Lawton and True North: 1. Canada: 0

I never thought I’d wind up in a battle against my own country, but for what it’s worth, they started it.

We finished it.

The Federal Court in Toronto heard Andrew James Lawton and True North Centre for Public Policy v. Canada (Leaders’ Debates Commission/Commission Des Debats Des Chefs) and Attorney General of Canada on Monday.

Or as the case will appear in court records, Lawton v. Canada, which has an oddly satisfying ring to it given events of the past few weeks.

It felt from the day True North’s and my stellar lawyer filed the case as though it was a David and Goliath story in the making. (Though I must admit by friend Mark Steyn thought Canada was the David in this analogy).

“In any showdown between you and the Dominion of Canada, a mere G7 and Nato member has to be accounted the underdog,” Steyn wrote to me.

He was right.

We won. Justin Trudeau’s government lost. Press freedom and freedom of speech were the real victors, however.

This whole case came about because the Leaders’ Debates Commission – a government agency set up to organize and run “independent” election debates, banned me from covering the debate for True North, a startup media outlet published by a registered charity, the True North Centre for Public Policy. Also banned were Keean Bexte and David Menzies of Rebel News, who filed a similar successful suit.

I applied on September 24th for accreditation – one day after the Government of Canada accreditation portal for the debates opened up. I heard nothing until October 4th, which was the last business day before the Monday debate. The rejection was a mere two sentences long. The reasoning was that True North, in the eyes of the Parliamentary Press Gallery, to which accreditation had somehow been outsourced, is “actively involved in advocacy.”

As I’ve noted in interviews and posted online, True North has no advocacy mandate. The charity’s sister organization, the True North Initiative does, but I have no role with it, nor does it have any role in the media division of the True North Centre for Public Policy. This may seem a bit confusing – my friend and True North’s founder Candice Malcolm’s column in Quillette offers more detail about the organizational structure, and how it’s not uncommon even in the mainstream media world.

Neither the Leaders’ Debates Commission nor Parliamentary Press Gallery asked any questions about this though. Had they done so, we could have easily cleared things up. No, they decided to drop the hammer on my coverage plans, which had been in the works for nearly two months, in the eleventh hour so no challenge or appeal would even have been possible.

So we did the only thing we could do by filing for an emergency injunction, which was granted after a hearing of less than 90 minutes, in which the presiding judge not only recognized True North and I as producers of journalism, but also accepted that we would be irreparably harmed, as would Rebel, by exclusion from a debate funded by Canadians for the benefit of Canadians.

I would have loved to have been in the courtroom, where our lawyer, Jessica Kuredjian, delivered a stellar case by the accounts of those present (and by the result). But I was following it all on Twitter from my hotel room in Ottawa, ready to get to the leaders’ debate in Gatineau on a moment’s notice in the event our case succeeded. Spoiler alert: it did.

The judge delivered his finding at about 4:45pm. Within 15 minutes I was in a car on the way to the debate location, where my press credentials were being printed off.

I can’t overstate that this was a team effort. Our lawyer worked all-nighters through the weekend to meet the federal government’s arbitrary timeline demands. Malcolm exhibited immense confidence in my journalistic credentials by deciding True North would take a stand and fight this. Our legal bills cleared $20,000. Had we not been successful and had the judge not awarded costs, we would have been on the hook for that as an organization. Malcolm put up a hefty sum of her own money to kickstart the case.

I must also thank donors from across Canada and as far away as the United States and Australia for believing in our fight as well.

My role in the case was a small one – albeit I have the honour of going down in the law books as the one who took on Canada. As much as I joke about it, I don’t take it lightly. I had minutes to decide whether I was comfortable putting my name on this case. I did so because I recognized instantly it was about something much bigger than me, and much bigger than True North. It is about the freedom for all journalists in Canada, and for those wishing to start their own ventures in a climate that’s inhospitable to traditional, legacy business models.

