Category: Civil

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Can Plaintiffs/Defendants Testify As Expert Witnesses In Their Own Cases?

This piece is going to be a bit different. It’s an effort to answer a question: can interested parties also serve as experts in the same case? It will look at an example, using Ontario as a model.

The instinctive answer would be no, this is a serious conflict of interest. But let’s look a bit deeper. Remember, this is just for information, and there’s no need for anyone to overreact.

1. Important Links

Ontario Rules Of Civil Procedure
Ontario Law Society: Rule 3.4 (Conflicts Of Interest)
Canadian National Railway Co. v. McKercher LLP, 2013 SCC 39
Vaccine Choice Canada Lawsuit, October 2019
Vaccine Choice Canada Lawsuit, July 2020

2. Ontario Rules Of Civil Procedure

RULE 4.1 DUTY OF EXPERT
.
DUTY OF EXPERT
.
4.1.01 (1) It is the duty of every expert engaged by or on behalf of a party to provide evidence in relation to a proceeding under these rules,
.
(a) to provide opinion evidence that is fair, objective and non-partisan;
.
(b) to provide opinion evidence that is related only to matters that are within the expert’s area of expertise; and
.
(c) to provide such additional assistance as the court may reasonably require to determine a matter in issue. O. Reg. 438/08, s. 8.
.
Duty Prevails
.
(2) The duty in subrule (1) prevails over any obligation owed by the expert to the party by whom or on whose behalf he or she is engaged. O. Reg. 438/08, s. 8.

According to Rule 4.1.01(1) and (2), the answer likely is no. A person who is a Plaintiff or Defendant is by nature an interested party. If the person has a vested interest (financial or otherwise), then overcoming that conflict of interest would be difficult.

3. What Expert Reports Will Include (Ontario)

(2.1) A report provided for the purposes of subrule (1) or (2) shall contain the following information:
.
1. The expert’s name, address and area of expertise.
.
2. The expert’s qualifications and employment and educational experiences in his or her area of expertise.
.
3. The instructions provided to the expert in relation to the proceeding.
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4. The nature of the opinion being sought and each issue in the proceeding to which the opinion relates.
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5. The expert’s opinion respecting each issue and, where there is a range of opinions given, a summary of the range and the reasons for the expert’s own opinion within that range.
.
6. The expert’s reasons for his or her opinion, including,
i. a description of the factual assumptions on which the opinion is based,
ii. a description of any research conducted by the expert that led him or her to form the opinion, and
iii. a list of every document, if any, relied on by the expert in forming the opinion.
.
7. An acknowledgement of expert’s duty (Form 53) signed by the expert. O. Reg. 438/08, s. 48.

Rule 53.03 of Ontario Rules of Civil Procedure outlines what is expected by expert witness to submit in their reports to the Court, in advance of trial. It’s a pretty good outline for the contents.

4. OLS Rules Of Professional Conduct

SECTION 3.4 CONFLICTS
Duty to Avoid Conflicts of Interest
3.4-1 A lawyer shall not act or continue to act for a client where there is a conflict of interest, except as permitted under the rules in this Section.

Commentary
[1] As defined in rule 1.1-1, a conflict of interest exists when there is a substantial risk that a lawyer’s loyalty to or representation of a client would be materially and adversely affected by the lawyer’s own interest or the lawyer’s duties to another client, a former client, or a third person. Rule 3.4-1 protects the duties owed by lawyers to their clients and the lawyer-client relationship from impairment as a result of a conflicting duty or interest. A client’s interests may be seriously prejudiced unless the lawyer’s judgment and freedom of action on the client’s behalf are as free as possible from conflicts of interest.

[2] In addition to the duty of representation arising from a retainer, the law imposes other duties on the lawyer, particularly the duty of loyalty. The duty of confidentiality, the duty of candour and the duty of commitment to the client’s cause are aspects of the duty of loyalty. This rule protects all of these duties from impairment by a conflicting duty or interest.

[7] A bright line rule has been developed by the courts to protect the representation of and loyalty to current clients. c.f. Canadian National Railway Co. v. McKercher LLP, [2013] 2 S.C.R. 649. The bright line rule holds that a lawyer cannot act directly adverse to the immediate legal interests of a current client, without the clients’ consent. The bright line rule applies even if the work done for the two clients is completely unrelated. The scope of the bright line rule is limited. It provides that a lawyer cannot act directly adverse to the immediate legal interests of a current client. Accordingly, the main area of application of the bright line rule is in civil and criminal proceedings. Exceptionally, the bright line rule does not apply in circumstances where it is unreasonable for a client to expect that the client’s law firm will not act against the client in unrelated matters.

