By Brian Brennan
December 2015
A long-running defamation lawsuit against Canada’s largest newspaper publisher by an award-winning war correspondent who left journalism to enter provincial politics has concluded in Calgary, Alberta after a five-week trial. Court of Queens Bench justice Jo’Anne Strekaf reserved decision and said she would rule on the case of Arthur Kent versus Postmedia Network “sooner rather than later.”
Kent launched the suit after the National Post, Calgary Herald and other newspapers in a national chain published a February 2008 column by Ottawa columnist Don Martin that Kent characterized in court as “poisonously false.”
Martin used information from unnamed party sources to contend that Kent’s campaign for a Conservative seat in a Calgary provincial riding was failing because the “self-absorbed” star candidate refused to toe the party line and become “a mere infantry private who exists only to follow orders.”
Martin acknowledged in court that he didn’t make direct contact with Kent for comment before the column appeared.
A key paragraph in the Martin column – retracted by him during the trial – asserted that a number of Alberta Conservatives had referred to Kent as “The Dud Scud,” a phrase repeated in court. It was a mocking reference to Kent’s role in the Persian Gulf war of 1991, when his reporting for NBC News of Iraqi missile attacks on Saudi Arabia brought him fan mail and earned the boyish correspondent the nickname “Scud Stud.”
Kent, now 61, told the Calgary court that the nickname, coined by a San Francisco reporter in a spirit of “dark wartime humour,” later became part of his brand, denoting his high standard of performance as a television reporter, which included winning two Emmy awards. “It’s quick shorthand to describe me,” he said.
Before going into politics, Kent did TV reporting for the BBC, CNN, ABC News, and the CBC in Canada, as well as for NBC. He also wrote for such publications as The Observer newspaper in London, the San Francisco Examiner, the St. Louis Post Dispatch, and Maclean’s magazine in Canada.
He returned to Calgary in 2006 and used the city as a jumping-off point for trips to Afghanistan that resulted in a series of independently produced documentaries about Canada’s military mission in Kandahar.
Kent entered Alberta politics in 2007 with the endorsement of former Conservative premier Peter Lougheed, who said the party needed new blood. Kent told the Calgary Herald his native Alberta was losing its economic advantage as a province with low unemployment and low taxes, and he wanted to be part of the solution.
The lawsuit against PostMedia, the successor to CanWest, which owned the newspaper chain at the time of publication, is the third high-profile court case in which Kent has been involved. In 1992 he sued NBC for $25 million, after the network fired him claiming he refused an assignment in Croatia and implied he was a coward.
After an 18-month fight, he won an out-of-court settlement and a public retraction from NBC.
In 2008 he sued the makers of the Tom Hanks-Julia Roberts movie, Charlie Wilson’s War, for unauthorized use of footage and narration from a report Kent produced for the BBC about the Soviet invasion of Afghanistan. He also reached an out-of-court settlement in that case.
Kent suffered a narrow defeat in the 2008 Alberta election. He told the court he felt obliged to take legal action against Postmedia after editors at the National Post and Calgary Herald refused to publish a rebuttal to the Martin column that he submitted six days after the election.
The rebuttal was, he noted, exactly the same length – 754 words – as the offending Martin column. “I was looking for equal space.”
In it, Kent named longtime Conservative party supporters whose noses were out of joint when he opted to campaign with a different team from the one they suggested. Kent also took exception to Martin’s allegation that he “put campaign morale into a tailspin and complicated volunteer recruitment.”
Kent told the court the media defendants refused to run an edited version of his rebuttal, print it as a letter to the editor, publish an apology, or issue a retraction. He said Postmedia continued to make the Martin column available on its websites – more than 35 of them – for more than four years after the original publication.
Calgary Herald editor Lorne Motley, testifying as a designated officer of the Postmedia corporation, told the court he felt the Martin column was defensible: “The main facts it was based on were true.”
He added that Kent’s rebuttal was rejected because editors deemed it not suitable for publication. “It was defamatory in nature. That was the primary reason for our decision.”
The case took more than seven years to get to trial as new evidence came to light. At the outset, for example, Kent did not know one of the unnamed sources for the Martin column was his own campaign lawyer, Kristine Robidoux.
That information only emerged during the pre-trial discovery process in 2009 when Martin unexpectedly revealed Robidoux’s identity. Robidoux, who was suspended in 2014 for four months by the Law Society of Alberta for breaching client confidentiality, subsequently became a witness for Kent after confessing she did wrong and issuing an apology.
While she admitted leaking the contents of private campaign emails to the columnist in response to a request for “dirt” about Kent, she said she never called Kent a “dud scud” and she “didn’t tell Don Martin most of the things he put in the article.”
She said she was shocked, physically sickened and appalled by the column, which she had hoped would be a positive piece showing that problems within the Kent campaign had been resolved. Instead, she said, the column was “extremely negative” and “a little mean.”
