Thursday, July 19, 2012

Harper: Going after Guergis to punish Jaffer?

Of all the arguments I've heard from the Conservative Party regarding the Helena Guergis lawsuit where she is claiming PMS and Co defamed her and dismissed her as a Cabinet minister without cause, this one has to take the cake; that the party can't be sued because it is an "unincorporated association."

The reason why law firms have reconstituted themselves as "limited liability partnerships" and why places of worship have decided to adopt articles of incorporation is so they can have the same status as places of business ending in "Limited" or "Incorporation" or "Corporation" -- the status of a person and thus to limit their liability for private wrongs; specifically, only the assets of the establishment can be seized, not the personal things owned by the proprietors.

If the Conservative Party is unincorporated then it follows some or all of its membership are personally liable.   In this case, it can hardly be argued all of the party's members should be forced to pay up -- that's silly.   But the senior inner cabal that got rid of Guergis on what appears to be specious grounds and / or that she was "guilty by association" because of her marriage to Rafim Jaffer.

I don't know what to make of the allegations against him either before all of this started, or the new allegations made by Team Con that Jaffer engaged in technology transfers to companies in an enemy state, Mainland China.

But my sense is the following.

First, no one should be held responsible for a spouse's or common law partner's actions unless he or she was also part of the same conspiracy.

Second, section 4(3) of the Canada Evidence Act establishes by statue the centuries old spousal privilege -- that communications between a husband or wife cannot be used as evidence in a criminal or civil trial under any circumstance unless one of the parties has waived that right as party of a plea bargain so as to testify against the other or one spouse has been victimized by the other and by logic must testify, whether the wrong was jointly or severally criminal or civil.  (I presume that although the wording is lacking in the present law, the privilege also extends to a two husbands or two wives contract).

If Guergis was aware that her husband, Jaffer, was engaging in clearly criminal conduct, she might be morally obligated to report what can be considered by some to be an act of treason, especially as a minister of the Crown herself.    But legally, she wouldn't have to even if he made such a confession to her in confidence -- and at this stage I don't even think Jaffer has been charged or indicted for anything of the sort.   And for what it's worth, even if she was told such by Jaffer, that doesn't make her part of the act unless she directly abetted it in some way such as offering secure channels to facilitate the transfer.

Many of us have been fired for some reason, even if was a minor or unintentional breach of company rules.   But any normal supervisor would explain the reasons for doing so, in writing.

PMS does not act like a normal person.   Hiding under so-called Crown immunity, he merely invoked the "removal at pleasure" concept to get rid of someone it appears increasingly he simply hated.  .   And a woman, for that matter.    A woman who is a Christian (I believe) married to a Muslim.   This has discrimination written all over it.   I'm not saying that's definitely what it is, that's for a court to decide.   But it's awfully suspicious.   And not just because that firing someone without cause is a frightening concept

Just because you're the country's primus inter pares (first among equals) does not give you a hall pass to do whatever you want.    A Prime Minister does have tools at his or her disposal that many Presidents don't, including invoking posse comitatus (i.e. giving law enforcement powers to the military).    But he or she is subject to the same employment standards expectations that bosses in the private sector are.   That includes that if you fire a minister you can't do so on the grounds of race, ethnicity, religion or sex.    Count the ways.

If the government has proof Jaffer did something that undermined our economy to an irreparable extent, charge him with the crime, not Guergis.    If  Guergis is only guilty of bad judgment by allowing a parliamentary computer to be used for commercial purposes, then she should have been told that up front when dismissed or demoted -- it's not something that merits expulsion from the party.

But if evidence demonstrates this is just a witch hunt to punish a non-Muslim for marrying a Muslim -- especially a PM who claims he's trying to build bridges with Muslims -- then in my opinion PMS is no longer fit to govern and the GG, David L. Johnston (who PMS appointed by the way), should fire him "in the name of the Sovereign."

And as far as the "unincorporated association" argument goes -- come on.   It's easy to identify who would be responsible within that party, and against whom a forfeiture assessment should be applied.   You can probably count them with the digits of both hands.   That is, of course, if.

1 comment:

Anonymous said...

If the Conservative Party is unincorporated, then the shady deal/plea bargain to make In&Out go away is an even greater travesty of justice. There are people who definitely should have gone to jail lacking even the pretence of the corporate veil to hide behind.

How can the cons hide behind the party for In&Out, but claim now that the party is some sort of insubstantial phantom.