A Year of Trials

Excerpt from Judges (Toronto: Macmillan, 1986), by Jack Batten

The trial entered its third week. Bill Somers for CTV pressed in defence that the W5 item had presented a straightforward account of the situation at Walker Brothers as the facts revealed it to be. It was responsible journalism, and in any event the law permitted both the print and the electronic media to comment fairly in matters of public concern. If the situation were otherwise, he argued, it would “put a crimp in investigative journalism”.

By Wednesday morning, October 18, all of the witnesses had been heard, and Julian Porter began his address to the jury. He worked without notes as he prowled in front of the jury-box. He outlined the case for the plaintiff and reviewed the testimony of his witnesses. He began on a relatively light note. This is a solemn business, his manner implied, but we’re allowed a little comic relief. He made a small joke. “Mr. Somers told you that a judgment for the plaintiff would put a crimp in investigative journalism,” Porter said. “I don’t want to put a crimp in it. I want to put a cramp on it.” The jury smiled.

Porter had been talking for forty-five minutes. His voice took a step up in pitch and emotion. His body language signalled that something serious was on its way. He crouched in front of the jury-box. He listed accusations that W5 had zinged at Norris Walker and his business, and after each accusation, Porter spoke the same two words.

“Not true.”

“W5 said Walker Brothers poisoned the ground,” Porter told the jury. “Not true.”

By the time Porter reached W5’s tenth accusation, his voice had risen to a shout that echoed off the ceiling of the courtroom.

“Not true!”

Two of the women jurors pushed back in their chairs as if they’d been punched.

Carruthers called a recess to allow the jury to take its customary eleven-thirty coffee break.

“Porter’s having a hell of a good time out there,” Carruthers said in his chambers behind the courtroom. “That’s what I liked to do as a counsel.” In his own practice before he accepted an appointment to the bench in August 1977, Carruthers practised mostly litigation law. He handled work for insurance companies, the sort of cases that frequently involved jury trials. “I think I had a knack with a jury. I loved it, really letting fly with everything you’ve got. Maybe there’s a little ham in it. But the ham stuff, that’s a very effective element in persuading a jury to accept your line of argument.”

Just before noon, Porter resumed his jury address. He began at measured pace. Calm but intense. “This case,” he said, “gets into the deepest valley of malice.” The jury straightened up. “W5 took its hours of tapes and edited them down to a few minutes that would make their show into something sensational and popular and that would attract hundreds of thousands of viewers, and when they did all of that, they said that Norris Walker was negligent and crooked.”

Porter was building to a climax, and it came thirty minutes later with the last two sentences of this address.

“When a man dies,” Porter said, his voice husky with pleading, something close to sorrow, “all he leaves behind is his reputation and his good name.”

Porter was standing to the right of the jury-box, between it and Carruthers. He was hunched forward, his shoulders quivering.

“Won’t you,” he said, his voice breaking. “Won’t you” — now his voice was a rasp, his face contorted — “won’t you” — Porter was closing in on a sob — “won’t you let Norris Walker die with his name cleared of this infamy?”

Porter was finished, but he held his clutched pose, arms slightly outstretched, head bent. No one in the jury-box moved. No one in the courtroom moved or spoke, not a guard or counsel or a spectator or a clerk or Carruthers. Five seconds went by. Porter walked to his seat at the counsel’s table. His footsteps banged like small thunderclaps in the silence of the courtroom.

Carruthers broke the mood.

“We’ll adjourn until two-thirty,” he said.

Porter left to meet his friend Allan Fotheringham, the journalist, for lunch at Winston’s, the Toronto restaurant favoured by men with faces and names that get in the papers. Carruthers went to this chambers and changed out of his crimson and black gown.

“Incredible,” he said. “I’ve had people weep in my courtroom, but this is the first time the person who wept was a counsel. That was a fantastic address.”

The jury retired to make its decision on the case at two o’clock on Thursday afternoon, October 18, and during the wait for their return, Carruthers passed some of the time in the courtroom kibitzing with Porter and Somers and their juniors.

“What’d you think?” one of the juniors asked Carruthers. “What’ll the verdict be?”

“Maybe they’ll give the plaintiff something,” Carruthers said. “I think they’ll find he was libelled and award him about twenty-five thousand dollars. That’s just a guess. Shouldn’t be higher than twenty-five because the program doesn’t really seem to have cost the company any appreciable loss of business.”

At six o’clock the next afternoon, Friday, the jury returned to the courtroom with its verdict. The foreman handed to the court clerk two sheets of paper on which the decision had been written, and the clerk passed the sheets up to Carruthers. The verdict in a libel case takes the form of answers to a short list of questions, and for two or three minutes, Carruthers studied the answers on the sheets in front of him.

“I looked at the numbers on the paper,” Carruthers said later, “and what I wanted to do was lift my head and say to the counsel, ‘You guys should see what I’m looking at!’”

Until that moment, the largest award in a Canadian libel action had been the $125,000 which Richard Vogel, the Deputy Attorney General of British Columbia, had won from the CBC in 1982. The award which Carruthers was staring at on the pieces of paper in front of him topped that figure by more than one million dollars.

The jury had found that W5 libelled Norris Walker and his company. It calculated the damages for the libel in a variety of categories: $25,000 in personal damages to Walker, $50,000 in exemplary damages as punishment to W5 for its offensive journalism, a whopping $883,000 in damages to the Walker Brothers company computed at the rate of one dollar for every person who was watching the W5 show on the night the libellous segment was broadcast, and interest on the award dating from January 1981 when the lawsuit initiated.

Total: $1,372,048.

Bill Somers was stunned. “For openers,” he said later, “the damages are so excessive, they can’t stand.” He was planning an appeal. Norris Walker wasn’t thinking of the future. He left the courtroom to drink a couple of bottles of champagne with friends. Julian Porter had his own small celebration.