Supreme Court rules radio host not liable for ‘Nazis’ comment
Tobin Dalrymple, Canwest News Service
Published: Friday, June 27, 2008

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," Mr. Binnie wrote. ". . . Public controversy can be a rough trade, and the law needs to accommodate its requirements."

Mr. 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 inCanadian 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, Ms. Simpson had a reputation as a leader "of those opposed to any positive portrayal of a gay lifestyle," wrote Mr. Binnie.

In the legal battle that ensued over Mr. Mair's comments, the B.C. courts became divided. A trial judge ruled that while suggesting Ms. Simpson would be violent toward homosexuals is clearly defamatory, Mr. 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. Mr. Mair says that he did not personally feel Ms. 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 Mr. Mair's and Ms. Simpson's lawyers were not immediately returned.