...born with the gift of laughter and a sense that the world was mad

Not yet ready to par-tay: Alan Shanoff has a good column in the Sunday Sun regarding the Supreme Court’s recent ruling on defamation:

Free speech advocates must be popping champagne corks celebrating two key decisions released this summer.

Within two days in late June the Supreme Court of Canada clarified the concept of fair comment and the Canadian Human Rights Commission ruled why no hearing was warranted for the controversial Mark Steyn article published in Maclean's in October 2006.

Being a pessimist, I'm keeping the champagne in the cooler until I see the practical impact of these decisions.

The Supreme Court decision involved a radio editorial by Rafe Mair, a well-known British Columbia talk show host. He lambasted a social activist, Kari Simpson, for the position she took opposing any positive portrayal of gay lifestyle in public schools.

Mair called Simpson a bigot and said she had "placed herself alongside skinheads and the Klu Klux Klan." He also made references to Hitler when he said: "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."

Simpson sued Mair and the radio station for defamation, the lowering of her reputation.

The trial judge dismissed the action but the B.C. Court of Appeal ruled in favour of Simpson. The Supreme Court allowed the appeal, reversed the appeal court's decision and dismissed the action.

The Supreme Court's ruling also clarified the defence of fair comment.

Fair comment

Fair comment is the defence that allows defamatory expressions of opinion to be published. I've always had a problem with the name of this defence, because of the use of the word "fair." Many courts have wrongly stated a comment must be fair or a comment must be one a "fair-minded" person could express. I'm sure jurors have also been befuddled by the word "fair."

So three cheers for the Supreme Court for unequivocally stating the issue of fairness or what a fair-minded person might think is irrelevant.

A comment can be farfetched, foolish, exaggerated, even unreasonable. It can poke fun at people turning them into caricatures. In short, the comment need not be "fair."

The comment must be a comment that a person -- however "prejudiced, exaggerated or obstinate" in his views -- could have honestly expressed based on the known facts. In this case a person could have honestly expressed the opinion Simpson would have condoned violence against gays, even though Mair himself did not hold this opinion, so the defence of fair comment defeated the lawsuit.

The other decision of note is the Canadian Human Rights Commission decision concerning the Mark Steyn Maclean's article titled "The future belongs to Islam." discussing Muslim demographics and referring to the "remorseless transformation" of Europe into "Eurabia" in a post 9/11 world of jihad.

The commission recognized the article was "colourful and emphatic, and was obviously calculated to excite discussion and even offend certain readers, Muslim and non-Muslim alike."…

The problem, as we know, is that, while one tier of our two tier judicial system “gets it” about the connection between democracy and free speech, the second tier operates on an entirely different basis. My letter:

Like Alan Shanoff, I’m holding off on cracking open that bottle of bubbly just yet. That’s because I know that, while the Supreme Court has ruled in favour of Canadians being allowed to say “colourful” things that may give rise to hurt feelings, the ruling does nothing to mitigate the intolerable power of our parallel court system.  I refer, of course, to our HRCs, which are in the business of easing hurt feelings, and where such niceties as “fair comment” and “the presumption of innocence” don’t even make it into the court room. In that system, a person who has dared to express an idea that someone else has found offensive--as the Canadian Islamic Congress took offense at some articles that had appeared in Maclean’s magazine--can be certain, that should their case comes to trial, they are destined to lose. And because, in that system, there’s no concept of “double jeopardy,” theoretically, a person can be “tried” for the same “thought crime” up to 14 times (the number of federal, provincial, and territorial “human rights” jurisdictions in Canada).

So, yes, the recent decision about defamation is a positive step, but let’s delay the celebrations until such time as our Soviet-style judicial system--the one that’s the antithesis of the regular one grounded in British Common Law--has been defanged or, better yet, eliminated.

Posted by: scaramouche at 17:49 | link | comments

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