When The Fifth Estate Went From Journalists to Activist Defendants

When do journalists stop acting in the public interest and start working to push their own agendas? When do reporters stop covering news and start making it?

‍
That question is central to the latest twists and turns in WE Charity’s court case against the CBC, its flagship news show The Fifth Estate, and several of its journalists.

‍
After they destroyed WE Charity’s operation in drive-by smears and second-rate reporting that I’ve written about for four years, Canada’s media has moved on to write about passport pictures and to falsely accuse ethnic Chinese politicians of being foreign agents. None of the media pack bothers to follow WE Charity’s campaign to use the courts to clear its good name.

‍
But WE Charity certainly has the CBC’s attention. A CBC producer has tried to convince at least one U.S. state to effectively revoke WE’s charitable status. Nothing on the record of his communication with North Carolina officials show that Fifth Estate producer Harvey Cashore disclosed to the North Carolina officials that he was a defendant in a lawsuit filed by the same charity that he was “investigating”.

‍
WE’s lawyer says, in an April 27, 2023, court filing, that CBC’s lawyers told the court that the CBC claimed it had “nothing to do” with North Carolina’s actions. In fact, emails between Cashore and North Carolina officials show Cashore was the only complainant.

‍
“Today, we learned that it is not true that – as CBC’s counsel put it – ‘CBC has nothing to do with the North Carolina Secretary of State’s exercise of is regulatory authority’ regarding WE Charity.’

‍
“Documents we received today in response to a public records request show that Harvey Cashore, the lead CBC producer on the defamatory coverage challenged in this lawsuit, solicited North Carolina regulatory officials to act against WE Charity. Mr. Cashore claims to have done the same in other states.”

‍
WE is trying to repeat Dominion Voting System’s legal success against Fox News, suing in Washington, DC and hoping for a repeat of the victory that Toronto-based Dominion scored its victory over Fox News.
Court documents filed by WE and the CBC show a bitter fight in the U.S. The CBC wants the court to rule that the case should be heard in Canada, not the U.S. WE says much of its donor money comes from Americans. And the CBC, it says, its still trying to destroy WE’s reputation in the U.S.

‍
In March, WE lawyer Joseph Kroetsch wrote to the CBC’s New York-based lawyer Nathan Siegel to complain that the CBC was “unilaterally conducting discovery under the guise of journalism. Irrespective of whether CBC intends to publish the results of such journalism, the CBC is conducting de facto discovery for its defense in this action.” At the same time, the CBC was demanding protection against WE’s discovery of documents until the Washington court hands down its ruling on whether the case should be heard in the United States.

‍
WE’s lawyer’s letter, which was filed as an exhibit in the Washington court, says Cashore has been contacting people and organizations that the CBC identified to the  court as potential witnesses. WE’s lawyer claims Cashore is using his cloak of journalism to help his employer gain advantage in the lawsuit. WE can’t get any disclosure of documents from the CBC until after the Washington court decides the case should be heard in that jurisdiction.
“We are not trying to interfere with what CBC will doubtlessly claim is legitimate journalism. But we do believe it is improper to ask WE Charity to sit on its hands while CBC gets a head start on discovery,” Kroetsch wrote.
Documents provided by WE show Cashore pushed the state government of North Carolina to block WE’s fundraising in that state. In a series of letters to North Carolina officials, Cashore tried to argue that WE’s chief financial officer misled a Canadian parliamentary committee when he said in 2020 that he was too ill to testify to that committee.

‍
Li was on medical leave from his day-to-day work. Still, WE argued, Li was well enough to sign financial disclosure forms that he had reviewed as the charity’s CFO.
(In the end, the parliamentary committee made no recommendations or findings about WE, despite a campaign by MPs Pierre Poilievre and Charlie Angus to smear WE’s reputation. A parade of witnesses, many of them utterly ludicrous, testified at the committee. The publicity effectively destroyed WE’s volunteer and youth empowerment programs in Canadian schools.)
North Carolina’ state official rejected Cashore’s claims.

‍
In another letter to CBC’s lawyers, filed as part of the Washington court record, Kroetsch said Cashore told the North Carolina officials it was inconsistent for Li to tell the parliamentary committee that he was medically unable to provide live testimony while he continued to sign U.S. state filings as WE Charity’s CFO.

