The "9-11"affidavit!
Dear Mr. Pieuk:
You have requested a legal opinion on the issues surrounding the potential publication of your affidavit sworn September 11, 2009 - that is to say, the original version of this affidavit prior to its being expunged in court by Justice Simonsen ("the 9-11 affidavit"). In assisting me to formulate this opinion, I confirm you have provided me with a copy of the 9-11 affidavit, as well with a copy of Justice McCawley's Court Order dated May 3, 2006 ("the McCawley Order").
In reviewing the McCawley Order, I note that it expressly prohibits both Mr. Belhumeur and yourself "from displaying, posting or publishing on the internet or elsewhere all or part of any summary of any internal documents" of the Manitoba Metis Federation ("the MMF") and a number of other organizations directly or indirectly associated with the MMF. My recollection is that plaintiffs' counsel Murray Trachtenberg recently relied upon this provision of the McCawley Order to provide his opinion that you are unable to lawfully publish or post on the internet the 9-11 affidavit.
It is true, on a plain reading of the McCawley Order, that you cannot lawfully directly publish or post the complete 9-11 affidavit. However, the question of whether the affidavit can be published does not end there.
The language in the McCawley order, which as I recall was the exact language requested by plaintiffs' counsel, is not as strict as it may appear at first glance. This may perhaps be due to sloppy drafting by plaintiffs' counsel, but regardless of the reason, the McCawley Order contains an important loophole. Specifically, it does not in any way prevent THIRD PARTIES "from displaying, posting or publishing on the internet or elsewhere all or part of any summary of any internal documents" of the MMF et al. In other words, the McCawley Order could not be applied to prevent the 9-11 affidavit in its entirety from being posted by Derryl Sanderson on Metis News and Stuff; Vic Populi on Truth to Power; Metis Mama on MetisBareFacts; Gordon Sinclair in the Winnipeg Free Press; MMF Presidential Candidate Frank Godon on Metisonline ; or, in fact, ANYBODY, provided they are not Mr. Belhumeur or yourself.
In my opinion, there is another interesting twist on the ability of third parties and media outlets to publish the 9-11 affidavit that neither you nor, likely, plaintiffs' counsel have to this point considered. As I interpret the Order, it only operates to prevent you from DIRECTLY publishing/posting the affidavit. In my opinion, again possibly due to sloppy drafting by plaintiffs' counsel, there is nothing in the McCawley Order which prohibits you from CAUSING to have published the 9-11 affidavit. Specifically, my opinion is that, even under the McCawley Order, you have the unrestrained freedom to SOLICIT publication of the 9-11 affidavit by third parties.
Are there any restrictions on third parties' ability to publish or post the 9-11 affidavit? The only conceivable one would consist in how one interprets "publish" as the term is used in the McCawley Order. "Publish," on an unbelievably expansive interpretation, could have a sufficiently broad meaning to apply to all transmissions whatever (i.e. by email or other distribution) of the affidavit FROM you TO third parties. Under this meaning, any distribution of whatever kind from you to even one member of the public would constitute a "publication," and in this way you would be thwarted from providing the affidavit to third parties for publication.
Even under this torturous, improbable construction, however, there remains a route by which the 9-11 affidavit can be lawfully (under the McCawley Order) distributed to third parties and media sources for publication. That route is through me, as your past solicitor of record and as your present legal advisor. I specifically confirm that you provided me the 9-11 affidavit for reasons which originally pertained solely to my rendering you a legal opinion, and in doing so you did not at any time indicate to me you desired or even contemplated publication of same. As a consequence, the 9-11 affidavit has come into my hands by way of a process which can in no sense be considered as your "publishing" it (even under the bizarre construction of "publish" outlined above). Because you have not violated the McCawley Order, and because the McCawley Order does not on any interpretation apply to me, I can do anything I wish with the 9-11 affidavit, and without legal consequences to either of us.
Consequently, it is my considered opinion that I have the freedom (which you lack by virtue of the McCawley Order) to publish or distribute for publication the 9-11 affidavit; further, I interpet myself personally, and third parties generally, as having the untrammeled ability to lawfully publish or distribute for publication any and all MMF "internal documents" and summaries thereof.
As I indicated above, because even under the McCawley Order you retain the ability to lawfully solicit and provide direction in regards to publication of the 9-11 affidavit, I have no issue in seeking your input as to how to next proceed. Kindly advise as to whether, and to whom, you wish me to forward the 9-11 affdavit for publication.
Jeff Niederhoffer
You have requested a legal opinion on the issues surrounding the potential publication of your affidavit sworn September 11, 2009 - that is to say, the original version of this affidavit prior to its being expunged in court by Justice Simonsen ("the 9-11 affidavit"). In assisting me to formulate this opinion, I confirm you have provided me with a copy of the 9-11 affidavit, as well with a copy of Justice McCawley's Court Order dated May 3, 2006 ("the McCawley Order").
