Sunday, January 15, 1989
SIR ARTHUR CURRIE'S BURDEN The burden of libel
SIR ARTHUR CURRIE'S BURDEN
The Last Day, The Last Hour: The Currie Libel Trial
Robert J. Sharpe
with a new preface by the author
University of Toronto Press
328 pages paperback
The Osgoode Society has inspired the publication of several works of legal history whose interest might surprise the general reader. They have avoided the trivial cataloguing of local history and the factitious "interest" of popular history. The Last Day, the Last Hour: The Currie Libel Trial is the latest.
Sir Arthur Currie's 1927 libel action against the Port Hope Evening Guide led to the most famous civil trial in Canadian history.
The Guide accused Currie of wasting the lives of Canadian soldiers on the last day of the Great War in a vainglorious push to capture Mons before the Armistice.
Robert Sharpe has told the story well bringing to life the judge and eminent Toronto counsel, the small town lawyers, politicians and newspapermen, the retired officers and returned soldiers. Currie's correspondence, the extensive newspaper reports and the trial transcript have enabled him to give a full account.
Happily for his review of the trial, Sharpe has practiced law, but his chief occupation, before becoming executive officer of the Supreme Court of Canada in 1988, was as a law professor.
He must insinuate his knee jerk querying of the law.
He suggests American law putting an onus of proving the defendant knowingly published lies on the plaintiff would be better than our libel law.
He seems to think the rule against hearsay evidence should be set aside in a libel action to let in newspaper reports and rumour.
His story contradicts his arguments, which boil down to an alleged unfair burden on the defendants.
The action placed an enormous strain on Currie who collapsed on the news that his modest judgment for $500 would be appealed and never fully recovered, though the appeal was promptly dismissed as his counsel had said it would be.
Any competent counsel must advise clients contemplating a libel action that even the strongest case must be expensive and a strain. They might set their clients this book as required reading before starting an action.
The verdict was a disaster for the Guide and its publisher, Frederick W. Wilson, but not for the actual author of the intemperate attack on Currie, W. T. R. Preston, who had already been a plaintiff in two unsuccessful libel actions in 1915 and would bring another, also unsuccessful, in 1933. Preston defended himself and enjoyed it.
There was never any evidence to support the Guide's attack on Currie. Wilson knew that and could have saved himself with dignity by a prompt apology and a defence confined to a denial of damages. Currie would likely have dropped his action.
Wilson's downfall was to fall into the hands of a lawyer whose enthusiasm far outran his competence and diligence and who confused justice with his case of the moment.
Frank Regan blundered through the trial trying to broaden the issues to cover Currie's whole military career and calling much inadmissible evidence. He never decided what he wanted to prove or how he could properly prove it. Libel law's determination of the issues and the hearsay rule's insistence on first hand evidence would have been no burden if he had had a defence to advance.
He whinged, in front of the jury, about the limited resources of the defendants but his conduct of Wilson's defence spoke more of his inadequate preparation. He may have agreed to act for no fee and given Wilson what he would pay for.
He may have won some sympathy from the jury and the great latitude given him by the judge let much of what he wanted in before the jury, if only obliquely, but his performance seems more pathetic than sympathetic.
Currie's victory in court did little to lay the libel. The CBC with its unerring eye for striking a blow at national self-understanding revived the libel in its November 1988 film The Killing Ground dramatically purporting to present new evidence in the gravestones of three Canadian soldiers who died on November 11, 1918 without any research of the circumstances of their deaths.
The story is still quite groundless and a distraction from the full assessment of Currie's career and Canada's fighting in the Great War. But the story of the libel is a window on the life of Canada after the Great War and the awkward reality of a lawsuit.