WE Charity v. the Fifth Estate, Mark Kelley and Harvey Cashore

Law Commentary
By
Mark Bourrie
July 19, 2023
Harvey Cashore from Fifth Estate talking

First, a few things to make clear. I believe in the CBC. I don’t want it defunded. It has an important role to play in Canadian culture and journalism. The CBC is the last real media outlet that has anywhere near the resources needed to do a decent job of covering Canada. It is the only media outlet that gives serious space and resources to covering arts in Canada.


CBC (and APTN ) break most of the important stories about Indigenous issues in Canada. CBC also gives voice to LGBT+ people seeking equity. It covers the regions and the North, and, without its journalism, Canada would be even more fractured.


Canadian book publishing would be in much more trouble without the CBC. CBC’s Ideas program did so much to boost my books Bush Runner and Big Men Fear Me. I will always be grateful for that, and will fight to keep CBC funded, even when I believe it’s made dumb mistakes.


I’ll always support a national public broadcaster, knowing that any large organization can’t be perfect. The CBC is big, with thousands of employees. Many of them are the best in the business. Some are infuriatingly dense. Any media outlet this big, with so many platforms, is bound to come up with some clunkers and make some mistakes. There’s no way to practice journalism without a fraction of the viewership and listeners disagreeing about a journalist’s political interpretation.


CBC has learned to roll with those punches. In my latest book, Big Men Fear Me, I wrote about Globe and Mail founder George McCullagh’s partisan fight to buy air time on the CBC in the 1930s. (Back then, you could buy an hour on the CBC national radio network and talk about anything you liked. You can’t do that anymore.) A cursory glance of Twitter will show Liberals who believe the CBC is determined to oust Justin Trudeau and Conservatives who swear the CBC never gives them a fair shake.


CBC was late to the feeding frenzy on WE Charity. In the winter of 2019, failed journalist Jesse Brown anchored his Canadaland fundraising drive on an error-filled, biased and over-torqued series of podcasts attacking WE. One astute observer called them “a nothingburger smothered in Jesse Brown hype sauce.” A little over a year later, media began using WE Charity as a cudgel to beat the Trudeau government in a “scandal” that eventually ended with a yawn.


WE Charity’s Canadian programs became roadkill in Canada’s dysfunctional, toxic politics.


The CBC’s Fifth Estate has seen better days. The CBC’s version has, like the American template program 60 Minutes, tended to ignore real power and focus on humiliating people who are weak or have already been damaged.

CBC producer Harvey Cashore speaking.
CBC producer Harvey Cashore speaking.

Now there’s a reckoning for CBC producer Harvey Cashore and Fifth Estate host Mark Kelley. They decided, after the Toronto Star and the Globe and Mail had finished their feeding frenzy and, in the end, come up with nothing, to try to seize that journalistic space. Now Harvey Cashore, Mark Kelley and the CBC are being sued in a United States Federal Court in Washington, D.C.The CBC, Harvey Cashore and Mark Kelley tried to have the case thrown out, claiming it should be heard in Canada. American courts are much more likely to hand down huge defamation awards, with serious punitive damages.

Fifth Estate host, Mark Kelley.
Fifth Estate host, Mark Kelley.

In Washington, the CBC doesn’t benefit from an anti-SLAPP regime that has made it open season on anyone with a public profile in Canada.The US Federal Court decision makes interesting reading. CBC producer Harvey Cashore speaking. The case is moving ahead in Washington. The CBC will have to disclose relevant documents. Mark Kelley, Harvey Cashore and the rest of the people involved in the Fifth Estate’s 96-minute hatchet job on a kids’ charity will be deposed, under oath and on the record.If WE Charity’s claims are right, this case could be a career-ender for Mark Kelley and Harvey Cashore. The have some explaining to do. This is especially true about their claims about WE’s operation in Kenya. While the first Fifth Estate show was a stale rehash of Jesse Brown’s claims and featured Brown himself (without explaining Brown’s own checkered CBC career), the second made serious allegations against the children’s charity.The Fifth Estate broadcast this program on Kenyan schools, produced by Harvey Cashore and hosted by Mark Kelley.It was the only time a Canadian media outlet, including Canadaland (which, remember, fundraised off its WE “investigation” and is owned by a multi-millionaire and backed with financing by other super-rich Canadians) ponied up the money to actually send someone to Kenya to take a look at WE’s operation.But instead of coming back with a story that really would have challenged the accepted narrative – that story being WE’s success at using social enterprise to raise money to educate students, including medical personnel, in a developing country — Harvey Cashore and Mark Kelley chose to pretend they were on some kind of half-assed James Bond mission.The program is very dramatic. But it becomes bizarre in a sort of gallows-humour way when you compare it to reality. For example, Harvey Cashore and Mark Kelley smear WE with the claim that WE lies about the number of schools it built. In fact, the CBC got their facts wrong, even when the accurate numbers were spoon-fed to them.The CBC also falsely claimed WE Charity counted latrines (stand-alone washrooms) as classrooms, despite having the facts and being told, over and over again, that they were wrong. WE Charity sent them pictures of every classroom, yet Harvey Cashore and Mark Kelley put this brutal falsehood on the air.Then things went from incompetence to paranoia as our intrepid CBC team fled Kenya from invisible agents of the nefarious KielBros. There were no threats and no obstruction of their investigation by WE Charity.In the first program, Mark Kelley is told by a senior Kenyan WE employee that the Kenyan projects are owned by the people of Kenya. Like all the other statements made by Black supporters of WE in Kenya and North America to Canadian media during this sad affair, her statement of fact was ignored. But the Kenyans do own WE-built infrastructure in Kenya, and, when the Fifth Estate began calling on Kenyan schools during the Covid pandemic without an invitation, they were told to stop.This was action taken by Kenya’s federal and state governments, not WE Charity, whatever Harvey Cashore and Mark Kelley claim. WE Charity has the receipts. WE tried to help get them permission to enter the schools.I believe this will be one of the most important legal cases in modern Canadian history. I practice in this area of law, and I think the legal system is the best place to protect the rights of the media, as well as those targeted in media malpractice. I see it as a corner of the dysfunctional political system where I can help make a difference to preserve rights and protect democracy.So I plan to be there for the trial. I hope it is in cherry blossom season