Consent
3.4-2 A lawyer shall not represent a client in a matter when there is a conflict of interest unless there is consent, which must be fully informed and voluntary after disclosure, from all affected clients and the lawyer reasonably believes that he or she is able to represent each client without having a material adverse effect upon the representation of or loyalty to the other client.

Having an expert witness as a Plaintiff or Defendant is a conflict. It gets even trickier when there are other clients involved in the same case. The duty of the expert is to the court first and foremost. The Ontario Law Society, (a.k.a. Law Society of Upper Canada), has strict rules against members engaging in conflicts of interest.

5. Supreme Court: Bright Red Line Rule

Canadian National Railway Co. v. McKercher LLP, 2013 SCC 39

Cases Cited
.
Referred to: R. v. Neil, 2002 SCC 70, [2002] 3 S.C.R. 631; MacDonald Estate v. Martin, 1990 CanLII 32 (SCC), [1990] 3 S.C.R. 1235; R. v. Cunningham, 2010 SCC 10, [2010] 1 S.C.R. 331; Cholmondeley v. Clinton (1815), 19 Ves. Jun. 261, 34 E.R. 515; Bricheno v. Thorp (1821), Jacob 300, 37 E.R. 864; Taylor v. Blacklow (1836), 3 Bing. (N.C.) 235, 132 E.R. 401; Rakusen v. Ellis, [1912] 1 Ch. 831; Strother v. 3464920 Canada Inc., 2007 SCC 24, [2007] 2 S.C.R. 177; Bolkiah v. KPMG, [1999] 2 A.C. 222; Moffat v. Wetstein (1996), 1996 CanLII 8009 (ON SC), 29 O.R. (3d) 371; Canadian Pacific Railway v. Aikins, MacAulay & Thorvaldson (1998), 1998 CanLII 5073 (MB CA), 23 C.P.C. (4th) 55; De Beers Canada Inc. v. Shore Gold Inc., 2006 SKQB 101, 278 Sask. R. 171; Toddglen Construction Ltd. v. Concord Adex Developments Corp. (2004), 34 C.L.R. (3d) 111.

(f) The Bright Line Rule
.
[27] In Neil, this Court (per Binnie J.) stated that a lawyer may not represent a client in one matter while representing that client’s adversary in another matter, unless both clients provide their informed consent. Binnie J. articulated the rule thus:

The bright line is provided by the general rule that a lawyer may not represent one client whose interests are directly adverse to the immediate interests of another current client — even if the two mandates are unrelated — unless both clients consent after receiving full disclosure (and preferably independent legal advice), and the lawyer reasonably believes that he or she is able to represent each client without adversely affecting the other. [Emphasis in original; para. 29]

[28] The rule expressly applies to both related and unrelated matters. It is possible to argue that a blanket prohibition against concurrent representation is not warranted with respect to unrelated matters, where the concrete duties owed by the lawyer to each client may not actually enter into conflict. However, the rule provides a number of advantages. It is clear. It recognizes that it is difficult — often impossible — for a lawyer or law firm to neatly compartmentalize the interests of different clients when those interests are fundamentally adverse. Finally, it reflects the fact that the lawyer-client relationship is a relationship based on trust. The reality is that “the client’s faith in the lawyer’s loyalty to the client’s interests will be severely tried whenever the lawyer must be loyal to another client whose interests are materially adverse”: Restatement of the Law, Third: The Law Governing Lawyers (2000), vol. 2, § 128(2), at p. 339

The “bright red line” has been explicitly stated to lawyers who represent clients with opposing interests. However, the idea of representing an expert witness is an interesting twist.

Though the language differs across jurisdictions, experts are considered “Friends of the Court”, neutral people who can provide unbiased information and opinion for a Judge and/or Jury.

True, experts are paid for their time by someone. That alone does not render them useless, as they do have a role to play. But what happens when the Expert has a vested interest in the outcome of the case?

While the Lawyer’s Clients (the Experts and non-Experts) could conceivably agree that this conflict of interest should be set aside, what about opposing Parties? Could it not result in an unfair Trial by stacking the deck against them?

Something seems off about this.

6. Such A Conflict In Ongoing Case?!?!

Pages 39-43 of the Statement of Claim spell out the qualifications and education of Denis Rancourt. And yes, it is quite impressive. However, no facts are pleaded to demonstrate that Rancourt has been harmed in any way by these restrictions, or that he has suffered any losses. He is clearly being introduced as an expert witness.

It’s not just that Rancourt is to be paid a fee for his time and trouble. That would be one thing. Here, he is a Plaintiff in an $11 million lawsuit — which he doubles as an Expert in. It stands to reason that he could make $1 to $2 million is the case is successful, which is a conflict of interest. Even if he is unbiased, this conflict will not be lost on the Court — or the other lawyers.

