Canadaland SLAPPed Down in Scathing Rebuke

A couple of weeks ago, I sat in a courtroom at Osgoode Hall in Toronto and watched some of the best defamation lawyers in Canada pick through Canadaland’s reporting of WE Charity. Being lawyers, they were laser-focused on picking at what would seem to be a real human as arcane nits. But in law, it was a skillful dissection of a grotesque injustice that was done to an old lady who couldn’t fight back without resorting to the courts.

Theresa Kielburger, a retired school teacher with an astonishing work ethic that she passed to her sons, sat near me. She was obviously distressed. Sometimes, she seemed like she wanted to stand up and tell her story to the judge. Many law clients feel that way, believing a fair judge would understand if the story was explained simply and clearly, rather than by people in robes.

Will McDowell and Peter Downard are brilliant lawyers. McDowell worked at the centre of power in Ottawa before returning to Toronto to be a senior litigator with a prestigious firm. Peter Downard literally wrote the textbook on libel in Canada and, ironically, had a role in creating the very anti-SLAPP law being argued in that historic courthouse.

I believe Mrs. Kielburger wanted to speak because, until that day, her side of a series of grotesque, cruel and false accusations had not been heard in public. In Canadaland’s “White Saviors” program (“saviors” being spelled the American way to increase foreign interest in Canadaland and foreign damage to WE and the Kielburger family), Mrs. Kielburger was accused of diverting donations to Free the Children.

The podcast repeated a libel that appeared in a Saturday Night magazine article written by Isabel Vincent in 1996. For decades, Saturday Night was a prestigious, if somewhat safe publication, but in the 1990s, it was bought by Conrad Black. He wanted to breathe some much-needed life into the magazine and save it from the slow death that seemed imminent. Black hired Ken Whyte, who tried to make Saturday Night relevant by making it edgy and confrontational. Maybe it was a good idea, but it didn’t work. (Whyte did the same than at Maclean’s with the same result: alienating old readers without attracting new ones).

The Saturday Night article portrayed Mrs. Kielburger as a puppeteer, using her son in a campaign that generated hefty donations and fat speaking fees. It was a weird take. There was nothing in the piece that showed Mrs. Kielburger created Free the Children and the Criag Kielburger phenomenon. She acted as a mother of any pre-teen would, physically and emotionally protecting her son as he was swept up by the media and the public.

But to really nail down the whole mom-as-Svengali story arc, Vincent added a few non-facts to the piece. She said donations and fees were going into the family bank account. They weren’t. The Ontario Federation of Labour was handling the money. When that issue of Saturday Night came out, senior OFL people and the union’s accountant wrote to the magazine to set the record straight. The Kielburgers asked for a retraction. They were ignored. So Craig Kielburger, represented by a legal guardian, sued the magazine. Eventually, they settled out of court for about as much as the family would have received if the case had gone to trial.

They used the money to pay their lawyers, put the rest in a trust that Craig was to receive when he was 18 (he donated the money to WE), Isabel Vincent ended up at the tabloid New York Post and Saturday Night was eventually put out of its misery.

Which is where things would have remained if Jesse Brown hadn’t begun his campaign against WE Charity, first with a string of ludicrous articles that were mixtures of tortured facts and bad arguments, then with his White Saviors podcasts. Both were the showpieces of Canadaland fundraising drives. White Saviors started with an episode suggesting WE was always financially sketchy. This was the foundation of the thesis of the entire podcast series: that WE was a scam created to enrich the Kielburgers personally.

The White Saviors podcast repeated all the falsehoods in the Saturday Night piece. Isabel Vincent was trotted out to say the magazine didn’t lose the lawsuit since it settled out of court. Brown used that as a foundation to say there was probably something to the claims about diverted money, but the magazine was just too cheap to go to trial.

Canadaland’s reporters knew about the OFL and accountant letters from 1996 clearing Ms. Kielburger, but this fact wasn’t mentioned in the podcast. Mrs. Kielburger sued Canadaland, Jesse Brown, reporter Jaren Kerr (who had since been hired by the Globe and Mail to contribute to their hatchet job attacks on WE)¸ Canadaland’s news editor Jonathon Goldsbie, Olusola Adeogun, a narrator with a heavy East African accent who was never heard from again on Canadaland, Vincent, and several others connected with the making of the broadcast.