In reviewing the McCawley Order, I note that it expressly prohibits both Mr. Belhumeur and yourself "from displaying, posting or publishing on the internet or elsewhere all or part of any summary of any internal documents" of the Manitoba Metis Federation ("the MMF") and a number of other organizations directly or indirectly associated with the MMF. My recollection is that plaintiffs' counsel Murray Trachtenberg recently relied upon this provision of the McCawley Order to provide his opinion that you are unable to lawfully publish or post on the internet the 9-11 affidavit.
It is true, on a plain reading of the McCawley Order, that you cannot lawfully directly publish or post the complete 9-11 affidavit. However, the question of whether the affidavit can be published does not end there.
The language in the McCawley order, which as I recall was the exact language requested by plaintiffs' counsel, is not as strict as it may appear at first glance. This may perhaps be due to sloppy drafting by plaintiffs' counsel, but regardless of the reason, the McCawley Order contains an important loophole. Specifically, it does not in any way prevent THIRD PARTIES "from displaying, posting or publishing on the internet or elsewhere all or part of any summary of any internal documents" of the MMF et al. In other words, the McCawley Order could not be applied to prevent the 9-11 affidavit in its entirety from being posted by Derryl Sanderson on Metis News and Stuff; Vic Populi on Truth to Power; Metis Mama on MetisBareFacts; Gordon Sinclair in the Winnipeg Free Press; MMF Presidential Candidate Frank Godon on Metisonline ; or, in fact, ANYBODY, provided they are not Mr. Belhumeur or yourself.
In my opinion, there is another interesting twist on the ability of third parties and media outlets to publish the 9-11 affidavit that neither you nor, likely, plaintiffs' counsel have to this point considered. As I interpret the Order, it only operates to prevent you from DIRECTLY publishing/posting the affidavit. In my opinion, again possibly due to sloppy drafting by plaintiffs' counsel, there is nothing in the McCawley Order which prohibits you from CAUSING to have published the 9-11 affidavit. Specifically, my opinion is that, even under the McCawley Order, you have the unrestrained freedom to SOLICIT publication of the 9-11 affidavit by third parties.
Are there any restrictions on third parties' ability to publish or post the 9-11 affidavit? The only conceivable one would consist in how one interprets "publish" as the term is used in the McCawley Order. "Publish," on an unbelievably expansive interpretation, could have a sufficiently broad meaning to apply to all transmissions whatever (i.e. by email or other distribution) of the affidavit FROM you TO third parties. Under this meaning, any distribution of whatever kind from you to even one member of the public would constitute a "publication," and in this way you would be thwarted from providing the affidavit to third parties for publication.
Even under this torturous, improbable construction, however, there remains a route by which the 9-11 affidavit can be lawfully (under the McCawley Order) distributed to third parties and media sources for publication. That route is through me, as your past solicitor of record and as your present legal advisor. I specifically confirm that you provided me the 9-11 affidavit for reasons which originally pertained solely to my rendering you a legal opinion, and in doing so you did not at any time indicate to me you desired or even contemplated publication of same. As a consequence, the 9-11 affidavit has come into my hands by way of a process which can in no sense be considered as your "publishing" it (even under the bizarre construction of "publish" outlined above). Because you have not violated the McCawley Order, and because the McCawley Order does not on any interpretation apply to me, I can do anything I wish with the 9-11 affidavit, and without legal consequences to either of us.
Consequently, it is my considered opinion that I have the freedom (which you lack by virtue of the McCawley Order) to publish or distribute for publication the 9-11 affidavit; further, I interpet myself personally, and third parties generally, as having the untrammeled ability to lawfully publish or distribute for publication any and all MMF "internal documents" and summaries thereof.
As I indicated above, because even under the McCawley Order you retain the ability to lawfully solicit and provide direction in regards to publication of the 9-11 affidavit, I have no issue in seeking your input as to how to next proceed. Kindly advise as to whether, and to whom, you wish me to forward the 9-11 affdavit for publication.
Jeff Niederhoffer
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Dear Mr. Niederhoffer:Thank you very much for the detailed analysis and legal opinion. We have and still do disagree with a publication ban granted to MMF taxpayer financed lawyer Murray Trachtenberg (www.ptlaw.mb.ca; mtrachtenberg@ptlaw.mb.ca) during early September of 2008 covering Pre-Trial Conferences in the Manitoba Metis Federation's defamation lawsuit against CyberSmokeSignals.
Regarding the Affidavit, initially it was temporarily sealed, however, when this happens it triggers an automatic mechanism whereby approximately 140 media outlets throughout the province must be notified. Counselor Trachtenberg argued vociferously against the notification - haven't seen him so animated since he twice foolishly sparred with Justice Menzies in the April 2007 Metis National Council versus Yvon Dumont trial.
In a series of legal arguments we didn't completely understand, somehow the temporary seal ended up as an expungment hence no requirement to advise the media. Through a series of Court Orders and the expungment, the Plaintiffs using Mr. Trachtenberg have gone to great lengths to block publication of as much information about this case as possible. We think that's wrong. The lawsuit is being financed by the taxpayer funded Manitoba Metis Federation and, as such, should be viewed as a public good. That will be one of the points to be argued at our hearing scheduled for April 19, 2010 before the Manitoba Court of Appeal.
