WIC Radio Ltd. v. Simpson

WIC Radio Ltd. v. Simpson
Collection
Supreme Court Judgments
Date
2008-06-27
Neutral citation
2008 SCC 40
Report
[2008] 2 SCR 420
Case number
31608
Judges
McLachlin, Beverley; Bastarache, Michel; Binnie, William Ian Corneil; LeBel, Louis; Deschamps, Marie; Fish, Morris J.; Abella, Rosalie Silberman; Charron, Louise; Rothstein, Marshall
On appeal from
British Columbia
Subjects
Torts
Notes
SCC Case Information: 31608
Decision Content
SUPREME COURT OF CANADA
Citation: WIC Radio Ltd. v. Simpson,
[2008] 2 S.C.R. 420, 2008 SCC 40
Date: 20080627
Docket: 31608
Between:
WIC Radio Ltd. and Rafe Mair
Appellants
and
Kari Simpson
Respondent
‑ and ‑
Canadian Civil Liberties Association, British Columbia
Civil Liberties Association and Canadian Newspaper Association,
Ad IDEM/Canadian Media Lawyers Association,
British Columbia Association of Broadcasters,
RTNDA Canada/Association of Electronic Journalists,
Canadian Publishers’ Council, Magazines Canada,
Canadian Association of Journalists
and Canadian Journalists for Free Expression
(Collectively “Media Coalition”)
Interveners
Coram: McLachlin C.J. and Bastarache, Binnie, LeBel, Deschamps, Fish, Abella, Charron and Rothstein JJ.
Reasons for Judgment:
(paras. 1 to 65)
Partially Concurring Reasons:
(paras. 66 to 107)
Partially Concurring Reasons:
(paras. 108 to 112)
Binnie J. (McLachlin C.J. and Bastarache, Deschamps, Fish, Abella and Charron JJ. concurring)
LeBel J.
Rothstein J.
______________________________
WIC Radio Ltd. v. Simpson, [2008] 2 S.C.R. 420, 2008 SCC 40
WIC Radio Ltd. and Rafe Mair Appellants
v.
Kari Simpson Respondent
and
Canadian Civil Liberties Association, British Columbia Civil
Liberties Association and Canadian Newspaper Association,
Ad IDEM/Canadian Media Lawyers Association, British
Columbia Association of Broadcasters, RTNDA Canada/The
Association of Electronic Journalists, Canadian Publishers’
Council, Magazines Canada, Canadian Association of
Journalists and Canadian Journalists for Free Expression
(Collectively “Media Coalition”) Interveners
Indexed as: WIC Radio Ltd. v. Simpson
Neutral citation: 2008 SCC 40.
File No.: 31608.
2007: December 4; 2008 : June 27.
Present: McLachlin C.J. and Bastarache, Binnie, LeBel, Deschamps, Fish, Abella, Charron and Rothstein JJ.
on appeal from the court of appeal for british columbia
Torts — Defamation — Defence of fair comment — Elements of defence — Role of honest belief in test for defence — Radio talk show host defaming social activist opposed to positive portrayals of gay lifestyle — Talk show host making comparisons to Hitler, Ku Klux Klan and skinheads — Comparisons implying activist would condone violence toward gay people — Whether fair comment defence available.
M is a well‑known and sometimes controversial radio talk show host. The target of one of his editorials was S, a widely known social activist opposed to any positive portrayal of a gay lifestyle. M and S took opposing sides in the debate about whether the purpose of introducing materials dealing with homosexuality into public schools was to teach tolerance of homosexuality or to promote a homosexual lifestyle. In his editorial, M compared S in her public persona to Hitler, the Ku Klux Klan and skinheads. S brought an action against M and WIC Radio, claiming that certain words in the broadcast were defamatory. At trial, M testified that no imputations of condoning violence were intended by him nor in fact made. Rather, M had intended to convey simply that S was an intolerant bigot. The trial judge dismissed the action on the basis that, while statements complained of in the editorial were defamatory, the defence of fair comment applied and provided a complete defence. The Court of Appeal reversed the trial judgment, finding that the defence of fair comment was not available because there was no evidentiary foundation for the imputation that S would condone violence against gay people, nor had M testified that he had an honest belief S would condone violence.