Is this normal? Are Experts typically interested Parties in the cases they participate in? Is there some exception or clause in the law that allows for this to happen? Is this a common practice that just isn’t discussed much? This appears to be the sort of thing that would jeopardize fair proceedings, but who knows?

Note: this is not an attempt to defend the nonsense that has gone on Federally, Provincially, Municipally and even in other countries. All of those people should be tried for crimes against humanity. The CV hoax is extensively outlined in this series. However, all problems need to be called out.

There are of course other issues, such as missing service addresses, and no defenses filed, but they have been addressed elsewhere.

The Statement of Claim was released publicly, but with most Plaintiff names redacted. Anyone who wants the unedited version can get a copy for free from the Ontario Superior Court (Civil Division) in Toronto.

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Representing Yourself in Court (Review)

(How to Win Your Own Case, by Devlin Farmer)

This is basically an instructional book written in 2015 for those wishing to represent themselves in court.

Unlike An Advocacy Primer, covered in September, the Farmer book contains much more basic information, and is much more simplified. It assumes that the readers have little to no knowledge about how the court proceedings work, and is a lot more reader friendly.

An interesting Supreme Court ruling, Pintea v. Johns, came out in 2017. It codified the obligations of Justices, Judges, Masters, and Deputy Judges to ensure that self-represented litigants are getting fair treatment in court. In fairness to the author, it was 2 years after the book was published.

A Brief Outline of The Book
Part 1: Alternatives to court
Part 2: Learning the law
Part 3: Filing
Part 4: Lawyers
Part 5: Discovery
Part 6: Motions and temporary orders
Part 7: Pre-trial prep
Part 8: Trial proceedings
Part 9: Witnesses
Part 10: Exhibits
Part 11: Closing arguments
Part 12: Intro to appeals

By no means does the book actually prepare someone for the court. However, by explaining what is happening and why, the self-rep is able to prepare him/herself and more thoroughly understand the process.

The book is written a very basic level, yet contains a wealth of information necessary for a potential self-represented litigant to face the court. It also avoid legalese and jargon. As such, it is very readable to anyone with adult reading skills.

This book stays away from specific forms and names, which in this case is a blessing. Better to understand the process more than to be bogged down with memorization.

The book is published by “Self-Counsel Press”, which releases many self-help and how-to books on a range of topics. Overall, they are very readable. They are not tedious or intimidating at all. This publisher releases some very good content.

If you are facing (or initiating) a court case, this book will do well to helping the average reader understand what is happening. At a minimum, if you do choose to get legal counsel at some point, reading this book beforehand will enable you to make better choices. Also, you are less likely to be gouged for fees.

Overall, this is a highly recommended read for anyone with any interest in court procedures.

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Kevin O’Leary Sues Elections Canada Over Fundraising Limits

(Kevin O’Leary, former candidate for CPC, to replace Stephen Harper)

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CBC published an article announcing that former Conservative Party leadership candidate, Kevin O’Leary, is suing Elections Canada over ruling relating to how he can pay back campaign debt. During the election campaign, O’Leary accumulated about $2,000,000 in debt. Approximately $400,000 is still outstanding.

Kevin-O-Leary

A quote from the article states that:

In his claim, O’Leary said that it is proving too difficult to raise the necessary funds in the three-year timeframe set by Elections Canada laws because people are understandably “uninterested” in contributing to a failed campaign that is long over.

He has a good point. No one would be interested in contributing to a political campaign that has long since ended. So it does posse serious challenges for him to do so.

Further, the article raises an interesting question:

“If you’re out of the race, and you’re not a politician any more and you owe money to a fellow citizen, where is it right that the law protects you from ever paying it back? That’s un-Canadian. That’s unconstitutional. That’s simply wrong,”

Again, this is valid. O’Leary’s brief political career is finished. He claims to never wish to run for office again, so what is the issue with him simply paying the debts and moving on with his life? O’Leary states that he has the funds available to do so, but is prohibited from doing so under the Canada Elections Act.

The claim filed is available here, and let’s go through some of the better arguments.

