Globe and Mail

Black's action could kick up political dust

Saturday, August 7, 1999
The Globe and Mail

Newspaper proprietor Conrad Black may have a dubious legal case regarding his blocked peerage, but he might have found a way to use the civil court process to create some political embarrassment for Prime Minister Jean Chrétien. That could backfire, however, if the newspaper magnate cannot prove his allegations of political spite. The suit has some similarities to the approach adopted by former prime minister Brian Mulroney in the Airbus case, attempting to use the civil-court process to address some negative government move that they could not get at directly.

The unofficial first reaction in Ottawa is that the would-be peer has launched a classic harassment suit to seek balm for a damaged ego and vindication for some transitory embarrassment. But it could become a scorched-earth move, if Mr. Black had any hopes the Canadian government would reverse its policy while Mr. Chrétien is in power. When rumours that Mr. Black was considering legal action against Mr. Chrétien began to filter through official Ottawa at the end of June they were dismissed as the excess of wounded pride.

Government legal advisers didn't believe Mr. Black would follow through with his threat because of how it would reflect on himself, and in any event were convinced Mr. Chrétien was acting within the government's policy framework. Moreover, government-to-government communications such as the Canada-Britain discussion about the Black peerage are normally considered beyond the reach of civil action.

Some of the diplomats involved in the transactions scoffed that Prime Minister Tony Blair was legally free to proceed with the Black nomination to the House of Lords had he wished, but chose not to out of courtesy to Canada. They certainly didn't see it as grist for a civil-damages suit.

The filing of Mr. Black's statement of claim in the Ontario Superior Court this week may not have changed those initial political optics but it has forced Mr. Chrétien and the government to formally respond.

Still being decided is whether Mr. Chrétien's lawyers or the Justice Department will try to have the suit tossed out by claiming Crown immunity or whether it will be contested on a civil basis.

But a distillation of the best legal advice I could find on short notice is that it would be a real stretch for any court to find that Mr. Chrétien's actions in failing to concur with the British government request were comparable to the successful case against the late Quebec premier Maurice Duplessis -- the Roncarelli case -- the precedent for political malfeasance that Mr. Black's case is based on.

In 1946, Montreal restauranteur Frank Roncarelli was denied a liquor licence in reprisal for his support of the Jehovah's Witnesses religious sect, whose members had been charged with sedition. The court found that Mr. Duplessis had pressed a subordinate to take irrelevant considerations (the Jehovah's Witnesses support) into account in determining the licence.

Strictly applied to the Black case, it suggests that somehow the Queen was a subordinate to Mr. Chrétien and subject to undue pressure from him on her judgment about peerages.

To get a judgment against the Prime Minister (including damages, although everybody agrees the claim of $25,000 is not the real object of the suit), Mr. Black will have to show that Mr. Chrétien has committed some civil wrong, such as a libel.

Even if a civil wrong cannot be proven, Mr. Black's lawyers could have a heyday in searching for political embarrassments through the process known as examination for discovery. They could subpoena witnesses, including Mr. Chrétien, and demand all sorts of documents and communications.

Of course, Mr. Black would get his day in court and be able to repeat allegations that Mr. Chrétien's decision was politically influenced, namely because of the coverage he did not like in National Post.

Again, if the government lawyers lose the Crown privilege argument to have the case stopped, then the civil process may produce intriguing glimpses of how the government of Canada reacted when it received the British government request for concurrence.

Did the honours committee , a group of middle-level civil servants from Foreign Affairs, the Privy Council Office and the Governor-General's staff initially screw up? How could they have received and dealt with such a politically sensitive request without bouncing it upstairs? That is what senior officials in both the PCO and the Prime Minister's Office maintain.

And will the discovery process put Mr. Black's old friend, Roy MacLaren, the Canadian High Commissioner in London, on the spot. According to Mr. Black's statement, Mr. MacLaren assured him there would be no problems if he obtained British citizenship.

Is it conceivable a Canadian high commissioner would give such an assurance without checking with the Department of Foreign Affairs? There has to be a paper trail somewhere.

While the Black suit is unlikely to change the final outcome of his safari toward the House of Lords, it could produce a lot of political buzz along the route.

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