"I guess my preference, to be frank, would be to see the Order of Canada be something that really unifies, that brings Canadians together." -- Stephen Harper, speaking against Morgentaler being named to the Order of Canada.
"Jane Doe is a backroom operator in my political party and is known to wield a lot of power and to be behind several controversial decisions. From the membership's perspective, there is little accountability and no transparency. We are now in the post-Adscam age. People are expecting political parties to be more open and accountable. We, as members, need to know more about the influential activities of senior people in the party."In Canada, could Jane Doe sue for libel and win? Oh, yes. Jane Doe could argue that even though the opinion expressed is based on fact, an innuendo of the piece is that she was involved in criminal or unethical matters similar to Adscam. As that is untrue, and is clearly defamatory, it's libellous. Pay up!
Simpson's argument on this point therefore runs as follows. Although the trial judge found Mair had an honest belief in the comment Mair subjectively thought he was making (that Simpson is a bigot), there was no evidence that he honestly believed the innuendo imputed to his words by the trial judge (that Simpson "would condone violence toward gay people"). On this view, if Mair had simply sworn that he honestly believed that Simpson condoned violence (leaving aside the debate about the ambiguity of the word "condoned"), he would have had a good defence. However, Mair undermined his own legal position (so goes the argument) by persisting at trial in talking about Simpson's alleged bigotry and intolerance with the result that he was never asked in chief or cross-examination about his honest belief in the pleaded innuendo that Simpson condoned violence. He stuck to his belief that "Kari Simpson is not a violent person." It seems to me that defamation proceedings will have reached a troubling level of technicality if the protection afforded by the defence of fair comment to freedom of expression ("the very lifeblood of our freedom") is made to depend on whether or not the speaker is prepared to swear to an honest belief in something he does not believe he ever said.
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."
What exactly did the defendant say? This is what he said on the air (words spoken over radio are consider libel not slander) that sparked the lawsuit:
I really hate to give Kari Simpson any more publicity, something she soaks up like a blotter, but she's become such a menace I really think something must be said. … Now I'm not suggesting that Kari was proposing or supporting any kind of holocaust or violence but neither really — in the speeches, when you think about it and look back — neither did Hitler or Governor Wallace … Whether she realizes it or not, Kari has by her actions placed herself alongside skinheads and the Klu Klux Klan. … Kari Simpson is thank God permitted in our society to say exactly what she wishes, but the other side of the free speech coin is a public decent enough to know a mean-spirited, power mad, rabble rousing and, yes, dangerous bigot when they see one.Simpson was at the time an active citizen organizing people to oppose children learning in their schools anything about alternative lifestyles.
(1) There is an element of commercial exploitation of a person's personality.I have no idea how narrow or broad of an injunction Harper is seeking. I suspect that in the least this is over that audio clip that has Harper saying that Chuck Cadman was offered "financial considerations" -- a phrase Harper himself has repeatedly refused to explain, and one he desperately does not want played over and over again in Liberal election ads in the likely coming Fall election.
(2) The person is clearly identifiable in the medium used and to their respective communities.
(3) The person does not consent to the use of their personality.
(4) Damages; either emotional or financial losses are proven.
(from Krouse v Chrysler)
[17] More broadly, it also seems clear that in articulating this tort the court must be mindful of the public interest. In Krouse, supra, the Ontario Court of Appeal explicitly stated at p. 240 O.R., p. 30 D.L.R.:It is interesting that we are not seeing a large press conference rollout by Harper this time around. The last attempt by the Conservatives to present positive spin with this lawsuit was, at best, a partial catastrophe. This time, they seem to be handing out sparse details.
Progress in the law is not served by the recognition of a right which, while helpful to some persons or classes of persons, turns out to be unreasonable disruption to the community at large and to the conduct of its commerce.
[18] While not explicitly offering any principles that ought to guide the development of this tort, the court at p. 240 O.R., p. 30 D.L.R. did warn:
The danger of extending the law of torts to cover every such exposure in public not expressly authorized is obvious.
(From Glen Gould Estate v. Stoddart Publishing Co. Ltd., 1998)
(1) There is an element of commercial exploitation of a person's personality.I have no idea how narrow or broad of an injunction Harper is seeking. I suspect that in the least this is over that audio clip that has Harper saying that Chuck Cadman was offered "financial considerations" -- a phrase Harper himself has repeatedly refused to explain, and one he desperately does not want played over and over again in Liberal election ads in the likely coming Fall election.
(2) The person is clearly identifiable in the medium used and to their respective communities.
(3) The person does not consent to the use of their personality.
(4) Damages; either emotional or financial losses are proven.
(from Krouse v Chrysler)
[17] More broadly, it also seems clear that in articulating this tort the court must be mindful of the public interest. In Krouse, supra, the Ontario Court of Appeal explicitly stated at p. 240 O.R., p. 30 D.L.R.:It is interesting that we are not seeing a large press conference rollout by Harper this time around. The last attempt by the Conservatives to present positive spin with this lawsuit was, at best, a partial catastrophe. This time, they seem to be handing out sparse details.
Progress in the law is not served by the recognition of a right which, while helpful to some persons or classes of persons, turns out to be unreasonable disruption to the community at large and to the conduct of its commerce.
[18] While not explicitly offering any principles that ought to guide the development of this tort, the court at p. 240 O.R., p. 30 D.L.R. did warn:
The danger of extending the law of torts to cover every such exposure in public not expressly authorized is obvious.
(From Glen Gould Estate v. Stoddart Publishing Co. Ltd., 1998)