‍
“There is no contradiction between these facts,” Kroetsch wrote. “(A)s CBC knows, Mr. Li provided written answers to the Parliamentary Committee’s questions. We understand that Mr. Cashore has incorrectly told individuals that Mr. Li did not hold the title of CFO while he was on medical leave, and Mr. Li therefore should not have signed U.S. regulatory filings as WE Charity’s CFO. But as Mr. Cashore knows (and wrote in an email), Mr. Li remained an officer of the charity.”

‍
Cashore also tried to dig up dirt on WE and its founders. According to the letters attached as exhibits in the court filings, Cashore called Dr. Elaine Chin, Craig Kielburger’s personal physician, on March 28, 2022, and emailed her a few weeks later. In December 2022, he called WE’s former in-house counsel, who is bound for life by her professional obligations to her former clients.

‍
He also contacted many of WE’s supporters and donors in Canada and the U.S. In a letter between counsel that is now part of the court record, Kroetsch warned “that CBC’s ersatz discovery through Mr. Cashore risks compromising the discovery record and WE Charity’s access to nonparty witnesses willing to voluntarily provide discovery materials.

‍
“Mr. Cashore has been contacting third parties about WE Charity’s funding of schools by telling them that he is producing another documentary on the subject and then requesting information and/or evidence. This has an obvious coercive effect; no normal person wants to be named and shamed on The Fifth Estate. It also incentivizes potential witnesses to distance themselves from WE Charity because Mr. Cashore’s bias and track record of false reporting on WE Charity is no secret,” the court filing says.

‍
“CBC cannot credibly claim that Mr. Cashore’s actions are legitimate newsgathering,” Kroetsch wrote. “It is not a coincidence that, to our knowledge, the only reporter from any news organization seeking information about WE Charity in nearly a year is the lead reporter on the CBC’s coverage challenged in our lawsuit.

‍
“Nor is it a coincidence that Mr. Cashore’s questions focus on documents filed in the litigation, coincide with developments in the lawsuit, and target sources of privileged information concerning WE Charity and its principals whose information is protected from discovery.”

‍
So far, there has been no discovery in the case. In the discovery process, both sides are legally-bound to turn over all relevant documents to each other, and submit to cross-examination. It is an important step in the civil litigation process. Dominion’s discovery of Fox News produced embarrassing revelations of journalistic bias and failure.

‍
“The CBC’s actions are vindictive and cannot be based on any good faith belief in the truthfulness or newsworthiness of further reporting on WE Charity,” Kroetsch wrote. “But as it seems CBC is content to increase its liability exposure, we will again ask that CBC continue preserving all records relating to its latest reporting on WE Charity…

‍
“It defies belief to suggest that this is a coincidence, that North Carolina’s charitable licensing director merely happened across Canadian parliamentary files and reached the same wrongheaded conclusion as Mr. Cashore on an issue never raised by anyone else. None of this is normal,” Kroetsch wrote.

‍
“CBC’s conduct regarding WE Charity constitutes a stark deviation from legitimate journalistic conduct. Journalists do not report subjects to the government. They do not seek to persuade lawyers, doctors, and accountants to violate their ethical and legal confidentiality obligations. Individuals close to WE Charity are all too familiar with CBC’s track record of malicious and untruthful reporting on the organization.

‍
“When a CBC reporter—especially Mr. Cashore—calls about WE Charity, that inquiry embeds an inherent threat of further false reporting. Mr. Cashore’s communications have an inquisitorial tone that reinforces this latent threat. For example, in his email to Victor Li’s attorney, Megan Savard, Mr. Cashore quotes at length letters she sent to Parliament on Mr. Li’s behalf. Without any other context, Mr. Cashore asks Ms. Savard whether she told the committee the truth. He cites no basis for basis for contending her statements were untruthful and does not describe the story he is working on,” Kroetsch wrote.
CBC’s lawyer Nathan Siegel claims Cashore is not trying to evade the discovery process.

‍
“(N)either CBC nor any of its journalists is attempting to evade the discovery process or gain an improper “litigation advantage” in this case,” Siegel claimed in a letter to Kroetsch that was filed with the court.
Both sides are waiting for the judge to hand down a decision on whether the case will be heard in Washington or belongs in a Canadian court.