Things Are Getting Warmer (Under Your Collar) – When two ideologies collide, can one be held liable?

“Can anyone find a Bible? Does anyone know where the Bible is?”

My first minutes in the BC Supreme Court in Vancouver, and already there was a complication. No one in the house of secular law could find a holy text to use for the swearing in of one Richard Foot, a man I had never heard of until moments earlier. He was visible via television in the corner, being live-streamed from Halifax or St. John’s or some other mystical place in eastern Canada.

“Well I guess we better all go home,” said the defense attorney, eliciting a snort of laughter. The judge, or “milady” as she was referred to, hadn’t yet entered the chamber, and the lawyers were doing the legal equivalent of a warm up routine. Instead of stretching, they spread compilations of evidence across desks, and instead of shooting layups, they shuffled papers.

They were as relaxed as people can get while wearing voluminous black robes and standing in a court of law. Or maybe as relaxed as people can be when arguing for the reputation of several columnists and editors from one of the country’s largest remaining print newspapers, The National Post.

A Bible was produced and an uttering of oaths occurred. Court, it seemed, was now in session.

Foot was testifying as part of an ongoing defamation suit against several members of the Post staff. The plaintiff, University of Victoria professor and Green Party MLA Andrew Weaver, is suing (the suit won’t be finished until July) over alleged libel in several Post articles, including Weaver’s Web, Weaver’s Web II, and Climate Agency Going Up In Flames. Weaver is also asking the Post to help him remove copies of the offending articles from other Internet sites where they have been reposted, going so far as to cite offensive online comments* as examples of the damages he has suffered.

I learned all that from Google before entering the courtroom. The truth is, once I was separated from my iPhone, it took me the better part of two hours to determine which billowy figure was the plaintiff’s lawyer, and which was batting for the defense. This was actually more difficult than it sounds considering the defense lawyer was physically in court with me, while Roger McConchie (the plaintiff lawyer) was sitting beside Foot in Halifax. The consequences of this was that for the second half of the day, the defense, the judge, and I watched Foot’s cross-examination on television like some kind of twisted People’s Court rerun.

Things I learned from seeing a fellow journalist on the witness stand:

• Journalists make enemies. Enemies create lawsuits. Lawsuits are like pop quizzes in the university of life, except that if you fail the plaintiff gets to kick you in the financial and professional groin.

• Lawsuits really are like pop quizzes because, once you’re on the stand, the plaintiff will spend a couple hours drilling you on your journalistic practice. Did you transcribe the entire interview, or just part of it? Did you even listen to the entire interview when you were transcribing it? Did you double-check? Did you take notes? How many notes? No seriously, how many pages of notes?

• This isn’t 1995. Figure out how to transfer audio recordings to your hard drive, and keep around the controversial ones just in case. “I don’t know how to USB” is no longer a valid excuse for poor archiving.

• McConchie literally asked Foot to explain the mechanics of quotation, the process by which Foot chose quotes, and to affirm the accuracy of quotes cited in his email correspondence with Weaver. If you’re a journalist, this kind of stuff should cause you to break out in a cold sweat.

• Despite the fact that that several years (or more) may separate the trial from the alleged infraction, expected to be interrogated about details of your practice so minute you’d probably forgotten them before you drove home from work. If you answer “That’s true to the best of my recollection,” the next five minutes will be about how much you remember, whether you remember anything, and, if not, why you’re memory has such grievous failings.

I made it back into Vancouver the following Friday for the examination of Peter Foster, another Post columnist, and the man who had first suggested I come spectate on the trial. Foster was charged with making a number of libelous comments, including claiming that Weaver suggested his office were broken into by accomplices of the fossil fuel industry, and that Weaver had claimed he was the spiritual heir of Cthulhu and should be worshipped as a god.**

Once again, the delineation between fair comment and libel is a narrow one, and rests largely upon what aspects of climate change are considered ‘factual’ and which originate with ‘cherry-picked’ data. At points the trial devolved into scientific jargon as both sides argued the credibility of studies such as the Mann ‘hockey stick,’ or the importance of mean temperature in 1998 to the ‘warmist’ position. Foster’s defense rests upon his criticism being informed and based in fact, which is why McConchie spent much of the cross-examination attacking his credibility and his research methods as a journalist.

“Did you ever read Weaver’s curriculum vitae prior to writing your articles?” asked McConchie. Do you have a degree? What’s it in? Where’s it from? Economics, eh? Have you ever studied physics? How about chemistry? Do you even science?

At one point he got the court reporter to deliver the Intergovernmental Panel on Climate Change’s Nobel Prize winning, three-volume 2007 study to Foster’s stand, which positively quaked under the weight. “Have you read any of that?” he asked. “Did you ever crack the cover?”

“Has anybody read it?” I was tempted to ask. “Has Weaver even read the whole thing?”

I kept quiet, since I doubt McConchie would have answered my question. Instead ‘Milady’ would have charged me with contempt, sequestered my iPad, and ordered that I (God-forbid) undergo sensitivity training or something. Don’t mess with the woman holding the gavel.

A journalist charged with writing three or more articles a week on vastly disparate topics cannot do graduate-level research on all of them. He or she is not going to possibly be able to match the knowledge of someone with a doctorate in the field, yet he or she does have a responsibility to be accurate, as informed as possible, and fair. It’s up to the judge to decide whether or not the Post et al. committed defamation, but it’s up to us, as a society, to decide what we expect of our journalists when they cover controversial issues.

Are Foot and Foster allowed to publically profess opinions on subjects in which they do not hold doctorates? Does Foster’s failure to read Weaver’s portion of the 2007 IPCC report, instead relying on third-party summaries and analysis, constitute a critical failure in his responsibility as a journalist?

Anyone can put their palm on a Bible and swear to tell the truth, but what of issues so complex that two people can legitimately claim to be reciting facts and yet give contradictory testimonies? Foster sweated heavily through the first portion of his examination. Is this evidence that things are indeed warming up?

Or, are the times simply getting hotter for those who express public disagreement with the idea of anthropogenic climate change?

* Most are too colourful to be reprinted anywhere but the official Writ Of Summons, but rest assured that they reflect the usual mix of insults, slurs, and fastidious probing references.

**I may have made this up.

Paul Esau

Paul Esau recently graduated from the University of the Fraser Valley with an Arts degree in History. He is a former Editor-In-Chief of the UFV student newspaper, The Cascade, a mediocre tennis player, and an ardent defender of the LOTR canon. He comes from strong Republican heritage south of the 42nd parallel, yet decided early in life to attempt a happily apolitical existence. Alas, the foolishness of youth. Visit his personal blog, Eucatastrophic