Arthur Kent v Don Martin: A Cautionary Tale as We Head into Election Season

We’re heading into a federal election, and this campaign looks especially nasty. This column is a warning for journalists and political insiders to stay focused on facts and to deal fairly.

The alternative is to risk writing a take-down of a politician that could lead to a (admittedly rare, for a column written in a campaign) libel judgment. A spectacular example was a piece written by Don Martin during the 2008 Alberta provincial election.

Arthur Kent was the Progressive Conservative candidate in Calgary Currie. It’s probably an understatement to say Tory candidates running in Calgary usually have a pretty good shot at winning. We’ll never know whether Martin’s  column cost Kent a seat in the Alberta legislature, but it caused him a lot of pain and embarrassment which likely could not be compensated by any court.

The facts were laid out in the decision of the Alberta Court of Queen’s Bench:

Calgary Currie was held by a Liberal, but the Tories thought a famous, articulate candidate could win.

Kent was born in Calgary, which should have helped his chances. He had a distinguished career in journalism. Kent graduated from journalism school in 1975 and had prestigious jobs with big networks in Canada and the U.S. He was a solid reporter, a boots-on-the-ground correspondent in Tiananmen Square, the Romanian Revolution, and the Gulf War.

The latter war made him famous as the “Scud Stud”. Kent, a fine-looking man with a strong TV presence, sent back some of the most compelling TV journalism of that war. He returned to Canadian broadcasting, making documentaries and covering the fighting in Afghanistan for various outlets until 2008, when he decided to go into politics.

The Chinese, Saddam Hussein and the Taliban couldn’t take Kent down. But the snake-pit of Alberta politics and its media enablers could.

Kent was recruited by the Alberta PCs. Most of his campaign workers were strangers to him. Among them was Kristine Robidoux, a prominent lawyer at Gowlings who specialized in defending clients accused of bribery. She was a PC Party member who had worked on previous campaigns.

Kent was suspicious about another would-be volunteer, Allan Hallman. Very quickly, Kent realized Hallman and Robidoux played hardball politics. They wanted the party to make deals to buy off the other candidates for the nomination. Kent didn’t. He wanted to win it fairly.

Kent fired Hallman but kept Robidoux. It was a big mistake.

In mid-November, 2007, Kent won the nomination, rented a campaign office, put together a team and started door-knocking. He also started talking publicly about some Tory policies and attitudes, saying they needed work. The Alberta PCs had been in power for a more than a generation, and he believed there had to be renewal if the party was to hang on to power.

Kent was right. The party had become stale. In a few years, it would fracture, lose power to the NDP, and had to merge with Wildrose to form the United Conservative Party, which recently won power under Jason Kenney.

A rift started forming between Kent and the party establishment. Premier Ed Stelmach didn’t show up in Kent’s riding for a campaign breakfast, leaving Kent to explain to the people who’d bought tickets that the premier had more pressing commitments elsewhere. Kent’s campaign got less money than neighbouring PC riding associations.

It was clear that the people around the premier did not believe their famous candidate was a team player and had decided to cut him loose.

Little embarrassing stories started leaking to the Calgary Herald, the biggest daily in the province and, historically, a party organ for the Tories. Kent got a bit of a boost when he was interviewed by one of Canada’s best journalists, Roy MacGregor of the Globe and Mail. The Globe column described Kent’s belief that the Alberta Tories needed renewal. But it would be a stretch to say Kent had abandoned his own party. He told MacGregor that Premier Stelmach “understands the need of that wake-up call, the need for new faces and new ideas.”

The knives came out. The day MacGregor’s column ran, Don Braid of the Calgary Herald called Kent and asked questions about the rift between his campaign and the provincial Tory leadership. Kent, in his conversation with Braid, was critical of the premier’s campaign team, who, he said, recruited him for his name.

The Herald treated this as big news, running Braid’s column inside the paper and carrrying a front page news story under the bylines of Braid and Jason Fekete, with files from Jason Markusoff. (Fekete went on to work for Postmedia on Parliament Hill before taking a copy writing job with Canada Post. Markusoff is now Maclean’s Alberta reporter.)

Kent’s campaign began to fracture and Robidoux started leaking internal emails to Don Martin, one of the Herald’s top writers.

Don Martin joined the Calgary Herald in 1978 and worked there until 2010, when he, essentially, took over Mike Duffy’s job at the CTV network’s Parliamentary bureau. Martin is a personable, popular member of the Parliamentary Press Gallery and his daily interview show is very popular with political junkies. I count him as a friend.

Martin emailed Kristine Robidoux on February 12, 2008, at 8:24 a.m. stating: “I see the death spiral for AK continues. Any more dirt? Column runs tomorrow.” She responded: “OMG it’s all bad. I am dealing at this very moment with his official/financial agent who is resigning today.” She later went on to state: “The premier is making an announcement in an hour – specifically requested Arthur Kent’s attendance there, to have a chat. He ‘declined’. Wowzers. It’s all bad.”

The Herald did not disclose this email in its initial affidavit of documents. Martin, who took no notes for the article, later identified Robidoux as his source and gave up this email exchange. The Law Society of Alberta found a solicitor-client relationship existed between Robidoux and Kent and suspended Robidoux.

Martin also got information from Tory insider Rod Love and from Hallman, the Tory who Kent had refused to let work on his campaign. It’s still unclear whether Martin seriously tried to get Kent’s side. He claimed he called Kent’s office but there was no answer, and no answering machine. A witness at the trial said there was a voice mail system.

