On limitations

One of the main Con talking points surrounding Tom Lukiwski's anti-gay remarks has been to ask whether any "statute of limitations" should apply in determining the appropriate response to the video. With that in mind, I'll take a moment to point out a couple of the principles behind actual statutes of limitations - and why neither the Lukiwski example nor other examples of seemingly old news about Con actions would give rise to a legitimate limitations defence.

First off, it's worth noting that virtually all statutes of limitations are subject to the principle of discoverability. In weighing the relative interests of a defendant who wants to be able to move on from past actions and a plaintiff who deserves the opportunity to seek redress for a wrong, courts have understandably concluded that most limitation periods won't operate where the plaintiff couldn't reasonably determine that any claim existed.

Needless to say, if the discoverability principle were applied to Lukiwski's comments, there would be no basis for a limitation defence. Indeed, nobody could possibly have known that a wrong was committed without either crashing the Devine Cons' after-debate party, or breaking into the opposition offices at the legislature to track down the videotape. Which means that a fresh limitation period would apply from the time the tape could have been (and was) found.

Mind you, a recent development in limitations law has provided for "ultimate limitation periods" which may bar a claim which has not yet been discovered after what's determined to be a sufficiently large amount of time - normally in the range of 15-20 years. But even then, a defendant can't take advantage of the ultimate limitation period to the extent the defendant deliberately conceals the fact that there's any claim to be made.

In Lukiwski's case, it's far from clear that such a principle would be in play. (Though the great unanswered questions so far include just who knew the tape existed, and what if anything was done with it after the post-debate party.)

But it's worth turning to the Cons' general practices in government while keeping in mind the rules which apply in a civil context. Greg Weston notes today that the Cons have made a habit of concealing information requested by the public, with the result that it's awfully difficult to determine just what Deceivin' Stephen and his gang have been up to. And Weston expressed concern that by the time any potentially damaging news comes out, it's seen as old enough to be of little value.

I'd argue that as in the case of limitation periods, the mere passage of time doesn't make grievances about the Cons' hidden actions any less legitimate. If anything, the fact that the Cons have managed to keep something under wraps only amplifies the wrong: not only is there the initial action to criticize, but also the subsequent cover-up. And as in the case of a civil actor who successfully hides the existence of a claim, it should be clear that stories about the Cons' actions in office are just as newsworthy and relevant when they actually come out as they would have been when they should have been disclosed in the first place.