Andrew Weaver has been taking a victory lap following the recent decision in his favor by rookie judge Emily Burke. In previous commentary about Mann v Steyn, I’ve made some snide remarks about the competence of D.C. trial court judge Combs-Greene, either implying or stating that Canadian courts have higher standards. I take it all back. As a Canadian, it’s embarrassing to discuss Judge Burke’s disorganized and muddled decision with readers from other countries. Unsurprisingly, beneath the muddled prose, there are (what appear to me) some bright-line legal errors over and above quixotic and often grossly incorrect findings of fact.
In fairness to Judge Burke, she was astonishingly inexperienced to have been assigned a relatively complicated libel case. She had been appointed as a judge on May 13, 2014 (h/t Hilary Ostrov) and the Weaver v National Post trial began in the first week of June 2014, only a few weeks after Burke’s appointment. Her resume shows that her professional experience over the previous 20 years had been as a labour arbitrator, with no apparent evidence of previous experience in libel law. It was very unfortunate that she was assigned this case.
If Burke’s decision accurately reflects Canadian libel law, then for opinion writing in Canada (including Climate Audit), it is more of a polar vortex than mere libel “chill”. To borrow a phrase, it would be a travesty if National Post did not appeal this decision.
In today’s post, I’ll set out an overview of the main issues. As CA readers are aware, I am not a lawyer and my article does not contain legal advice. However, I know the factual context very well and have familiarized myself with the relevant case law. I plan to re-review the “facts” with the legal context in mind, but will also comment on the legal implications. Readers should keep in mind that I also commented at the time (e.g. here) on some of the same events as National Post and that, at the time, I , like the National Post opinion columnists, believed that Weaver believed that the fossil fuel industry was responsible for the UVic break-ins that Weaver had asked the national and international community to be interested in.