4 min

Court upholds Mair’s right to challenge anti-gay activist

'We have to be tenacious and vigilant in our pursuit of these issues': Fuller

The Supreme Court of Canada’s decision to overturn an anti —gay activist’s libel win against former radio host Rafe Mair is being welcomed as an expansion of free speech in Canada.

“It allows commentators like Rafe Mair to raise important subjects and articulate them,” says Vancouver media lawyer David Sutherland. “I think that’s pretty important in a democracy.”

The libel case stems from an Oct 25, 1999 broadcast in which Mair criticized Kari Simpson for her work to ban three books that positively depict same —sex —parent families 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. 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,” Mair said, according to court documents.

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

Sutherland concedes Mair’s comparison was “a pretty extreme analogy.”

Simpson, a high —profile player in the Surrey book banning campaign, 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.”

In 2002, the Supreme Court of Canada ruled the Surrey School Board based its decision to ban the gay —friendly books — Asha’s Mums, Belinda’s Bouquet, and One Dad, Two Dads, Brown Dad, Blue Dads — on the wrong criteria and sent the board back to reconsider their use based on secular curriculum guidelines.

Though the board again rejected those three books, it has since accepted a few gay —friendly books as teaching resources in its classrooms.

The irony of the situation for the gay community, says Sutherland, 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.

The queer community is no stranger to controversial freedom of expression issues winding up in the Supreme Court of Canada.

Little Sister’s bookstore has battled for more than two decades against Canada Customs’ book seizures and attempts to block the entry of queer books and images into Canada.

Store manager Janine Fuller says the Simpson —Mair ruling removes another obstacle to Canadians voicing their opinions without fear of a lawsuit.

“I think it’s very important that people challenge bigots,” she says.

“Homophobia and racism are things that are not going away,” Fuller adds. “This reminds us that we have to be tenacious and vigilant in our pursuit of these issues.”

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 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 ruling reaffirms Mair’s right to fair comment, and broadens the defence used by journalists against libel actions.

“We live in a free country where people have as much right to express outrageous and ridiculous opinions as moderate ones,” wrote Justice Ian Binnie for the majority.

“There is concern that matters of public interest go unreported because publishers fear the ballooning cost and disruption of defending a defamation action,” the majority noted. “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,” the majority ruled.

The Supreme Court of Canada decision shows justices such as the three who heard the case in the BC Court of Appeal can make grievous errors, says Sutherland.

“[That] three judges could make that sort of mistake indicates how tenuous free speech is in Canada,” he says.

“We have a low —grade democracy,” Sutherland continues. “We don’t protect the free speech of our citizens.”

The BC Civil Liberties Association (BCCLA) acted as an intervenor in the Mair case, as it did in the Little Sister’s case against Canada Customs book seizures.

BCCLA president Robert Holmes says defamation law needed to be clarified to ensure stronger protection for freedom of expression.

“Protection of vigorous debate on matters of public interest and importance is a key value in our democratic society. The court’s ruling will go a long way in ensuring that protection,” Holmes says.

The ruling lays out new tests for fair comment. The comment must be on a matter of public interest, it must be based on fact, it must be recognizable as comment, and it must satisfy the objective test: could any person honestly express that opinion based on the set of proven facts?

Sutherland notes that a comment can still be ruled defamatory if the plaintiff proves that the defendant was motivated by malice.

The new ruling also does not protect people who present opinions derived through “transparently false logic,” Sutherland points out.

For example, he says, it would not count as fair comment if a commentator declared that homosexuals spread AIDS, that John is a homosexual and, therefore, that John spreads AIDS.

“The conclusion does not flow from the facts,” Sutherland says.