WIC Radio Ltd. v. Simpson

June 27, 2008

The Supreme Court of Canada has reinvigorated the Fair Comment defence. In the process it overturned its own 1979 decision in Cherneskey v Armadale, so that media organizations can publish the opinions of others, without having to agree with those opinions themselves. Justice Binnie, on behalf of the seven member majority, made it clear that the traditional test for the defence does not include a requirement that a court must find “fairness” in the opinion or the person offering it. If the opinion could honestly be held, fairness is in the ear of the beholder. Oh, and Rafe Mair won. Unanimously.

The court began by relying on the principle it established in the Dagenais case that it could not favour the protection of reputation over free expression, or vice versa. It had to attempt a reconciliation of both.

“An individual’s reputation is not to be treated as regrettable but unavoidable road kill on the highway of public controversy, but nor should an overly solicitous regard for personal reputation be permitted to “chill” freewheeling debate on matters of public interest.”

In this case, the issue of balance arose in the context of a Rafe Mair “editorial” on October 25, 1999 against Kari Simpson, a widely known social activist. It came amidst a public debate over the use of materials dealing with homosexuality in public schools. Simpson was a leading public figure in the debate, opposed to any positive portrayal of a gay lifestyle. The nub of her complaint is the following part of the editorial:

“Before Kari was on my colleague Bill Good’s show last Friday I listened to the tape of the parents’ meeting the night before where Kari harangued the crowd. It took me back to my childhood when with my parents we would listen to bigots who with increasing shrillness would harangue the crowds. For Kari’s homosexual one could easily substitute Jew. I could see Governor Wallace – in my mind’s eye I could see Governor Wallace of Alabama standing on the steps of a schoolhouse shouting to the crowds that no Negroes would get into Alabama schools as long as he was governor. It could have been blacks last Thursday night just as easily as gays. 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 or [Orval Faubus] or Ross Barnett. They were simply declaring their hostility to a minority. Let the mob do as they wished.”

Ms. Simpson was a colourful speaker. As part of a speech exhorting her followers to lobby politicians by picking up the phone, for example, she said the following:

“Your phone can do marvelous things back east where they need to be woken up. They think they’re so politically savvy back there, but they really haven’t got the sport down pat yet. Yes, out here in British Columbia it is a sport. That’s why they want to take our guns away. We know how to shoot.”

Simpson alleged that the broadcast implied, among other things, that she would condone violence toward gay people, she rants against them in a way that would influence someone to take the law into his own hands and do them harm, and she would employ tactics against them similar to those used by Hitler and other bigots. Mair testified that he didn’t intend to, and didn’t, convey those meanings. He said:

“I didn’t say that Kari is – is a violent person or would want violence to happen. I don’t think that – I think that would be the furthest thing from her mind. I think she’s, in her own mind, at least, a gentle person. I’m not talking really about what Kari is. I’m talking about what the consequences of thinking that you’re doing the right thing this way under these circumstances may well be.”

Before the Supreme Court, media intervenors expressed the concern that libel “chill” inhibited free expression on matters of public interest. Justice Binnie, writing on behalf of the seven member majority noted:

“Of course “chilling” false and defamatory speech is not a bad thing in itself, but chilling debate on matters of legitimate public interest raises issues of inappropriate censorship and self-censorship. Public controversy can be a rough trade, and the law needs to accommodate its requirements.”

In this case, the inference from the editorial that Ms. Simpson “would condone violence” was treated as a comment, or an opinion, not an imputation of fact. Justice Binnie noted that in another case in 2001, Ross v. New Brunswick Teachers’ Assn., the New Brunswick Court of Appeal “correctly” took the view that

““comment” includes a “deduction, inference, conclusion, criticism, judgment, remark or observation which is generally incapable of proof””

Citing Ray Brown’s Law of Defamation in Canada, he continues:

“… words that may appear to be statements of fact may, in pith and substance, be properly construed as comment. This is particularly so in an editorial context where loose, figurative or hyperbolic language is used … in the context of political debate, commentary, media campaigns and public discourse.”

The court decides what is “comment” and what is “fact” from the perspective of the reasonable listener.

