Evidentia

Will Conrad Black be acquitted of fraud, or will he be sent back to the slammer for three more years?

A lot of people are wondering what will happen, now that the US Supreme Court has invalidated Conrad Black’s convictions on three counts of fraud (on the grounds that the “honest services” statute was improperly applied during the 2007 criminal trial). The Supreme Court has now sent the case back to the 7th Circuit Court of Appeal in Chicago.

Will the Appeal Court judges, led by Judge Richard Posner, rule that Conrad Black’s convictions were tainted by the prosecution’s use of the honest services statute, and thereby end up acquitting him of fraud?

Or will they rule instead that sufficient evidence of Conrad Black’s conventional fraud was produced during his 2007 trial before jury to uphold his fraud convictions, thereby ordering Mr. Black back to the slammer?

A clue to how the Court of Appeal may rule is contained in Judge Posner’s ruling the first time around, on June 25th 2008.

Richard Posner is an Appeal Court judge in Chicago

Judge Posner, a leading American authority on economic crime, wrote: “Hollinger had a subsidiary called APC, which owned a number of newspapers that it was in the process of selling. When it had only one left – a weekly community newspaper in Mammoth Lake, California (population 7,093 in 2000, the year before the fraud) – defendant [Mark] Kipnis, Hollinger’s general counsel, prepared and signed on behalf of APC an agreement to pay the other defendants [Conrad Black, Peter Atkinson and John Boultbee] plus David Radler, another Hollinger executive and a major shareholder in Ravelston [a holding company controlled by Conrad Black, in which David Radler maintained a substantial minority interest], a total of $5.5 million in exchange for promising not to compete with APC for three years after they stopped working for Hollinger. The money was paid…

“Although Hollinger is a large, sophisticated, public corporation, no document was found to indicate that the $5.5 million in payments was ever approved by the corporation or credited to the management-fees account on its books. The checks were drawn on APC, though the evidence was that the defendants had no right to management fees from that entity, and were backdated to the year in which APC had sold most of its newspapers… And while management fees  were supposed to be paid to Ravelston as well as from a management-fee account, the payments were made to the defendants personally and came from the proceeds of a newspaper sale, facts that increase the implausibility of supposing that these direct payments to the defendants were a means of discharging a debt owed them by Hollinger…

When APC paid the “non-compete fees” it had only one remaining newspaper (average net paid circulation in October 2001: 5,974) in Mammoth Lake, California (population 7,093, altitude 2363m or 7800 feet)

“There is more. The defendants failed to disclose the $5.5 million in payments in the 10-K reports that they were required to file annually with the Securities and Exchange Commission. And they caused Hollinger to represent to its shareholders falsely that the payments had been made ‘to satisfy a closing condition.’

“There was still more evidence of the fraud, but there is no need to go into it… The evidence established a conventional fraud, that is, a theft of money or other property from Hollinger by misrepresentations and misleading omissions amounting to fraud, in violation of 18 USC § 1341. United States v. Orsburn, 525 F.3d 543, 545-46 (7th Cir. 2008). But the jury was also instructed that it could convict the defendants upon proof that they had schemed to deprive Hollinger and its shareholders  ‘of their intangible right to the honest services of the corporate officers, directors or controlling shareholders of Hollinger,’ provided the objective of the scheme was ‘private gain.’ That instruction is the focus of the appeals…

“So if the jury found such a misappropriation, this would mean that the defendants, having both deprived their employer of its right to their honest services and obtained money from it as a result, were guilty of both types of fraud.. Nothing is more common than for the same conduct to violate more than one criminal statute… The defendants do not deny that they sought a private gain. But they presented evidence that it was intended to be a gain purely at the expense of the Canadian government… They are making a no harm-no foul argument, and such arguments usually fare badly in criminal cases…

“An error in jury instructions is subject to the harmless-error doctrine… Submitting an illegal theory [in this case, the honest services theory] may or may not be subject to it; it is an issue on which the courts of appeals are divided… But giving an instruction that omits a qualification required to make it unambiguously correct is different from submitting a case to a jury on an erroneous theory of criminal liability… Had the jury believed that the payments for the covenants not to compete were actually management fees owed the defendants, as the defendants argued, it would have acquitted them.

“If the jury had been given a special verdict that separated the two types of fraud, and had indicated on the verdict that the defendants were not guilty of an honest services fraud, the challenge to the instruction would be moot. The defendants were not required to request a special verdict. But there is a wrinkle in this case: the government requested a verdict that would require the jury to make separate findings on money or property fraud and on honest services fraud. The defendants objected – they wanted a general verdict. In effect, they wanted to reserve the right to make the kind of challenge they are mounting in this court.”

My reading of Judge Posner’s ruling is straightforward:

• he found that the evidence of conventional fraud presented in Mr. Black’s case was irrefutable;
• he considered that this evidence was adequate to convict Mr. Black;
• he noted that the defendants sought to combine money fraud and honest services fraud into a single verdict, so they could better appeal the conviction at a later date;
• if Judge Posner runs the appeal process this time around, and if he remains consistent with his previous ruling, Mr. Black’s fraud convictions are likely to be upheld.

The stakes are very big for Conrad Black. If he were acquitted of fraud, the Appeals Court could decide he had done enough jail time on the obstruction of justice charge, meaning his sojourn in prison would be over, and he could focus on all the other court cases he is involved with, both as plaintiff and defendant.

However, if his fraud convictions were upheld, he would have exhausted all appeals. Moreover, if I understand correctly, he would then by contract have to remit to the Chicago Sun-Times the approximately $75 million in legal fees they have fronted for him in the criminal case.  He never appealed his conviction for obstruction of justice, and could have three more years to spend in prison. And from the gloomy vantage-point of a prison cell, his chances of success in numerous civil suits would in my opinion drop through the floor as a result.

