Top court rejects defamation claim against B.C. radio host
Canwest News Service
Published: Friday, June 27, 2008

OTTAWA - Vancouver's controversial "shock jock" radio talk show host Rafe Mair is not liable for comments he made over the air almost nine years ago, the Supreme Court of Canada ruled Friday - setting a precedent that could make establishing a defence for defamation suits easier.

The justices ruled unanimously that, although Mair clearly defamed Kari Simpson - comparing the local activist to Hitler and the Ku Klux Klan for her remarks about homosexuals - his comments were protected as fair comment.

The decision upholds a previous decision from the B.C. Supreme Court that Mair had adequately met the requirement of the fair comment defence, a protection afforded to foster free speech and avoid lawsuits that would have a "chilling effect" on public debate.

In October 1999, Mair, a well-known host on CKNW radio, read an editorial regarding Simpson, a high-profile social activist. Simpson opposed any positive portrayal of a gay lifestyle in public schools, according the justices' ruling.

Mair, in his editorial, compared her to historically racist and violent people.

"Now I'm not suggesting that Kari was proposing or supporting any kind of holocaust or violence but neither really . . . neither did Hitler or Governor Wallace or (Orval Faubus) . . . they were simply declaring their hostility to a minority. (...) Let the mob do as they wish," he said, according to a transcript in the ruling.

The ruling sets a precedent by employing an "objective test" to grant fair comment. Beforehand, a majority of cases required the defence show four elements: that the comments were on matters of public interest; based on fact, clearly a comment of opinion, and the opinion expressed had to be the defendant's own.

The ruling Friday, however, said that instead of having to prove the opinion of the defendant, if any person could "honestly express that opinion" based on the same facts, then fair comment is eligible.