This is why I chose to use the first opportunity I’ve had in this campaign to formally pose a question to Prime Minister Justin Trudeau to challenge him on his commitment to press freedom.

Trudeau claims to be a stalwart defender of press freedom while his party has banned me from covering its campaign. His attorney general vigorously fought against our press freedom fight in court.

“This afternoon, a federal court judge ruled that I had a right to be here, to cover this debate as a journalist despite opposition from your Attorney General,” I said to Trudeau in the scrum. “This comes after two weeks of me being kicked out or not being allowed into your campaign rallies. The Conservatives have criticized you for being ‘not as advertised.’ You’ve advertised yourself as a champion of press freedom. Will you take a stand right now sir, as the leader of the Liberal party, and allow me to cover your campaign like every other journalist?”

“We are a party, and we are a country that respects journalistic rights and who respects the freedom of the press and we will continue to,” Trudeau said.

Even a day later I’ve no idea whether his answer to my question was yes or no. My attempt to get a clarification yielded a nearly identical response.

“We are a party and a country that respects the hard work and the freedom of the press, and we will continue to,” Trudeau said on the second go-round.

Well at least he changed a few words.

While most of the response to this exchange has been critical of Trudeau, a few in the mainstream media commentariat have criticized my question as being self-serving. I was asking to be treated like every other journalist who’s asked to cover the Liberals – a question that would have been unnecessary had the mainstream media been standing up for press freedom for all, as my media colleagues did a few months back at the Global Conference for Media Freedom in London.

I had to ask Justin Trudeau about his party’s opposition to my press freedom with the country watching, because this attitude will extend to other journalists if it isn’t exposed and challenged now. And by court order and the grace of God, I had an opportunity to do that Monday night.

Trudeau’s answer, if one can call it that, shreds his ability to blame staff or a miscommunication. He had an opportunity to right a wrong in front of a national audience and didn’t take it. Silence, as they say, is deafening.

Nothing changed. The day after the debate, the Liberals made their way to Iqaluit, in Canada’s north. I would have followed them there, but no commercial flights could get me there before his event. Instead, I caught up with the campaign Wednesday in Markham. Once again, I was told I couldn’t enter the supermarket for Trudeau’s announcement, because I’m not “accredited media.” Even with a court decision saying I am. My inquiries to the Liberals’ communications director went unanswered. Trudeau’s press secretaries briskly walked past me in Markham with no willingness to stop and explain why, still, I am persona non grata in their view.

Despite the undoubted victory in the Federal Court’s ruling, Trudeau’s evasion of my question and the Liberal party’s continued refusal to recognize my credentials underscored the main issue facing independent journalists in Canada: rights are meaningless if governments and politicians don’t respect them.

Trudeau proved that his laudatory words about journalists and press freedom only extend to those his party approves of, which defeats the purpose of a free press.

“Like the sword of Damocles”: Judge dismisses Michael Mann’s lawsuit against Tim Ball

A mere eight-and-a-half years after Penn State climatologist Michael Mann filed a lawsuit against Canadian professor Tim Ball, the case has been tossed out for its “inexcusable” delays.

Justice Christopher Giaschi of the Supreme Court of British Columbia issued his decision in Vancouver on Aug. 22, in response to an application to dismiss by Ball.

Based on his reasons, included in full below, the dismissal was ultimately justified by glacial pace at which the proceedings moved, and what the judge characterized as an absence of action by Mann’s team.

The judge noted several periods of inaction between the commencement of the action in March, 2011 and the date of his decision.

While Mann submitted four binders worth of documentation to combat the motion to dismiss, the judge found there was “no evidence from the plaintiff (Mann) explaining the delay.”

Giaschi said the “inordinate delay” was not excusable, and that it prejudiced justice.

