Free speech wins one

Nine years later, Rafe Mair finally gets the monkey off his back: Supreme Court throws out libel case against outspoken BC talk show host

The judgment includes some uncharacteristically clear language from the Court in defence of free speech:

The traditional elements of the tort of defamation may require modification to provide broader accommodation to the value of freedom of expression,” Mr. Justice Ian Binnie said for the majority today.

“There is concern that matters of public interest go unreported because publishers fear the ballooning cost and disruption of defending a defamation action. Investigative reports get “spiked”, it is contended, because, while true, they are based on facts that are difficult to establish according to rules of evidence.

“When controversies erupt, statements of claim often follow as night follows day, not only in serious claims [as here] but in actions launched simply for the purpose of intimidation.”

There is nothing wrong with laws that ‘chill’ speech which is false and defamatory, Judge Binnie said. “But chilling debate on matters of legitimate public interest raises issues of inappropriate censorship and self-censorship.

We live in a free country where people have as much right to express outrageous and ridiculous opinions as moderate ones,” Mr. Justice Ian Binnie said, in a spirited defence of free expression in an era when extravagant over-statement is commonplace.

“In much modern media, personalities such as Rafe Mair are as much entertainers as journalists,” Judge Binnie said. “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.

“Public controversy can be a rough trade, and the law needs to accommodate its requirements.”

The judgment also adds some definition to the defence of “fair comment”:

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.

Here’s another take:

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.

Binnie acknowledged that is “not a high threshold” for any defendant to met. But neither is it appropriate to rule out “a piece of devil’s advocacy” in any debate on a matter of public importance.

My God. Is it possible the Supreme Court, notoriously wobbly on speech cases, might actually have got this one right?

See also:

Outspoken talk show host wins libel appeal

Top court rejects defamation claim against BC radio host

Top court dismisses libel suit against BC radio personality




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Free speech wins one

  1. AC, stopped clocks, etc., etc.

  2. Excellent News : Do we really need these quasi judicial tribunals. I mean really we have a Charter and Criminal Code isn’t that sufficient? How about the comic too – apparently some comic couldn’t tolerate some hecklers and they also thre drinks in his face twice or something like that so he went all insulting on them the next thing you know – poof here come da thought and speech police! good grief!

  3. “We live in a free country where people have as much right to express outrageous and ridiculous opinions as moderate ones”…

    Well, that pretty much covers Mark Steyn, eh? And whether people want to pay to read same outrageous and ridiculous opinions is another matter.

  4. to Wayne: Concur…this parody of justice must end and no human rights commission or anything else, whether at the federal or provincial level, should exist to monitor, inquire into, or assess free speech.

  5. With respect Andrew, this is more bullshit from the Supremes. I see nothing in Binnie’s remarks you’ve quoted (haven’t read the decision yet) that takes us away from the idiotic requirement, established in R v Keegstra, that speech, in order to be permitted in a free and democratic society, must serve some useful function.

    In fact, his discussion of the “function” of satirists seems to me to reinforce the fundamentals of the Keegstra ruling. So I have to disagree, this isn’t a “clear” defence of a constitutional right to free speech, it is a clear statement of the court’s established position, which is that in order to be permitted, speech needs to serve a legitimate function.

    That is to say, outrageous and ridiculous opinions are legitimate for members of the satirical media, but not for wacko schoolteachers in Alberta.

  6. Of course, this was a civil suit and not a criminal trial, so I’m comparing apples and oranges.

    So ignore the previous comment.

  7. And yet I share the basic sentiment. Speech should not have to prove its usefulness to be free.

  8. Yeeee Haaaa!

    Victory against S.L.A.P.P (strategic lawsuits against public participation) lawsuits!!!

    No longer can organizations sue people for expressing their concerns!!

  9. Can someone enlighten me as to what this ruling means, practically, in terms of the HRC’s? Would they, even in an ideal world, regard a SC ruling as a guideline for how to judge speech cases, or would that require a SC appeal of Section 13?

  10. God bless Ian Binnie!

  11. If the overseers of the kangeroo courts called Human Rights Commissions are smart, they will heed this judgement and get out of the business of trying to regulate speech in this country.

    But will they be smart enough to do that? These people need a reason to exist and they will seek to protect their well-paid sinecures. Therefore my bet is that they will still entertain complaints from people offended by the speech and thoughts of others but they will be careful to beat up only on little guys who can’t fight back like MacLeans and Mark Steyn could.

    FIRE THEM ALL!

  12. The ruling means that the Steyn article was not “likely to expose” Muslims to hatred or contempt.

    Wasn’t that obvious from the beginning.

  13. Andrew, where’s the right to “free speech”? Freedom of expression is the winner here.

    “The judgment also adds some definition to the defence of ‘fair comment’:”

    At the same time as endorsing the “objective” formulation of the “honest belief” test, the Supreme Court rejected two arguments advanced by the intervener Canadian Civil Liberties Association that if accepted would have really moved the yardstick, i.e. significantly lowered the threshold for making out the fair comment defence. The Court rejected the CCLA’s contention that bringing the common law of defamation into compliance with the Charter requires:

    - that there be “a presumption in favour of expressive activity”, so that a plaintiff ought to bear the initial onus of establishing that the defendant’s defamatory comment (i) is not a comment at all but a fact which must be proven or otherwise justified , or (ii) is not a comment on a question of public interest.

    - that the honest belief requirement be eliminated altogether.

    Nevertheless, this is a win for freedom of expression.

  14. Yes. Canadians get extraordinarily excited when the ruling class throws them some crumbs.

    Unfortunately, Canadians have NO ONE to speak for them. A cowardly intelligentsia and journalistic cabal seals the deal. Shame.

    And so the agenda continues.

  15. If you think that by threatening me you can get me to do what you want … well, that’s where you’re right. But–and I am only saying this because I care–there’s a lot of decaffeinated brands on the market that are just as tasty as the real thing.ValKilmerVal Kilmer, Real Genius

  16. Glory is fleeting, but obscurity is forever.NapoleonBonaparteNapoleon Bonaparte

  17. If the complainant had been an observant, conservative Christian, not a left-wing, card-carrying member of the MSM, I doubt very much that the decision would have been in the defendant’s favour.

    However, what’s sauce for the goose . . . so the courts and HRCs might have a more difficult time persecuting their non favoured groups. (Not that the courts or HRCs are squeamish about doing an about face if it suits their ideological purposes.)

    We’ll see how this ruling spins out.

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