If Conrad Black is sent back to prison, he will not soon be enjoying the bracing fresh air of Mammoth Lake, California – the place associated with his alleged fraud

Conrad Black portrait by Andy Warhol

And what if … What if Conrad Black’s appeal of his fraud charges before the US Supreme Court actually resulted sometime later this year in an acquittal? In other words, what if the Supreme Court’s striking down use of the honest services theory meant that the Appeal Court in Chicago ended up tossing out his fraud convictions because they had been tainted? In that case, could his remaining conviction for obstruction of justice (which he has not appealed) have any meaning at all?

I ask these questions because I remember the stirring speech Ron Safer made, on the arbitrary power of government, towards the end of the trial of the Hollinger Four (the co-accused were: Conrad Black, Peter Atkinson, Jack Boultbee and Mark Kipnis). According to my notes, it was on June 26th, 2007. Mr. Safer, a noted Chicago criminal lawyer, was defending Mr. Kipnis, a former lawyer at Hollinger International. (Mr. Kipnis also appealed use of the honest services theory in his own conviction, before the US Supreme Court.)

I remember back in 2007 Mr. Safer reviewing government strategies: for example, the government sends Wells letters (when the Securities and Exchange Commission serves notice it is planning to enforce action against individuals or companies); the government threatens individuals with penalties, lawsuits and disbarment; the government decides not to call key witnesses; the government constructs as damaging a case as possible and intimidates witnesses in order to get convictions; the government pressures witnesses to change their stories even to the point of perjury.

The government can be monolithic

“Why is the government asking you to make a critical decision, based on missing information,” Mr. Safer asked the jury, “whereas we [the defence] don’t have to prove anything? … People remember what they want to remember and they discard the rest. Why? Because they were threatened, they feared a lawsuit from the SEC later when people started looking at things under a microscope …”

Mr. Safer concluded, “Pressure from the government is truly an awesome thing. The true test of character is not what people do in good times, but what they do in bad times, under pressure. You have seen the power of the government, but that power ends at your jury room door.”

Mr. Safer’s words certainly struck a chord with me: the power of the US government is truly awesome; after all, in federal prosecutions of criminal cases in the United States, the conviction rate is 95%. The cards are definitely in the government’s favour.

Despite this stirring speech, Mark Kipnis was ultimately convicted of fraud, just as Conrad Black was.

With hindsight, it is clear that the time for Mr. Black to object to government strategies, or its use of the honest services theory, would have been in an editorial in one of his newspapers, perhaps, or over drinks with a congressman, before any shareholder revolt occurred, before the meltdown of his reputation and finances, before any criminal investigation was even contemplated, let alone the unending cascade of lawsuits. According to today’s Chicago newspapers, Mr. Black is now facing a $71 million lawsuit from the Internal Revenue Service for back taxes it claims are owed – the IRS is another arm of the US government. Of course, he is strenuously defending himself, as is his right.

With hindsight, the time for Mr. Black to object to government strategies was definitely not after he had been convicted, and locked up in prison. If there is a lesson to be learned, it is that this entire fiasco could have been avoided, if he had shown more prudence. After all, as the saying goes, it is better to be prudent a hundred times than to be killed once.

Which makes me wonder why, where and when Mr. Black lost touch with reality. Could he have been willing to leave his fate to a mere roll of the dice?

Roll of the dice

PS: As reported on July 19th 2010, Conrad Black will apparently be granted bail while awaiting resumption of his fraud trial.

Mr. Black, Mr. Black, just one question, Mr. Black...

I found the experience of covering Conrad Black’s 2007 criminal trial in Chicago interesting, not least because it gave me the chance to meet so many other journalists, from Canada, the United States and Great Britain, and to compare their methods and perspectives.

When giving interviews on CBS, CNN, PBS, BBC World or Radio-Canada (in French), and comparing the questions I was asked in interviews on CBC and CTV (English-Canadian channels), I quickly realized that the Conrad Black story was considered a colourful but relatively minor story everywhere in the world, except for Toronto, where Mr. Black was and still is considered a Toronto celebrity.

As time went by, journalists at the Chicago Tribune and Chicago Sun-Times, as well as big London newspapers – The Independent, the Daily Mail, the Guardian and The Times – asked me to explain the positions of various Canadian media on Conrad Black. They considered me, as a Montrealer, to be not only culturally different from the Torontonians, but also independent. This got me thinking.

For one thing, the Chicago and London journalists were anything but naive. They had covered many criminal trials, and witnessed the downfall of many business tycoons, not to mention foreign dictators. They had a keen eye for a good story, new factual details, personality insights and colour, but they remained cynical about the proceedings.

David Radler and Conrad Black built the company together and knew each other intimately: but their fates have proven completely different

According to these Chicago and London journalists, by the time Mr. Black, a CEO of a large US corporation, pleaded the Fifth Amendment (the right not to incriminate himself), then arrived in criminal court, and faced a jury, his goose was cooked. They formed an opinion of the scale of shenanigans at Hollinger International by looking at David Radler, Mr. Black’s long-time business associate and right-hand man at Hollinger International, and their private holding company Ravelston. Mr. Radler had cut a deal with the Justice Department, pleaded guilty to one count of fraud, and paid the SEC and the Chicago Sun-Times $72 million (although according to another version, he actually handed back $93 million). He also said this was the beginning of his atonement, which reminded me of a passage from the Bible.

Although Mr. Radler said he would write a book about everything that happened, he has basically disappeared from sight since his December 2008  release from prison, after just ten months behind bars, and is back running newspapers again. Mr. Radler is a pragmatist.

A mug shot of Conrad Black

Mr. Black, meanwhile, is an idealist of sorts, certainly a self-involved man intent on clearing his name. (The US Supreme Court recently referred his case back to the Appeals Court in Chicago: I would give Mr. Black one chance in 20 of actually being acquitted on this last-ditch appeal, but 5% is still a chance.)

Mr. Black has done two years and four months of his term, at Coleman Low Security Prison in Florida. He will remain in the slammer until October 2013, unless his appeal miraculously succeeds.