An excerpt:

The evidence is that the defendant intended to call three witnesses at trial who would have provided evidence going to fair comment and malice. Those witnesses have now died. A fourth witness is no longer able to travel. Thus, in addition to finding that presumption of prejudice has not been rebutted, I also find that there has been actual prejudice to the defendant as a consequence of the delay.

Turning to the final factor, I have little hesitation in finding that, on balance, justice requires the action be dismissed. The parties are both in their eighties and Dr. Ball is in poor health. He has had this action hanging over his head like the sword of Damocles for eight years and he will need to wait until January 2021 before the matter proceeds to trial. That is a ten year delay from the original alleged defamatory statement. Other witnesses are also elderly or in poor health. The memories of all parties and witnesses will have faded by the time the matter goes to trial.

I find that, because of the delay, it will be difficult, if not impossible, for there to be a fair trial for the defendant.

The judge awarded Ball legal costs for the dismissal motion, and also the case itself.

Reasons for Dismissing Mann… by Andrew Lawton on Scribd

Maxime Bernier’s letter to debate commissioner David Johnston

The Leaders’ Debate Commission sent the first round of invitation to its two official leaders’ debates, including in it the leaders of the Conservative, Liberal, New Democratic, Green and Bloc Québecois parties. Absent from the invitation recipients was Maxime Bernier, leader of the People’s Party of Canada.

In his letter to Bernier, debate commissioner David Johnston requested information on three to five ridings in which the PPC believes it has a legitimate chance of victory, to satisfy the criterion that “candidates endorsed by the party have a legitimate chance to be elected in the general election in question.”

Today, Bernier sent this letter to Johnston, citing five ridings in which PPC candidates have considerable profile, as well as media monitoring findings showing more coverage of Bernier than of the Green and Bloc Québecois leaders, who were invited to the debate.

Maxime Bernier’s letter to debate commissioner David Johnston by Andrew Lawton on Scribd

Justice Committee recommends prosecuting “online hate” under human rights law

For background on section 13 and the justice committee’s online hate study, read this article of mine from earlier in June. To get a sense of how farcical the committee’s antics got during its proceedings, you may wish to read this piece.

After hearing from nearly five dozen witnesses over two months of meetings, the Canadian Parliament’s Standing Committee on Justice and Human Rights has tabled its report in the House of Commons.

The report from the Liberal-dominated committee lays out nine recommendations for Members of Parliament to adopt. Most notable is the implementation of a “civil remedy” to combat online hate, which the report acknowledges must first be defined in law.

The Conservatives have already taken aim at the report, charging its recommendations call for an “unacceptable violation” of free speech.

Recommendation 7 of the report:

That the Government of Canada develop a working group comprised of relevant stakeholders to establish a civil remedy for those who assert that their human rights have been violated under the Canadian Human Rights Act, irrespective of whether that violation happens online, in person, or in traditional print format. This remedy could take the form of reinstating the former section 13 of the Canadian Human Rights Act, or implementing a provision analogous to the previous section 13 within the Canadian Human Rights Act, which accounts for the prevalence of hatred on social media.

Only four of the dozens of witnesses who testified before the committee made preserving and protecting free speech a priority in their remarks, with a majority advocating a restoration of section 13, or a super-charged version of it that holds social media companies culpable for content posted online, as well as the people posting it.

Section 13 of the Canadian Human Rights Act, repealed during Stephen Harper’s government, allowed for the Canadian human rights commission and tribunal to prosecute online postings, though defendants did not have the same protections or rights afforded to them as those defending themselves in the criminal justice system.

The high standard Canadian criminal law sets for hate speech has caused activists on the left to seek a prosecutorial tool with a lower threshold, prompting the desire for the “civil remedy” sought by the committee’s report.

The report also calls on the government to “establish requirements for online platforms
and Internet service providers with regards to how they monitor and address
incidents of hate speech, and the need to remove all posts that would
constitute online hatred in a timely manner.”

This recommendation is particularly timely, given Canada’s democratic institutions minister, Karina Gould, said last week that the government was not averse to shutting down social media companies who don’t comply with government’s expectations when it comes to political content during the election.

