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Tuesday, March 11, 2014

The Levant defamation trial's testimony phase ends on a subdued note

And on the seventh trial day, the testimony phase of the defamation suit brought by former Canadian Islamic Congress activist against Sun News host Ezra Levant is at last complete. Six and a half days of painstaking examination of witnesses and contentious and contradictory submissions ended, and will resume for a final session on April 7, at which time the litigants' attorneys will make their closing summations.

The intervening time will allow the attorneys for Khurram Awan, the plaintiff and Ezra Levant, the defendant, to send correspondence to the judge to argue about the admissibility of evidence that emerged during Mr. Levant's testimony but was not entered during the requisite discovery and pre-trial period.

One of those matters of contention is the fact that Khurram Awan referred to himself as the complainant in Human Rights Tribunal cases dealing with a Mark Steyn article critical of radical Islam in Macleans magazine.  Levant referenced that in his testimony, discussing the occasion when Awan made such a statement on TVO's The Agenda.

The relevance of that is that Levant accused Awan of being in a conflict-of-interest in being attorney, complainant and witness in the British Columbia Human Rights Tribunal case dealing with the same matter. Though Awan was not the complainant in that latter case, the wording of the complaint was virtually identical to the Ontario complaint.

On the TVO broadcast, Awan and his two colleagues were introduced by the show's host Steve Paikin as the complainants in the Ontario Human Rights case against Macleans, and none of them, who were sitting right there, differed. Awan in particular was continually interrupting Paikin during the broadcast, so it is unlikely that he would not have spoken out if he objected to that characterization. But more conclusive is the fact that Awan explicitly referred, on more than one occasion, to their filing the complaints (plural). Awan's attorney did not appear pleased about Levant discussing that broadcast, which had not been introduced during the earlier window as evidence for the defense.

Add to that a recently discovered obscure posting (not discussed in court) on the Canadian Islamic Congress' own website. It is a letter signed by Faisal Joseph, the antisemtic organization's counsel who represented them in the complaint against Macleans before the British Columbia Human Rights Commission and who was a witness in the current Levant trial. Awan has insisted in court he was not the complainant, but only a witness in that hearing, and yet in the letter, which is an offer to settle, Awan is indeed listed as one of the complainants

The final day of testimony saw both Mr. Levant and Mr. Awan re-examined, and compared to some of the fireworks in the preceding days of the trial, it was a relatively subdued conclusion. However there were some rather interesting points raised during the re-examination of Mr. Awan by Levant's attorney, Iain MacKinnon.

Today, as in days earlier, Awan again tried to distance himself from his old Canadian Islamic Congress boss, Mohamed Elmasry.  For those familiar with the facts, that distancing effort was a severe strain on Awan's credibility, such as it is.

As a reminder, Awan was the Youth President of the CIC while its founder, Elmasry, was its head. The CIC is hardly a gigantic organization. it has and had only a handful of permanent staffers, and any reasonable person could draw obvious inferences about whether or not the Youth President of that small organization would have substantial dealings with the President.  Though Awan has claimed he was unaware of the antisemitic stances of the CIC, he was its Youth President shortly after Elmasry, as its head, had become nationally infamous for declaring, on television in 2004, that he believed any Israeli civilian over the age of 18 was a valid target for murder while excusing terrorist suicide bombings as "a means to an end."

There was more testimony today that was as plausible as Awan's denial that he was unaware of the antisemitic support for terrorist groups by the CIC, for which he served as a political advocacy organizer. In court today, Awan denied that he was close to Elmasry despite agreeing to introduce his former alleged mentor at a fundraising event for the latter's news magazine website, The Canadian Charger. The fundraiser occurred after Awan launched the Human Rights complaint against Macleans. Elmasry founded, and is the most prolific editorialist for The Canadian Charger, which is a disreputable hub of antisemitism and deranged 9-11 conspiracy theories, and was described in court by Awan as "progressive media."

Awan also gave conflicting evidence today about whether Elmasry knew if his former associate was providing legal advice to the tiny media outlet headed by the antisemitic former CIC boss. To get a notion of the small size and scope of The Canadian Charger, despite its fundraising efforts,  its current global Alexa ranking is approximately 5,200,000 which suggests it gets only about 200 unique visitors a day or less.  This blog, which I run as a hobby, is ranked substantially higher at about 1,000,000.

In the witness stand, Awan claimed that he was unaware whether Elmasry, the head of a rinky-dink website, knew that his old underling was providing legal advice about lawsuits The Canadian Charger was facing. But later, under questioning from Mr. MacKinnon, Awan confessed he sent a letter he had signed to Elmasry about one of those suits.

The final arguments will be made before the judge by the opposing counsel on April 7. Madam Justice Matheson has conducted the proceedings in an exceptionally efficient manner, and again today demonstrated a better grasp of the issues and testimony than either of the litigants or their counsel.  Her decision, when it comes some weeks after the final submissions, will have much to consider.

Among the notable components to this unusual lawsuit is that lawyers and judges tend to have antipathy for their colleagues who accuse each other of improper behavior except in the most extreme and blatant of circumstances. The legal profession is a relatively tight-knit community and it functions on the basis of its members operating in good faith.  When one of them is brought into disrepute, it is seen as diminishing the profession as a whole. Ezra Levant is someone who is well known for shooting from the lip, and his accusing Khurran Awan, an attorney, of being a liar is not widely viewed as beneficial to the Canadian legal establishment.

On the other hand, if there is one thing that incurs the wrath of judges more than anything else, it is a witness who lies and mangles the truth under oath. That animus is even greater when the perpetrator is an Officer of the Court, from whom a higher standard than of the general public is expected. Should Madam Justice Matheson determine that the plaintiff, Mr. Awan, has been fast and loose with the truth, her decision could easily swing towards the defendant.

We will now have to wait a few months to see which way that pendulum swings.

 (Post updated March 12)


1 comment:

Cary Macleod said...

For the Update

Ezra Levant once again lost a libel case against him.

Excerts from the ruling of Justice Wendy Matheson
"The defendant makes a general assertion that none of the words complained of were defamatory due to the defendant's reputation,"
"There is, however, ample evidence before me demonstrating express malice on the part of the defendant."
"He did little or no fact-checking regarding the posts complained of, either before or after their publication....and with one exception, when he learned that he got his facts wrong, he made no corrections,"

Matheson found that Levant's "dominant motive" in the blog posts was "ill will."
She also found that he demonstrated a "reckless disregard for the truth."

It has been a year and Ezra Levant's claim of filing of appeal have not occurred.

He has never won a lawsuit when accused of libel.
He has made out of court settlements, where he retracted and apologized for his comments and stating they were not based in fact

All the best