Day 2

Note:  I am a poor note-taker and these summaries will contain errors and omissions which will reflect my limitations.  My intention is to report on the facts as accurately as possible although a subconscious bias may creep in.  I can only provide glimpses into what I see as relevant and interesting events. My goal is to capture the essence of the day’s events rather than be comprehensive.

Read the reference documents: The Legal Case and Events Leading to Trial to obtain an understanding of the case and its history.  Names and terms are abbreviated and defined in  Glossary.

Richard Harrison (“Richard”), who is Caylan’s Counsel, commenced his opening statement which lasted almost 3 hours.  He explained Caylan’s case, detailed the grievous conduct of each Defendant in turn, and gave reasons why the defences to defamation were not available to the Defendants.  He stated that:

·      The case dwarfs all prior defamation cases in Canada’s legal history because of both the severity of the defamations and the broad national scope of their publication;

·      Caylan had been described as a terrorist, a white supremist, a racist, homophobic, a bozo;

·      She is none of those things;

·      Caylan’s life and career were ruined by events which occurred in a period of a few hours on March 18, 2019;

·      Caylan became unemployable, became a social pariah, she lost friends and her marriage ended;

·      To make Caylan’s case he needed only to prove defamation, legally defined as anything that “lowered the reputation” of Caylan;

·      The Defendants had to defend by proving one of the 5 legal defences to defamation;

·      None of the legal defences were available to any of the Defendants and he explained why the none of those defences was available;

·      He would call 4 expert witnesses to testify of the mental distress and psychological damage suffered by Caylan;

Richard described Caylan in glowing terms and gave details of her education and many accomplishments.

Richard stated that he could and would prove that:

·      Jivraj was the sole source of the defamatory material;

·      Jivraj was “a unique individual in the worst connotation”; he was conniving, obsessive, deceitful, manipulative, Machiavellian;

·      The Defendants gave anonymity to Jivraj although they knew of his bad character;

·      None of the individuals responsible for the publications believed what they were publishing about Caylan;

·      Press Progress was guilty of “yellow journalism”, which he defined;

·      Both Broadbent Institute and CBC knew that Jivraj had “an axe to grind” against Caylan;

·      Press Progress had received the defamatory materials from Jivraj months before, but withheld publication until the eve of the election because Jivraj told them that it would then “do the most damage”;

·      CBC and Broadbent Institute were guilty of malice;

·      CBC lied to Caylan on 5 different occasions; Richard provided details of each such occasion;

·      The Toronto Star “piled on”, widely published 13 defamatory articles with large photos of Caylan, characterized Caylan as “promoting white supremacy”, but never explained exactly why that was the case;

·      journalist Defendant Emma McIntosh and Defendant lawyer Avnish Nanda (who wrote a piece for the Edmonton Journal and made multiple social media posts) echoed one another online to amplify defamatory statements about Caylan;

·       there was sheer recklessness in how Nanda operated; 

·       McIntosh’s comments were driven by rage,

·       Nanda published roughly 70 individual social media posts in which he repeatedly called Caylan a white supremacist.

·       Nanda never spoke to Ford before publishing any of the materials; Caylan asked to meet him for coffee for a dialogue but he declined;

Richard told of the witnesses he would call and what their testimony would be about and concluded his opening statement with the following quotation from Mr. Justice Strekaf’s decision in the Alberta lawsuit Kent v. Martin:

These cases involve the law of defamation.  Defamation is a tort that reflects a balancing of some important values in Canadian society, including the fundamental right to freedom of expression and an individual’s right to their reputation.  Also at play in these cases is the public interest in receiving fair and accurate information about candidates during an election campaign in a democratic society

Perry Mack, KC - defence Counsel for The Broadbent Institute then delivered an opening statement in which he first identified the legal defences to defamation and then stated that:

·      the main defence of Broadbent Institute was that a person, “cannot be defamed by your own words”, and that what Press Progress (Broadbent Institute) did was publish Caylan’s words;

·      Caylan had refused to explain the words she used after being asked to do so;

·      the subject publications were matters of public interest;

