For the next little while I'll be live-tweeting the Federal Court of Canada hearing. We're suing Justin Trudeau's hand-picked debates commission for banning Rebel News reporters. Learn more (and help out!) at LetUsReport.com
This morning we've heard lawyers from Trudeau's debates commission and Trudeau's Justice Department. Last time there were literally five government lawyers milking the file -- they billed taxpayers $131,000 for a half-day censorship trial. Source: blacklocks.ca/failed-blackli…
After a short break, our Rebel News lawyers will be up. David Elmaleh was the advocate who spoke on our behalf last October, when we won our court injunction. Today he's arguing for a number of things, including against Trudeau's motion to throw the whole thing out.
David Elmaleh is up now. I think he's a very articulate speaker. Very eloquent, but not too flowery. Very clear. One of the best lawyers we've ever had.
Elmaleh says the standard for a dismissal at this stage requires an extremely weak case -- and clearly ours isn't that. He says the matter should go to a full hearing, not be dismissed today as Trudeau wants.
Elmaleh also says, even if the matter is "moot" -- because we got in last October -- the judicial review should still proceed because it is of national public importance that is a worthwhile judicial exercise.
The proper legal precedent is to have a hearing and to win on the merits -- dismissing a case without hearing it only for "clear" cases of impropriety.
Elmaleh points out that Trudeau's debates commission filed an appeal to our October victory after we had already been let in. They later abandoned the appeal. But at least for that period of time, they affirmed by their conduct that there was something to litigate.
"The debate commission is alive and well". It has no expiry date. It is a "proper legal entity" it is "being represented" today.
Judge: the commissioner's appointment is done. Is that relevant? Elmaleh: that doesn't detract from the ongoing powers of the debate commission.
Elmaleh: debate commission's executive director remains in place.
Elmaleh: commission's founding order uses language that the commission is perpetual -- it refers to "each election". It does not have a limit on it. (So it's not moot.)
Elmaleh: the leading case law to guide us is Borowski v. Canada. It's a two-step analysis.
1. Has the dispute disappeared?
2. If yes, should the court exercise its discretion to hear the case anyways?
1. Has the dispute disappeared?
2. If yes, should the court exercise its discretion to hear the case anyways?
Elmaleh: the crux of the dispute is alive and well. There is no concession by the government on anything.
Judge: what practical impact will this have if Parliament is able to change guidelines in the future? The criteria could change at the next election. Is the court going to be deciding anything that will have effect in the future?
Elmaleh: whether Parliament decides to change things in the future -- that could be said about any government board. But the fact is we do have a commission that's acting right now.
Elmaleh: the commission is silent on media accreditation. And even if it had suggestions, we have no idea if Parliament will act on any revisions at all.
Elmaleh: we have to deal with what is before the courts now. There is a commission with a legal mandate, with no end date.
Elmaleh: court has discretion to hear the case even if there is no live issue (which he does not admit). He cites Borowski v. Canada (the leading case at the Supreme Court).
The parties are adversarial, he says. There is materials before the courts. And even if a matter is moot, if should be heard if the same matter could arise again -- he's citing the Supreme Court.
Elmaleh: we have a decision here that is inherently in need of a review.
Elmaleh: the debate commission is "evasive of review" because it operates in such a tight timeline. So, if this judicial review doesn't happen now, the only remedy there will ever be is more emergency injunction applications.
Elmaleh refers to the Trudeau lawyer from the Justice Department at our emergency application back in October That Trudeau lawyer said last minute motions don't give the best legal results. But now they're saying they don't want a judicial review.
Elmaleh says he's not asking the court to do anything to preclude Parliament from weighing in on its own time.
Elmaleh now refers to another legal precedent, a New Brunswick case. Court there said it was an adversarial matter; of national importance; and the forum in question was "evasive of review" -- as in, there really isn't another, better way of reviewing the government's decisions.
Another case: Winnipeg Builders case. By the time the issue reached court, the strike had been settled. That's what "evasive of review" means -- something that happens so quickly, you can't get proper legal review of it in real time. Elmaleh says an election debates commish fits.
Elmaleh says we need a proper hearing with a proper record, with witnesses and cross-examination, etc. "At a time when media is playing a more vital role in Canadians' lives".
Judge jumps in to ask Elmaleh what remedy we are seeking. Judge says some of the relief we seek is not the kind that "section 18" permits. (Not sure what that section is.)
Elmaleh: Rebel News does not agree with Trudeau's position that we're seeking something irregular. (He says we're seeking 16 specific things.)