The Conservative members of the committee pushed back against the report, with Conservative MP Michael Barrett arguing these recommendations do “not strike an appropriate balance” between dealing with extremism and protecting free speech.

“Measures like the restoration of section 13 of the Canadian Human Rights Act are an unacceptable violation of the freedom of speech rights of Canadians,” Barrett said.

Report embedded below:

Taking Action to End Online Hate by Andrew Lawton on Scribd

Michael Cooper’s words removed from justice committee’s transcript and audio record

The edited transcript of Michael Cooper's comments during a meeting of the parliamentary justice and human rights committee.

Every record has been destroyed or falsified, every book has been rewritten, every picture has been repainted, every statue and street and building has been renamed, every date has been altered. And that process is continuing day by day and minute by minute. History has stopped. Nothing exists except an endless present in which the Party is always right. I know, of course, that the past is falsified, but it would never be possible for me to prove it, even when I did the falsification myself. After the thing is done, no evidence ever remains. The only evidence is inside my own mind, and I don’t know with any certainty that any other human being shares my memories. Just in that one instance, in my whole life, I did possess actual concrete evidence after the event—years after it.

George Orwell, Nineteen Eighty-Four

If there was ever a time when silence was deafening, it’s now. If you listen to the audio recording of a justice committee meeting last week and it stops abruptly, there isn’t a problem with your internet connection. That silence is the product of a successful effort by Liberal politicians to literally censor the words of a colleague.

The censored words are those of Conservative MP Michael Cooper, who was ejected from the justice committee by Conservative leader Andrew Scheer. Cooper read an excerpt from the Christchurch killer’s manifesto to challenge a committee witness’ assertion that “conservative commentators” inspire mass violence.

But the attacks on Cooper, and the truth he spoke, went beyond political. As I wrote about last week, members of the House of Commons’ Standing Committee on Justice and Human Rights voted unanimously (with the Conservative members abstaining) to remove Cooper’s comments from the official record.

Not only were they removed from the transcript, pictured above. Even the raw audio feed of the testimony was retroactively edited, with silence replacing the offending words.

First, the stream goes dead when Cooper mentions Brenton Tarrant, the Christchurch killer, by name. It goes dead again as Cooper reads the section of the manifesto disproving the slanderous assertion made by witness Faisal Khan Suri.

I was in the committee room when the motion to censor and censure Cooper was passed, but it was still chilling to hear–or not hear, rather–the new “record” of that May 28 meeting.

You can listen to the updated version of history for yourself here, though I’ve embedded the relevant excerpt below.

As noted in the above Orwell quote, in the absence of an official record we’re left only with memories, fallible and unprovable as they are. Even when reporting on Cooper’s comments, no Canadian media outlet included them in full. At this point, no publicly accessible transcript of the exchange exists, with the exception of my own, below.

I manually transcribed this after the motion to censor Cooper was passed. Regretfully I didn’t have the forethought to download the audio myself.

Thank you, Mr. Chair. First of all, Mr. Suri, I take great umbrage with your defamatory comments to try to link conservatism with violent and extremist attacks. They have no foundation. They are defamatory. And they diminish your credibility as a witness.

Let me, Mr. Chair, read into the record the statement of Brenton Tarrant, who is responsible for the Christchurch massacre. He left a 74-page manifesto in which he stated “conservatism is corporatism in disguise. I want no part of it,” and, “The nation with the closest political and social values to my own is the People’s Republic of China.”

I certainly wouldn’t attempt to link Bernie Sanders to the individual who shot up Republican members of Congress and nearly fatally killed Congressman (Steve) Scalise. So you should be ashamed.

Michael Cooper, Conservative Member of Parliament, St. Albert–Edmonton, at a meeting of the House of Commons Standing Committee on Justice and Human Rights, May 28, 2019.