Roger writing the LAWmag

Defamation Double-Jeopardy: Duhaime v Mulcair

"O, I have lost my reputation! I have lost the immortal part of myself, and what remains is bestial."

The words of the character Cassio in Shakespeare's play Othello ring true in law. Reputation is as vulnerable, if not more vulnerable to personal injury as is any body part because the damage can be done secretly, from a distance. An errant allegation, sometimes stoked by jealousy, even if false or later retracted, can ruin a career. Others pick up the lead and spread the infection so that it can never be retrieved, contained or truly eliminated: an irreversible tragedy.

Defamation or any other form of civil litigation against the perpetrator can provide some justice but can never right the wrong, put the cat back in the bag. Even litigation contains the risk of a further propagation and a fresh permanent and worldwide record of the false allegations.

For those who work in the public eye, such as lawyers or politicians, the flames of libel and slander swirl constantly, and to those licked by those flames, the burns run deep.

Two political heavyweights were involved in the case of Yves Duhaime v Thomas Mulcair, heard over a two-week period in February of 2005. Judgment was handed down on March 22, 2005, representing just that sort of partial vindication damages for defamation can offer.

Thomas J. Mulcair was not at the time leader of the Official Opposition in Ottawa. Instead, he was an up-and-coming Québec politician.

competition balance

Yves Duhaime was a retired provincial politician, formerly Minister of Finance, among other portfolios he held for the separatist Parti Quebecois (PQ).

Duhaime had been a lawyer since 1963 and had been a member of the Quebec National Assembly from 1978 to 1985, when he had returned to the practise of law in his home town of Shawinigan, Quebec (Ed. Note: he is also a distant relative of the author).

In 1986, he was named to the board of directors of the Bank of Canada and later, chair of the board of the daily newspaper, Le Devoir.

What ended with a headline had also started with one as la belle province woke up on May 21, 2002 to a headline on the cover of the La Presse daily suggesting that Yves Duhaime had been paid $180,000 as a lobbyist for a grocery chain and that his lobbying target had been his close friend, then-premier Bernard Landry.

La Presse’s article was pregnant with the suggestion of the impropriety of an ex-PQ cabinet minister acting as a paid lobbyist to the premier of a PQ government.

Premier Landry was asked about it by the press. He dismissed the suggestion of impropriety and pointed out that Duhaime’s tenure, as Minister of Finance had been some seventeen years previous.

It could of ended there.

But a Montreal television station, T,.Q.S. invited Duhaime and a voice for the official opposition, Thomas Mulcair, to a live televised talk show that same night to discuss the news item. Duhaime and Mulcair had never previously met. Mulcair was not a separatist and in fact, was an avid and keen member of Official Opposition in the National Assembly, the Liberal Party of Quebec.

What Thou Falstaff?

Thomas Mulcair was called to the Barreau du Québec in 1979 and enjoyed a long career with the Quebec Minister of Justice, and side jobs as college professor at Saint Lawrence College in Quebec City where he taught Introduction to Law (Ed. note: he was the author's teacher in 1979 and he was a great teacher). Mulcair was known for his intelligence, feistiness and determination.

Nine years after Duhaime, Mulcair, too, was elected to the National Assembly.

Vielle Plotte

The day at the television studio would be an event for the ages and it would forever mark both men.

TQS interviewed Duhaime first, while Mulcair sat quietly at an adjoining table. Duhaime admitted the grocers’ retainer but denied receiving $180,000 for two months work. Lobbying was then, as it is now, legal in Canada and Yves Duhaime insisted that there had been no wrong-doing.

When asked for his impressions, Mulcair bit hard. He questioned Duhaime’s integrity right away, raising an apparent contrary version of the grocers' retainer given by the premier that same afternoon. He told the viewers:

“Consider article 121 of the Criminal Code, influence peddling…. We need a police investigation.”

Duhaime was stunned.

When the host ended the show and went off air to commercial break, Duhaime looked over at Mulcair and said:

“Are you a lawyer? … I think you’ve just defamed me.”

Mulcair shouted back:

"J’ai hate de te voir en prison vielle plotte."

Vielle plotte is an extremely vulgar and offensive French term, the English translation being so distasteful and unbecoming law and justice that we'd rather not print it. If you have a French-speaking friend, ask them, but do it discreetly.

Not surprisingly, and although an experienced politician himself, Duhaime was again unable to believe what he had just heard. Vielle plotte? Prison?