During his own criminal trial, he actually accused his prosecutors of being Nazis. He slammed the government’s case in an interview with the Guardian, claiming it was “bullshit .. a joke … an outrage … a complete fraud…. I’m sending everyone a message. I’m saying, This is war.”

This kind of outburst could hardly help Mr. Black’s case. How could someone who knew the ins and outs of the media (as a former newspaper proprietor) and the law (with a Law degree from Laval University and a seat as a life baron and legislator in the British House of Lords), fail so spectacularly? How could someone who continually portrayed himself as a master strategist, defeat himself like this? Even though I wrote a book about him, I am still unable to answer these questions.

Mr. Black has actually placed many strategic messages in Toronto media, counting on long-time friends, his own lawyers, his own writings in the National Post, and Toronto journalists eager to find new angles (albeit speculative ones) to keep the story alive.

It is only natural that some Toronto journalists, such as Mr. Black’s wife Barbara Amiel and his long-time friends Mark Steyn and Brian Stewart, should defend him.

A second group of veteran reporters, Peter Worthington and Allan Fotheringham for example, probably knew too much about the Blacks to be able to write a dispassionate account. I would put the business historian par excellence and Black biographer Peter C. Newman in a completely different category. I remember him asking me during the trial, whether both of us hadn’t been bamboozled by Mr. Black into believing he was a genius.

Then there was Steve Skurka, a perpetually tanned and dapper criminal lawyer from Toronto who was blogging daily and writing a book about Mr. Black. He also serves as legal analyst for CTV. I was surprised to learn that he had defended the notorious motorcycle gang the Hells Angels, in a number of high-profile trials. I am not sure whether working for the Hells should qualify someone to be a TV commentator!

There was another kind of Toronto journalist writing about the trial, a self-important hack really, who poured out streams of invective and gross exaggerations with no factual basis at all. Enough said!

Then there were the more serious news reporters, working for the National Post, the Globe and Mail and other publications. Once their editors decided Conrad Black was still a Toronto celebrity, whom readers somehow loved to hate, these reporters had to craft stories highlighting the most commonly identified news values of print journalism.

These news values are: impact, timeliness, prominence, proximity, bizarreness, conflict and  currency. Consider for a moment that “reality” is not on this list!

Chicago and London journalists told me they were astonished by the attitude of many Toronto reporters covering the trial

At the same time, these Toronto reporters were caught in the dilemma of having to write celebrity journalism about Mr. Black, which meant maintaining access to him through the trial (which required a flattering attitude), sometimes writing about how he and Barbara Amiel felt and looked rather than what was really happening, and picking up any crumb Mr. Black dropped for them, as long as it corresponded to the news values I just mentioned. Which meant they were in a relationship of dependence, not of independence.

I would call the end result “narrative distortion.” These journalists crafted stories with broad brush strokes, using evidence which they chose for its narrative impact; they kept the story interesting by personalizing the details and polarizing the different possible outcomes of the trial; they kept refreshing the story (making it relevant again) by playing up certain speculative aspects (this could happen, this might not happen, what if this happened, this should be happening, this should not be happening).

An unnamed inmate at Coleman Low Security Prison, with Conrad Black

This is why the Radler story is finished, whereas the Black story lives on… in Toronto.

I should mention that it was easy for me to cover the trial, since I was writing a book, not a daily newspaper story on deadline, and I could simply wait for the verdict, then describe what happened. When I wearily maintained in my TV appearances during the trial that we are all innocent until proven guilty, TV interviewers sometimes accused me of defending Mr. Black; when I commented with cool detachment on the guilty verdict at the end of the trial, then I was supposedly abandoning him! Even so, I maintained my distance from Mr. Black during the trial, showing courtesy as I met him in the corridor, but nothing more. We had a last drink at the Ritz a few days before the verdict came down, and I told him how serious the charges were, mentioned how much I regretted everything that had happened, and said I admired the way his children had supported him through the trial.

The moral to the story, for me, is not that Mr. Black is a celebrity hard done by, who really deserves better. It is rather that as the CEO of a large US publicly-traded corporation, he was responsible for doing everything possible to run the company successfully, respecting the letter of the law and maintaining positive relations with employees and shareholders. If the CEO of such a large company ends up before a jury in a criminal trial, it is too late for him to do much about anything.

Somehow, one obvious fact is conspicuously absent from the usual coverage of the Black saga in the Toronto press: that Mr. Black bears fundamental responsibility for much of what happened at Hollinger International. But that is on the moral plane.

Justice is blind. We will have to wait and see how things go in the Appeals Court.

Justice is blind

Conrad Black during his Chicago trial

Three years ago, I wrote an unauthorized biography of Conrad Black (Robber Baron: Lord Black of Crossharbour, ECW Press 2007). People often ask me what I think his chances are, either of being acquitted or of getting out of prison before his current sentence runs out in October 2013. (He has already done two years and four months of his sentence.) For example, I was asked these questions recently on Canada’s French all-news channel RDI as well as on CBC-TV.

Even now, I have a hard time picturing Conrad Black as inmate 18-330-424, in Coleman Low Security Prison in Florida, surrounded by some 1000 inmates, most of them incarcerated for drug trafficking and firearms offences (possession of short-barrelled shotguns, machine-guns mounted on tripods, or pistols with silencers). I try to imagine him sharing a tiny cell (2.4m x 2.7m, or 8 feet x 9 feet) with a fellow inmate, in an endless network of cells arrayed like a beehive, with no ceilings (and therefore no privacy). Video cameras maintain all inmates under 24 hour surveillance.

Coleman penitentiary, in central Florida

21% of inmates in prisons in the Midwest say they have been pressured to have sexual relations with fellow inmates, while 7% say they have been raped behind bars. Prison is a terrible place where the warden and guards are no better than the inmates.

