Monday, September 12, 2011

The ugly face of state repression

Mitch Taylor, counsel for the government of Canada. 
Photo UBC Law Alumni Magazine, Winter 2008

When Mitchell Taylor, the counsel representing Canada, rose last Thursday to cross-examine Alexandra Morton, we were expecting some payback time. For the past two weeks, through the mighty voice of her lawyer Gregory McDade, Alex had exposed to broad light the incestuous relationship between government and industry inside the salmon-industrial complex.

The cases of conflict of interest, incompetence, and acts of sabotage within DFO had piled up at the Cohen Commission like as many dead fish. Mr. Taylor’s job was to level the playing field a little for the government of Canada by bringing as much discredit as possible onto Alexandra Morton. Character assassination was his mandate, a despicable but generally accepted practice in the legal profession. So we were definitely waiting for him on that terrain.

Taylor performed his duty meticulously. He insisted on calling his witness “Ms. Morton” rather than the customary “Doctor” used to address people holding a Doctorate. He attempted to bring her US degree into disrepute by alluding to her university as being “famous for political activism”. He systematically declined to discuss any of Morton’s numerous published scientific papers or any of their content, insisting rather that she was an “advocate against open net fish farms” and that her primary activity in life was to “write a blog” and to be “quite a prolific emailer”.

Mr. Taylor did something else, however, which was not expected of him and of a different nature altogether. Deliberately, he crossed a red line. He used a technical and overall minor incident to conduct a frontal assault against Alexandra Morton’s right to free expression.

The night before her cross-examination, Alexandra Morton had made a bad judgment call by posting a blog. Something that she had been doing routinely on an almost daily basis for the past several months. September 7, however, was the one night when she shouldn’t have done it, according to a rule of the court that specifies that a witness should not communicate about the ongoing proceedings while under oath. A honest mistake, Morton explained to the court the next morning. I thought that only my evidence, which the public had not yet heard, was included in the ban, I did not know that the material already made public and broadcast live on the Internet was included as well. She apologized to the court and her apology was graciously accepted by Justice Cohen, with apparently little consequence over the proceedings.

Not so for Mr. Taylor of Canada. He wanted to extract his pound of flesh out of Morton’s screw-up. So he put Morton’s September 7 blog on the screen – even though Morton had already removed it from her blog after realizing her mistake –, and he proceeded to dissect it line by line, punctuating every sentence with a you violated the rules of this court reprimand. It would have remained more of the same character assassination exercise, if it were not for what Taylor did next:

Taylor: Let’s continue with your blogging, if we may Ms. Morton. Let’s look at the blog from August 31. This deals with the evidence that the veterinarians gave. If we go to page three, this appears to be a cartoon that you put on the blog of what appears to be the Commissioner speaking to those four witnesses. And the cartoon is showing flames coming from the pants of the witnesses and the words of the Commissioner are “pants on fire”. Ms. Morton, are you familiar with the saying “liar, liar, pants on fire”?

The sight of Mr. Taylor – a sinister figure if there ever was one in a courtroom – uttering on public record the phrase “liar, liar pants of fire” with his nasal daffy-duck voice while maintaining his expressionless poker face was truly hilarious. I could not help but join the rest of the crowd in a rowdy and joyful eruption of laughter.

This moment of comic relief passed quickly though, as I realized what had just happened. The August 31 blog? Wait a minute. Morton was not under oath on that date. This was no longer about her breaking some obscure court rule. What was it, then? Oblivious to the laughter still shaking the public gallery, Taylor continued:

Taylor: Do you agree with me that this cartoon is disparaging of those witnesses’ evidence?

Morton: I thought this was a representation, without saying the words --

Taylor: -- Are you saying they lied?

Morton: How can you look at the symptoms of a disease, have somebody like Dr. Gary Marty report those symptoms as being the clinical signs of marine anemia, which a DFO scientist [Kristi Miller] thinks the majority of Fraser sockeye are being killed and weakened by, and the vets above him, Peter McKenzie of Mainstream, and Dr. Mark Sheppard simply don’t recognize that that disease exists. That --

Taylor: Ms. Morton --

Morton: -- that cannot stand.

Taylor: Ms Morton, this is not an opportunity for you to make a speech.

Morton: Well don’t ask me questions, then.

Okay. Got it. I’m with you now, Mr. Taylor. What you are really getting at with this is that Alexandra Morton should not be criticizing the scientific and industrial establishment – ever, whether or not she is under oath. Because for one thing, this could be construed as libel, a punishable offense. And for another, as Taylor proceeded to explain, this is a morally reprehensible behavior:

Taylor: Do you agree with me that it is against the code of conduct for a registered biologist to speak disparagingly of a colleague registered biologist? 

Morton: It is, yes. 

Taylor: Can we equally apply that, then, to the fact you should not be disparaging of other professionals such as veterinarians?

Morton: Mr. Taylor, my personal code of conduct is that when I see an ecosystem being destroyed, I will use what tools I can that are fair and legal to try and represent that truth. And if --

Taylor: -- all right, thank you.