Even thouhg the words seemed so unbecoming Mr. Mulcair, and unknown to him, his vile words and ongoing refusal to recant emotionally staggered the target, Monsieur Duhaime. Family members began calling Duhaime to ask if the allegations were true. Evidence at trial showed that Duhaime began to suffer insomnia as Mulcair’s allegations of Duhaime as an “influence peddler … prison … the Criminal Code …” played over and over in the local and national press, soiling Duhaime’s name and reputation deeper and deeper within Quebec and Canada, proving what Douglas Jerrold (1803-1857) once said:

"If slander be a snake, it is a winged one - it flies as well as creeps."

Thomas Mulcair

Duhaime's wife later told the Court that on the day after Mulcair’s attack, her husband had broken down in tears when Premier Landry had called him and inquired about the spat with Mulcair.

The evidence at trial suggested that Duhaime fell into depression.

According to the reasons for judgment in Duhaime v Mulcair, and on May 28, 2002, a few days after the TQS event, Mulcair spoke of the event in the National Assembly but did not apologize. Instead, he offered a fresh version of events: that Duhaime had threatened him at the TQS studio and that in any event, they had merely exchanged insults. He specifically denied the vielle plotte and prison references, even though the comments had been heard and reported by the TQS host and other witnesses. Mulcair’s words to the National Assembly press corps had nothing of remorse or regret but instead seemed to seek to keep a finger pointed at Yves Duhaime:

“At the end of the taping of the show on the news the other night, there was a verbal attack by Mr. Duhaime against me, and there were threats that he made. I responded in kind with my good Irish temper, and frankly it wasn’t the most edifying conversation I’ve ever had…. I’d rather leave it there and go with the substance of this file, which is one that involves government corruption; it involves trafficking influence (and) influence peddling…. Corruption is a word that everybody understands, that’s what we’re talking about here, corruption.

”It’s a system and it’s a system that is in our view one that is corrupt. We’re talking here about influence peddling. Influence peddling, by its very nature, is a corrupt practice, that’s what the term of the section is. We’re very clear who we’re targeting here, we’re very clear in what we’re saying here, and we’re not going to back down."

Duhaime hired counsel who sent Mulcair a demand for a retraction and apology but there was no taker.

On August 8, 2002, Duhaime filed his claim for defamation relying on the Civil Code as it provided for relief at §35:

“Every person has a right to the respect of his reputation.....”

Mulcair hired his own lawyers and vigorously defended the action.

The case finally went to trial before Justice André Denis of the Québec Superior Court in March of 2005, the events and Mulcair’s insinuations simmering freely in the minds of Quebeckers for almost three years.

In his pleadings and at trial, Mulcair set up a battery of privileges, absolute and qualified, but none stuck. He denied attacking Duhaime personally and insisted that he was just doing his job as member of the official opposition. He told the Court that he had not called Duhaime a vielle plotte. His words, he suggested, had been “vielle guidoune péquiste” (old separatist slut) - hardly a redeeming alternate.

But Duhaime had his own legal artillery leading off with the Quebec Charter of Human Rights and Freedoms, §4:

“Every person has a right to the safeguard of his dignity, honour and reputation.”

In the result, Thomas Mulcair was found to have slandered Yves Duhaime and held to $75,000 in general damages and $20,000 in punitive damages.

Justice André Dionne wrote, in his March 22, 2005 decision:

“The words of Mr. Mulcair went well beyond a expression of contrary views, open debate, even passionate engagement and freedom of expression in a free and democratic society.”

A monetary award for Duhaime but not justice. William Shakespeare wrote, in Act III of Comedy of Errors:

"For slander lives upon succession. Foever housed where it gets possession."

Dionne knew this:

“The harm done to (Mr. Duhaime’s) reputation is irreparable. One can hope that this judgment will act as ointment for the injury he has suffered and will help him put it behind him.”

As for Thomas Mulcair? The National Assembly paid his legal fees and damages. For him, dues, if dues were due, had been paid.

There is a certain amount of heat lawyers and politicians have to put up with when they do their jobs. Lawyers are adept at sharp practice which often pushes the boundaries of defamation law. Politicians live and breath on that boundary on a daily basis.

Still, that boundary holds albeit often by a tether, as a reminder to us all of the loud bell of justice should we stray beyond, a bell that clang loudly on March 22, 2005.

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