Alberta Politics
The Revised Statutes of Alberta (Photo: yycLegal.)

Alberta’s foreign-funded-fossil-fuel defamation inquisition: Stand by for an expensive gong show

Posted on July 09, 2019, 2:00 am
8 mins

Here are three predictions about Jason Kenney’s inquiry into that “foreign-funded defamation campaign” against Alberta’s fossil fuel industry.

  1. It will be a gong show
  2. It will cost far more than $2.5 million
  3. It will end up harming the industry, and Alberta

The roots of this likely debacle are found in the Public Inquiries Act, an overreaching and authoritarian piece of Lougheed-era legislation that is vulnerable to challenges under the Canadian Charter of Rights and Freedoms, which postdates it by a couple of years.

Peter Lougheed, 1928-2012, Progressive Conservative premier of Alberta (Photo: Government of Alberta).

With the caveat that your blogger is not a lawyer, it seems obvious that the act’s sweeping overreach extends to denying witnesses at the whim of the commissioner – who can be anyone, even a partisan hack – protections they would have in a court of law.

Health information, sexual preference, secrets divulged to a spouse, a priest, or a physician, or information protected by the privacy statutes of Alberta and Canada would all appear to be fair game under this legislation.

A reader might reasonably ask: Then why hasn’t it been challenged already? The answer is likely that there aren’t many inquiries, and those that have been conducted hitherto under this law have not been intended as witch hunts with a political agenda driven by revenge. But that was then, this is now, and the United Conservative Party is in power, so challenges are likely.

Even a politically motivated inquiry conducted by retired judge, as alert readers of this blog will recall, ended up being pretty much a fiasco.

Moreover, since Premier Kenney has made it clear in his own speechifying and social media posts that he intends to use the work of the inquiry to criminalize free speech and free association guaranteed by the Charter, that opens new avenues of appeal should victims of the planned inquisition choose to take them.

Then there is the question of whether the entire inquiry is an exercise in bad faith conceived to allow the premier to exercise what he has called his “bully pulpit.” As Justice Ivan Rand of the Supreme Court of Canada famously wrote in 1959, “there is always a perspective within which a statute is intended to operate; and any clear departure from its lines or objects is just as objectionable as fraud or corruption.” (Emphasis added.)

Ivan Rand, 1884-1969, Justice of the Supreme Court of Canada (Photo: Wikipedia, original source not named).

In the case of the Public Inquiries Act, whatever it was drafted to achieve, it certainly wasn’t to enable a witch trial based on a half-baked conspiracy theory, nor was it intended to enable any premier to exercise open malice against the environmental movement.

Will the Kenney Government’s inevitable, and inevitably time consuming, defences of its conduct in the face of Charter challenges be included in the inquiry’s supposed $2.5-million budget? They certainly will be part of the true cost, no matter how they are accounted for.

When Premier Lougheed’s boys sat down to substantially revise a 1939 Social Credit law, however, they added a bit of democratic window dressing in Section 12, which says parties defamed or put at risk of legal action have the right to cross-examine witnesses, either by themselves or through their legal counsel.

Of course, given the temper of the times, the drafters of the law also gave the commissioner the ability to yank the right to cross-examine away from witnesses, but that in turn presents additional problems for this particular inquiry and the government that has implemented it.

To refuse the right to cross-examine exposes the inquiry as a fraud. Moreover, it invites a witness from a target organization to seek an injunction to halt the inquiry on the basis it will cause irreparable harm while a Charter challenge proceeds. Successful or not, that means the meter is going to be running, O Taxpayers.

Swiss-German playwright-director Milo Rau (Photo: NT Ghent, Facebook).

Needless to say, many of the environmental non-governmental organizations that are the intended targets of this inquisition will be ready to exploit this, extending the inquiry’s time frame, raising its cost substantially, and publicly shredding the credibility of some of the government’s prosecutorial witnesses.

I imagine we shall see performances so theatrical they are worthy of Milo Rau, the Swiss-German playwright-director who has based a career on deconstructing foreign legal travesties and tweaking the noses of dictators. (Even Vladimir Putin failed to stop him!)

It would be very hard for the commissioner, who is an accountant and civic public relations official, to keep this under control.

Moreover, unless the government can find a Court of Queen’s Bench judge willing to take part in such a charade (always possible, I suppose) it would appear that the inquiry has no power to hold anyone in contempt for, say, refusing to answer a question on the grounds it violates privacy law.

In addition, the inquiry has no authority outside Alberta, so anyone not from here disinclined to waste their time can just ignore it. However, I imagine most ENGO’s won’t want to squander the opportunity afforded by this soapbox.

More opportunities for drama and legal recourse will arise as the real litigators get their sharp teeth into this matter, of course, as doubtless is already happening.

But the foundation of a legal gong show at a dramatically higher cost, however it is accounted for, has already been built.

As for the damage to Alberta and its industry, I would think a travesty of justice and process as this is obviously intended to be would stiffen the spines and open the pocketbooks of opponents of oilsands development around the world, perhaps turning Mr. Kenney’s hitherto largely unfounded conspiracy theory into a self-fulfilling prophecy.

If you’re a defender of the Alberta oil patch, no good can come from that.