I try to imagine Mr. Black going through a typical day, getting up at 6:00 am, taking breakfast in the mess hall, going to the prison courtyard seven times a day, as guards bearing shotguns do the inmate count. He has to work from 7:30 am to 3:00 pm. His visits, phone calls and correspondence are tightly monitored. Of course he keeps up to date on what his lawyers are doing. Occasionally, he writes a column for the National Post of Toronto, or for other right-wing publications in the United States or Britain. Once in awhile he attacks the American justice system in print, for being corrupt, unfair, wasteful, etc. He is not a typical prisoner.

The Big House

I got to know Mr. Black quite well, interviewing him in his offices and residences in New York, Toronto and London, and also at his hotel during the Chicago trial. At the high point (around 2000), he controlled a worldwide media empire with four million daily readers, prestigious titles like the Daily Telegraph in Britain, and wielded considerable financial and political clout. After all, in October 2001, he became a baron and took up his seat in the Upper Chamber of the British Parliament, the House of Lords. According to Rupert Murdoch, Mr. Black was a billionaire in dollar terms towards the end of the 1980s.

What a downfall since then! How can someone who had it all, end up in prison for fraud and obstruction of justice? I see Mr. Black as a very complex, driven man, charming, cunning, ruthless, manipulative and inordinately proud.  It was very challenging for me to write his biography while maintaining access, and also keep my own editorial independence. It has also been a challenge since then for me to comment on my book in television interviews on 18 different networks, since I have been by turns infuriated and saddened to see that he is the author of his own destruction.

Conrad Black at the sentencing hearing in Chicago

But the hardest thing about covering Mr. Black is sorting out the facts from his own claims, since he is still intent on controlling the narrative of his life.

Consider that he penned another 200,000 word manuscript (the equivalent of an 800-page printed book), shortly before reaching prison. The manuscript is currently awaiting publication in Toronto. The subject? Everything he has lived since the previous volume of his autobiography came out, in 1993. I also see that he is still managing to influence what is being written about him in the Toronto press. For example, just this week, a columnist in the Globe and Mail called for Mr. Black’s rehabilitation and early release from prison. Shortly before that, a columnist in the National Post said it was time for Mr. Black to take up his position once again in the Canadian Establishment. CBC-TV asked me last week what awaited Mr. Black outside of prison, as if he were just about to be released. My jaw dropped open, and for ten seconds I simply didn’t know what to say. I asked the interviewer to repeat the question.

The real question is: how do you rehabilitate someone who shows no signs of acknowledging that he did anything wrong, who portrays himself as the wronged victim? Listening to him, one could imagine a romantic hero, unjustly accused, a stag brought down by wolves.

A stag attacked by wolves

The Appeals Court in Chicago will review Black’s case and consider whether the prosecution’s case was fatally flawed because it used the honest services theory, or whether there was sufficient evidence of fraud and appropriate use of other legal theories, to keep him behind bars.

In my opinion very little of what is said about Conrad Black in Toronto will have any impact on the outcome in Chicago. Mr. Black probably has one chance in 20 of getting out of prison before the end of his sentence. Things look different from the Chicago perspective.

After all, Mr. Black is not American; he is not a celebrity in the United States, nor is he considered an admirable man let alone a victim; no-one there is rooting for Mr. Black; no-one is particularly interested (i.e. he does not have a constituency behind him); Mr. Black’s former newspaper the Chicago Sun-Times has fronted over $100 million in legal fees for him, and if his conviction is finally, utterly upheld, he will have to refund this money (actually, I suspect he would sue the Sun-Times to avoid refunding them), whereas if he is acquitted the Sun-Times is left with this bill; the Sun-Times has a significant American power base with many political and economic allies…

In its recent ruling on Mr. Black, the United States Supreme Court referred readers to its longer and more detailed ruling on former Enron CEO Jeffrey Skilling. I suspect that if Mr. Skilling were let out of prison before his 24 years are up, there would be riots in the streets. The legal reasoning is the same in Mr. Black’s case, so why would the outcome on appeal be different?

Which leaves me wondering why there is this regular outpouring of sympathy for Mr. Black in the conservative Toronto press.

The National Post, a Toronto daily founded by Conrad Black

In this third blog on Old Harry, I would like to mention the general state of the Gulf of St. Lawrence, a self-enclosed sea. I would also like to suggest how we can act to prevent the current dead zone at the bottom of the Gulf from resembling the far larger dead zone in the Gulf of Mexico. A dead zone is defined as “a condition of the ocean where all or most marine life is unable to survive because of extreme pollution.”

In the 1530s, the shoals of cod in the Gulf of St. Lawrence were so abundant that Jacques Cartier’s ships could not move

I should start off by saying the Gulf of St. Lawrence is not what it used to be. When sailing off Cape Breton Island, the 16th century explorer Jacques Cartier recorded shoals of cod so abundant that they stayed his ships. This was a resource that fishermen simply could not resist. Landings of North Atlantic cod around Newfoundland (both on the ocean side and on the Gulf side) rose from about 100,000 tonnes per year in the 1600s, to 2,000,000 tonnes per year in the 1960s. The fishery then collapsed, and the expansion of the seal population probably ensured cod would never recover.

In the mid-18th century, a single rookery in the Magdalen Islands had 100,000 Atlantic walruses

The earliest inhabitants of the Magdalen Islands hunted local populations of walruses (which they called sea cows), and in the mid-18th century there were reported to be 100,000 walruses in a single rookery. Industrial-scale hunting greatly diminished the size of the walrus population, which was coveted both for its ivory and walrus oil. There are no longer any walruses there.

John James Audubon, the French and American ornithologist, naturalist and painter, spent time in the Gulf of St. Lawrence during the early 19th century, where he painted the Great Auk, a large member of the penguin family, which was later hunted to extinction.

