I watched Ezra Levant's defamation trial in Toronto with an eye to my own defamation trial in Washington. Khurrum Awan, the Sole Surviving Sock from the original five Canadian Islamic Congress Sock Puppets who attempted to get my writing banned for life in Canada, is now suing Ezra for calling him a liar and an anti-Semite. Michael E Mann, the fake Nobel Laureate, is suing me, Rand Simberg and our respective publishers for calling his hockey stick "fraudulent" (that was me) and its creator a man who "tortured data" (that was Simberg). No two cases are entirely the same, but, as one defendant to another, I found Ezra's day in court on Friday rather inspiring.
In The National Post, Christie Blatchford describes it thus:
TORONTO β It was a completely unrepentant Ezra Levant on the witness stand and, oh my, it was a sight to behold.
The right-wing conservative writer and TV host β alternately dimpling, pointing his index finger at the judge and spreading his arms wide in the broad strokes he appears to favour as much in life as in his writing β was testifying in his defence in his libel suit.
"Testifying" doesn't quite capture the indefatigable Levant in full flight Friday at Ontario Superior Court in downtown Toronto.
His evidence-in-chief was part soliloquy, part lecture and all theatre, as befits the man who begins his prime-time, five-days-a-week show on the Sun News Network with a monologue which, as he told Judge Wendy Matheson, once went on so long "we had to cancel the commercials" because it had morphed into a "rant" of an hour.
His examination by his lawyer, Iain MacKinnon, for the first several hours consisted of MacKinnon asking Levant a question β and, perhaps 10 or 15 minutes later, as Levant would pause at last, getting to ask another.
Christie is right that "testifying" doesn't quite capture what Ezra did on Friday. In the lunch break, Kathy Shaidle reminded me about Lenny Bruce in his final years, up on stage reading out his court transcripts. And I said that Ezra had done the opposite - he'd basically submitted his stage act as his court transcript. That sounds flip, but I meant it as a great compliment: Ezra in the witness box was the same Ezra Canadians know from TV and his live appearances. By the end of the day, no one could doubt (a) that he sincerely believes what he said about Khurrum Awan, and (b) that there's more than enough supporting evidence out there to make it an entirely reasonable proposition.
My admiration for what Ezra did was tempered by the sad realization that it would have been impossible in a US courtroom, where opposing counsel would have been leaping up and down with lame-ass objections every twelve seconds designed to derail the defendant whenever he got up a head of steam. In Toronto, there was not a single objection to testimony until the fourth day of the trial. And, even on the exhibits, Justice Wendy Matheson's habit is to let it in unless opposing counsel mounts a very strong argument that there's a prejudice issue. (Madam Justice Matheson is in a different league from the lazy and unfocused Natalia Combs Greene in Washington.) At one point, the defendant even took a swipe at the plaintiff's counsel, Brian Shiller, noting that his practice is to target prominent conservative figures, including Mayor Rob Ford, and that, between various clients, he currently has "four or five suits against me - I can't remember exactly," conceded Ezra. "Mr Shiller can correct me on cross-examination." From counsel's table, the wily barrister gave a thin smile.
In Toronto, Ezra Levant is insisting on the right to be tried as Ezra Levant. Whether this works depends on how he holds up under cross-examination all day Monday. But, even if it doesn't, it will ensure that at least he'll be hanged as Ezra Levant.
As I said, what Ezra did is not possible south of the border. I don't believe I've commented directly on the oft-retailed line by m'learned friends around the tort end of the blogosphere that "Mark Steyn has a fool for a client". That's an old English joke, of course. Circa 18th century, I believe, when English life was very lightly lawyered. Whether it applies a quarter-millennium on in a sclerotic dungheap of a system that, as my old boss Conrad Black likes to point out, employs as many lawyers as the rest of the planet combined, who between them invoice ten per cent of GDP, is an interesting question. My own view is that, if the lawyerization of American life needs to snort up its nose the entire GDP of Australia every year, then you're doing it wrong.
I am slightly surprised by the naivety of those who pedal the fool-for-a-client line. I don't want for lawyers: I have a corporate lawyer (because I have a small business), I have an intellectual property lawyer (because I have copyrights), and I have a personal lawyer. And that's just in America. I have longtime solicitors in other jurisdictions I've lived and worked in. I enjoy the company of lawyers, including my old friend from the Maclean's case, Julian Porter, QC, who testified in Ezra's trial on Thursday.