Held: The appeal should be allowed.
Per McLachlin C.J. and Bastarache, Binnie, Deschamps, Fish, Abella and Charron JJ.: The trial judgment dismissing the action should be restored. M’s expression of opinion, however exaggerated, was protected by the law. M’s editorial was defamatory, but the trial judge was correct to allow the defence of fair comment. [4] [56] [64-65]
Although this is a private law case that is not governed directly by the Canadian Charter of Rights and Freedoms , the evolution of the common law is to be informed and guided by Charter values. The law of fair comment must therefore be developed in a manner consistent not only with the values underlying freedom of expression, including freedom of the media, but also with those underlying the worth and dignity of each individual, including reputation. A court’s task is not to prefer one set of values over the other, but rather to attempt a reconciliation. [2]
The traditional elements of the tort of defamation may require modification to provide broader accommodation to the value of freedom of expression. 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. “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. [15]
It is therefore appropriate to modify the “honest belief” element of the fair comment defence so that the test, as modified, consists of the following elements: (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 recognizable as comment; (d) the comment must satisfy the following objective test: could any person honestly express that opinion on the proved facts? Even though the comment satisfies the objective test of honest belief, the defence can be defeated if the plaintiff proves that the defendant was subjectively actuated by express malice. The defendant must prove the four elements of the defence before the onus switches back to the plaintiff to establish malice. [28] [52]
In this case, the public debate about the inclusion in schools of educational material on homosexuality clearly engages the public interest, and the facts giving rise to the dispute between M and S were well known to M’s listening audience, and referred to in part in the editorial itself. The third element of the defence is also satisfied since the sting of the libel was a comment and it would have been understood as such by M’s listeners. M was a radio personality with opinions on everything, not a reporter of the facts. Moreover, S did not challenge the view that M’s imputation, that she would condone violence towards gay people, was a comment not an imputation of fact. With respect to the fourth element, the objective “honest belief” test represents a balance between free expression on matters of public interest and the appropriate protection of reputation against damage that exceeds what is required to fulfill free expression requirements. Here, there was a sufficient nexus between S’s public declarations on homosexuality and the defamatory imputation to meet this element. S’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 towards gay people even though M denied that he intended to impute any such meaning. The trial judge did not explicitly apply the “objective honest belief” test to the imputation that S “would condone violence”. However, having regard to the trial judge’s reasons as a whole, and considering both the content of some of S’s speeches already mentioned, and the broad latitude allowed by the defence of fair comment, the defamatory imputation that while S would not engage in violence herself she “would condone violence” by others, is an opinion that could honestly have been expressed on the proved facts by a person prejudiced, exaggerated or obstinate in his views. That is all that the law requires. M’s commentary was not actuated by malice in the sense of improper motive and S did not appeal against the trial judge’s conclusion that M’s fair comment defence was not vitiated by malice. [27] [34] [49] [57] [60] [62‑63]
Per LeBel J.: Since the issue was not raised before this Court, the trial judge’s finding that the editorial was defamatory should not be interfered with. However, although the threshold for establishing prima facie defamation is low, courts should not be too quick to find defamatory meaning, particularly where expressions of opinion are concerned. Triers of fact should be mindful of ensuring that the plaintiff’s reputation is actually threatened by the impugned statements before turning to the available defences. The test is whether, in the factual circumstances of the case, the public would think less of the plaintiff as a result of the comment. Relevant factors to be considered in assessing whether a statement is defamatory include: whether the impugned speech is a statement of opinion rather than of fact; how much is publicly known about the plaintiff; the nature of the audience; and the context of the comment. In this case, the impugned statement constituted comment rather than fact. As a result, M’s audience would necessarily treat it differently than a statement of fact. In addition, both M and S were public figures involved in an ongoing public debate on the issue of the introduction of materials dealing with