Aubudon painted the Giant Auk in the Gulf of St. Lawrence, a huge member of the penguin family which has since gone extinct

The beluga whales are native to the Gulf and St. Lawrence River. Whaling greatly reduced their numbers during the 19th and early 20th centuries; they were actually dive-bombed with hand grenades during the 1940s and 1950s, at a time when it was believed they competed with local fishermen; and chemical pollution borne downstream by the St. Lawrence River has bought their numbers down from an estimated 5000 members at the beginning of the 20th century to 500-650 today. However, these belugas are prone to cancer, and in fact a recent scientific study reported that  “cancers reported in Saint Lawrence beluga represent about half of all cancers reported in cetaceans world-wide.”

On the more positive (or bizarre) side, Anticosti Island was stocked with red deer at the beginning of the 20th century. There are no predators on the island, so their numbers have grown to over 100,000 today. Some deer walk around the town of Port-Meunier begging for potato and apple peels, from door to door.

I took this photo of a young buck on Anticosti Island: it seemed about as tame as a domestic cat

It is worth mentioning different human activities which have an impact nowadays on the Gulf of St. Lawrence.

Despite the legacy of over-hunting and industrial, marine and other contamination, the Gulf of St. Lawrence is nonetheless full of life. In areas close to the Old Harry oil field, such as the Îles de la Madeleine or Magdalen Islands (80 km. away) and Bay St. George in SW Newfoundland (100 km. away), the lobster, snow crab and herring fisheries are vital parts of the local economy.  Fisheries nowadays are a highly regulated activity.

The Gulf of St. Lawrence is fed by the Great Lakes-St. Lawrence system, and therefore receives pollution from a huge area. The non-profit organization Ocean Action has identified the Gulf of St. Lawrence as an area subject to stress: “Most of the pollution is land-based, as domestic sewage, industrial discharge, urban and industrial run-off, and agricultural nutrients and pesticides are dumped into the sea by coastal communities and by the rivers emptying into the sea, often from extensive and distant watersheds. Oil spillage and waste dumped by ships add sea-based contaminants, as do offshore oil drilling and mining. Biological threats in the form of pathogens and invasive species add to the mess.”

Industrial pollution is taking its toll on the Gulf

Seismic activity and exploratory drilling, such as the campaign planned by Corridor Resources at the Old Harry field this summer, is disruptive for marine mammals and reptiles, given the noise, accidental spills of oil, vessel strikes, and impacts on commercial fisheries.

Climate change is also having an impact on the Gulf of St. Lawrence.

Given all these threats to the Gulf of St. Lawrence and the communities whose livelihood depends on it, every possible step should be taken to reduce land-based pollution, run-off and discharges of pesticides, discharges of industrial contaminants from mils upstream as well as passing ships. There is greater awareness of these threats now than at any time in the past. Bottom-water areas of the Gulf of St. Lawrence have already become dead zones, subject to “lethal hypoxia,” where oxygen is depleted while rotting organic matter (dead fish, dead seals) proliferates. This is one of the reasons why cod are unable to return to their former large numbers. They are being stifled in lifeless bottom-water areas which are actually expanding.

A dead zone at the bottom of the ocean

My  concern is that an accident at the Old Harry field, on the scale of the Deepwater Horizon accident in the Gulf of Mexico, would have a disastrous effect not only on biodiversity and the unique ecosystem of the Gulf of St. Lawrence, but also on the surviving fisheries, and on the Gulf’s ability to regenerate itself. I am happy to learn that Marilyn Clark, a student, is starting up a campaign to raise awareness about the issues raised by Old Harry.

Every step should be taken to reduce stresses on the Gulf, and this will require the combined efforts of the Canadian federal government, the provinces around the Gulf, as well as the United States government, given its stewardship over the southern part of the Great Lakes and part of the St. Lawrence River. We need a detailed environmental assessment of the impact of seismic campaigns, exploratory drilling, and, in the wake of the Deepwater Horizon disaster, of the potential impact of a decisive, uncontrollable oil spill. Above all, we need to put a stop to the Old Harry project, until all the facts about the Gulf of Mexico disaster are clearly established.

The tissue of St. Lawrence beluga whales shows dangerously high levels of DDT and PCBs in their tissue

I would like to return to the Gulf of Mexico oil spill, which has had such a devastating impact on the environment of the gulf, as well in the islands and bayous (or marshlands) of  Louisiana and several other Gulf states. In terms of the geographic scope of this oil spill, it is conceivable that the oil spill could eventually be borne by the Loop Current up along the East Coast of the United States. Of course, Cuba is directly south of Florida, and would be impacted well before any oil reached the Loop Current, as would the Bahamas. Talk about a disaster.

A NASA satellite image of the Deepwater Horizon oil spill, as of May 24th 2010

I am not predicting that the same type of oil spill will necessarily occur in the Old Harry field of Gulf of St. Lawrence, where drilling is expected to be undertaken this fall by Corridor Resources, of Halifax, Nova Scotia. Nor am I trying to hype public fears – whether my own or anyone else’s – about the destructive effects of a possible environmental catastrophe in the Gulf of St. Lawrence.

Rather, I am convinced that every business operation involves the weighing of risks and benefits. This is how business decisions are made. In British Petroleum’s case, it  simply took the risks of a major, uncontrollable oil spill for granted, whereas it was blinded by the benefits of profits gushing up to the surface from the well itself. So let’s look at what has been happening in the Gulf of Mexico before letting the Gulf of St. Lawrence project go ahead.

The platform on its way to the Gulf of Mexico

We have only to consider a few facts.

1) The remedies BP has deployed over the last two months to control the spill have only just begun to work, and whether they continue to work or not now depends partly on weather conditions. The tropical storm and hurricane season is approaching. Appropriate measures and proven technologies should have been in place when BP started, but obviously they weren’t. This is not only BP’s fault, but points to an extremely slack regulatory system in the United States.

2) BP’s estimates of of the spill flow rate have been challenged by independent scientific observers as extremely under-stated. BP started off with an optimistic if not misleading estimate, according to which only 1,000 barrels a day were leaking. Just two weeks ago, however, that is two months after the Deepwater Horizon accident, US government agencies and independent scientists placed the spill flow rate at between 35,000 and 60,000 barrels per day.