9 Comments to: Alberta’s foreign-funded-fossil-fuel defamation inquisition: Stand by for an expensive gong show

  1. Dave

    July 9th, 2019

    I suspect the inquiry will find out what any moderately well informed reader of credible news sources already knows. Canadian Environmetal groups get funding from a variety of sources, mostly Canadian, but a small amount from international sources and that climate change is also an international concern. So in this regard, it will be already be a total waste of time and money.

    I also think organizations outside Alberta will either safely ignore it or perhaps more damaging for our government expose it for the sham it is. Those who peddle wonky conspiracy theories are more effective when they are not exposed to much serious scrutiny. Really, the last thing that will help them is a serious inquiry.

    I suppose it allows Kenney to appear to be doing something, but all he is really doing is spending some public money. Therefore, I expect the real goal is to come to some inclusive conclusion, on which it will blame on the inability to force those outside Alberta to participate. At that time, those that are still paying any attention to this will wonder why we bothered with it, but by that time Kenney will probably have moved onto some other hobby horse issue or perhaps a more prestigous political position.

  2. Jim

    July 9th, 2019

    A gong show indeed, another Conservative plan that they didn’t think through brought to you by the same people who thought UCP was a good idea. It was funny at first and who didn’t giggle at how unaware their marketing people must have been to come up with this, apparently foreshadowing that the pee was only the beginning with the bull now finishing the job with the taxpayer footing the bill.
    Some serious questions need to be asked. How will Kenney spin the fact, this has long been public knowledge, that one of his favourite targets the David Suzuki foundation accepted large amounts of money from the big Canadian banks? Most of these banks are in turn funding the oil sands companies, lots of former Conservatives on the bank boards. The “right-wing” Fraser Institute receives funding from the Koch Brothers in addition to other foreign oil and gas companies. Interesting that Suncor has in the past supported both the Pembina and Fraser institutes.
    There is lots of foreign funding on both sides here how will Kenney spin away the foreign funding on his side while highlighting only the foreign funding on the other side? More importantly why should I as an Alberta taxpayer cover the cost of his spin?
    Always one to feed at the public trough Kenney doesn’t seem to be planning for an easy retirement sitting on corporate boards like his Conservative cohorts of the past.

  3. Scotty on Denman

    July 9th, 2019

    I’m not necessarily a defender of the bitumen mines of Alberta (more accurately, I’m a defender of BC’s inside marine waters put at risk by some diluted-bitumen pipeline proposals, defeated, disqualified and pending), but I do have to agree that the Premier’s so (-very-far) unfounded conspiracy theory will most likely be a self-fluffing prophecy.

  4. alain mc innis

    July 9th, 2019

    To think CSIS was working for the oil industry spying and giving the info on environmentalists meetings to the oil bosses

  5. Sam Gunsch

    July 9th, 2019

    Climenhaga excerpt: ‘It would be very hard for the commissioner, who is an accountant and civic public relations official, to keep this under control.’

    Kenney’s accountant commissioner: ‘EXCERPT: I’m a simple accountant – all I understand is cost.’

    See full excerpt below, of Kenney’s ‘accountant’ commissioner describing himself, while advocating a pausing of Calgary’s major public transit project, to Calgary city council. A project Kenney has repeatedly expressed reservations about, BTW.

    EXCERPT: I’m a simple accountant – all I understand is cost. I understand cost overruns, and I understand risk, and that, to me, is a very significant issue. So to me, in my own mind, whether I’m associated with Calgary Economic Development or just a citizen who cares about our city, I contemplated risk in both situations, and this one is, at this moment, unresolved.

  6. TENET

    July 10th, 2019

    When the Kenney stench clears in Alberta, it will be because there are more good and gifted NDP lawyers than UCP peons practicing law. The Courts are above the UCP mafia. Bring it on, it is time to put more Conservative politicians in jail. It is their time to shine again like the saga of Grant Devine.

  7. Jerrymacgp

    July 10th, 2019

    Of course, Canadian environmental groups get funding from foreign donors, just as many Canadians donate to foreign charities and not-for-profit NGOs. There is nothing sinister about that. The central tenet of the Vivian Krause conspiracy theory, is that those foreign donors are in league with American Big Oil, trying to drive Alberta product out of the market and keep prices high. Of course, that is the most ridiculous notion I think we’ve heard yet, and we’ve heard some doozies over the years.
    There is also this accusation, again totally without foundation, that environmentalists are specifically targeting Alberta, while leaving the US, Saudi Arabia & other players alone. If course, if you look at the battles over Keystone XL down in Montana, Nebraska & other states in the US, you can see that that is patently untrue.
    As for Saudi Arabia & other overseas oil exporting countries, many are much less tolerant of protesters than we are here in Canada and down in the US, so there is little space for environmentalists to be active in those parts of the world. But to claim that they are preferentially attacking Alberta is raving paranoia.

  8. Eoin Kenny

    July 10th, 2019

    Can we have an inquiry into which foreign radical anti-abortion, anti-gay, anti-immigrant, anti-Islam groups funded J-Boy’s crooked takeover of the right in Alberta? Remember when he said he would tell us who his dark money financiers are? For a far-right religious extremist, he sure has a shaky understanding of the commandment against lying!!

    • Death and Gravity

      July 14th, 2019

      Eoin, that’s all as you say. I think one aspect of this witch hunt is: spoiling operation.

      As the say on Lawyers, Guns and Money “every accusation is a confession”.


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