Martin sent a vague email asking Kent to give him a call. “Mr. Martin was not diligent in trying to verify the allegations contained in the article,” wrote Court of Queen’s Bench Justice Jo’Anne Strekaf years later.

Martin was willing to do whatever it took to protect Robidoux and Love as sources, but both decided to own up to their role.

Martin’s article was posted to the National Post website on the evening of February 12, 2008. It appeared in the print versions of the Calgary Herald, the National Post and the Edmonton Journal and online on the Calgary Herald website on February 13, 2008.

Martin’s piece ran in the Herald under the headline “Scud stud lands with a thud” and sub-headline “column: Kent’s oversized ego not helping him with his adopted party.” The National Post’s print and online versions had the headlines “‘Scud stud’ a dud in Alberta Election” and “Alberta’s Scud Stud a ‘dud’ on campaign trail.” To be fair, Martin did not write the headlines.

It had gems like:

And he’s made a serious rookie mistake by forgetting elections are a battle where he’s a mere infantry private who exists only to follow orders”;

 “Senior campaign strategists in Alberta cannot recall a worse case of a shooting star candidate, someone so self-absorbed that Kent has actually mocked the party for failing to treat him with a desired level of reverence”

 “I’ve never seen anyone who is so utterly in love with themselves, confided a veteran of half a dozen elections, whose sage advice was rejected by Kent as coming from ‘Jurassic Park’”;

Arthur Kent is doomed to serve as a basic backbencher assigned the worst office in a legislature where he will be assigned mind-numbing committees with no chance for parole”;

“The Scud Stud will land in politics with a thud. He should pray to lose so his ‘star’ qualities” will find another place to shine”.

Martin’s sources who had dished dirt on Kent were horrified. The trial judge at the libel trial noted Robidoux “was ‘shocked’ and ‘physically sick over it.’ She stated that the article was ‘entirely negative’ and ‘seemed a little mean,’ but the worst feeling was having to acknowledge her role in what was published.”

Even Kent’s critics in the campaign thought it went too far. Martin said most of them were planning to quit, something they all denied later.

Kent described the article as “poisonously false” and an “extraordinary distraction” to the campaign. He emailed Licia Corbella, the Calgary Herald Editorial Page Editor, on February 14, 2008, asking to be able to “file a rebuttal of Mr. Martin’s error-strewn attack article yesterday – about which I can confirm that I was not provided a chance to comment in any way before publication.” She answered: “You bet.”

That should have been the end of it: a harsh column; a rebuttal. Let the public decide and move on.

Kent made the mistake of waiting until the election was over. He lost by about 1,200 votes.

When Kent did push for his rebuttal, Martin stuck to his guns, even though much of the issue was moot. He said in an email his reporting was solid, so senior editors refused to run Kent’s rebuttal. (The email exchange between Martin and the editors was not disclosed when it should have been, an action that would cost the defendants dearly).

Kent sued Martin, The National Post Company, Canwest Publishing Inc., National Post Holdings Ltd. and CanWest Media Works. It took eight years for the case to grind through the pre-trial and trial stage. The trial itself lasted five grueling and expensive weeks.

Kent called sixteen witnesses, ranging from computer forensic experts to people with expertise in media ethics. That added to his costs. These experts charge well into the hundreds of dollars per hour to prepare their evidence and to testify. In a sense, it’s like hiring another, larger team of lawyers.

Canwest, the main corporate defendant, called eleven expert and lay witnesses, along with Martin.

Kent wanted a finding of malice against Martin for the way he did his reporting, and against Postmedia for leaving the story on its web site for four years.

The judge described defamation as “a tort that reflects a balancing of some important values in Canadian society, including the fundamental right to freedom of expression and an individual’s right to their reputation.” That’s a normal balancing of rights.

But then the judge went farther:

“Also at play in these cases is the public interest in receiving fair and accurate information about candidates during an election campaign in a democratic society.”

All the defences – fair comment, privilege, qualified privilege, justification and responsible communication — failed. Kent was not able to prove malice, but the judge said the utterly negative and sarcastic tone of the piece was taken into account in the assessment of damages.

The judge awarded Kent $200,000 in damages, along with $250,000 in costs. The Alberta Court of Appeal, on appeal from Kent bumped the cost award up to $450,000. (The corporate defendants and Martin did not appeal the judgement.)

At the time of the verdict, Kent wrote about the long ordeal of the trial and the grind of battling a large media company for nine years.

Kent later wrote about his frustration with Postmedia and Martin: “They have neither admitted their mistakes to Canadian news consumers, nor apologized to the court for acting as though they’re above the law. Their insurer, Hiscox Inc., has now paid me $470,000 in costs and a further $200,000 in damages.”

Martin has said he’d have written the piece differently today. When I asked for comment on this piece, he said the case was “a repressed memory I’m trying desperately to forget.” I asked if it had any impact on his life and career and he answered, “A definite no.”

Most people don’t have the money or the stamina to fight for eight years and endure a five-week trial with an uncertain outcome. Somewhere along the line, they decide they’ve had enough and settle. The defamation eventually becomes old news, the damage is done and might even have started to heal, and the process doesn’t seem to be worth the financial and emotional cost.

More than 90% of libel actions end with a deal or are allowed to expire.

But along the way, there’s anger, pain and frustration. And, so often, good faith dealing could have fixed the problems.