Morton: -- and if the cartoon was the only way to do it, that’s what I was going to do.

Taylor then brought up another of Morton’s blogs, dated September 5, and therefore also clearly outside of the “no comment while under oath” restriction period. In that blog, Morton referred to an incident where gas bubbles were spotted near a fish farm in the Broughton Archipelago. Called by residents to investigate, DFO biologist Kerra Hoyseth found an underwater pipe full of dead farmed salmon. In spite of her discovery, Hoyseth reported that there was no conclusive evidence as to the exact cause of the gas emanations and so she closed the file.

In her September 5 blog, Morton commented about this incident: “Everyone knows rotting causes gas. I suspect Hoyseth's first instinct was to be more truthful, but I think this painfully illustrates DFO's relationship with fish farms. How can I believe anything DFO says about salmon farms after this? Hoyseth did not tell me the truth. I feel badly for her, because I suspect this was what was expected of her. How many others in DFO are doing the same thing just to keep their job?”

Mr. Taylor charged at Morton head on:

Taylor: You have no evidence that [Ms. Hoyseth] was not telling the truth, do you? You just don’t agree with what she was finding or her interpretation of it. You have a different interpretation.

Morton: Mr. Taylor -- a pipe full of rotting salmon! Ms. Hoyseth, I am sure, understood that it could easily produce bubbles. But it was my interpretation that she did not want to report that to me, and so she glossed over the finding of that entire pipe full of rotting fish.

Taylor: Thank you. You just answered it, because you used the word “interpretation”. Now, you say "How many others in DFO are doing the same thing just to keep their job?" You have no evidence to support that accusation that people in DFO don’t tell the truth just to keep their jobs, do you?

Morton: I actually do. But I am not going to reveal all my sources, because they are scared.

Two things jump out of this extraordinary exchange. One, Morton is sending a stern warning back to Taylor and the members of the scientific-industrial establishment: Sue me if you dare! I will not come to court empty handed. The second is Taylor’s dorky Aha I nailed you answer over the word “interpretation”. How not to think of an Inquisition trial with the church prosecutor exclaiming: She uttered the word of God in vain, what more proof do we need?

Taylor then went to the next level of his attack against Morton. He put in question her right to peaceful assembly.

Taylor: Ms. Morton, I want to ask you about some protests you may have participated in against fish farms, and there is nothing wrong with that of course. You have participated in protests against fish farms at the farm site, haven’t you?

Morton: Yes.

Taylor: And you did that in a way that you and others got very close to the actual site and pens and/or may have gone into the site itself. 

Morton: No, we never go into the pens.

Taylor: I see. And you did that [did what? Morton just told him they didn’t do it] despite there being some signs that say No trespassing, quite prominent signs?

Morton: First of all, there were no signs at that farm. Second of all, it is actually illegal to put a No trespassing sign on a marine farm that has a license of occupation. Mainstream tried that for a little while, but they were told to remove them. So it was a temporary situation because it was unlawful.

As you have gathered from Alex Morton’s razor sharp responses in the various exchanges quoted above, Mr. Taylor did not fare as well as envisioned in his original game plan. After she absorbed the initial shock of such brutal attacks against her person, Morton began to fight back like a goddess. As the day went, and as the lawyer for BC took turns with Canada in attempting to unseat Morton, she took full control of the battlefield. She would detect the traps embedded in the questions a mile away, she would avoid them effortlessly. Nay, she would turn them right back against the examining lawyer like as many lethal boomerangs. If you have not seen Alex Morton on the witness stand this last Thursday, you do not know yet what a salmon warrior truly looks like. Such is the overwhelming power of shining and uncompromising truth.

Being a Frenchman, the historical reference that naturally jumped at me as I witnessed that extraordinary day was that of Joanne of Arc, and how during her trial for witchcraft she turned her interrogators into a bunch of half-witted jackasses with their pre-canned mechanical questions. All that these two women needed to do in order to overcome the sophists and Pharisees tasked with prosecuting them, was to provide some simple, luminous, painfully truthful answers which needed no other support but themselves. It is a bit frightening to see how the interrogation techniques in matters of the state have not changed much since the 15th century. It is reassuring to see that the manner to respond to such techniques have not really changed either. Just speak the truth and let its magic do the work.

In the end, and for all his misgivings, Mr. Taylor has rendered a valuable public service to the people of this country. By choosing to conduct his cross-examination of Alex Morton in the way he did, he has revealed the ugly face of state repression in action. Morton has dared to expose the collusion of the government of Canada and the fish farm industry? The government responds by attacking her personally and viciously, threatening her over her constitutional right to free speech and free assembly.

The service that Mr. Taylor provided was certainly not worth the $25 million that we have disbursed on this Commission, and frankly I dare not ask how much his personal invoice for mudslinging Morton will amount to. The final answer to the worthiness of this Inquiry will have to come from Justice Bruce Cohen himself. It was noted by some, perhaps as a sign, that at the end of the day Cohen personally thanked Alex for standing as a witness and ostensibly called her “Doctor Morton”.


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