gay issues in the classroom. That debate would have informed public opinion. Even those not familiar with the issue would have understood the comment in the context of this debate because M made reference to it in the impugned editorial. Further, M’s “sizeable following” would have understood his comments in light of his well‑known style, which involves strong opinions sometimes conveyed with colourful and provocative language. M’s comments therefore posed no realistic threat to S’s reputation and were not prima facie defamatory. In any event, the defence of fair comment is applicable. To satisfy the defence, a defendant should only be required to prove that: (a) the statement constituted comment; (b) it had a basis in true facts; and (c) it concerned a matter of public interest. On the facts of this case, there is no dispute that each of these requirements is met. [68‑69] [76] [78] [80] [99]
The fair comment defence should not include an element of honest belief. Although this element continues to exist in some common law countries, its influence and utility have been waning such that it no longer offers anything of value in the exercise of balancing the right to comment fairly on matters of public opinion against the right to reputation. The elimination of that element would constitute a formal recognition that it is no longer justifiable, for purposes of the fair comment defence, to judge a person’s opinions on an objective basis other than to require that they have some basis in fact. Furthermore, since the requirements of a basis in fact and honest belief address the same issue, an honest belief requirement provides no additional protection to reputation. There is therefore no reason to retain that element. Eliminating it is an incremental change. This Court has the power — indeed the responsibility — to make such changes when the common law falls out of step with its underlying principles and with modern values, and when a test has proven to be unworkable or to serve no useful purpose. [66] [85] [93‑94]
If the defendant is successful in establishing the elements of the fair comment defence, the inquiry may turn to malice, which the plaintiff must prove if alleged. Proof of malice may be drawn from the language of the assertion itself or from the circumstances surrounding the publication of the comment. It may involve inferences and evidentiary presumptions. In order to defeat fair comment, malice must be the dominant motive for expressing an opinion. There was no evidence of malice on the facts of this case. [100] [106-107]
Per Rothstein J.: The statements in question were defamatory but the defence of fair comment applies. To satisfy the fair comment defence, there is no requirement to prove objective honest belief. The defence of fair comment should only require the defendant to prove (a) that the statement constituted comment, (b) that it had a basis in true facts and (c) that it concerned a matter of public interest. These requirements were met in this case. Although the issue of malice is not before the Court, there is agreement with LeBel J.’s discussion in respect of that element. [108‑109]
Cases Cited
By Binnie J.
Referred to: Price v. Chicoutimi Pulp Co. (1915), 51 S.C.R. 179; Cherneskey v. Armadale Publishers Ltd., [1979] 1 S.C.R. 1067; Sun Life Assurance Co. of Canada v. Dalrymple, [1965] S.C.R. 302; Dagenais v. Canadian Broadcasting Corp., [1994] 3 S.C.R. 835; Hill v. Church of Scientology of Toronto, [1995] 2 S.C.R. 1130; RWDSU v. Dolphin Delivery Ltd., [1986] 2 S.C.R. 573; Doyle v. Sparrow (1979), 27 O.R. (2d) 206, leave to appeal refused, [1980] 1 S.C.R. xii; Reynolds v. Times Newspapers Ltd., [1999] 4 All E.R. 609; Loutchansky v. Times Newspapers Ltd. (Nos. 2‑5), [2002] 2 W.L.R. 640, [2001] EWCA Civ 1805; Bonnick v. Morris, [2003] 1 A.C. 300, [2002] UKPC 31; Jameel v. Wall Street Journal Europe SPRL, [2006] 4 All E.R. 1279, [2006] UKHL 44; Cusson v. Quan (2007), 231 O.A.C. 277, 2007 ONCA 771, leave to appeal granted, [2008] 1 S.C.R. xii; Lange v. Australian Broadcasting Corp. (1997), 145 A.L.R. 96; Lange v. Atkinson, [2000] 3 N.Z.L.R. 385; Botiuk v. Toronto Free Press Publications Ltd., [1995] 3 S.C.R. 3; Ross v. New Brunswick Teachers’ Assn. (2001), 201 D.L.R. (4th) 75, 2001 NBCA 62; Ontario Equitable Life and Accident Insurance Co. v. Baker, [1926] S.C.R. 297; Vander Zalm v. Times Publishers (1980), 109 D.L.R. (3d) 531, rev’g (1979), 96 D.L.R. (3d) 172; Barltrop v. Canadian Broadcasting Corp. (1978), 25 N.S.R. (2d) 637; Slim v. Daily Telegraph Ltd., [1968] 1 All E.R. 497; R. v. Salituro, [1991] 3 S.C.R. 654; McQuire v. Western Morning News Co., [1903] 2 K.B. 100; Howarth v. Barlow, 99 N.Y.S. 457 (1906); Merivale v. Carson (1887), 20 Q.B.D. 275; Telnikoff v. Matusevitch, [1991] 3 W.L.R. 952; Channel Seven Adelaide Pty. Ltd. v. Manock (2007), 241 A.L.R. 468, [2007] HCA 60; Mitchell v. Sprott, [2002] 1 N.Z.L.R. 766; New York Times Co. v. Sullivan, 376 U.S. 254 (1964); Jones v. Skelton, [1963] 1 W.L.R. 1362; Color Your World Corp. v. Canadian Broadcasting Corp. (1998), 38 O.R. (3d) 97; Scott v. Fulton (2000), 73 B.C.L.R. (3d) 392, 2000 BCCA 124; Macdonell v. Robinson (1885), 12 O.A.R. 270.
