Globe and Mail

Black lawsuit a dangerous precedent, judge told

Bid to allow courts to review government decisions a 'slippery slope,' Chrétien's lawyer argues

MURRAY CAMPBELL
The Globe and Mail
Wednesday, November 10, 1999

Toronto -- The courts would be flooded with lawsuits by people unhappy with the government if Conrad Black's lawsuit against Prime Minister Jean Chrétien were allowed to proceed, Mr. Chrétien's lawyer says.

David Scott told Ontario Superior Court yesterday that it would be a "slippery slope" if policy decisions by government officials were open to judicial review.

"It would open up the courts to a floodgate of claims because every time the government exercised prerogative in the execution of policy someone is dissatisfied," he said. "That is the nature of government."

Mr. Scott told Chief Justice Patrick LeSage that Mr. Black's $25,000 abuse-of-power lawsuit against the Prime Minister over a thwarted appointment to the British House of Lords should be dismissed.

The courts cannot intervene in policy decisions that are not governed by a legal statute, he argued, pointing out that Mr. Chrétien's advice to the British government that Canadian citizens are prohibited from accepting foreign titles falls into that category.

Chief Justice LeSage reserved his decision after hearing 1½ days of arguments from Mr. Scott and from Mr. Black's lawyer, Alan Lenczner. He warned that "it may well be a little while" before he renders his judgment.

Mr. Scott said the case was "reasonably well presented all around." He predicted Chief Justice LeSage would have a difficult time coming to a judgment.

Mr. Black, whose holdings include the National Post, the Daily Telegraph in London and Canada's largest newspaper chain, Southam Inc., sued Mr. Chrétien in August, two months after the Prime Minister intervened to prevent Mr. Black's name from being included on the Queen's birthday honours list.

His statement of claim said unidentified federal officials told him he could receive the honour if he obtained British citizenship, which he did with the help of British Prime Minister Tony Blair.

Two days before Mr. Black was to receive his peerage, however, according to the statement of claim, Mr. Blair called to say that Mr. Chrétien had asked that the honour be withheld because it violated Canadian law.

In recommending against Mr. Black's peerage, the Prime Minister cited the so-called Nickle resolution, a 1919 motion by the House of Commons that asked the monarch not to confer titles upon Canadian citizens. He also later cited 1968 and 1988 policy documents that reiterate this position.

Mr. Lenczner argued that the Prime Minister ought to have known the Nickle resolution had no force of law and that attempting to use it to prevent a British citizen -- Mr. Black -- from receiving a title was an abuse of power.

Mr. Scott said Mr. Chrétien was simply exercising a prime ministerial prerogative in communicating with the British government. He characterized prerogatives as virtually any action that is not strictly defined by statute and said the courts have no role in reviewing such decisions.

Mr. Lenczner ridiculed that argument.

"Throwing up the word 'prerogative' does not stop a court from looking into it. Mr. Scott . . . says it's a prerogative, but you will not find a case in this example that says this is definitely a prerogative."

The dry, often arcane arguments this week over the precedent set by years of court rulings mask a legal battle in which the prestige of two powerful men is on the line.

Mr. Lenczner reiterated yesterday outside court that Mr. Black suffered pain and embarrassment when the peerage he was led to believe he would receive was snatched away at the last moment. He held out the hope that Mr. Black could still be appointed to the Lords if a court ruled in his favour.

A judicial review would almost certainly require Mr. Chrétien to explain his actions.

Mr. Lenczner refused to characterize the relations between his client and the Prime Minister, who have known each other for a long time. But he said Mr. Black could reasonably conclude from telephone conversations that Mr. Chrétien was upset about critical articles in the National Post.

Mr. Black's statement of claim suggests -- but does not explicitly state -- that Mr. Chrétien was motivated by articles in the Post that probed his role in federal grants in his Quebec constituency.

Mr. Lenczner said yesterday that the Prime Minister would have to testify if he wanted to disprove any malicious intent.

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