But my white-shoe lawyers in the Michael Mann suit charged half-a-million bucks for a year in which everything they filed on my behalf they lost. Or, rather, I lost. The last thing I heard from them, in late 2013, was a proposal with regards to billing rates for 2015. That doesn't suggest they were planning on reversing their losing streak any time soon. I fired them on Boxing Day, and, when shortly afterwards they filed a formal notice of withdrawal with the court, there were no fewer than five listed lawyers, one of whom I'd never even met.
So, when Popehat says Mark Steyn has a fool for a client, I would humbly suggest that for over a year those five lawyers had a fool for a client. I was like most foreigners around the world - all I knew about American "justice" was that it was ruinously expensive and that it took up years of your life. As someone who loves America, I carelessly assumed that there must be more to it than that, only to have every single cliche about the system resoundingly confirmed. Jarndyce vs Jarndyce is not a blackly comic exception but the basic organizing principle. The system needs to change, because the costs and sclerosis have profoundly damaged the absolute constitutional protections Americans supposedly enjoy. That's to say, if it takes half-a-decade and a seven-figure sum to confirm that you had the right to post a 280-word blog post, then the First Amendment isn't worth tuppence.
The other thing my time at Ezra's trial reminded me was that (as the Pelletiers learned after their own lost year in Massachusetts) you always need an extra-judicial strategy. Jonathan Kay, my old editor at The National Post and not a chap who always sees eye to eye with Ezra, went to the courthouse and came away impressed by what he saw. So he tried to rationalize it, starting with the headline:
Ezra Levant's Trial Echoes A Time When Canada's Radical Muslim Activists Were Taken Seriously
Well, yes. As I observed myself the other day, there's something a bit time-warpy about this trial - Ezra and me and Khurrum and Naseem all back in court listening to exactly the same stuff we listened to in British Columbia six years ago, all about how "flagrantly Islamophobic" me and Maclean's are. But Jonathan thinks something big has changed in the meantime:
Given the current political climate in Canada, it was actually quite surreal to hear Levant run down [Khurrum Awan's former boss] Elmasry's record as an extremist (including his statement, on television, that all Israeli adults are fair game for terrorists). Canada's Conservatives are now so closely allied with Israel and its advocates, and so enthusiastically committed to the battle against any sort of Islamic extremism, that Ottawa now will blackball, and even casually slander, Muslim groups with even the most indirect relationship to extreme co-religionists. Yet not so long ago, when Elmasry was leading the CIC, he was feted by Ottawa and treated as just another voice in Canada's rich multicultural mosaic. (The same was true of the equally radicalized Canadian Arab Federation.)
This perhaps explains why the naΓ―ve Awan, then a law student, felt comfortable joining in with the CIC in their unsuccessful and infamous effort to strong-arm Maclean's magazine after it had published Mark Steyn's controversial critique of radical Islam. The CIC had an acronym, and a web site, and the word "Islamic" in it β so by the then-prevalent logic of Canadian ethno-politics, it was a respectable "community voice" to be taken seriously.
Jonathan makes it sound as if these groups were just somehow "marginalized" by the passage of time. That's not so. The old Jew-hater Elmasry and his 9/11 "truther" successor were respectable figures in Ottawa - until Ezra and I and a few others pointed out the uglier reality. The reason this case seems like Brigadoon restored to life for a week-and-a-half after a century in the mists is because one consequence of the original case was that it helped chase Elmasry and his rotten organization out of public life. As I said in my speech to the Manning conference last weekend in Ottawa:
When I ran into trouble with the "human rights" commissions five years ago, I had lunch with an old friend in Montreal who said just stay quiet, keep your head down, it'll all blow over. If I'd taken his advice, I would have lost, Maclean's would have lost, Canada's media would have lost basic free press rights, and Canadian citizens would have lost basic free speech rights. And then I ran into Ezra Levant, who said no, you need to go nuclear. That's Ezra's advice for everything β parking ticket, slow line at Tim Hortons, whatever.
So we did go nuclear.
And Elmasry and the Canadian Islamic Congress couldn't withstand the publicity, any more than the "human rights" racket could. By the time the CIC lost in court in British Columbia, they had already lost in a far more profound sense. I wish I were in Madam Justice Matheson's courtroom rather than trapped on a roulette wheel of procedural sophistry in the District of Columbia. But I promise you this: by the time this is through, Michael Mann will have lost as profoundly as Elmasry did.