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Supreme Court of Canada raises bar on libel lawsuits, expands fair comment

June 27, 2008 The Canadian Press

VANCOUVER - A decision by Canada's top court Friday opens the door to greater freedom of expression in Canada without fear of legal action.

The Supreme Court of Canada has absolved former Vancouver radio personality Rafe Mair of defamation for a commentary in which he made reference to the Ku Klux Klan and Adolf Hitler. The decision also broadened a key defence used by journalists in libel actions.

Vancouver media lawyer Dan Burnett says the Supreme Court of Canada decision revives the law of fair comment and clearer freedom of speech.

"If you give the public credit to understand an opinion when they see it or hear it, they know they can size it up for themselves and why wouldn't you have a wide-open debate and permit some opinions even if they're uncomfortably extreme?" said Dan Burnett, who represented the radio station at the appeal. Burnett said the ruling will create a more objective approach toward defamation or libel actions in the courts.

He said the court has removed the notion of fairness being the test for fair comment in media opinion pieces. "Those kind of lead to censorship," he said. "It's a very welcome decision."

In the 9-0 judgment, the court ruled that Mair was engaging in fair comment in the 1999 radio editorial critical of Kari Simpson, a high-profile player in a campaign opposing the use of teaching materials about gay lifestyles in local schools.

In the course of the editorial, the controversial former radio commentator made references to the Klan, Hitler and skinheads, although he claimed he wasn't saying that Simpson actually advocated violence against gays. Simpson sued and the original trial judge found that, despite Mair's disclaimers, his words could be understood by listeners as implying that Simpson condoned violence.

The judge went on, however, to say that Mair wasn't liable for damages because he held an honest belief in the views he expressed - one of the traditional elements in the legal defence known as fair comment.

The B.C. Court of Appeal overturned the decision and said Mair and his employer at the time - WIC Radio which controlled radio station CKNW at the time - hadn't made out an adequate defence.

The Supreme Court, in Friday's judgment, restored the finding of fair comment and went on to rewrite the legal test for such a defence. "In my view, with respect, the court of appeal unduly favoured protection of Kari Simpson's reputation in a rancorous public debate in which she had involved herself as a major protagonist," wrote Justice Ian Binnie.

There was no proof that Mair's dominant motive was personal malice, said Binnie, and thus "his expression of opinion, however, exaggerated, was protected by the law. "We live in a free country where people have as much right to express outrageous and ridiculous opinions as moderate ones." Simpson could not be reached for comment Friday.

Mair, who no longer works at the station, said he felt vindicated. "This could be a enormous benefit to the journalism industry and therefore, to the people that read and watch it," he said. Mair said the libel case was an important one and rightly ended up before the high court.

"I've always felt that I was doing a work-for-life job, and not showing malice to any," said Mair, who was known for his controversial commentaries and abrasive interview style.

A key component of the fair comment defence has long been that the person making the comment must sincerely believe in it. In the course of the ruling, however, the high court modified that test.

Commentary must still have a factual basis, be made without malice and be in the public interest, said Binnie. But the test of honest belief is not whether the specific person holding the opinion believed it. The yardstick is whether any person might honestly hold the view based on the facts at issue.

The Canadian Newspaper Association led a coalition of eight media groups that intervened in the case. "This is a significant victory, at a time when freedom of expression is increasingly under attack," said spokesman David Gollob. He said the court upheld one of the essential functions of media as a vital platform for the exchange of opinions in a free and democratic society.

Supreme Court ruling modernizes defence of fair comment

June 27, 2008 Kirk Makin, Saturday's Globe and Mail 

OTTAWA — The media should not live in constant fear of facing a libel suit every time a provocative commentary is published or broadcast, the Supreme Court of Canada said on Friday in a major ruling won by controversial Vancouver radio broadcaster Rafe Mair.

In a 9-0 decision that modernizes the defence of fair comment, the court found that Mr. Mair did not defame Christian-values advocate Kari Simpson when he denounced her stand on a book-banning controversy.

“An individual's reputation is not to be treated as regrettable but unavoidable roadkill on the highway of public controversy, but nor should an overly solicitous regard for personal reputation be permitted to ‘chill' freewheeling debate on matters of public interest,” Mr. Justice Ian Binnie said.