By LeBel J.
Referred to: Sim v. Stretch (1936), 52 T.L.R. 669; Vander Zalm v. Times Publishers (1980), 109 D.L.R. (3d) 531; Cherneskey v. Armadale Publishers Ltd., [1979] 1 S.C.R. 1067; Davis & Sons v. Shepstone (1886), 11 A.C. 187; Slim v. Daily Telegraph Ltd., [1968] 1 All E.R. 497; Cheng v. Tse Wai Chun, [2000] 3 H.K.C.F.A.R. 339; Soane v. Knight (1827), M. & M. 74, 173 E.R. 1086; Merivale v. Carson (1887), 20 Q.B.D. 275; Campbell v. Spottiswoode (1863), 3 B. & S. 769, 122 E.R. 288; McQuire v. Western Morning News Co., [1903] 2 K.B. 100; Reynolds v. Times Newspapers Ltd., [1999] 4 All E.R. 609; Ross v. New Brunswick Teachers’ Assn. (2001), 201 D.L.R. (4th) 75, 2001 NBCA 62; Charleston v. News Group Newspapers Ltd., [1995] 2 W.L.R. 450; Loukas v. Young, [1968] 3 N.S.W.R. 549; Watt v. Longsdon, [1930] 1 K.B. 130; Christie v. Westcom Radio Group Ltd. (1990), 75 D.L.R. (4th) 546, leave to appeal refused, [1991] 1 S.C.R. vii; Renouf v. Federal Capital Press of Australia Pty. Ltd. (1977), 17 A.C.T.R. 35.
Statutes and Regulations Cited
Canadian Charter of Rights and Freedoms, s. 2 (b).
Defamation Act 1992 (N.Z.), 1992, No. 105, s. 10.
Treaties and Other International Instruments
Convention for the Protection of Human Rights and Fundamental Freedoms, 213 U.N.T.S. 221, art. 10.
Authors Cited
Brown, Raymond E. Defamation Law: A Primer. Toronto: Thomson/Carswell, 2003.
Brown, Raymond E. The Law of Defamation in Canada, vols. 2 and 4, 2nd ed., Scarborough, Ont.: Carswell, 1994 (loose‑leaf updated 2007, release 4).
Duncan and Neill on Defamation, 2nd ed. by Sir Brian Neill and Richard Rampton. London: Butterworths, 1983.
Gatley on Libel and Slander, 10th ed. by Patrick Milmo and W. V. H. Rogers. London: Sweet & Maxwell, 2004.
Gillooly, Michael. The Law of Defamation in Australia and New Zealand. Sydney: The Federation Press, 1998.
Marten, Bevan. “A Fairly Genuine Comment on Honest Opinion in New Zealand” (2005), 36 V.U.W.L.R. 127.
McConchie, Roger D., and David A. Potts. Canadian Libel and Slander Actions. Toronto: Irwin Law, 2004.
Mitchell, Paul. The Making of the Modern Law of Defamation. Oxford: Hart, 2005.
Salmond on the Law of Torts, 17th ed. by R. F. V. Heuston. London: Sweet & Maxwell, 1977.
Stone, Geoffrey R. “Free Speech in the Age of McCarthy: A Cautionary Tale” (2005), 93 Cal. L. Rev. 1387.
