The perils and politics of an alleged Queen’s Park cover-up: Cohn

Tim Hudak keeps accusing Kathleen Wynne of criminal misconduct.

You may not agree with the Tory leader’s wild allegations that the premier personally oversaw a cover-up of the gas-plants scandal. But you have to give him credit for boldness.

Even after Wynne threatened him with a libel suit, Hudak has refused to be silenced.

Is he risking a court case that will saddle his Progressive Conservatives with soaring legal bills? And a costly libel judgment?

At first glance, it looks like Hudak has chosen political strategy over legal strategy.

A libel suit would take at least two years to get to court, whereas a spring election could be less than two months away. Losing a libel suit might seem a small price to pay for winning an election with a scandal mongering campaign that reduces our premier to a plaintiff.

But beyond political calculations, there are also legal considerations that may have emboldened Hudak to continue his crusade to criminalize and demonize Wynne.

As Leader of Her Majesty’s Loyal (but not necessarily responsible) Opposition, Hudak gets enormous leeway to oppose the premier. His legal advisers may be banking on the extreme reluctance of any Ontario court to punish an opposition leader for opposing the premier, even if recklessly.

Hudak is well placed to invoke the doctrine of fair comment, which allows people in certain circumstances (do not attempt this without legal advice!) to utter comments that can seem awfully unfair or outrageous — like the things he’s been repeating since late last week.

That’s when the Tory leader started hurling unsubstantiated charges at Wynne based on an OPP document. Whether fearlessly or foolishly, Hudak did so in a news conference outside the privileged confines of the legislature — where MPPs are automatically shielded from the laws of libel.

Hudak’s allegations prompted Wynne to fire off a written warning that he was defaming her. She demanded a retraction and apology.

Instead of backing down, Hudak called the premier’s bluff.

First thing Monday morning, he summoned the media for an encore performance. The most surprising aspect of Hudak’s over-the-top allegations was that he repeated them at a news conference rather than wait another 45 minutes for the start of the daily question period — when he would be shielded by the legislature’s legal privilege.

Hudak once again alleged those OPP documents showed Wynne oversaw a criminal cover-up over the cancellation of gas-fired power plants (they don’t). In fact, the OPP documents, which have not been tested or proven in court, allege that McGuinty’s then chief of staff, David Livingston, committed a breach of trust by improperly securing extraordinary “administrator” access for his deputy’s boyfriend to erase as many as two dozen computer hard drives used by McGuinty staffers.

Rather than focus on McGuinty’s tarnished legacy and the damaged Liberal brand, Hudak went far beyond what the facts show: Seizing on a police notation that the improper “administrator” access had a pre-programmed expiration six weeks later — lasting from Feb. 6 to March 20, 2013 — Hudak took it out of context to claim that the hard drives were still being erased after Wynne took over as premier on Feb. 11th of last year. In fact, the OPP document refers to computer erasures on Feb. 6 and 7, not while Wynne was in power.

Yet Hudak persisted, unpersuasively: “This happened under Kathleen Wynne’s watch, not Dalton McGuinty’s.”

It seems the Tory leader’s strategy isn’t just defaming Wynne, but daring her to take him to court. If so, what’s the premier’s next move?

After writing an “open letter” Sunday warning Hudak to desist, she followed up with a lawyer’s letter Monday saying much the same thing. But still no formal libel suit, at least not yet.

On reflection, the Liberals may be hesitant to get sucked into a losing legal battle. But on balance, Hudak may be getting better legal advice than political advice.

Many Ontarians will probably believe Hudak’s unsupported allegations if he keeps repeating them often enough — unchallenged. Yet every time he steps into a room of reporters who have actually read the police document — and can see how he is deliberately misreading it — the Tory leader risks diminishing his long-term credibility.

In the months ahead, Hudak may well dodge a libel case, only to defeat himself in an election campaign. At which time Tories may ask why their leader didn’t stick to the damning facts about the final days of McGuinty’s reign, rather than inventing fanciful scenarios about the first days of Wynne’s premiership.