Posted on 06/28/2008 4:53:31 AM PDT by fanfan
OTTAWA - A Supreme Court of Canada ruling that an outspoken Vancouver radio host is not liable for defamatory statements he made has stretched Canada's freedom of expression laws and has made it easier to defend defamation suits, a media law expert suggests.
Canada's highest court delivered a 9-0 ruling Friday upholding a previous B.C. Supreme Court decision that the right to fair comment protected "shock jock" Rafe Mair's statements in an on-air editorial about Kari Simpson, a well-known public figure whom Mair compared to Nazis and Ku Klux Klan members.
"(The ruling) finally, finally puts to rest this lingering notion that comment or opinion has to be fair or reasonable," said Mark Bantey, an expert in media law with Gowlings law firm in Montreal. "It gives constitutional protection to all opinions, no matter how outrageous, so long as they are based on the facts."
Traditionally, to use fair comment - one of several defences available in defamation suits - the defendant must meet four requirements, one of which is to hold an "honest belief" in the defamatory message.
But in Justice Ian Binnie's written ruling, he said that requirement is not needed, and opted instead for a more "objective test" - if anyone in society could come to the same conclusion, with the same facts, fair comment is to be granted.
The other three requirements for the right of fair comment remain untouched - namely, that the statements be based in fact, that they are a comment or opinion, and that they be in the public's interest.
Critics say defamation suits often are used as tools of intimidation against the public and put a "chill" on freedom of speech and democratic debate.
"When controversies erupt, statements of claim often follow as night follows day," Binnie wrote. ". . . Public controversy can be a rough trade, and the law needs to accommodate its requirements."
Bantey agreed, and added the justices have helped foster democratic principles.
"People will be more at ease to express their opinions on matters of public interest, he said. "It's a decision that will encourage debate in Canadian society."
On a Vancouver talk show in 1999, Mair criticized Simpson for having anti-gay views and said she reminded him of Adolf Hitler and prominent Ku Klux Klan members. At the time, Simpson had a reputation as a leader "of those opposed to any positive portrayal of a gay lifestyle," wrote Binnie.
In the legal battle that ensued over Mair's comments, the B.C. courts became divided. A trial judge ruled that while suggesting Simpson would be violent toward homosexuals is clearly defamatory, Mair was fully protected by fair comment.
However, the province's appellate court overturned that decision, arguing the subjective, "honest belief," test had not been met. Mair says that he did not personally feel Simpson would be violent toward gays and the implication was not intended.
Although the decision was unanimous, two justices expressed "partial concurrence" and recommended the requirement for honest belief, whether with a subjective or objective test, be dropped completely.
Calls made to Mair's and Simpson's lawyers were not immediately returned.
Hooray for the Canadian Supreme Court. At last a decent decision from that rum lot.
And hooray for Vangcoover’s Rafe Mair — a great Canadian and a great Kiwi.
Amazing and frightening that it took a court case — which could have gone the other way — to acknowledge this.
The freedom to say what everyone approves is no freedom at all.
Our freedom of speech gives us the right to say what other people do NOT want to hear, not what they DO want to hear.
Of course the court doesn’t want to take away one of liberals’ favorite charges, e.g. “George Bush is a Nazi.” Mentioning the religion of terrorists, however, will still be a hate crime.
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If anyone...not everyone.
You like that ol' Green Party, eh?
I have no doubt that the content of Mrs. Simpson’s message played a role. If she had made pro-gay comments, she wouldn’t have lost this case 9-0, I’m sure...the right to call her a Nazi would have been questioned.
Seems that would take care of Steyn’s kangaroo court (CHRC?) case as well, no? Or will the kangaroo court continue to attempt to scare Canadians into submission?
It's still Canada.
If Mair had criticized Simpson for Hard Left socialist views and said she reminded him of Fidel Castro and prominent CAIR Muslims, Mair would be in jail.
> You like that ol’ Green Party, eh?
Strangely, the Green Party has been quite good on some issues here in New Zealand, and they serve as a useful check against the excesses of the Nanny State. There is no danger that they will ever form a majority here: the best they can manage is being a coalition partner.
I’ve given them my Party vote once because it made sense to do so at the time. (We get two votes here in NZ, with our MMP system: you get one vote for your party of preference, and a second vote for your Electorate representative.)