Regarding the applicable laws, the claim states:

1. A declaration that subsections 367(1)(d), (6) and (7), 478.756), and 500(1) of the Canada Elections Act, SC. 2000, c. 9 (the ?Act?) (collectively referred to herein as the impugned provisions) infringe on and deny the rights and freedoms guaranteed by sections 3 and 7 of the Canadian Charter of Rights and Freedoms (the Charter)

and are not saved by section 1 thereof;

2. A declaration that, insofar as the impugned provisions infringe on and deny the rights and freedoms guaranteed by sections 3 and/or 7 of the Charter and cannot be justified under section 1 of the Charter, those provisions are invalid and of no force and effect, to

the extent of the inconsistency;
3. In addition, or in the alternative:

a. A declaration that the impugned provisions violate the constitutional principle of the rule of law, which requires that laws be written and interpreted according to an intelligible legal standard that gives individuals fair notice of the conduct that will

attract imprisonment by the state;

b. A declaration that, insofar as the impugned provisions fail to meet the constitutional standard of legislative precision required by the rule of law, these provisions are invalid and of no force and effect or, in the alternative, must be read down so as to

satisfy this standard;

Okay, let’s dissect this word salad. O’Leary claims that portions of the Canada Elections Act, violate several provisions of the Canadian Charter. The “reasonable limitation is the Charter (section 1) would not apply and justify the C.E.A. Further, he implies that the C.E.A. is written in a too confusing standard to be followed.

Here is the Canada Elections Act.

Contribution limits
367 (1) Subject to subsection 373(4), no individual shall make contributions that exceed

(a) $1,500 in total in any calendar year to a particular registered party;
(b) $1,500 in total in any calendar year to the registered associations, nomination contestants and candidates of a particular registered party;
(c) $1,500 in total to a candidate for a particular election who is not the candidate of a registered party; and
(d) $1,500 in total in any calendar year to the leadership contestants in a particular leadership contest.

Contributions — candidates and leadership contestants
(6) Subject to subsection (7), no candidate in a particular election and no leadership contestant in a particular leadership contest shall make a contribution out of their own funds to their own campaign.
Marginal note:

Exception — certain contributions to own campaign
(7) The following contributions are permitted:
(a) contributions that do not exceed $5,000 in total by a candidate for a particular election out of their own funds to their own campaign; and
(b) contributions that do not exceed $25,000 in total by a leadership contestant in a particular leadership contest out of their own funds to their own campaign.

Okay, 367(1)(d) has to do with individuals making contributions being limited to $1,500 per year to any leadership contestant. Sections (6) and (7) have to do with overall individual limits. It is definitely reasonable that there should be contribution limits, in order to avoid having candidates “BOUGHT AND PAID FOR”. However, should that apply to former candidates who have since moved on.

3 potential counter arguments against O’Leary though:
(a) What if a person “hasn’t” moved on, and intends to use this relief for future campaigns?
(b) Would removing this cap be an end-run around spending limits?
(c) Would this restriction be necessary to ensure “smaller candidates” get a fair shot?

There is no 478.756 in the Canada Elections Act. It appears to be a type in the claim. However, this is the provision that I believe O’Leary was referring to. That is 478.75.

Payment within three years
478.75 (1) If a claim for a leadership campaign expense is evidenced by an invoice or other document that has been sent under section 478.74, or if a claim for repayment of a loan is made to the leadership contestant under section 373, the claim shall be paid within three years after the day on which the leadership contest ends.

Once more this seems to make a good point. The C.E.A requires repayment within 3 years. However, if former candidates must: (I) pay in 3 years or less; (II) are not actually able to raise more donations because they are not running; and (III) have strict limits as to how much of their personal wealth they can use, then there seem to be few, if any options.

Now, for section 500 of the C.E.A.:

Marginal note:
Punishment — strict liability offences
500 (1) Every person who is guilty of an offence under any of subsections 484(1), 486(1), 489(1), 491(1), 492(1), 495(1), 495.1(1), 495.2(1), 496(1), 497(1), 497.1(1), 497.2(1), 497.3(1), 497.4(1), 497.5(1) and 499(1) is liable on summary conviction to a fine of not more than $2,000 or to imprisonment for a term of not more than three months, or to both.

I’m not going to quote the entirety of Section 500. The point is that O’Leary is correct, the C.E.A. does in fact threaten jail time as a punishment for failing to comply.

One the surface, Kevin O’Leary’s claim seems to be valid, given the strict rules the C.E.A. sets out. But let’s now check out the Canadian Charter of Rights and Freedoms which the lawsuit references as relief.

Democratic rights of citizens
3. Every citizen of Canada has the right to vote in an election of members of the House of Commons or of a legislative assembly and to be qualified for membership therein.

Life, liberty and security of person
7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

Rights and freedoms in Canada
1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

O’Leary makes the argument that fairly large campaigns are necessary to be elected as part of a legislative assembly. Without debating the merits of “big money”, it is a fact. Campaigns and elections are expensive to run.

Section 7 has to do with punishments, which Section 500 of the C.E.A. establishes can be up to 90 days in prison for violating provisions of the act.

Section 1 is often invoked as a “reasonable justification” for restricting Charter rights. Obviously, in order to restrict, there must be some societal overall good. While Elections Canada will obviously argue differently, O’Leary is attempting to preempt the defence by stating there is none.

