Supreme Court of Canada raises bar on libel lawsuits, expands fair comment
June 27, 2008 - 19:27

By: Jeremy Hainsworth, 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.