3) As of two days ago, BP had successfully collected 890,000 barrels of oil, but it had also burned off 314,000 barrels of oil - which creates other problems for the environment.

Burning off crude oil also creates environmental problems

4) Many living organisms, including humans, are being exposed to toxic chemicals in crude oil such as benzene and polycyclic aromatic hydrocarbons (PAHs), and to other toxic chemicals such as propylene glycol and 2-butoxyethanol, due to use of chemical dispersants. These chemicals can have a serious effect on people with existing health problems, unborn babies, infants, children and pregnant women. They can affect the nervous, respiratory and many other systems.

5) The area in the Gulf of Mexico now closed for fishing covers about 225,000 km² – almost the same size as the entire Gulf of St. Lawrence.

The sector of the Gulf of Mexico closed for fishing as of June 21st 2010

6) It is proving impossible to predict the environmental consequences, whether short-term, mid-term or long-term, of the Deepwater Horizon accident. BP has tentatively agreed to put $20 billion into an escrow account for victims of the disaster. The company may be sold, go bankrupt or be completely reorganized under a new administration. It may take 50 years for the environmental part of the mess to be biodegraded or remedied, or to disappear in some other manner. And health problems caused by exposure to toxic chemicals are notoriously slow in developing.

The long and short of it is, we need to know exactly what went wrong in the Gulf of Mexico, and what the impacts will be, before Old Harry in the Gulf of St. Lawrence is allowed to go ahead.

Environmental disasters can be fatal

At a time when the ecological catastrophe in the Gulf of Mexico shows no signs of abating, and has been spewing up to 60,000 barrels of crude oil into the sea every day since April this year, I am concerned that Corridor Resources of Halifax, Nova Scotia is pushing ahead with plans to drill the Old Harry oil field at the bottom of the Gulf of St. Lawrence.

BP has done a terrible job containing the oil spill in the Gulf of Mexico

We should learn from British Petroleum’s horrendous mismanagement of the sinking of the Deepwater Horizon oil platform, the death of platform workers, and the ongoing spill of oil from the wellhead one and a half kilometres below the surface. Old Harry should be put on hold, at least long enough for the federal government of Canada and the five provinces bordering on the Gulf to conduct rigorous environmental assessments, with proper public hearings. Even more than that, we need a public inquiry into offshore drilling in this country.

Of course, I understand that the economic potential of two billion barrels of recoverable oil or up to five trillion cubic feet of natural gas is huge. That represents twice the size of the Hibernia project, off the east coast of Newfoundland. Corridor Resources has been extremely patient, in waiting for Old Harry to get up and running, while Quebec and Newfoundland discussed their respective territorial limits, and therefore their rights to petroleum royalties. A stream of oil revenues from a project of this scale would be very welcome for politicians, who have to manage government finances at a time of world economic woes, a declining tax base and rising government debt.

The Old Harry oil field, 450m below the surface, has twice the reserves of the Hibernia project

But the situation has changed, since the Gulf of Mexico disaster. For one thing, British Petroleum’s assurances that it had complete control of wellhead technologies and could stop any leak have proven completely unfounded. And BP is the world’s fourth-largest company, with 2009 revenues of US$246 billion. BP has developed some of the world’s most advanced offshore drilling and exploitation technologies, and went through a public relations remake several years ago, touting itself as a green company. That hasn’t helped it much.

Corridor Resources, on the other hand, is a junior oil company with limited resources and technology. Its 2009 revenues were just $48 million – or around $1 for every $5125 in revenue that BP made. It is hard to imagine how Corridor, if faced with a sunken oil platform and uncontrollable leak of oil from a wellhead 450 metres below the surface in the Gulf of St. Lawrence, could do a better job putting a stop to it than BP has done in the Gulf of Mexico.

We should learn from the Deepwater Horizon disaster

The Canadian Prime Minister, Stephen Harper, commented recently that an accident like the Deepwater Horizon disaster simply couldn’t happen in Canada. To put it simply, Mr. Harper is in a state of denial. The weather in the Gulf of St. Lawrence can be extreme, in summer and in winter. Whereas the Gulf of Mexico basin stretches across 1.6 million km², the Gulf of St. Lawrence is considerably smaller, at 250,000  km². It is sometimes described as the world’s largest estuary and an inland sea – but it is actually more like a great salt-water lake. There are only two narrow outlets to the sea – the Straits of Belle Isle and Cabot.

This map shows the location of Old Harry

A major oil spill at Old Harry would be contained within the Gulf of St. Lawrence, sloshing back and forth without being dispersed at sea. This would make the disaster potentially even more destructive. Many species of fauna and flora would be adversely affected by an oil spill, such as whales, fish, birds and not least of all human beings. Whales will already be affected by the seismic campaign Corridor Resources plans to launch this summer.

The actions of British Petroleum are leading to criminal investigations in the United States. President Obama has several times referred to the Deepwater Horizon accident as the worst environmental disaster in American history. Unfortunately, the moratorium on offshore drilling in the United States was overturned by a New Orleans judge recently.

As long as we don’t know for sure why the Deepwater Horizon occurred, as long as the ecological disaster in the Gulf of Mexico continues to spin out of control, it doesn’t make any sense at all to push ahead with drilling at the Old Harry field in the Gulf of St. Lawrence. We need a full public inquiry in Canada about offshore drilling.

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Humpback songs (in the public domain)

The future of many species – such as humpback whales – is at stake

I grew  up on the banks of the St. Lawrence River. Our house was located right on the water, on the South Shore of Montreal between St. Lambert and what is now Brossard, Quebec. There were giant cottonwood trees on the property, silver maples, American elms and lilac bushes, whose leaves fluttered in the breeze off the river, and whose branches served as homes for a wide range of birds from American robins to evening grosbeaks, woodpeckers, red-winged blackbirds, northern orioles, dark-eyed juncos, cardinals and others besides.