APPEAL from a judgment of the British Columbia Court of Appeal (Southin, Prowse and Thackray JJ.A.) (2006), 55 B.C.L.R. (4th) 30, [2006] 10 W.W.R. 460, 228 B.C.A.C. 1, 376 W.A.C. 1, [2006] B.C.J. No. 1315 (QL), 2006 CarswellBC 1435, 2006 BCCA 287, reversing a decision of Koenigsberg J. (2004), 31 B.C.L.R. (4th) 285, [2004] B.C.J. No. 1164 (QL), 2004 CarswellBC 1283, 2004 BCSC 754. Appeal allowed.
Daniel W. Burnett and Paul A. Brackstone, for the appellants.
Lianne W. Potter, for the respondent.
Jamie Cameron, Matthew Milne‑Smith and John McCamus, for the intervener the Canadian Civil Liberties Association.
Robert D. Holmes and Christina Godlewska, for the intervener the British Columbia Civil Liberties Association.
Brian MacLeod Rogers, for the interveners the Canadian Newspaper Association, Ad IDEM/Canadian Media Lawyers Association, the British Columbia Association of Broadcasters, RTNDA Canada/The Association of Electronic Journalists, the Canadian Publishers’ Council, Magazines Canada, the Canadian Association of Journalists and Canadian Journalists for Free Expression (Collectively “Media Coalition”).
The judgment of McLachlin C.J. and Bastarache, Binnie, Deschamps, Fish, Abella and Charron JJ. was delivered by
[1] Binnie J. — This appeal requires the Court to reexamine the defence of fair comment which helps hold the balance in the law of defamation between two fundamental values, namely the respect for individuals and protection of their reputation from unjustified harm on the one hand, and on the other hand, the freedom of expression and debate that is said to be the “very life blood of our freedom and free institutions”: Price v. Chicoutimi Pulp Co. (1915), 51 S.C.R. 179, at p. 194. Under the present law, if a plaintiff shows the defendant published something harmful to his or her reputation, then both falsity and damage are presumed, and the onus shifts to the defendants to establish an applicable defence, including the defence of fair comment. In Cherneskey v. Armadale Publishers Ltd., [1979] 1 S.C.R. 1067, Dickson J., in dissent, identified the elements of the “fair comment” defence as follows:
(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 man honestly express that opinion on the proved facts?
(e) even though the comment satisfies the objective test the defence can be defeated if the plaintiff proves that the defendant was actuated by express malice. [Emphasis in original deleted; pp. 1099-1100.]
(citing Duncan and Neill on Defamation (1978), at p. 62)
Although on that occasion a majority of the Court insisted on framing the honest belief requirement in subjective terms (the comment must express an opinion honestly held by the speaker), I believe experience has shown that Dickson J.’s “objective” formulation of the “honest belief” test better conforms to the requirements of free expression endorsed as a fundamental value of our society by s. 2 (b) of the Canadian Charter of Rights and Freedoms . Of course, even if the elements of the “fair comment” defence are established, the plaintiff can still succeed by proving that the defendant was actuated by malice, i.e. for an indirect or improper motive not connected with the purpose for which the defence exists (Sun Life Assurance Co. of Canada v. Dalrymple, [1965] S.C.R. 302, at p. 309).
[2] This is a private law case that is not governed directly by the Charter . Yet it was common ground in the argument before us that the evolution of the common law is to be informed and guided by Charter values. Particular emphasis was placed on the importance of ensuring that the law of fair comment is developed in a manner consistent with the values underlying freedom of expression. However, the worth and dignity of each individual, including reputation, is an important value underlying the Charter and is to be weighed in the balance with freedom of expression, including freedom of the media. The Court’s task is not to prefer one over the other by ordering a “hierarchy” of rights (Dagenais v. Canadian Broadcasting Corp., [1994] 3 S.C.R. 835), but to attempt a reconciliation. 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. As it was put by counsel for the intervener Media Coalition, “No one will really notice if some [media] are silenced; others speaking on safer and more mundane subjects will fill the gap” (Factum, at para. 14).
