Why political campaigns in B.C. are sometimes waged in court
Many Canadians are deeply suspicious of their politicians.
And once the level of mistrust passes a certain point, public support dissipates and sometimes, governments are thrown out of office.
So it's in a political party's self-interest to sow the seeds of mistrust during election campaigns.
It's why former Social Credit premier Bill Bennett used to say that the NDP leader of the day, the often amusing Dave Barrett, campaigns like Groucho Marx but would rule like Karl Marx, coauthor of The Communist Manifesto.
Or why former Vancouver mayor Larry Campbell repeatedly stated on the campaign trail in 2002 that NPA mayoral candidate Jennifer Clarke brought down her predecessor, Philip Owen.
Say these things often enough and the public accepts them as fact, even if they may not be true. Barrett and Clarke never filed defamation suits to counter these allegations.
More recently in the 2013 B.C. election, the Liberals and third-party groups repeatedly smeared then NDP leader Adrian Dix with U.S.-style attack ads, which made him appear self-serving and dishonest.
Dix didn't fight back against these ads, some of which could have been defamatory. And his party lost the election.
Mayor Gregor Robertson took his opponent to court
In 2014, however, Vision Vancouver didn't sit back as the NPA employed a similar tactic.
Mayor Gregor Robertson and Coun. Geoff Meggs filed a defamation suit against the NPA and its mayoral candidate, Kirk LaPointe, after he claimed that there was a corrupt agreement with a union.
The lawsuit stalled the NPA's momentum after LaPointe's demeanour changed somewhat. The NPA narrowly lost the election and the party ended up settling the case afterward.
In retrospect, it's clear that the defamation suit worked for Robertson and Meggs.
The NPA's allegations came after some neighbourhood groups had taken the city to court over its allegedly high-handed decision-making.
As a result, Vision Vancouver had to constantly fend off attacks during the campaign that it was arrogant and didn't listen to people in the community. There scent of corruption emanated from all of the legal actions.
These court actions buttressed the NPA's arguments on the campaign trail. But only one of those legal claims was upheld in court.
Allegations mount against B.C. Liberals
In the current provincial election, we're seeing something similar unfold.
Groups and individuals have filed legal actions over campaign contributions, a conflict commissioner's ruling involving the premier, and government advertising. Collectively, it all has the whiff of scandal. Certainly, the government ad campaign in advance of an election reeks of self-interest by the politicians in power.
Then there is an RCMP investigation of indirect political donations. That's on top of several special prosecutors having been appointed during the Christy Clark's tenure as premier. And there are conficting reports over whether the Mounties are investigating a B.C. Housing deal with a Vancouver development company.
Earlier this week, the Vancouver Sun stated flat-out on its front page that there is an investigation.
NDP housing critic David Eby has repeated that there is an RCMP investigation into the land deal.
However, veteran civic affairs reporter Frances Bula subsequently poured cold water on that claim over Twitter.
I have no way of knowing the truth.
I do know this, though: the Sun didn't mention in its story that the complainant to the RCMP, former civic candidate Glen Chernen, has a track record of losing court cases in which he's made serious allegations against developers and politicians.
In one such case, the chief justice of the B.C. Supreme Court ruled that Chernen and his fellow plaintiffs had abused the court process in tossing out a claim against Mayor Gregor Robertson's regarding his dealings with Hootsuite.
Unnamed sources provide a legal opening
The Sun story also cited an unnamed source in confirming that an RCMP probe was underway.
This is where things can get legally dicey.
In 2002, then B.C. Supreme Court justice Brenda Brown dealt with an application from a plaintiff in a libel suit against the Sun over a story involving two unnamed sources.
The plaintiff obtained a court order forcing the Sun to reveal the sources' identities. This was so that his lawyer could conduct examinations for discovery with his accusers.
The newspaper chose to settle the case rather than reveal the names of the sources.
In 2010, the Supreme Court of Canada clarified the legal landscape around anonymous sources in a case involving Globe and Mail reporter Daniel Leblanc.
It found that the courts must make decisions on a case-by-base basis and that "the relationship must originate in a confidence that the source’s identity will not be disclosed."
In addition, the Supreme Court of Canada ruled, "anonymity must be essential to the relationship in which the communication arises" and that "the relationship must be one that should be sedulously fostered in the public interest".
Finally, the court ruled, "the public interest served by protecting the identity of the informant must outweigh the public interest in getting at the truth". In other words, courts "must balance the importance of disclosure to the administration of justice against the public interest in maintaining journalist‑source confidentiality".
Could a libel suit be filed in this campaign?
There's nothing stopping the developer involved in the land deal, B.C. Housing officials, or even the minister responsible for B.C. Housing, Rich Coleman, from launching their own defamation suits to determine who told the Sun that an RCMP investigation was indeed underway.
If this were to occur, you can be sure that the Sun staff would be grilled on why they didn't include any mention of Chernen's legal history in their story.
Eby's decision to tweet that the Mounties are investigating has also left him vulnerable to being named as a defendant in such a lawsuit.
If Eby were sued, it remains to be seen what impact this would have on the B.C. NDP's willingness to deploy him as an attack dog against the B.C. Liberals.
Increasingly, it seems, the courts have become another venue in which political campaigns are being fought in this province.
If Eby is named in a lawsuit, he can rest assured that his party will cover any legal costs.
But just as LaPointe learned in 2014, these types of court actions can hamper one's effectiveness during a political campaign.
There hasn't been any litigation yet. And it's possible that the parties involved in the B.C. Housing deal have no appetite to subject themselves to a far-reaching legal examination of their own activities.
But if such is a case ever filed in court, one of the central questions will be if the Sun is willing to identify its anonymous source to defend itself. And it's an open question whether the Supreme Court of Canada ruling in the Leblanc case would provide enough legal cover for the newspaper to keep this information confidential.