This time around? It will be an odd election. Probably my Party Vote will go to ACT, and my Electorate vote to National, which would be a fairly typical conservative voting pattern here.
As to Rafe Mair, he was brilliant during the Constitutional referendum back in the early 1990’s, and again during the election that followed that saw the destruction of the Progressive Conservative party and the rise of Preston Manning’s Reform Party. For a Western Canadian conservative who was feeling disenfranchised at the time, those were defining moments in Canada’s history.
One of his parents (his dad?) is a Kiwi, and from time-to-time Rafe has been known to go trout fishing on our rivers here.
I’m not cheering quite as loudly. The winner of this case is a clear far-leftist and homosexual advocate. Had the tables been turned, I wonder whether the defendant would have prevailed, and if so, certainly by a closer decision. This was a victory for left-wing speech.
It should take care of the Human Rights complaints against individuals as long as the statement is based on fact.
I guess that would depend on whether what you said was based on fact. The guy you are referring to could now appeal his conviction.
I disagree.
This case was simply the vehicle used for the decision.
It looks like Canada ruled that leftist atheisitic speech about pro-family Christian’s is protected.
I bet that the same protection is not afforded to someone who criticizes rabid in-your-face gays or feminists as being like nazis or KKK members.
As a matter of fact, I believe the law in Canada is now that you can’t utter critical words about homsexuality, but you can criticize those who uphold biblical values without fear.
You beat me to it.
I commented before reading your post.
previous comment was meant for you, rawhide.
you are mixing up two different legal actions
Today’s ruling upholding Christophobic speech was about defamation, a private tort action.
Enforcement of Human Rights Laws that protect Christophobes from having to hear any criticism of their evil dogmas are not affected by this ruling.
Dittos.
This was about defamation, which has nothing to do with Canada’s oppressive “human rights” laws that protect Christophobes from any criticism.
I had heard that the case against Steyn had been dropped by the CHRC???
And a 'supporter' of the homosexual community?
You obviously have Rafe Mair mistaken for someone else, as he was a cabinet minister with the SoCred party.
The Greens are about as far the opposite way on the political scale as it can go.
I got a real belly laugh when the twit who wrote this article called him a “shock-jock”. That’s on a par with calling Al Franken an out of control right-wing Zealot.
Mair is intelligent and entertaining. His program is often thought-provoking, but I have never heard him say anything that can’t be substantiated or demonstrated. Then again, I’m not a full-time regular listener, either.
But will this ruling put a damper on the Hate Speech Commission?
Does it?
> And a ‘supporter’ of the homosexual community?
People are multi-dimensional and nobody is perfect. Rafe Mair is not without his faults, but on balance I’d say he is good for Canada in general, and Western Canada in particular. It would be churlish to deny the good that he has done over the years, particularly with defending this particular case.
Is he a supporter of the homosexual community? I dunno and what’s more, I don’t care.
That said, no one has a right to be listened to. That is the critical issue. While you have a right to say what you want with the intent of him hearing you, you do not have a right to force him to listen to you.
Your friend was misapplying an old adage of freedom that states your freedom ends where someone else's nose begins. What that means is that you are only free to act only so far as you do not physically harm another. His comment about your ‘expression’ having to end 1mm from his ear is a bastardization of that adage which is intended to prevent liberty from breaking down into license and anarchy (the real kind, not the pseudo-anarchism which is really communism). There is all the difference in the world between offending someone with an idea and harming someone physically. While I'm an ardent supporter of the 2nd Amendment, I sure as hell don't want my neighbor 30 yards away to target practice in his back yard. Physical endangerment is a far cry from being offended. The Left has done a fine job in equating the two in order to shut people up who disagree with them.
You should ask your friend that if he believes that, does he support the cutting of funds through the NEA to artists who create ‘art’ that offends people? Not only does that expression force the views of others through the 1mm-barrier, it is also being funded by the public.
If your friend is a liberal, what he really meant was that you have free speech so long as he is sure no one can hear you, but that he has the freedom to drive his opinion like a 20-penny nail all the way through your skull.
"Show me just what Mohammed brought that was new, and there you will find things only evil and inhuman, such as his command to spread by the sword the faith he preached." - Manuel II Palelologus
Somebody should ping Mark Steyn.
"(The ruling) finally, finally puts to rest this lingering notion that comment or opinion has to be fair or reasonable," said Mark Bantey, an expert in media law with Gowlings law firm in Montreal. "It gives constitutional protection to all opinions, no matter how outrageous, so long as they are based on the facts."
