Monday, December 10, 2012

Conservative Party lawyer raises champerty

Steven Shrybman
The court case dealing with possible voter suppression in 8 ridings during the May 2011 federal election is starting to fascinating.

Right off the bat, the Conservative Party lawyer has tried to nullify the role of the Council of Canadians by claiming that there was a whiff of champerty in the air:

Hamilton said the group went out and actively solicited for applicants to file the challenges.

The council he said, decided, “This fits our narrative of sinking the Harper agenda so let’s go find some applicants and we’ll get the ball rolling.”

Hamilton cited the council’s long and well-documented opposition to the Conservatives, and noted the name of a conference they held called “Sinking the Harper Agenda.”

He also targeted the applicants’ lawyer, Steven Shrybman, who is also a council board member. When Elections Canada’s budget was cut earlier this year, after the robocalls investigation had become public, Shrybman had commented on Twitter, “It’s payback time.”

Hamilton extrapolated that tweet to the six cases, telling the court, “For Mr. Shrybman, it’s payback time. And those are his own words.”

But lawyer Peter Engelmann, who is arguing the champerty and maintenance issue for the applicants, said the tweet from Shrybman actually accused the Conservatives of getting payback by cutting Elections Canada’s budget, and complained at the “disingenuous” attack on his colleague.

“This isn’t how litigation used to be done,” he said.

Engelmann said the Conservatives had not presented evidence that the applicants were not in control of the cases and noted the applicants hadn’t even been cross-examined.

He called champerty and maintenance an Old English doctrine that has no place in public-interest litigation, and said that Hamilton had failed to provide “one authority” showing its use as a legal defence in Canada.

The arguments on the champerty and maintenance preliminary motion came at the beginning of a week of hearings into the election challenges.

In order to prove champerty, Hamilton must convince the court that the Council of Canadians stood to benefit from the lawsuits. Judge Richard Mosley challenged him on this point, asking what financial benefit the council stood to gain.

Hamilton said the council was able to fundraise and collect a long list of donors but, moreover, stood to gain politically because the organization has a long history of opposition to the Conservative government and Prime Minister Stephen Harper.

What is champerty?

This is Wikipedia on it:

Champerty and maintenance are doctrines in common law jurisdictions, that aim to preclude frivolous litigation. "Maintenance" is the intermeddling of a disinterested party to encourage a lawsuit.[1] It is "A taking in hand, a bearing up or upholding of quarrels or sides, to the disturbance of the common right."[2] "Champerty" is the "maintenance" of a person in a lawsuit on condition that the subject matter of the action is to be shared with the maintainer.[3] Among laypersons, this is known as "buying into someone else's lawsuit."...
The restrictions arose to combat abuses in medieval England. Unscrupulous nobles and royal officials would lend their names to bolster the credibility of doubtful and fraudulent claims in return for a share of the property recovered.[6] Gradually, judicial independence was established and by the early 19th century Jeremy Bentham wrote:[7]

A mischief, in those times it seems but too common, though a mischief not to be cured by such laws, was, that a man would buy a weak claim, in hopes that power might convert it into a strong one, and that the sword of a baron, stalking into court with a rabble of retainers at his heels, might strike terror into the eyes of a judge upon the bench. At present, what cares an English judge for the swords of a hundred barons? Neither fearing nor hoping, hating nor loving, the judge of our days is ready with equal phlegm to administer, upon all occasions, that system, whatever it be, of justice or injustice, which the law has put into his hands.
Keep you fingers crossed that this issue of possible voter suppression is given its day in court. Our democracy depends on citizens having an undisturbed right to vote.

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