Thoughts And Conclusions
Obviously, this is only beginning. The claim has been filed, but no response or defence has yet been made.

On the surface, the claim makes valid points. O’Leary, like all Canadian citizens, is allowed to run for any legislative assembly or body he wishes to. Today’s reality is that campaigns are long, expensive, and a financial drain to run. However, candidates may find themselves hamstrung by campaign finance rules, which seem overly complex and tedious.

As stated earlier, I see a few possible defences for Elections Canada
(a) What if a person “hasn’t” moved on, and intends to use this relief for future campaigns?
(b) Would removing this cap be an end-run around spending limits?
(c) Would this restriction be necessary to ensure “smaller candidates” get a fair shot?

Politicians (and aspiring politicians) across the country will likely be tracking this case, as it will have real impact on future elections and party leadership races.

As a side note: CBC published the article a month after the case was filed. Not that it is relevant to the case, but did they not know about it until then?

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Supreme Court Will Hear Woman Arrested for Not Holding Handrail

(Bela Kosoian, taking legal action to S.C.C.)

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The Supreme Court of Canada has agreed to hear Bela Kosoian, a woman detained in Laval, Quebec, for refusing to hold a hand rail.

(1) Backstory of the Case
This is a a bizarre story, starting in 2009, of a woman in a Laval, QC, subway station, refused instructions from transit officers to hold a handrail while on an escalator.

When transit officers attempted to write her a ticket for the refusal to obey, she refused to identify herself. Identity is rather important in enforcing tickets. This led to her being detained for about a half hour, after which point she did reveal her name.

Kosoian was issued 2 tickets from that incident, one for $100, and one for $320. She contested both, and they were eventually thrown out.

Since then, she has taken legal action against the city, the STM, and a staff member. After a series of legal twists, it will now be heard by the Supreme Court of Canada.

(2) Quebec Court of Justice — Trial Court
Kosoian took legal action against: (a) the City of Laval; (b) Fabio Camacho — one of the officers; and (c) the Transportation Company of Montreal — aka the STM. She sought $24,000 for moral damages, pain, suffering, inconvenience and exemplary damages, and another $45,000 for moral and punitive damages for the fault committed by its agent.

Kosoian submitted a VERY LENGTHY list and description of physical and psychological trauma suffered as a resukt of being detained for about half an hour. On the surface, it seems like malingering.

Section 49 of the Canadian Charter was invoked, which states:

CHAPTER V
SPECIAL AND INTERPRETATIVE PROVISIONS

49. Any unlawful interference with any right or freedom recognized by this Charter entitles the victim to obtain the cessation of such interference and compensation for the moral or material prejudice resulting therefrom.
In case of unlawful and intentional interference, the tribunal may, in addition, condemn the person guilty of it to punitive damages.

For it’s part, the STM Referenced By-Law R-036

” BY-LAW R-036

“REGULATIONS RESPECTING THE SAFETY AND BEHAVIOR STANDARDS OF PERSONS IN ROAD EQUIPMENT AND BUILDINGS OPERATED BY OR FOR THE MONTREAL TRANSPORTATION CORPORATION”

[…]

SECTION III – GENERAL PROVISIONS

3. Subject to the law and regulations, any person has the right to use the public transportation system of the Company in comfort and safety.

Subsection I – Citizenship

4. In or on a building or rolling stock, no person shall

(a) impede or hinder the free movement of persons, including standing still, lurking, strolling, laying down or carrying a bag, container or other object;

(b) endanger the safety of persons or rolling stock, in particular by depositing or carrying a bag, container or other object;

[…]

e) to disobey a directive or pictogram posted by the Society;

[…]

h) to delay or interfere with the work of a servant of the Corporation; “

But according to the STM staff, it is not the potential safety infraction that led to Bela Kosoian being arrested. Rather, it was her refusal to identity herself when being written a ticket.

In August 2015, a Quebec Court rejected the claim. It stated that the officers acted reasonably, and that the situation was largely self-inflicted

(3) Motion for Leave, Quebec Court of Appeal
Kosoian sought leave to go to the Quebec Court of Appeal.

On December 2015, in an extremely brief ruling, the Quebec Court of Appeal allowed the appeal to proceed, dismissing a motion from the Respondents.

(4) Appeal, Quebec Court of Appeal
In a 2-1 split decision, Kosoian lost her appeal at the Quebec Court of Appeals. 2 Justices ruled that the STM and its staff had acted reasonably. In dissent, the other Justice says he would have set aside the Trial ruling, and ordered $15,000 in damages.