Elmaleh says you can ask for declaratory relief (e.g. a judge making certain statements). He says it's not "plain and obvious" that we won't win (which is the standard for dismissing a case now.)
Important point: Elmaleh points out that the commission still stands by its illegal decision, despite the Federal Court ruling last October. Which suggests that in fact they do need a judge to declare a few things to them!
Elmaleh: if today's judge has problems with particular relief sought, that's for the hearing judge to sort out. It's not a reason to dismiss the case without a hearing on the merits.
Elmaleh points out that Justice Zinn (the judge back in October) continuously referred to a hearing the future where matters would be more properly heard. Justice Zinn contemplated a hearing, not dismissed without a hearing.
Elmaleh wraps up for Rebel News. Lisa Bildy is a lawyer for our friends at True North. She's up now. She says we're hear to answer, "why is Justice Zinn's ruling not good enough?" She will answer...
Bildy: Justice Zinn's ruling in October was just for an injunction -- not a review, it was too hasty to have a review. We won the injunction, but haven't had the review. The judge didn't have the record, etc. "Was this debate commission decision proper? Was it fair & reasonable?"
Bildy: Zinn's October decision was fine, but it's not very helpful going forward, not a lot of precedents can be built on it. There's an opportunity for the court to provide some guidance to government bodies on media.
Bildy: the gathering and dissemination of information is journalism, in her view -- a court should weigh in.
Judge steps in to as, Bildy: couldn't a full hearing judge set aside the debate commission rulingfor technical reasons (no proper reasons were given for our ban) but wouldn't weigh into media freedom issues?
Bildy: perhaps, but in a full hearing we would have more information and more evidence before the court to determine the propriety of the decision -- that would still provide a precedent to guide government bodies on what's appropriate.
Bildy: we're amending to claim a Charter breach, too.
Bildy: declaratory relief are a "valid and appropriate remedy in a judicial review and Charter applications". Section 18(1)(3) of the Federal Court Act "may declare" laws invalid. (So that's the section 18 that was referred to earlier.) So Bildy says a declaration is a valid ask.
Bildy: very often, a declaration is the central request of a lawsuit, especially in Charter matters -- to get a court to say that the government was doing something wrong. It's not a remedy to be dismissed as unimportant.
Bildy: Trudeau's debates commission says the only dispute was whether or not the reporters could attend, and that's now over. But Bildy says: it's about government making a decision based on arbitrary and biased and unconstitutional bases. That's what judicial review is about.
Bildy: most of the matters in question have not yet been heard by a court. Full details of the debates commission's decision-making remain secret and unexamined. And then there's still the Charter breach -- freedom of the press.
Bildy: commission shows it won't take responsibility for its misconduct. Absolutely no admission; in fact, this very application to dismiss shows they don't think they've done anything wrong. We'll be back in this same situation again.
Bildy: there are 1,800 legal cases that have considered the Borowski precedent. She proceeds to cite examples that support having a full hearing.
Bildy: freedom of the press is important enough to have a hearing about.
Bildy: while Trudeau's debates commission may send a report to Parliament, that doesn't require Parliament to do anything other than take it. No requirement for reform, review, etc.
Bildy: there is value in addressing these important questions, such as determining who has constitutional protection as "the press". A hearing is necessary for public confidence.
Bildy: Ernst v. AER is a court precedent that it is legitimate to have a hearing to clarify the law to prevent future breaches.
Significant issues of public interest that go beyond the interests of the parties themselves.
Bildy: "A properly functioning democracy must have access to a wide range of perspectives."
Bildy: Canadians need to be assured that those undertaking the function of the press are protected under the Charter and that state interference is prohibited. So we need a full hearing on the merits.
Bildy is done. Judge has no questions. Judge invites Trudeau's lawyer to reply.
Now one of Trudeau's lawyers is making small rebuttals to minor points from Elmaleh and Bildy.
Trudeau's lawyer emphasizes that the government discontinued their appeal of our big win last year.
Trudeau's lawyer is worried that any judicial review would be binding on future election debate commissions. (Ezra's view: yeah, that's sort of the point.)
Krajewska (one of Trudeau's lawyers): the debates commission already has Justice Zinn's "advice" in his emergency ruling. Ezra's point: well, actually, the commission has rejected his ruling.
Krajewska suggests that a hearing would only apply to the three journalists at hand. Ezra's view: that's absurd. It would reform the entire system, and set a precedent for every other would-be government censor.
Krajewska has a weird straw-man argument -- that the three reporters in question are asking for a hearing to permanently accredit them. What a pitiful stretch -- she just made that up.
Krajewska is done.
Court adjourns for lunch for an hour.
