by Heather Robertson
WAR ON WORD,,: The Terror and the Tedium"; a truecourtroom drama based on the controversial manuscript: Statement of Claim:Donald A. Elliott et al., Plaintiffs, vs the Canadian Broadcasting Corporationet al., Defendants, published under the imprint of Ian W. Outerbridge, Q.C.,Outerbridge and Miller, Barristers and Solicitors, 241 pages, paper. TIME: December 14 to 21, 1993. PLACE:Courtroom 2/5, Ontario Court(General Division), 361 University Ave., Toronto. CAST: Her Majesty the Queen (star-ring in three roles), Mr. Justice RobertMontgomery, two court officials, and nine lawyers (six for CBC et al., threefor Elliott et al.). AUDIENCE: About two dozen elderly men, many of themwearing blue blazers, veterans of the Royal Canadian Air Force, and anassortment of reporters and writers, including Merilyn Mohr, co- authorwith Merrily Weisbord of The Valour andthe Horror, Night Flights: The Boys of Bomber Command. I am wearing my "I amSalman Rushdie" button. CAMEOAPPEARANCE: June Callwood. PLOT: A motion by the defendants, CBC et al., to strike out all the plaintiffs`claims as they disclose no cause of legal action.
This is act one of the monumental andunprecedented lawsuit brought against the CBC`s documentary film "TheValour and the Horror: Death by Moonlight -- Bomber Command"on behalf of 25,000 surviving Canadian air crew who took part in bombing raids
over Germany. The plaintiffs are claimingdamages of $500 million. The defendants include -- besides the CBC,the National Film Board, and everyone ever associated with the film or the book-- the secretary of state, the minister of communications, and theattorney-general of Canada "on behalf of Her Majesty theQueen." (We are also sitting in the Queen`s court, and the royal coat ofarms hangs on the wall behind Mr. justice Montgomery`s chair.)
This is a paper war; the weapons arewords, the battleground is the law. It is saturation bombing. The statement ofclaim accuses those responsible for creating and distributing "The Valourand the Horror" (film and book) of, among other things, defamation,malicious falsehood, inaccuracies, fraud, fabrications, public mischief,promoting hatred, breach of the Combines Investigation Act, and breach of theCharter of Rights and Freedoms. The defence lawyer Bert Bruser, acting forMohr, Weisbord, and HarperCollins, dismisses the statement as "241 pagesof pseudo-legal gobbledegook that should not be countenanced by thiscourt."
The terror, most acute for writers,filmmakers, publishers, and broadcasters, is that Donald Elliott et al., ifSuccessful, would permit "classes" of people to sue for libel. Aclass Could potentially include almost everybody, from nurses to neo-Nazis. The consequence Would be a choice between stifling self-censorshipor, in Bruser`s words, "an avalanche of idiotic legislation."
As a TV Movie, Elliott vs CBC won`t touch"Street Legal." The lawyers -- five are women --hunch Iike crows on a branch, their black-robed kicks to the spectators;they address the judge, and the judge, his lean face a mask, listens. The soundtrack is the scratch of pens on paper. Because everybody takes notes (there isno court reporter), the lawyers speak deliberately and punctuate their orationswith lengthy pauses. One after another, hour after hour, the dry bones of long-deadlitigants are disinterred and offered to the judge for examination. By dayfour, when they get into fiduciary duty, the audience has shrunk to a numbed handful.The baroque language and rituals of the court remind me that the IibeI law wasinvented as a civilized way of fighting a duel. Death, and how death happens,are at issue here, and, like the hooded figure in Ingmar Bergman`s The Seventh Seat, the dead, both Canadianair crew and German civilians, haunt the courtroom. Their silent witness isevoked by the statement of claim, which says, on page 78:
In particular, the Plaintiffs plead thatin the film the Canadian Aircrew were presented by the Defendants and theseDefendants intended that they be perceived by the viewers and they wereperceived as being the agents who executed the villainies laid at Sir ArthurHarris` door, and were intended to be held responsible for those acts and fixedwith the stigma and guilt ,is being "War Criminals" and thePlaintiffs ask that judicial Notice be taken of the fact that operating tinderorders has not been a valid defence since the Nuremberg trials. The defamationof the servant must necessarily he at the same time a defamation of the masterwhom he served and is in fact and in law a defamation of His Majesty KingGeorge VI`s government and of Her Majesty`s Government as hereinbefore pleaded.