A blue heron getting a grip on a snapping turtle

From my window overlooking the river, meanwhile, I could see blue herons, Canada geese and black ducks paddling in the water. Unfortunately, I never saw a swan there. Occasionally northern pike and white perch jumped after a passing fly. When I sat on my favourite rock, along the water, I could make out pumpkinseed sunfish and the odd snapping turtle in the shallows, among the reeds and cattails.

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Here is a blue heron fishing, with red-winged blackbirds in the background (in the public domain, from the US Fish and Wildlife Service)

I remember the opening of the St. Lawrence Seaway, in April 1959, when I was just over two years old. First came two icebreakers, edging aside cakes of ice: the d’Iberville and the Montcalm (spring came later in those days). There was actually an irregular watermark along our basement walls, since  the build-up of ice over the winter had led to massive floods during the Second World War. Following the icebreakers, there began a procession of strange ships:  little canallers built for the Lachine Canal, their thin tall smokestacks belching out black smoke, larger ocean-going vessels, their coal-fired motors puttering along, the voices of officers on ship radios wafting across the water in the dark of night, the wakes of ships rolling onto our beach, like a series of long sighs, once the ships had passed.

The two icebreakers in the St. Lambert lock, on opening day in April 1959

A lot of things have changed since then. I couldn’t have known it at the time, but the advent of the Seaway heralded the arrival of industrialization, which pretty much engulfed the hamlet of Préville where I grew up, smothering it with concrete, tearing it away from the river bank forever by building highway 132 along the water. The hamlet was swallowed up by a larger municipality, St. Lambert, and I believe St. Lambert should be added to the list of communities destroyed, amputated or otherwise altered for the worse by the Seaway and later highways, along with Kahnawake, Iroquois, Prescott and other places upstream.

A fawn in the woods

I have been walking a lot lately in an extraordinary park near Montreal, le Parc des Îles de Boucherville, which brings back that magical side of childhood - the discovery of Nature. This Quebec provincial park, spread out over a few islands further downstream from where I grew up, but still opposite Montreal, currently has a population of 117 red deer, as well as other mammals such as marmots, mink, red foxes and even some coyotes, which prey naturally on the fawns.

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This is a woodpecker tapping (in the public domain)

What I love most of all in this park is the direct contact with the river. In fact, these walks have thrown me back into my favourite reading as a child - The Wind in the Willows, by Kenneth Grahame. Do you know it? I remember one passage that simply changed my life and has never left me since: “He thought his happiness was complete when, as he meandered aimlessly along, suddenly he stood by the edge of a full-fed river. Never in his life had he seen a river before - this sleek, sinuous, full-bodied animal, chasing and chuckling, gripping things with a gurgle and leaving them with a laugh, to fling itself on fresh playmates that shook themselves free, and were caught and held again. All was a-shake and a-shiver - glints and gleams and sparkles, rustle and swirl, chatter and bubble…”

The magic of the river

More than 300 species of birds can be found in this park, and many other animals besides. It is a place to enjoy sunny weather in summer, to hike, kayak, idle, meditate, be one with Nature. I have produced quite a few nature documentaries over the years, and even one on board an icebreaker in the Beaufort Sea. I realize that many of them were an attempt to restore something precious that I had known as a child, but sometimes felt afterwards that I had lost.

Along the banks of the St Lawrence River, in the Parc des Îles de Boucherville, I now realize nothing is lost. I have found one of the greatest natural treasures around Montreal.

Canada Goose and her five goslings

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Canada Geese (in the public domain)

Map of the Parc des Îles de Boucherville

My late father, Laurence Tombs, only spoke to me twice about his experience of London during the Second World War: some memories were fairly happy, whereas others were nightmarish. In hindsight, I can understand why.

On the fairly happy side, although a Canadian he worked as a civilian in 1943-1944 for the British Overseas Airways Corporation, based in London, since he had built up expertise on civil aviation in the years prior to the war. He mentioned to me that convoys of Sunderland flying boats had to be organized, to ferry both military and civil officials around Europe, North Africa and the Middle East. He provided the British government with expert knowledge of civilian airfields all over Nazi-occupied Europe. Millions of people were doing their part in the Allied war effort, and victory over tyranny was in sight. This was a happy memory for him.

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Lucienne Boyer’s Parlez-moi d’amour was one of my father’s favourite songs from those years. This version (from www.archive.org) was recorded in 1930 and is now in the public domain.

A Nazi V-1 buzz bomb

But there were also the nightmares of Nazi V-1 rocket and V-2 ballistic missile attacks on London, starting in mid-June 1944, one week after D-Day. He joined his BOAC colleagues and other Londoners as they fled to the Underground, to escape death and destruction. Once the attacks were over, they would come back up to the surface, to see office buildings, churches, homes and pubs in rubble, with bodies of dead civilians strewn here and there. Just to have survived was a blessing.

My father and other Londoners had to shelter in the Underground during rocket attacks

These rockets were built under the leadership of Werner von Braun, a rocket scientist and aeronautics engineer. Von Braun was a member of the Nazi party, a member of the dreaded SS who often wore the black uniform and death’s head insignia of the SS. Of course after the war he denied that he knew very much and stated that he had to follow orders and really had no choice. But the fact is that he was well aware that the rockets he designed and whose construction and launch he supervised were built using slave labour. It is alleged that he tortured at least one slave, likely a Jew, and witnessed the torture and hangings of other slaves. And these weapons of mass destruction deliberately targeted civilians – like my father, who was lucky enough to survive the attacks, but was in all likelihood somewhat traumatized by the experience.

Werner von Braun and his Nazi colleagues in 1941 – von Braun escaped justice and was richly rewarded by the US government after the war

A total of 9215 V-1 buzz bombs were fired at Britain, of which 2515 reached London, killing 6184 people there. As for the far more powerful V-2 missiles, 1402 of them were fired at Britain, killing 2752 civilians in London alone.