·      when Caylan became a political candidate she had no right to complain about publications in the public interest;

·      Jivraj was granted anonymity on legitimate grounds of “source privilege”;

·      Caylan’s words were not decontextualized; Caylan and Jivraj were “philosophical soulmates”;

·      The “fraudulent candidate” letter was signed by the board of Caylan’s constituency association;

·      Jivraj swore and provided to Broadbent Institute an affidavit in which he stated that the material he provided was true;

·      Broadbent employee Lebrun wrote to Caylan asking her to answer questions before the pp article was printed and she did not respond;

·      The Press Progress article was just a “list of quotations” and he read each quote;

·      defamation would not have occurred if Caylan had explained her words;

·      Jivraj was only a conduit;

·      The media had the right and duty to report on statements by persons seeking public office.

Mr. Mack’s opening statement was then concluded.

BREAK

Caylan took the stand and was sworn in.  She described her early life, (including that she quit drinking forever when she was 15 year old) how she became interested in politics, how her philosophical views evolved, how she became an activist involved with marginalized communities, particularly Falun Dafa, and the persecution of that sect by the Chinese Communist regime.  She continued her testimony to explain:

·       how she became a target of Chinese authority, how they watched and harassed her and tried to impede her activities, and of her experiences with the Chinese Consulate in Calgary;

·       how and where she obtained her graduate degree and 2 post-graduate degrees;

·       her activities with Congressional committees while living in Washington, DC and her activity on behalf of prisoners of conscience and the persecuted;

·       that “having a good time” to her meant engaging in dialectical conversations, learning about opposing views;

·       that upon graduating with her first Masters degree she was recruited by the Canadian government as a senior policy advisor in the Foreign Affairs ministry, and moved to Ottawa;

·       her role as senior policy advisor and some of her activities in that role;

·       that while expecting her first child she enrolled in Oxford to obtain a Masters degree in human rights law;

·       why she and her husband moved to Toronto after 5 years in Ottawa; that she continued to work with Foreign Affairs;

·       that she became involved in film making and became co-producer of Letter from Masanjia (2018),  which was about a hidden SOS note smuggled out of a labour camp in China, and which won an award for documentaries at the Calgary International Film Festival, and a co-writer of Ask No Questions (2020) which is about a Chinese religious minority framed for a suicide;

·       that she had decided to move to Calgary to raise her children, bought a house in Calgary in July 2017, got title in October, moved some goods into the house in December, and moved permanently into the house in April, 2018;

·       BREAK

·       How she met Jivraj at a political event while living in Toronto, was impressed by his interest in philosophy,  culture, and politics, became his Facebook friend, and how she commenced an extensive Facebook Messenger conversation with him, exchanging more than 600 Messages over a short period of time;

·       Talked about Tab 1 of Exhibits, which contains all the Messages exchanged; they completely fill a 3-inch binder;

·       it was from the ~600 tab 1 communications that Jivraj extracted snippets of conversation;

·       that she had to resort to a court proceeding to obtain the Messages because Jivraj would not consent to their release;

·       that she only obtained the Messages in 2022, and only then became able to defend herself;

·       that she learned how devious Jivraj was when he published false derogatory statements about a political personality and then re-published the same statements anonymously.

Comment

·       In my opinion Richard’s opening was very powerful;

·       Caylan has a huge vocabulary and expresses herself clearly and eloquently;

·       The defence that “no man can be defamed by his own words” is a legal principle, but is subject to many qualifications and exceptions;

·       If a defamation is published, the damage is done; posing questions to the victim hours before publication does not undo the damage;

·       Caylan was wise to not respond to the questions asked of her by Press Progress hours before the defamatory article was published; they were loaded questions about Caylan’s alleged philosophy, which was not at all her philosophy;

·       If a defamation is published the damage is done and asking for an explanation later does not undo that damage;

·       The “residency fraud” letter alleged by Broadbent Institute to have been signed “by the board” of Caylan’s constituency letter was in fact signed by 9 of the 26 members of that board;

·       Caylan is providing a great deal of detail, the importance of which may become important as the trial unfolds.