Justice Binnie then set out the test that determines if the “fair comment” defence applies:

(a) the comment must be on a matter of public interest
(b) the comment must be based on fact
(c) the comment, though it can include inferences of fact, must be recognisable as comment
(d) the comment must satisfy the following objective test: could any [person] honestly express that opinion on the proved facts?, but
(e) even though the comment satisfies the objective test, the defence can be defeated if the plaintiff proves that the defendant was [subjectively] actuated by express malice.

Proving (a) should be easy for the media, and it was in this case. Proving (b) was also easy. Ms. Simpson had been on the Bill Good show on Friday, and did speak to a rally the day before. There were no other “facts” in the editorial. I’ve already noted that the court held that (c) applied to this case, because the editorial at issue was recognizable as “comment”.

The majority and minority judgments diverged at this point. Two judges would have abolished (d) as part of the test, because requiring the defence to establish the potential for “honest belief” didn’t add much to the test. According to the majority, however, a requirement for “honest belief” was always part of the defence of fair comment and it would have been more than an incremental change in the law to abolish it now. What they did, though, was clarify how it should apply. In doing that, they made it clear that the requirement for an “honest belief” is not a “fairness” test.

The “person” referred to in (d) does not have to be “fair-minded”. The opinions can be

“far fetched, high strung, or severely moral, or contrary to other opinions or inferences that seem more reasonable… “

and can be the opinions of “any” person

“however prejudiced he may be, however exaggerated or obstinate his views.”

It is not for the court to decide whether the opinions are “warranted”, “supported by the facts”, or “fairly” arose out of the facts. It is enough if the opinions are sufficiently connected to the facts that a listener can decide on hearing them whether to agree with the opinions or not.

The court clarified that it is no longer necessary to find someone to testify that they themselves honestly held the opinion expressed. The test is no longer “subjective”, but rather “objective”. It would be enough that a person could honestly hold the opinion.

In this case, Rafe Mair testified that he didn’t believe that Ms. Simpson “would condone violence”, yet the courts found that that meaning was conveyed by his editorial. Justice Binnie felt it wasn’t right that Mr. Mair could lose his fair comment defence simply because a meaning was found that he didn’t intend to put there, a meaning he couldn’t have had an honest belief in. If others could honestly believe the opinion, like his employer WIC Radio, it ought to be defensible for them, and for him.

“… could any person honestly have expressed the innuendo that Simpson would condone violence toward gay people on the proven facts? As mentioned earlier, Simpson’s public speeches were full of references to “war [where] the spoils turn out to be our children”, “militant homosexuals”, “[w]ar, you shoot, they shoot” and so on. Simpson’s use of violent images could support an honest belief on the part of at least some of her listeners that she “would condone violence toward gay people”, even though Mair denied that he intended to impute any such meaning.”

“… It makes little sense to deny the defence of fair comment to a speaker whose opinion has been misunderstood, even if carelessness in the use of words is the source of the misunderstanding…”

All of this underlined the importance of the scope of the defence:

“[47] It may be noted that such circumstances are not uncommon. In much modern media, personalities such as Rafe Mair are as much entertainers as journalists. 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. What is important in such a debate on matters of public interest is that all sides of an issue are forcefully presented, although the limitation that the opinions must be ones that could be “honestly express[ed] . . . on the proved facts” provides some boundary to the extent to which private reputations can be trashed in public discourse.

[48] 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. 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. The key point is that the nature of the forum or the mode of expression is such that the audience can reasonably be expected to understand that, on the basis of the facts as stated or sufficiently indicated to them, or so generally notorious as to be understood by them, the comment is made tongue -in-cheek so as to lead them to discount its “sting” accordingly.”

Finally, the Supreme Court used the occasion to hint that its next defamation decision will be equally significant. It has granted leave to appeal to the Ottawa Citizen to appeal the Cusson case, which is over an article that discussed the behaviour of an OPP officer who went down to New York in the wake of 9/11 to help at the site of the collapsed World Trade Center.

“the Canadian law of qualified privilege will necessarily evolve in ways that are consistent with Charter values. At issue will be both the scope of the qualified privilege (Reynolds is broader) and whether the burden of proof of responsible journalism should lie on the defendant (Reynolds) or irresponsible journalism on the plaintiff (Lange v. Atkinson).”

In the meantime, we can savour the support a unanimous Supreme Court has given to vibrant free expression in our democracy on the eve of Canada Day, 2008.

WIC Radio Ltd. v. Simpson