[ 1 ] The appellant appeals against a judgment rendered on August 11, 2015, by the Court of Quebec, District of Laval (the Honorable Denis Le Reste), dismissing the appellant’s motion to institute damages for damages .
[ 2 ] For the reasons of Dutil and Vauclair JJ., THE COURT :
[ 3 ] REJECTS the appeal with court costs.
[ 4 ] For other reasons, Schrager JA would have allowed the appeal, set aside the judgment at trial, granted the motion to institute proceedings, ordered the respondents, jointly and severally, to pay the appellant the sum of 15,000 $ with interest and the additional indemnity since the summons at first instance, as well as legal costs at first instance and on appeal, and stated that between the respondents, the Montreal Transit Corporation will have to assume the entire conviction.

(5) Supreme Court of Canada
This leads things to where they are today. Once again, the Supreme Court granting leave to appeal just now.

The motion for an extension of time and the application for leave to appeal is granted. The application for leave to appeal to the judgment of theCourt of Appeal of Quebec (Montreal), Number 500-09-025644-154, 2017 QCCA 1919 (CanLII) , date December 5, 2017, is awarded with costs in the case. The schedule for serving and filing materials will be set by the Registrar .

An interesting split so far in the courts. In Kosoian’s favour:
-Supreme Court of Canada, leave to appeal
-Quebec Court of appeal, dissenting opinion
-Quebec Court of Appeal, motion for leave

And against Kosoian:
-Quebec Court of Appeal, majority opinion
-Quebec Trial Court
-Laval ruling which dismissed the original tickets.

Personally, I see blame on both sides here. While ticketing her for refusing to hold a handrail does seem excessive, the escalation of the problems resulted from Kosoian herself. She did refuse to identify herself when being ticketed, which for the STM was a legitimate demand. Also, her claims of emotional and psychological damages seem grossly exaggerated, and manipulated to seek a huge damages amount.

The Supreme Court Appeal Panel will now decide the case.

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CNN Sues White House Over Banned ”Journalist” Jim Acosta

(CNN announces legal action, after correspondent Jim Acosta banned)

CNN’s White House Correspondent, Jim Acosta had his press access to the White House revoked on November 8th. Now his network, CNN, is suing President Donald Trump and several aides.

However, Acosta is arguably not a journalist, but an activist. People are supposed to be there to cover the news and the White House, not to be antagonistic and grandstand. Here are some examples:

(Jim Acosta compilation)

(Acosta, on August 2, 2017)

(Acosta, July 1, 2018)

(Acosta, on October 29, 2018)

(November 6, 2018, which was Acosta’s last day)

The lawsuit claims that by revoking Acosta’s media access, his 1st and 5th Amendments (freedom of the press, and due process), were violated.

Here is the 1st Amendment:

Freedom of Religion, Speech, and the Press

Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof, or abridging the freedom of speech or of the press, or the right of the people peaceably to assemble and to petition the government for a redress of grievances.

Here is the 5th Amendment:

Protection of Rights to Life, Liberty, and Property

No person shall be held to answer for a capital or otherwise infamous crime unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property without due process of law; nor shall private property be taken for public use without just compensation.

CNN released the full text of the lawsuit, shown here. But let’s go through some of the more interesting sections. (Quotes in bold, comments in italics)

2. But on November 7, 2018, Defendants revoked Acosta’s White House credentials because, in the President’s own words, Acosta failed to “treat the White House with respect” at a White House press briefing.

Except if you watch that November 6 video, he wasn’t being respectful. He was being antagonistic.

4. And the revocation of Acosta’s credentials is only the beginning; as the President explained, there “could be others also” who get their credentials revoked.

The slippery-slope argument except it is unwarranted here. There aren’t other journalists in the press core who act the way Acosta does. Blatant fearmongering.

5. The Framers of our Constitution embraced a “profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.” N.Y. Times v. Sullivan, 376 U.S. 254, 270 (1964). The President lacks the authority to quash “[t]he sort of robust political debate encouraged by the First Amendment”— debate that is “bound to produce speech that is critical of those who hold public office.” Hustler Magazine, Inc. v. Falwell, 485 U.S. 46, 51 (1988). That is why the D.C. Circuit has been clear that “the protection afforded newsgathering under the first amendment guarantee of freedom of the press requires that . . . access [to White House press facilities] not be denied arbitrarily or for less than compelling reasons.” Sherrill v. Knight, 569 F.2d 124, 129 (D.C. Cir. 1977). And “notice . . . of the factual bases for denial [of access to White House press facilities] with an opportunity to rebut is a minimum prerequisite for ensuring that the denial is . . . [not] based onarbitrary or less than compelling reasons.” Id. at 131.

