But the National Council of Canadian Muslims’ (NCCM) lawyer says he expects Harper will be questioned, as he remains a party in the organization’s case against him and his director of communications, Jason MacDonald.
In a statement of defence filed June 24, lawyers representing Harper argued he should not be named in a lawsuit filed by the NCCM against him, MacDonald and the Crown.
“Prime Minister Harper is not vicariously liable for the actions of staff members in his office,” read the statement.
In the statement, Harper and MacDonald’s lawyer, Peter Downard, called for the dismissal of the NCCM’s case.
In January, the NCCM wrote an open letter criticizing the inclusion of a controversial rabbi – Daniel Korobkin – in Harper’s delegation for his trip to the Middle East. MacDonald responded by saying to Sun News Network, “We will not take seriously criticism from an organization with documented ties to a terrorist organization such as Hamas.” The NCCM loudly denied MacDonald’s claim and demanded a public apology and retraction from him and Harper.
After failing to get an apology or retraction, the NCCM filed a statement of claim in the Ontario Superior Court of Justice in April accusing MacDonald of acting maliciously when he accused the organization of having ties to the militant group Hamas. In the statement, the NCCM’s lawyer, Jeff Saikaley, said the organization had a public record of consistently condemning terrorism and denouncing terrorist groups including Hamas and al-Qaeda. It claimed MacDonald purposely ignored those facts and made no effort to contact the NCCM to verify his claims.
In response to the NCCM’s claims, the statement of defence pointed out that Harper did not “publish”, nor “participate in, direct, authorize or approve the publication” of MacDonald’s statement.
The statement highlights that it was MacDonald who responded to the NCCM’s criticism. However, it also notes that “MacDonald made this statement and honesty in good faith” and that, as outlined in law, he has the right to a “privileged response” to the criticism as a matter of public interest.
“Jason MacDonald’s response was, in effect, that the NCCM was in no position to make such an extreme criticism on the basis of an association between the Prime Minister’s Government and Rabbi Korobkin when there was documentary evidence that the NCCM was an organization that had ties to Hamas. He offered, in effect, the familiar defence that the NCCM was throwing stones when it lived in a glass house,” read the statement.
The statement of defence goes into great detail backing up MacDonald’s claim that the NCCM has documented ties to Hamas.
In sum, Downard cites a 2007 court case, U.S.A. v. Holy Land, which charged the Holy Land Foundation for Relief and Development, a large Islamic charity in the U.S., with providing “material support” to Hamas. That same year, the U.S. government filed with a district court in Texas a list of unindicted co-conspirators in U.S.A. v. Holy Land, of which the the Council on American-Islamic Relations (CAIR) was listed. The statement claims that CAIR-Canada, which later changed its name to the NCCM, was “closely associated” with CAIR in the U.S. However, as outlined in the NCCM’s reply to the defence, CAIR was never charged.
“The 2007 U.S.A. v. Holy Land Foundation case has no relevance to the conduct of the NCCM as a federal Canadian corporation,” read the reply. “No allegation of unlawful activity was ever made against CAIR.”
Downard’s statement of defence denies that the NCCM’s reputation was damaged as a result of MacDonald’s comments. And, even if damages were incurred, Downard argues that the NCCM would have mitigated those through a number of “widely publicized media campaigns” responding to MacDonald’s comments. Those campaigns, Downard claims, included an NCCM press conference on Jan. 28 publicizing their notice of libel and media interviews, where the organization repeatedly republished MacDonald’s comments.
“The NCCM has republished the words complained of to an extent vastly greater than the extent of the original publication of words,” read the statement of defence.
In its reply to the defence July 10, the NCCM said it was forced to publicly deny MacDonald’s “defamatory words … in order to mitigate its damages.”
As the case moves forward, there is still a possibility Harper could be called to the stand, as he is listed in the NCCM’s reply to the statement of defence. In that reply, the NCCM claimed that MacDonald was speaking for Harper when he made the comments against the council and, thus, Harper is liable.
“Mr. MacDonald’s response to the media indicated that he was speaking on behalf of himself and the Prime Minister. As such, the Prime Minister is vicariously liable for the acts of his employee and/or agent Mr. MacDonald,” read the reply.
In an email to iPolitics, Saikaley said he expects Harper will be examined. He noted the parliamentary privilege rule that prevents him from being examined in the 40 days before and after a Parliamentary session.
There have also been questions of whether Harper will be called to testify in another high-profile case — against suspended Senator Mike Duffy, who has been charged by the RCMP with 31 counts related to his Senate expense claims. While the Prime Minister’s Office has said it would be “difficult to imagine” why Harper would testify in the Duffy trial, the suspended senator’s lawyer has not ruled out calling the prime minister to the stand.
Talk of potential testimony from the prime minister comes just over a year before the legislated federal election date of Oct. 19, 2015.
The venue for the NCCM trial has also been a subject of debate in the court documents. In the statement of claim, Saikaley appears to have originally suggested the case be tried in Ottawa. But, in the official submission to the courts, the typed words “City of Ottawa” are struck out and replaced with “Village of L’Original” in handwriting.
While Saikaley refused to comment on the choice of venue for the trial, other lawyers said the case would likely go to trial faster in L’Orignal, which is located near Hawkesbury, Ont., than Ottawa.
In the statement of defence, Downard objected to the trial in L’Orignal, saying the appropriate venue for the trail is Ottawa.
Looking ahead, Saikaley said the examinations for discovery are next. Although there is no deadline set, he said he is hoping the examinations are scheduled this fall.
The NCCM describes itself a a “federally incorporated, independent, non-partisan, non-profit organization working for fourteen years in the area of human rights and civil liberties, media relations and public advocacy on behalf of Canadian Muslims.” It claims to have intervened in landmark cases at the Supreme Court of Canada and participated in major commissions of public inquiry.
Original Article
Source: ipolitics.ca/
Author: Michelle Zilio
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