Mr. justice Montgomery will decide,probably soon, whether an Ontario civil court is the appropriate place to arguequestions of war criminality, as well as the numerous other claims submitted byElliott et al. Ironically, Ontario`s law of libel and defamation, which allowswriters, Publishers, and broadcasters to be constantly Sued and harassed byaggrieved individuals, stands as the bulwark against this suit. According tolegal precedent, the person defamed has to be identifiable.
Donald Elliott was not named in "TheValour and the Horror," nor did he participate in the film or the book.His aircraft was shot down in 1941, and he became a German prisoner of warbefore the events portrayed in "The Valour and the Horror" tookplace. Arthur "Bomber" Harris, the British villain of the story, hasbeen dead for years. So far in Canada it is not possible to libel the dead, butis it now possible to libel 2 5,000 people, including, presumably, the air-crewmembers who willingly contributed to the film?
If not, and if Mr. justice Montgomeryrejects the other claims, the suit wilt be dismissed. If Mr. justice Montgomerydecides there is enough legal evidence of fiction, falsehood, fraud, andfabrication, to use Ian Outerbridge`s words, to warrant a trial, Donald Elliottet al. will then likely apply to the courts to be recognized as a class. Class-actionlaw is new in Ontario, and this process alone could take months. Even now, thefilmmaker John N. Smith ("Boys of St. Vincent," "Dieppe")has expressed concern about the chill of possible classaction litigation.("Dieppe" was savaged by the Globeand Mailcritic John Haslett Cuff as "some sort of sop" to the senators andwar veterans infuriated by "The Valour and the Horror.") If it evercomes to court, Elliott et al. vs CBC et al. is a statement of claim soimaginative, so sweeping, it could take years to resolve.
At what cost? Nine lawyers at (modestly)$300 an hour, times six days, plus judge (expensive), clerks, courtroom, and 10tonnes of paper. You figure it. This litigation has already cost everybody anarm and a leg. Who`s paying the bills? For Her Majesty the Queen and the otherdefendants, we are, mostly. For Her Majesty and the other plaintiffs? DonaldElliott et al. Financially, this is a war of attrition.
Legal issues aside, Statement of Claim,Elliott et al. vs CBC et al., is a fascinating read. It suffers from repetitionand legal jargon, although the repetition gives it a sonorous, incantatoryrhythm, but it crackles with outrage. This manuscript has been put together bymen who were there; for them, valour andhorror are not words or images, they are traumatic personal experience. Readingtheir objections to the film makes it easier to understand their anger, andthey have done a lot of research. The statement of claim Could be used as ahandbook to the video of "The Valour and the Horror." It raisesquestions, provokes arguments, offers inside information about the RCAF, andinsight into the ideology that shaped air crews` lives. It even evokes thespirit of Louis LAmour, a writer of Wild West romances.
Elliott et al. vs CBC et al. also takespains to point out things "The Valour and Horror" did not mention, including: "the disastrous lossessustained by the much more heavily armed US Air Force B17s in their daylight strategic bombing." This is agreat idea for a searing, explosive documentary. It is unlikely that the CBC orthe NFB will jump at the opportunity.
ACT TWO TIME: January 5, 1994, 2:15 p.m.PLACE: Courtroom 3, Osgoode Hall, Toronto. SAME CAST, SAME AUDIENCE. Mr.justice Montgomery reads his judgement aloud. The magic words are spoken soon:"A class of persons cannot be defamed as a class. An attack on a largegroup does not give rise to an action unless something points to a particularmember."
Since nothing complained of points toDonald Elliott, Mr. Justice Montgomery rules: "The claim must fail and bestruck out." Moreover, he says: "The words do not disparage theCanadian air crews. My feeling was how incredibly courageous the air crewswere.