Another series of pre-trial delays occurred after Kent and his lawyers discovered a cache of Postmedia emails relating to the case, which Kent accused the media defendants of withholding even after a judge ordered the documents to be produced.
Witnesses for Kent included a journalism ethics expert, Jeffrey Dvorkin, who testified that the offending column “didn’t meet the standards of journalism at any level.”
He said Martin was a “useful idiot” for veteran Conservative party loyalists who opposed Kent’s candidacy and fed the columnist “spurious information” that should never have been published.
One of those opponents was the late Rod Love, former chief of staff to Alberta premier Ralph Klein and another unnamed source for the Martin column. Love had revealed in a guest column for the Calgary Herald in 1999 that he used leaks strategically as a form of political currency to keep journalists distracted while they pursued potentially problematic stories that might “cause heartburn.” During the 2008 election campaign he publicly registered his disenchantment with Kent by telling a radio interviewer he would be voting for another candidate.
Postmedia’s own journalism ethics expert, Dean Jobb, testified he found nothing wrong with the Martin column.
He said he was satisfied the columnist followed accepted journalistic practices: “He’s researching a campaign. He’s talking to two key insiders. He’s able to obtain an internal email that backs up and corroborates what he’s hearing. This is consistent with the ethical conduct of a journalist.”
Two Martin sources who testified for the defence – the man rejected by Kent as his campaign manager and the man who actually became his manager – said they spoke to the columnist with the understanding their remarks would be off the record and not published.
They said they were concerned Kent had damaged the party when he publicly scolded the leader, Ed Stelmach, for cancelling a planned appearance at a fund-raising breakfast for Kent, and they wanted to mitigate the damage.
Martin testified he decided to write about Kent when he heard from campaign lawyer Robidoux that the campaign was in disarray, and when a columnist for Canada’s other national newspaper – The Globe and Mail – wrote that Kent was defying conventional wisdom by running against his own party. “The future versus the past. It worked brilliantly for (Premier) Klein,” wrote Globe columnist Roy MacGregor.
Martin told the court he wanted to write the Kent story for a national readership because he seemed like a rogue candidate with his own agenda. “Instead of circling the wagons around the leader, he was shooting inwards.”
When asked by Postmedia lawyer Scott Watson who gave him the “dud scud” quote, Martin said he couldn’t recall. Later, under cross-examination by Kent’s lawyer, Michael Bates, he admitted that the contentious paragraph was not true.
He said that perhaps one – not several – Conservatives had called Kent a “dud scud” as he asserted in the column, and he could not remember who that source have might been. “I’d write it differently today.”
When asked about this admission, Postmedia ethics expert Jobb acknowledged that the paragraph “certainly shouldn’t read that way.”
Watson argued that the only untrue aspect of the “dud scud” quote was the fact that “rather than being a plural source attribution, there was only one.” He added that in general the column was a “fair and honest comment” on a matter of public interest and that if there were factual inaccuracies in the column, “it doesn’t amount to malice.”
In his closing argument, Kent’s lawyer Kent Jesse characterized the Martin column as a “hit piece” written with “trumped-up, mocking, ridiculing language” in a “reckless disregard for the truth” to turn public opinion against Kent. “They took Arthur Kent’s brand and they trashed it.”
Watson responded that the column was written within the context of previously published articles about a growing rift between Kent and the Conservative party hierarchy in the provincial capital, Edmonton. “We take issue with the allegation that the article was defamatory. The pith and substance of the column was that Kent’s campaign was not functioning well.”
Copyright © Brian Brennan 2015
Real journalism is not free. If you value evidence-based, non-partisan, spam-free information, please support Facts and Opinions, an employee-owned collaboration of professional journalists. Details here.
Brian Brennan, an Irish journalist living in Canada, is a founding feature writer with Facts and Opinions and a contributor to Arts dispatches and the Loose Leaf salon. He is the author of the Brief Encounters series. (Payment required). His profile of Calgary Mayor Naheed Nenshi, the first original feature in the journal’s inaugural issue, won Runner-up, Best Feature Article, in the 2014 Professional Writers Association of Canada Awards. Brennan was educated at University College Dublin, Vancouver’s Langara College, the Poynter Institute in St. Petersburg, Florida, and the National Critics Institute in Waterford, Connecticut.
Visit him at his website, www.brianbrennan.ca
Brian Brennan also plays jazz piano, for fun and profit.
~~~
Facts and Opinions is a boutique journal, of reporting and analysis in words and images, without borders. Independent, non-partisan and employee-owned, F&O is funded by you, our readers.We do not carry advertising or “branded content,” or solicit donations from partisan organizations. Thank you for your patronage, and please tell others about us. Most of our pages are outside our paywall. To help us continue, we suggest a minimum payment of .27 for one story, or for use of the entire site at least $1 for a day pass, and $20 for a year. With enough supporters paying a small amount, we will continue, and increase our ability to offer original works. Visit our Subscribe page for more details.