However, as you know Mr. Niederhoffer, only 2 paragraphs of our original 7-page 42-paragraph Affidavit sworn September 11, 2009 survived but they're important ones:
24. During 2003 Bernie Short, Head Accountant for the Manitoba Metis Federation, sent approximately 60 form letters to MMF staff and officials requesting it be signed and returned if they agreed with the amount shown as owing in travel advance monies. The total was over $111,000. Plaintiff John Fleury had the largest outstanding sum at over $19,000. Plaintiffs David Chartrand and Elbert Chartrand were cited for in excess of $13,000 and $8,000 respectively. I do veryily believe Plaintiff Riddle was also on the list as may have been other Plaintiffs.
42. The documents surrendered by me to MMF Counsel were received from various anonymous sources beginning in approximately 2002. I was aware of the existence of most and perhaps all when Lionel Chartrand prepared the allegedly defamatiory petition posted on cybersmokesignals. (emphasis ours).
Pursuant to Justice McCawley's May 3, 2006 Court Order granted to Counselor Trachtenberg we were forced to turn over 1, 567 pages of internal MMF documents to the "care, power and control" of Mr. Trachtenberg. We do not know what, if any, Co-Defendant Terry Belhumeur relinquished.
The following letter might give you an appreciation of how the Plaintiffs and their Counsel operate. The three Post Office Boxes were owned by senior respected Metis citizens in their communities one of whom was an Elder. The petition was the idea of CyberSmokeSignals then General Legal Counsel Lionel Chartrand who: wrote it; suggested to the Co-Defendants it could be published on the internet; requested he not be identified as its author; at no time advised Messrs. Belhumeur and Pieuk it might contain material which could possibly be defamatory ; and at no time advised it should be removed.
Today Mr. L. Chartrand is a Crown Prosecutor in Wetaskiwin, Alberta (lionel.chartrand@gov.ab.ca).
Thank you again, Mr. Niederhoffer, for the legal opinion.__________________________________________________
POSNER & TRACHTENBERG
Barristers, Solicitors & Notaries Public
710-491 Portage Avenue
Winnipeg, MB R3B 2B4
February 24, 2004
Petition Co-ordinator
Bost Office Box 72
Duck Pay Manitoba
R0L 0N0
Petition Co-ordinator
Post Office Box 128
Camperville, Manitoba
R0L 0J0
Petition Co-ordinator
Post Office Box 523
Winnipegosis, Manitoba
RoL 2G0
Petition Co-ordinator
Post Office Box 130
Skowran, Manitoba
RoL 1Y0
Dear Sir/Madam:
Re: Cybersmokesignals.com Election Petition
My File No. 2003-20
I am the lawyer for the Manitoba metis Federation.
This post office box was listed in a message dated February 6, 2004 posted on the website for cybersmokesignals.com. The message suggests that individuals who are signing an election funding petition posted on that website should forward those petitions to your post office box..
The petition contains statements which are untrue and defamatory of the Board of Directors of MMF. These include the following:
"AND WHEREAS the Manitoba Metis Federation has been needlessly spending vast amounts of money for inappropriate travel and accommodation for David Chartrand.
AND WHEREAS David Chartrand has already spent tens of thousands of dollars on pre-election campaigning in anticipation of the court order.
AND WHEREAS very large sums of money intended for appropriate purposes such as consulting with members on hunting and harvesting issues have already been spent by David Chartrand on campaigning.
AND WHEREAS the Federation's Board has been illegally authorizing campaign spending for David Chartrand and ununlawfully spending your public monies to pay his election court challenge legal fees.
AND WHEREAS unnecessary Board travel has been authorized for public relations purposes to one candidate only, namely David Chartrand.
AND WHEREAS the Metis have no confidence that any extra funding provided to the Federation will be spent in a legal or appropriate manner but rather believe all principles of fair play will be set aside by the Board of Directors approving campaign and public relations expenses for David Chartrand only.
AND WHEREAS the Metis believe that any extra money provided to the MMF will be used in attempts to hinder and suppress the rights of the other dcandidates for the presidential election rather than providing them with an equal opportunity."
I have already written to Mr. Terry Belhumeur who is the registered domain holder for cybersmokesignals.com and advised him that a lawsuit will be commenced against him, Clare L. Pieuk, and the individual indentified as "Metis mom" on the website (if, in fact, such an individual does exist).
I am writing to you to advise that any distribution of defamatory material (such as the election funding petition) by you to any other individual will reesult in you being liable to pay damages to the Board of Directors and the MMF.
In the event that you distribute any copy of the election funding petition thereby publishing the defamatory statements, a lawsuit will be commenced against you as well.
GOVERN YOURSELF ACCORDINGLY!
Yours truly,
MURRAY N. TRACHTENBERG
MNT/lec
posted by Clare L. Pieuk at 7:27 AM
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