Canadaland responded by filing a motion under Sec. 137. of the Courts of Justice Act (Ontario). This law allows a judge to throw out a case if the defence can show it was a lawsuit with minimal merit meant to stifle debate on a matter of public interest. This law has become the main hurdle in defamation actions. I’ve argued two of these in court (one win, one loss) and worked on several more. Cases in the political sphere where there’s something resembling a defence are likely to be tossed under this law.

I’ve mentioned Mrs. Kielburger’s lawyers. It’s also important to know that Canadaland and Isabel Vincent also had superb counsel (Brendan Hughes for Canadland and Iain McKinnon for Vicent) who did about as much as any lawyer could with the case they had. Justice E.M. Morgan was unreadable, and I was unsure about the outcome when I left the courtroom.

Justice Morgan worked fast. I would not like to play poker with this man. He was able to hide the fact that he clearly rejected Canadaland’s case and had no time for the shoddy reporting of Brown and his shabby team.

Justice Morgan ruled the case must go to trial, finding “…there is substantial merit in the claim against Brown and Canadaland...” and “…there is no reason to believe that Brown and Canadaland have any valid defence.”

He also wrote: “The Plaintiff’s testimony in this respect was credible and impactful. It was especially poignant in comparison with the callous disregard of reputation and personal damage expressed by Brown toward the Plaintiff.”

And he addressed the cruelty of Canadaland’s owner: “…[F]rom Brown’s point of view the Plaintiff’s feelings are worth nothing; he was only concerned to cover himself and his company … The fact that he was speaking about the Plaintiff, and imposing personal pain on the Plaintiff by repeating an allegation about her that he was aware had been seriously contested, if not established as entirely false, was seen by him as irrelevant.”

And the judge went on to find: “Brown and Canadaland were aware of, but never mentioned, the accountant’s letter and the OFL’s letter that appear to disprove this allegation about where the funds were deposited. The Plaintiff has reason to believe that Brown, Canadaland, and its related Defendants have no defence of fair comment with respect to this statement.”

‍ Regarding Brown’s testimony when he was cross-examined on his affidavit for the SLAPP motion, Justice Morgan found: “The cynicism of Brown’s explanation not only accentuates the defamatory sting of his words, but could be considered high handed and oppressive …”

He said Brown hadn’t even tried to get Mrs. Kielburger’s side of the story.

The judge decided Vincent had been careful enough with her words that she should be dropped as a party in this lawsuit. Brown, the judge found, had fed her quotes and torqued her words to make them more sensational and damning. He’s not the first respected person to come to that conclusion. Kevin Donovan, the Toronto Star’s senior investigative reporter, worked with Brown on the investigation into allegations that Gian Ghomeshi had sexually assaulted several women. Donvan got rid of Brown after seeing his work and later said, "I think it's better to be right than to be first". (Donovan also left Brown’s name out of the acknowledgements section of the book he wrote on the case.)

This week’s decision, unless it’s successfully appealed, is a good indication of how this case will be decided at trial. It’s a crushing rebuke that would shake up any journalist who had some integrity, the kind of judicial reprimand that would end the careers of most journalists. Yet Kerr, Goldsbie and Brown still have jobs. No media outlets were at the hearing, none reported on the result. The only non-parties at the hearing were Goldsbie and me.

I suspect many editors have realized they made a gross mistake when they bullied WE Charity, heaped false accusations on it, and drove it from Canada. By now, they might recognize that the only winner in all this is the authoritarian Pierre Poilievre. But they’ve circled the wagons and have, essentially, imposed a news blackout on anything that might call their WE coverage into question. The losers are Canadian youth and the kids in Kenya who have less chance of getting an education because of the damage done to WE.

I see this entire scandal as a turning point in Canadian history. It’s a case study of the abject failure of Canada’s media and political clique that opened the door to what I expect to be a populist takeover of Canada. We will suffer the damage of this on our streets, in our courts, and in our environment. It will be a lesson in consequences. So I am writing a book about it.

Justice Morgan wrote: “A broadcaster’s duty of fairness extends to any and all targets of their broadcast, not only to those who had previously sued them.”

That’s something any decent broadcaster would already know.

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