[3] The issue of balance is raised here in the context of a “shock jock” radio talk show hosted by the appellant Rafe Mair, a well-known and sometimes controversial commentator on matters of public interest in British Columbia. The target of his “editorial” on October 25, 1999 was the respondent Kari Simpson, a widely known social activist. The context was public debate over the introduction of materials dealing with homosexuality into public schools. Mair and Simpson took opposing sides in the debate about whether the purpose of this initiative was to teach tolerance of homosexuality or to promote a homosexual lifestyle. Simpson was a leading public figure in the debate, and the trial judge found that she had a public reputation as a leader of those opposed to any positive portrayal of a gay lifestyle. The nub of Simpson’s complaint is the following portion of the Rafe Mair editorial broadcast on October 25, 1999:
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.
(The full text of the editorial is attached in the Appendix.)
[4] The courts in British Columbia were divided on the legal outcome. The trial judge dismissed the action on the basis that, while statements complained of in the editorial (in particular the imputation that Simpson “would condone violence toward gay people”) were defamatory, nevertheless, the defence of fair comment applied and provided a complete defence ((2004), 31 B.C.L.R. (4th) 285, 2004 BCSC 754, at para. 6). The Court of Appeal reversed ((2006), 55 B.C.L.R. (4th) 30, 2006 BCCA 287). In its view, the defence of fair comment was not available because there was no evidentiary foundation for the imputation that Simpson would condone violence; nor had Mair testified that he had an honest belief that Simpson would condone violence. In my view, with respect, the Court of Appeal unduly favoured protection of Kari Simpson’s reputation in a rancourous public debate in which she had involved herself as a major protagonist. The factual basis of the editorial was Simpson’s speech. Mair stated in the editorial that he had listened “to the tape of the parents’ meeting the night before where Kari harangued the crowd”. Simpson had been making speeches in a similar vein for some time. Whatever view one may take of Mair’s commentary, the factual basis of the controversy was indicated in the editorial and widely known to his listeners. In the absence of demonstrated malice on his part (which the trial judge concluded was not a dominant motive), his expression of opinion, however exaggerated, was protected by the law. We live in a free country where people have as much right to express outrageous and ridiculous opinions as moderate ones. I would therefore allow the appeal.
I. Facts
[5] Rafe Mair’s radio talk show is carried on station CKNW owned and operated by the appellant WIC Radio Ltd., which accepts legal responsibility for the broadcast. Mair has a reputation for provoking controversy. With controversy has come a measure of commercial success. His listeners expect to hear extravagant opinions and, according to his counsel, discount them accordingly.
[6] The trial judge found that Kari Simpson was a social activist with “a public reputation as a leader of those opposed to schools teaching acceptance of a gay lifestyle” (para. 10). Simpson had earlier opposed three books placed in Surrey schools which portrayed family units with same-sex parents. She helped write and promote a Declaration of Family Rights which asserted that children should not be exposed to any teaching which “portrays the lifestyle of gays . . . as one which is normal, acceptable or must be tolerated” (A.R., at p. 387). The document included a form to be sent by parents to their children’s schools as follows:
. . .
NOTICE IS HEREBY GIVEN:
. . . that [child’s name, date of birth] . . . must not by any teacher or, through the teacher, any other persons or resource materials, or the learning environment, be exposed to and/or involved in any activity or program which:
1. Discusses or portrays the lifestyle of gays, lesbians, bisexual and/or transgendered individuals as one which is normal, acceptable or must be tolerated; . . .
(Declaration of Family Rights (A.R., at p. 387))
It seems that Kari Simpson relished her role as a public figure. At one point Simpson faxed Mair a cover article about herself in British Columbia Report magazine entitled “The Most Dangerous Woman in B.C.” (November 24, 1997).
[7] The trial judge found that Kari Simpson’s reputation was earned as a result of her “very public actions and words” (para. 10). Further, “[h]er reputation was fairly characterized by Mair at trial as the person who was associated by the media with the anti-gay side” (para. 11). This characterization is supported by various of Kari Simpson’s speeches put in evidence at the trial, including the following extracts:
There is another group within the homosexual community though who is very much politically driven. These people want your children. . . . [W]hen homosexuality takes on all the aspects of a political movement it too becomes a war. . . . And the spoils turn out to be our children. An exaggeration? Well, what are we to think when militant homosexuals seek to lower the age of consensual sexual intercourse between homosexual men and young boys to the age of 14.