I know us Canadians use some words you aren't familiar with, like touque, timbit, Grits, and poutine, but for the most part, I think we share the same language.
So why are some of you having so much trouble understanding the following words?
These words do mean the same thing in American, as thay do in Canadian, don't they?
The Supreme Court of Canada will over rule the 'HRC's' on free speech now. We have the right to voice our opinion as long as it's based on fact.
9-0
Well said fanfan. The breeze feels sweeter today.
It sure does, Kanawa.
Much sweeter, and fresher than it’s been in a long time.
*HUG*
No offense, fanfan, but most of us haven't trusted any Canadian government since Joe Clark was PM. I went to high school and university up there. I speak from experience. The average Canadians I knew were moderate to slightly conservative, but were intimidated as far as showing it.
The absolute ruination of your country aside from Trudeau and Quebec, came with the adoption of the horrific Charter in 1982. Abominably written and interpreted even worse, the Canadian courts will never have a dull moment twisting it around to the government's ends.
The Canadian Human Rights Commission dismisses the complaint against Maclean’s
” We enthusiastically support those parliamentarians who are calling for legislative review of the commissions with regard to speech issues.”
http://www.macleans.ca/article.jsp?content=20080627_120859_5592
Joe Clark?
He was Canada’s John McCain!
Yes, Canadian conservatives used to be afraid to show it, but it’s not like that anymore.
1. When did you graduate?
2. University, eh? ;-)
Our Charter was designed by Trudeau, which explains why it is written top-down, unlike yours, which is written bottom-up.
In any event, The Supreme Court of Canada said I can make any statement as long as it is based on facts.
What I can’t say is covered by libel laws, and I’m OK with that, as I don’t want to be libelled either.
I guess I’m surprised at the reaction to this thread.
Thanks for your reply.
:-)
Bump, and big Canada Day *HUG* to you.
LOL! He did no harm. Plus we Americans remember the "Canadian Caper" when you guys helped get some of our people out of Iran. I was in grade 11, then. I was proud of both my countries!
I'm a proud graduate of Mount Allison University, class of 1985.
I am in agreement with the general view that you have expressed. Of course, the fact that a person who was seen as anti-homosexual and made a complaint was the bottom line.
What many people do not appear to realize is that Canada's laws regarding "hate" merely allow the so called "Human Rights Commissions" to pick their target. This is not a victory for free speech per se. I would observe the punishment for offenders is not jail. The Commissions are too cunning for that. They wear a person down gradually. They cause them financial hardship. When they have deemed he/she is beaten, they then withdraw, with an admonition- be very careful in future. Here is my take on old Rafe baby.
The Commissar of cant.
The purveyor of schlock
The cleaner of bath houses.
LOL
I wonder what the outcome would have been if the shock jock had been bashing homosexuals.
I think everyone read that sentence and everyone understands the case and the decision. Kudos to Canada for allowing the people to maintain their God-given rights.
I used the case to launch my point, which is bigger than this one case. The point I was making is that it is disgusting and frightening that in “free civilizations” people are actually brought up on charges for exercising their rights. Brigit Bardot in France for saying there's a problem with Muslims, the same with Mark Steyn, the fact that a gun-ban was implemented in our nation's capital and that it required the United States Supreme Court to read the words of the 2nd Amendment as they are stated.
THAT is what my point is. The Leftist thought police are doing a great job of intimidating us through organizations like CAIR and the ACLU and race-baiters not only into making us not voice or write opinions contrary to theirs but in making us feel guilty for even thinking contrary views.
This is what Orwell predicted and tried to warn us about.
9-0. Great. There are at least 9 people in Canada who understand what we call ‘inalienable rights.’ I hope our country can get at least 5 on our USSC who also understand that concept.
I agree. We shouldn't even have to ask if we have those rights.
Best of luck to you and yours.
One has to wonder if a right leaning commentator had made this kind of statement if the Canadian Supreme Court would have had the same ruling. In my mind the jury is still out on this one. The fact that it even was in the courts to begin with is chilling to say the least.
btt
Thanks! I wonder how this affects the methods of Richard Warman?
I think we’ll see the repeal of the enabling legislation and abolition of the kangaroo courts he’s been using. Then all his enemies will turn ‘round on him...
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