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Anti-gay activist loses bid to reopen libel suit

2008 Supreme Court decision expanded free speech protection

An attempt by an anti-gay activist to reopen a high-profile libel suit against a former Vancouver radio host has been dismissed in BC Supreme Court.

The case stems from an Oct 25, 1999 broadcast in which commentator Rafe Mair criticized Kari Simpson for her work to ban three books that positively depict same-sex parents from Surrey schools.

Mair compared Simpson to Hitler and the Ku Klux Klan, saying her conduct at a Surrey parents’ meeting reminded him of speeches from his childhood by “bigots who with increasing shrillness would harangue the crowds.”

“There is no distinction between condemning the rights of blacks or Jews and condemning the civil rights of homosexuals,” said Mair, according to court documents. “Whether she realizes it or not, Kari has by her actions placed herself alongside skinheads and the Ku Klux Klan. I’m not talking the violent aspects of those groups but the philosophical parallels to other examples of intolerance.”

Simpson sued both Mair and the WIC Radio network for defamation.

At trial, Mair argued that he did not intend to convey that Simpson condoned violence against gays, but that she was an intolerant bigot. A BC Supreme Court judge ruled that while Mair’s comments were defamatory, he was within his right of fair comment.

That decision by Justice Marvyn Koenigsberg was overturned in 2006 by the BC Court of Appeal.

The Court of Appeal ruled there was no factual basis for Mair’s implication that Simpson would condone violence toward gay people, and thus the defence of fair comment was not valid.

The Supreme Court of Canada’s Jun 27, 2008 ruling reaffirmed Mair’s right to fair comment — a decision that broadened the defence used by journalists against libel actions.

Simpson recently applied to the BC Supreme Court to reopen the case on the grounds that her lawyer in the first case had not presented all the necessary facts to the court.

Koenigsberg disagreed.

She told Simpson Feb 3 if she thought her legal representation was inadequate, it was an issue to be taken up with the province’s law society.

“What you’re really saying is you had incompetent lawyers,” Koenigsberg said. “Sue your lawyers,” she advised Simpson.

“When it’s over, it’s over,” Koenigsberg said. “You don’t like it. You can’t even appeal it in the Supreme Court of Canada.”

The irony of the situation for the gay community is that Simpson’s quest took the controversy all the way to the Supreme Court of Canada and ultimately led to stronger freedom of speech protection for commentators such as Mair.

Simpson told Koenigsberg she believes the justice system has not allowed her to have a fair trial.

“The right to fundamental justice has been undermined by this process,” said Simpson.

Koenigsberg told Simpson the real issue is the fact that “you find yourself still on the Internet being smeared.”

“You’re not the first or last to whom this would happen,” said Koenigsberg. “That is not the issue.”

Simpson has pledged to continue her fight.

“This case will not end anytime soon one way or another,” said Simpson.

“Has my Constitutional right to justice been compromised in this case?” she asked Koenigsberg. “You betcha.”