CALGARY – A defamation trial involving a former television war correspondent is going ahead in front of a judge alone after the jury was dismissed over an opening statement deemed too prejudicial.
Justice Jo’Anne Strekaf said Arthur’s Kent’s lawyer made a number of inappropriate remarks as the trial began Monday and it would be unfair to continue after what the jurors heard.
“Given the number of inappropriate statements and the serious nature of many of those statements … and the difficulty of overcoming the damage caused by the statements, I have concluded that it would not be possible to correct the damage done to trial fairness,” Strekaf said Tuesday.
“As a result it would be unfair to the defendants in this case to proceed before this jury.”
Kent, 61, is suing Postmedia, the National Post and former columnist Don Martin over a column that ran when Kent was campaigning to win a seat in Calgary for the Progressive Conservatives in the 2008 provincial election.
READ MORE: ‘Scud Stud’ defamation trial opens in Calgary
The Alberta-born Kent acquired the nickname “Scud Stud” when he reported for NBC during the 1991 Persian Gulf War often going live as Iraqi Scud missiles were launched into Saudi Arabia.
He was narrowly defeated in the election after a campaign in which a piece by Martin appeared under the headline “Alberta’s ‘Scud Stud’ a ‘Dud’ On Campaign Trail.”
Opening statements allow lawyers to lay out arguments they intend to prove during the trial. They are often referred to as a road map for a judge or jury.
Kent’s lawyer characterized the column as a “false article” that failed to meet even “ordinary journalistic standards.”
“You’ll come to learn that the news report did intend to harm. It was not in accordance with the rules of responsible journalism,” lawyer Kent Jesse told the jury. “Not only did the defendants publish an article that was unfair, hurtful … but they did so with malicious intent.”
Jesse said Martin “asked only for dirt” from his sources.
“The malicious intent, apparent in the news report, was adopted and condoned by the newspaper, who published the news report not just on that day and not just in the one newspaper, but other newspapers and numerous websites.”
Postmedia lawyers immediately demanded a mistrial. They said Jesse impugned the reputation of Martin by claiming he had written the column maliciously and that Postmedia had known it was inaccurate and kept it online for five years.
The judge agreed that rather than telling the jury what he intended to prove, Jesse was presenting statements as fact.
“I did not find that this was a mistrial,” Strekaf ruled. “I simply reached a conclusion that in the circumstances it would be inappropriate to proceed before this jury.”
She added: “I am mindful that it’s a legitimate concern that an attempt to identify for the jury that many specific portions of the opening statement that are problematic would re-emphasize the issue in their minds and could exacerbate the problem.”
Kent indicated that he would be willing to go ahead with only a judge. Postmedia lawyers agreed.
The column, which was published in several newspapers that were part of what was then the CanWest chain, described Kent as “a hunky bear-witness reporter” who “got female hearts pumping.”
It suggested the Kent campaign was in complete disarray, that the candidate was not co-operating with the provincial PC party and that a number of key campaign members were threatening to quit in protest. It included information and quotes from unidentified party members.
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