This conflates a number of things: First, the press is there to cover the White House, not to DEBATE. Second, the 1st Amendment is to enshrine public talks and even unpleasant sharp attacks, but it doesn’t say that public figures MUST engage with you. Third, given Acosta’s frequent behaviour, it would be easy to rebut ”arbitrary or less than compelling reasons quite easily. Fourth, the 1st Amendment doesn’t guarantee access to the White House.

Jim Acosta seems to want a blank cheque to confront and badger White House staff at will.

27. The President dislikes CNN’s and Acosta’s coverage of him and his administration, and has made that clear since before he took office. At a news conference on January 11, 2017, for example, then-President-elect Trump told Acosta, “your organization is terrible.” Acosta responded: “You’re attacking us. Can you give us a question?” The President replied: “Don’t be rude. No, I’m not going to give you a question . . . . You are fake news.”

While these claims are true, Acosta’s frequent behaviour does make it clear he is there to agitate, rather than report on the news. But since CNN raised the issue of the 1st Amendment, would this not be going against TRUMP’S right to free speech?

33. Speaking through a hand-held microphone, as did all the White House journalists who asked questions, Acosta asked a question about one of President Trump’s statements during the midterm campaign—namely, whether a caravan making its way to the United States from Central America constitutes “an invasion” of the country, a significant feature of the President’s messaging during the just-ended campaign. The President declined to respond, instead remarking: “You know what? I think you should . . . I think you should let me run the country. You run CNN. And if you did it well, your ratings would be much better.”

  1. When Acosta attempted to ask a follow-up question, President Trump refused to take it. A White House staffer then approached Acosta and attempted to grab the microphone. The staffer reached all the way across Acosta’s body, successfully latched onto the microphone, and physically attempted to remove it from Acosta’s right hand. Acosta held onto the microphone, stated “Pardon me, ma’am,” and continued to ask his question.

This is a distortion of the truth. Acosta attempted to ask several questions, and was argumentative the entire time. Footage available refutes these assertions.

39. Hours after the press conference concluded, Press Secretary Sanders issued an official statement announcing that “the White House is suspending the hard pass of [Acosta] until further notice.” The Press Secretary accused Acosta of “placing his hands” on the White House staffer who attempted to take the microphone from Acosta during the press conference. The Press Secretary added that the alleged conduct “is absolutely unacceptable” and stated “[w]e will not tolerate this inappropriate behavior.” The White House’s statement indicated that this alleged “incident” was the basis of its decision to revoke Acosta’s credentials.

Whether this was deliberate or not is up for debate in the video. However, it was clear that Acosta was making a nuisance of himself.

FIRST AMENDMENT ARGUMENT

57. Defendants have deprived Plaintiffs of their right to access the White House grounds by revoking Acosta’s White House credentials. Without those credentials, Acosta cannot access the White House and cannot effectively serve as a White House correspondent, thus depriving Plaintiff CNN of its chief White House correspondent.

CNN is not prohibited from covering White House press briefings, only Acosta is. Do they not have anyone else on staff who could do it?

59. Defendants’ justifications for impeding Plaintiffs’ First Amendment rights are hollow and hardly sufficiently compelling to justify the indefinite revocation of Acosta’s White House credentials. Consequently, the only reasonable inference from Defendants’ conduct is that they have revoked Acosta’s credentials as a form of content- and viewpoint-based discrimination and in retaliation for Plaintiffs’ exercise of protected First Amendment activity.

Except Acosta wasn’t banned for his views. He was banned for regularly disturbing press conferences.

FIFTH AMENDMENT ARGUMENT

65. Acosta received no direct notice from the White House that his credentials had been revoked, let alone any notice prior to the revocation. Instead, the White House announced the revocation itself via Twitter after Defendants already decided to effectively ban Acosta from the White House grounds.

  1. Defendants did not provide Plaintiffs a written explanation, nor any explanation at all, before revoking Acosta’s press credentials. The only written explanation was a short statement posted on Twitter that Acosta was suspended because he “plac[ed] his hands” on a White House staffer. Even if this tweet were accurate—and it is not, as the reportedly doctored video Defendant Sanders posted would later show—it would not suffice to demonstrate prior notice of the revocation.

Okay, giving him notice would have been courteous, but is not grounds for suing. Nor is oral notification over written notification

Some Thoughts
While many media heads are supporting Acosta’s reinstatement, I believe this claim to be completely bogus.

(1) Acosta has been repeatedly rude and antagonistic to the White House staff. He is clearly being an activist, not a journalist. This is seen again and again on tape. No one else behaves this way, and it is surprising that his behaviour has been tolerated for so long.

(2) Acosta is not banned or restricted from exercising free speech at home or in public. He is just not allowed into White House briefings

(3) CNN is not banned from covering the White House. They just need a new correspondent.