(Speech at Fort St. John (April 3, 1997), at p. 17; A.R., at p. 510)
The theme of confrontation recurs in many of Simpson’s speeches made exhibits at trial:
I talk about that because this is a war. It’s not going to go away that easy. And usually the first casualty of war is truth, the second casualty is our children. How many here will put their hands up today and say, “I will not let the second casualty be my children.”
. . .
It is a war. Quite often people when they first go out they say, “Oh, Kari, somebody said something mean to me,” and I go “uh, uh.” I said, “War, you shoot, they shoot.” Your aim is better. It’s really not complicated.
(Speech at Prince George (May 1997), at pp. 17 and 66; A.R., at pp. 595 and 644)
Kari Simpson expressed the view that “tolerance” was driven by “political correctness”:
Is homosexuality normal? No. Does that mean that people shouldn’t indulge in it? Quite frankly, that’s their right. . . . But it’s not normal. It’s a little bit like saying smoking is healthy, you know.
Is homosexuality acceptable? In my household, no, absolutely not. It’s destructive.
. . .
The one that really got people was when we knew and we deliberately put [into the Declaration of Family Rights] “must be tolerated”, because, you see, we’re conditioned in this politically correct insanity to believe that we have to tolerate everything, that we’re not permitted to discriminate. Well, I think that those words need to be rehabilitated just a little bit.
. . .
Is it up to the state to dictate to me or my children what we must tolerate? I don’t think so. Quite frankly, I’m tired of it.
. . .
So I really encourage you please, we need your help. War is not cheap, people, and we’re in a war. We’re in a war for the identity of this nation, for the identity of our children, for their future.
(Speech at Salmon Arm (May 18, 1999), at pp. 41-43 and 72; A.R., at pp. 691-93 and 722)
[8] The trial judge also emphasized that Simpson championed her views through democratic means, not violence. She encouraged sympathetic members of her audience to exercise influence through pressure on politicians at all levels. She urged her listeners “to vote, to write, and to speak out about their values and views” (para. 15). “As people as voters and tax payers you have enormous power. Do not underestimate the value of a phone call” (A.R., at p. 535). “Our mandate [Citizens Research Institute] is to ensure that the electorate is informed and participating in an informed way in the politics of the province” (A.R., at p. 652). Typical of her speeches is the following exhortation:
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.
(Speech at Prince George (May 1997), at pp. 68-69; A.R., at pp. 646-47)
[9] Simpson claimed that certain words in the October 25 broadcast were defamatory in their ordinary and natural meaning. Simpson alleged, as well, that the following defamatory innuendos were conveyed by words in the broadcast: (a) that she had advocated or was in favour of parents taking their children out of school because the children’s teacher was gay; (b) that she advocated keeping gay people out of Surrey’s public schools; (c) that she was hostile toward gay people to the point that she would condone violence toward gay people; (d) that she preaches hatred against gay people; (e) that she rants against gay people in a way that would influence someone to take the law into his own hands and do them harm; (f) that she would employ tactics against gay people similar to those used by Hitler and other bigots, such as former State Governor George Wallace, Governor Ross Barnett and Governor Orval Faubus; and (g) that she is a dangerous bigot apt to cause harm to gay people. At trial, Mair testified that no such imputations of violence were intended by him nor in fact made. 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. [A.R., at p. 340]
II. Judicial History
A. British Columbia Supreme Court (Koenigsberg J.) ((2004), 31 B.C.L.R. (4th) 285, 2004 BCSC 754)
[10] The trial judge noted Mair’s comparisons of Simpson in her public persona to Hitler, Wallace, Faubus, Barnett, the KKK and skinheads. The meaning to be ascribed to these comparisons is that Simpson “would condone violence” (para. 6); this imputation was found to be defamatory. Further, the following words, having regard to the comparisons, were also found to be defamatory:
Kari Simpson is, thank God, permitted in our free society to say 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. [para. 31]
[11] As to the defence of fair comment, the trial judge found that the facts stated in the editorial were true (para. 44). Kari Simpson had spoken on Bill Good’s show, and at a rally the night before. On both occasions she was “on message”. Other facts of the controversy were well known at the time though unstated in the editorial (e.g. that Simpson was an active promoter of the Declaration of Family Rights (para. 52)). The trial judge concluded:
[T]he defence has established that every element of the factual foundation was either stated or publicly known; that Mair was aware of them all; and that they were all substantially true in the sense that they were true in so far as they go to the pith and substance of the opinion Mair expressed. [para. 61]
[12] The trial judge found that the editorial was directed to a matter of public interest. The issues underlying the broadcast such as tolerance, discrimination, and the place for discussion of homosexuality in public schools, were matters of widespread controversy. The trial judge found (at paras. 64-66) that there was no basis upon which to challenge that Mair honestly believed what he said. There was some evidence of intrinsic malice:
There is no question, in my view, that the language, tone of voice and characterizations utilized by Mair in both the editorial in issue and earlier editorials were a display of both personal animosity toward the plaintiff and contempt for her character and her ideas, as well as a desire to harm her reputation. [para. 70]
The trial judge also felt that Mair’s editorial was a “display of both personal animosity toward the plaintiff . . . as well as a desire to harm her reputation” (para. 70). Nevertheless, she concluded that malice was not the dominant motive for the offending editorial and so did not defeat the defence of fair comment. Accordingly, Simpson’s action was dismissed.
