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Supreme Court overturns libel case against radio host

Ruling expands freedom of press

BIG STEP. The Court's decision today is "an important victory for journalists," says Philip Tunley, vice-president of the Canadian Journalists for Free Expression. Credit: (Brent Creelman photo)

The Supreme Court of Canada overturned a libel case against a Vancouver radio host today, and while doing so, expanded the definition of freedom of expression.

In 1999, radio host Rafe Mair criticized anti-gay activist Kari Simpson for her work to ban three books from Surrey, BC schools that depicted same-sex parents.

Simpson, a high-profile player in the 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.”

She also spoke out publicly against gays starting in the ’90s. In a 1997 speech at Fort St John, BC, Simpson cried, “These people want your children!”

Mair criticized Simpson in a Oct 25, 1999 broadcast, and compared her to Hitler and the Ku Klux Klan. Simpson then sued the host and radio station 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. The judge ruled that while Mair’s comments were defamatory, he was within his right of fair comment.

In 2006, the BC Court of Appeal overturned the lower court’s decision, arguing that Mair and the radio station hadn’t actually made an adequate defence. The court said that 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.

But today’s Supreme Court ruling reaffirmed Mair’s right to fair comment, and broadened 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.

Journalists and free speech advocates welcomed the ruling.

“This decision has cleared up what had become an all too murky area of the law,” says Brian Macleod Rogers, counsel to the media coalition that intervened in the case.

“Nothing can be more important than to protect democratic debate through expression of opinion that is made without fear of legal reprisal.”

The ruling laid 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 on the proved facts?

A comment can still be ruled defamatory if the plaintiff proves that the defendant was “subjectively actuated by express malice.”