(4) Not being given notice is rude, but not a constitutional violation.

The judgement is expected any day, and a followup will be provided.

Update to the Story
On Friday, November 16, a DC Judge ordered the press credentials to be temporarily returned to Jim Acosta while the matter is formally resolved. Personally, this was a surprise.

From CNN’s reporting on the story:

Trump said the same thing during a Q&A with reporters in the Oval Office.

“People have to behave,” he said, when asked about the administration’s defeat in court.
“If they,” meaning reporters like Acosta, “don’t listen to the rules and regulations, we’ll end up back in court and we’ll win. But more importantly, we’ll just leave,” meaning, stop taking questions from the press. “And then you won’t be very happy. Because we do get good ratings.”

While Acosta seems to be allowed back in, there is nothing to stop the White House from: (a) simply refusing to call on Acosta; (b) cancelling press conferences; or (c) throwing Acosta out for the day.

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Voting Eligibility (Part 1) — Crime & Citizenship


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Who is allowed to vote?

Well, depending on where you go, you will get a very different answer. Do you have to be of good character? Can you currently vote while in prison? Do you even have to be a citizen?

This topic could fill several books, but this is just a starter piece. The article focuses on 2 main areas: criminality and non-citizenship

Canada, Criminality:
The Canada Elections Act of 1985 used to prohibit a person from being able to vote if they are serving a federal sentence (2 years or more). However, that was struck down in 2002. The Crown conceded it violated Section 3 of the Canadian Charter of Rights and Freedoms, that everyone had the right to vote in elections to govern the country. To be fair though, the dissenting Justices thought that the violations were reasonable. As things stand now, even persons in custody are allowed to vote, and jail officials must make accommodation for them to do so.

American, Criminality
The case of Richardson v. Ramirez (1974), held that the 14th Amendment, Section 2, was not violated in barring felons form voting (called felony disenfranchisement). Since then, the 50 states have written their own laws, and they widely vary widely, from Maine, which allows voting while incarcerated, to voting after release, to Idaho and voting after probation ends, to never voting, to Florida requiring a petition.

Australian, Criminality
Things are a bit different here. For starters, voting is mandatory. There are arguments both for and against it. In the past, anyone serving a sentence of 1 year or more was unable to vote. As it stands now, only those serving a sentence of at least 3 years cannot vote until the sentence is finished.

British, Criminality
The UK is having to revise their policies on letting prisoners and convicts vote, because of the European Court of Human Rights. Originally, they couldn’t, but that is changing. Interestingly, Members of Parliament can keep their seat if they have been sentenced to 1 year or less. So they could hold office, but not vote.

Much Europe has some restriction of voting rights, such as type of offense, and is the sentence fully served.

Laws vary widely around the world. However, the main argument against letting cons, or ex-cons vote is that they have violated the social contract with the people, and hence should not be a part of forming its laws.

Voting by Non-Citizens

While this list is too extensive to go through, many countries do allow permanent residents to vote if they have lived their for a long enough period.

Also many cities, such as San Francisco, Toronto, Hamilton, Calgary, Vancouver, allow voting for permanent residents.

One argument against letting non-citizens vote is that it weakens what it means to be a citizen. What then, distinguishes a citizen from a resident? A second is that the longer time to obtain citizenship is necessary to fully adapt to the new homeland. A third is that it leads to divided loyalty from Members of Parliament/Congress, who will look towards future voters more than current ones. All have some merit.

A push over the years from leftist politicians has been to let “undocumented immigrants” (a.k.a.) “illegal immigrants” vote in elections, as well as to reduce or eliminate voter identification requirements.

Note: Women are now allowed to vote in Western countries as well as many others. New Zealand and Australia led the way.

Author’s Views:
However, things do, or at least should have a limit.

(1) There have been many challenges to Voter ID laws, claiming that it discriminates against people who can’t get identification. The usual claim is wither poverty, or that the community lacks these services. Really, a legal citizen, or at least permanent resident can’t get I.D.?! Of course, if they are “undocumented”, that may be why they can’t get “documents”.

(2)So-called “Sanctuary Cities” are letting illegal immigrants vote which seems bizarre. Why should people in the country illegally be helping to vote in people to draft laws? Seems like a serious conflict of interest here.

It seems that items (1) and (2) are very much linked. Could objecting to voter I.D. requirements be to enable, or help cover up, illegal immigrants voting? Hard to say, there is no “documentation”. Could it be to help “elect” candidates who would push for more immigration and easier citizenship paths?

As for convicts voting, obviously everyone has different ideas. My personal choice would be: (a) not while in jail or parole; and (b) not for serious crimes such as murder/treason/terrorism/drug trafficking/sex offenses.