Judge Binnie said that the key to a defence of honest belief – particularly in an era when extravagant overstatement is common – should lie in whether an honest person could have held the same opinion.

Rafe Mair, former B.C. radio talk show host in 2003. (John Lehmann/The Globe and Mail)

Internet Links: Supreme Court of Canada: WIC Radio Ltd. v. Simpson
“We live in a free country, where people have as much right to express outrageous and ridiculous opinions as moderate ones,” Judge Binnie said. “In much modern media, personalities such as Rafe Mair are as much entertainers as journalists.”

Brian MacLeod Rogers, a lawyer who represented a coalition of media organizations in the appeal, said that the ruling “clarifies and strengthens a defence that had fallen into murky depths and had become too unreliable to be counted on when most needed.”

Mr. Mair, a former Social Credit cabinet minister, made his controversial comments during an Oct. 25, 1999, broadcast on radio station CKNW. Using provocative images of Nazi Germany and the Ku Klux Klan, Mr. Mair took issue with Ms. Simpson's public support of a Surrey school board decision to ban three books depicting same-sex parents.

Mr. Mair said that Ms. Simpson's views on the book banning, “took me back to my childhood, when with my parents, we would listen to bigots who with increasing shrillness would harangue the crowds. “For Kari's ‘homosexual,' one could easily substitute ‘Jew.' I could see Governor Wallace – in my mind's eye I could see Governor Wallace of Alabama standing on the steps of a schoolhouse shouting to the crowds that no Negroes would get into Alabama schools as long as he was governor. It could have been blacks last Thursday night just as easily as gays.” Ms. Simpson alleged that the commentary was tantamount to saying she would condone violence against gay people.

Judge Binnie said on Friday the media “regularly match up assailants who attack each other on a set topic. The audience understands that the combatants, like lawyers or a devil's advocate, are arguing a brief.

“Of course, the law must accommodate commentators such as the satirist or the cartoonist who seizes on a point of view, which may be quite peripheral to the public debate, and blows it into an outlandish caricature for public edification or merriment,” he said. “Their function is not so much to advance public debate, as it is to exercise a democratic right to poke fun at those who huff and puff in the public arena. This is well understood by the public to be their function.”

Judge Binnie expressed a concern that issues of public interest could go unreported “because publishers fear the ballooning cost and disruption of defending a defamation action. … Public controversy can be a rough trade, and the law needs to accommodate its requirements.”

The legal tests the court set out to determine “honest belief” include:

  • The comment must be on a matter of public interest.

  • It must be based on fact.

  • Although it can include inferences of fact, the comment must be recognizable as comment.

  • It must be capable of satisfying the question: Could any person honestly express that opinion on the proved facts?

Canadian papers reject press council

July 14, 2011 guardian.co.uk.

A group of Canadian newspapers have withdrawn from the Ontario press council (OPC) complaining about the watchdog's "politically correct mentality". Sun Media, the country's largest newspaper publisher, will remove its 27 titles from scrutiny, including the popular tabloid, the Toronto Sun.

A Sun Media spokesman explained: "The editorial direction of our newspapers, especially our urban tabloids, is incompatible with a politically correct mentality that informs OPC thinking, in the selection of cases it hears, and the rulings it renders."

The Toronto Sun recently came under fire for its decision to publish a photograph of Prince William's wife, Kate, at the precise moment a gust of wind lifted her dress. Editor-in-chief James Wallace defended publication, saying the Sun delivers "news with edge and attitude" and that the picture was deemed to be "compelling and newsworthy."

Last year, Sun Media's parent company, Quebecor, withdrew from the Quebec Press Council.

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Comment:  Very good article.  Keeping the powerful, powerful and the oppressed, oppressed is the rule of the day. We have to challenge it and speak for those cannot unite and fight for their rights, human and non-human alike. The first step is to acknowledge it, and not look away or deny it. Power is always dangerous. Power attracts the worst and corrupts the best. Edward Abbey

Read more: Challenging mainstream media; when lies become 'truths'; manipulation; Chipotle ad; A & W