commission. His damning testimony was leaked to Ed Morrissey, who posted highlights on his blog. (See here for a round-up of Morrisey's posts). Brian Neale, proprietor of NealeNews, linked to Morrissey's blog.

Now Neale is being threatened with a contempt-of-court action for violating the publication ban on the testimony. Morrissey is, of course, entirely outside of the jurisdiction of the Canadian courts; and Neale did no more than to link to Morrissey's 100% legal weblog posting, without reproducing any part of the banned testimony.

If there were a Canadian conservative movement with money, this would present a wonderful test case which would force the Canadian courts - and the Canadian polity - to finally confront the information age. But there is no such movement; and Neale has, quite rationally, responded to protect himself from the strong-arming of the militant wing of the Liberal Party.

Shame, shame on that decrepit country I once called home. Whatever the merits of the publication ban - and I fully recognize that such a ban may have its merits - its breach renders the exercise in controlling information absurd; and yet the Canadian government fearlessly wades out into the waters, shouting at the waves to cease their motion, castigating any who would dare to criticize, and becoming ever more ridiculous in the eyes of the world.

ON THE OTHER HAND (10:37 CDST): I may be reconsidering. I'm not sure if the publication ban appliess to Neale - see my analysis above - but if it does, then my position on a reporter's privilege would generally compel me to favor liability for the breach. More soon.

Posted by David Mader at 09:00 AM | Back to Main

April 03, 2005

An End to Double-Jeopardy

The Telegraph reports:

The 800-year-old "double jeopardy" rule, which prevented anyone being tried twice for the same crime, has been largely abolished for serious cases under changes taking effect in England and Wales today.

Where there is "new and compelling evidence" pointing to a former accused's guilt, the Court of Appeal will now be able to quash an acquittal and order a re-trial.

The changes will apply retrospectively, so that people who have been cleared of offences ranging from murder to drug dealing may now find themselves back in the dock if new DNA evidence, further witnesses or a reliable confession come to light.

Double jeopardy is thought to date back at least to the Magna Carta, and has been widely copied in legal systems around the world.

The strength of an unwritten Constitution depends on the responsibility of its keepers, and unfortunately Tony Blair, otherwise an admirable man, has proven to be an entirely irresponsible keeper of the British Constitution. His seems to be an 'end of history' approach to Britain's pedigreed democratic institutions. These were institutions born in direct response to tyranny, and they are being set aside by those who honestly believe, I think, that tyranny - actual, brutal tyranny - is simply not a possibility anymore. To such minds, the government is and can only be a force for good; and the protections of individual liberty become obstacles to the delivery of beneficial government services. But of course, having razed all the hedges in Britain, the good people of those storied isles will have nowhere to hide from the devil.

And the devil remains.

Posted by David Mader at 09:28 PM | Back to Main

I Was Going to Ask the Same Thing

But Kelly beat me to it. And the answer is yes.

The cross should stay purple until the next pope is elected, so we should be seeing some more photos of the unusual Montreal skyline.

And by the by, put that into your separation-of-church-and-state pipe and smoke it.

Posted by David Mader at 10:54 AM | Back to Main