B. British Columbia Court of Appeal (Southin, Prowse and Thackray JJ.A.) ((2006), 55 B.C.L.R. (4th) 30, 2006 BCCA 287)
[13] The trial judgment was reversed. In the view of Southin J.A., speaking for herself and Thackray J.A., the trial judge had “failed to apply the test of honest belief in the defamatory imputation” (para. 34). The question, she said, was whether to succeed in the defence of fair comment, the defendant must honestly believe in the imputation (i.e. the innuendo that Simpson “would condone violence toward gay people”, found by the trier of fact) or “need he only have an honest belief in what he himself subjectively intended by the words which he used?” (para. 37). Subjectively, Mair had intended to convey simply that Simpson is an intolerant bigot. If that was all he had said, he would be entitled to succeed because the facts indicate that this was his honest belief. However, Southin J.A. pointed out, the trial judge concluded, in para. 30 of her reasons, that the objectively reasonable meaning of Mair’s words was that “the plaintiff would condone violence”. She held this was an imputation of fact, not comment, and that there was “no evidentiary foundation for a finding that the appellant would condone violence” (para. 43). Prowse J.A. delivered brief concurring reasons. The case was therefore sent back to the trial judge for an assessment of damages.
III. Analysis
[14] In the almost 30 years since Cherneskey, courts across the common law world have re-examined the balance between freedom of expression and the protection of private reputation.
[15] The function of the tort of defamation is to vindicate reputation, but many courts have concluded that the traditional elements of that tort may require modification to provide broader accommodation to the value of freedom of expression. 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”, the Media Coalition contends, 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. 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.
[16] Canadian courts have frequently pointed to the need to develop the common law in accordance with Charter values, including the law of defamation:
Historically, the common law evolved as a result of the courts making those incremental changes which were necessary in order to make the law comply with current societal values. The Charter represents a restatement of the fundamental values which guide and shape our democratic society and our legal system. It follows that it is appropriate for the courts to make such incremental revisions to the common law as may be necessary to have it comply with the values enunciated in the Charter .
(Hill v. Church of Scientology of Toronto, [1995] 2 S.C.R. 1130, per Cory J., at para. 92)
See also RWDSU v. Dolphin Delivery Ltd., [1986] 2 S.C.R. 573, at p. 603. Traditionally, the freedom of expression enjoyed by the media has been considered no greater than that of other members of the Canadian community (Doyle v. Sparrow (1979), 27 O.R. (2d) 206 (C.A.), per MacKinnon A.C.J.O., at p. 208, leave to appeal refused, [1980] 1 S.C.R. xii). Nevertheless, it is worth noting that s. 2 (b) of the Charter specifically refers to “freedom of the press and other media of communication”, presumably to underline their importance in our public life.
A. Imputations of Fact Versus Comment
[17] The appellants claim that while the trial judge properly treated the imputation that Simpson would condone violence as a comment, the Court of Appeal mischaracterized it as a statement of fact, to which, of course, different defences apply. The r