The US government was keenly interested in the V-2 ballistic missiles von Braun had designed

Of course everyone knows that Baron Werner von Braun surrendered to the Americans at the end of the war, and because of his expertise in rocketry and weapons of mass destruction – both of which were high priorities for the American government – he was promoted to director of the ballistic missile programme, played a leading role at NASA and ultimately was the key person responsible for putting a man on the moon, in 1969.

From the point of view of space rocketry, I have no doubt that Werner von Braun’s contribution was exceptional.

However, from the point of view of justice, consider his work for the Nazis on the V-1 and V-2 programmes; his membership in the Nazi Party and in the SS; his lead role in a programme of mass destruction using slave labour and deliberately targeting civilians who were actually allies of the United States; plus the ample rewards he received from the American government. All of which shows how bizarre it is when Washington claims to take the moral high ground in its denunciation of military dictatorships, crimes against humanity and human rights violations. Its own space and ballistic missile programmes were the brain child of a Nazi baron…

I have come to the conclusion that the values of human rights take a back seat when interests and realpolitik come into play.

Whether or not a man is convicted of crimes against humanity all depends on how useful he is to people in power. Considering the wartime experience of my father and millions of other people, I now understand why he was so dismayed by the fact that many crucial things had been left unfinished at the end of the war.

Von Braun designed and supervised the construction and launch of weapons of mass destruction that directly targeted civilians

I have written several times here about the problem of pedophilia in North American and European educational and religious institutions. After reading one of my recent blogs, a friend asks why the Catholic Church is in such denial over the pedophilia crisis.

Every few days, a news story pops up indicating a link between top members of the hierarchy, if not the Pope himself, and decisions to block or smother accusations against pedophile priests. Obviously, the Catholic Church is being rocked by the current crisis, which involves irreparable harm done to innocent children, and also raises issues of the Church’s own credibility as an institution, and its share in responsibility for extremely serious criminal actions going back over a long period of time.

When the Catholic Church is placed in this situation, it is (unfortunately) only natural that it retaliate, by drawing attention away from the real problem.

1) For example, some Catholic commentators are suggesting that the problem is not the Church itself, but an explosion of homosexuality – a gay revolution that infiltrated the priesthood, starting in the 1960s.

2) Others suggest that the same proportion of Catholic priests have been pedophiles as in society as a whole, and that there is some confusion in people’s minds, since many victims were actually adolescents (supposedly eager to have sex in their mid-teens) rather than children (unwilling to be  abused).

3) Still others do what Pope John II did, blaming pedophilia on the sexual revolution itself – this Western (i.e. not Eastern European) social scourge  supposedly demoralized and corrupted unwilling priests, whose sexual outlet happened to be … young children.

How to distract attention from the real problem

I have known many Catholic priests over the years. Only one of these priests had what I would call a balanced view of sexuality, but then he was a widower. Many others had a distorted not to mention tortured view of sexuality, and no concept whatever of male-female relations. I have found relationship advice from priests not only unrealistic, but even harmful, since it reflected the dolorist view that pain is the only way to gain salvation.

Close to half of Catholic priests may be gay. It is impossible to make a precise estimate of how many are gay, given people’s right to confidentiality, social and religious taboos and the tortured positions of the Church itself on sexuality. One estimate, based on a random survey of 500 priests undertaken by a Franciscan friar in New Jersey, suggests that 45% of 398 respondents considered themselves gay. The true proportion may be a little lower than that. The homosexuality of so many priests goes some way towards explaining their lack of competence in terms of heterosexuality, but not much more than that.

Even if close to half of Catholic priests were gay, is there necessarily a link between homosexuality and pedophilia? Some homosexuals may also be pedophiles (I can think of one I had the misfortune to know), but a confidential relationship between consenting adults and an older man sexually abusing a child are two completely different situations.

What about the idea that the proportion of pedophiles in the priesthood (as high as 5%) is the same as in society at large? One in twenty (5%) is a lot. Why attempt to deny it, or draw attention away from the problem? Besides, I simply do not believe that 5% of men in society at large have been or are pedophiles.

I don’t believe pedophilia has anything to do with the sexual revolution. According to the controversial Jay report, 73% of US sex abuse victims between 1950 and 2002 were between 5 and 14. Was there any 1960s guru of sexual emancipation urging men to go out and rape young children, and then threaten them with violence or eternal hellfire, if they told anyone? Of course not!

As I mentioned in a post earlier today on the New York Times website, I have known a few pedophiles over the years (as an observer, not a victim), and would say they were self-hating individuals with total unsupervised power over children, who took a pathological pleasure in controlling and defiling children. “Defiling” is the key. But they were also ruthless about not getting caught, since they knew they were doing something terribly wrong. When pedophiles have happened to be priests, they have been able to control and defile children with immunity, while using their moral power (and other threats) to keep victims and their families silent. In the Wisconsin case, Father Lawrence Murphy may have hoped that the sexual abuse of deaf-mute children there made concealment even easier. He may have felt this was the perfect crime, since the victims could not communicate what had happened. And the 1962 edict, enjoining all victims, witnesses and alleged sexual abusers to keep the abuse quiet or face excommunication, added another layer of abuse, through the straight moral blackmail of excommunication.

The Catholic Church is a vertical command and control bureaucracy, which has offered its own priests a kind of immunity from prosecution. Anyone who believes that pedophile priests in Ireland, Austria, in residential (native) schools in northern Canada, in the US or anywhere else, somehow acted in isolation, fails to see the systemic nature of this abuse.

The real issue in this crisis is not whether new ways can be found to redefine the problem so it goes away, or to shield the Church from any harm or penalty. The real issue in this crisis is that tens of thousands of children have been raped and deserve some redress, decades after the fact.

St. Thomas Aquinas wrote that loving someone means wanting what is good for that person. Whatever happened to the Gospel of love?