Broadcaster Rafe Mair often pushed the boundaries of free speech when he hosted talk shows on CKNW and CJOR in Vancouver.
Whether he was dealing with fish farms, Alcan's Kemano completion project, or justice for the mentally ill, Mair always spoke fearlessly and didn't hesitate to criticize lousy public policies.
But his recent victory in the Supreme Court of Canada could lead other commentators to demonstrate more bravery in the future.
Yesterday, Canada's highest court ruled unanimously for the appellants, WIC Radio Ltd. and Rafe Mair, in their eight-year case against Fraser Valley religious activist Kari Simpson.
Simpson appeared from time to time on Mair's show, often speaking out against child apprehensions.
However, when Simpson started publicly criticizing homosexuality -- saying it was not "normal" and it was "not acceptable" in her household -- Mair went on the attack. The trigger was her comments at a public meeting in 1999.
In an editorial on CKNW, Mair compared Simpson to Adolf Hitler, the Ku Klux Klan, and former Alabama governor George Wallace, among others.
"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," Mair said, according to the decision. "They were simply declaring their hostility to a minority. Let the mob do as they wished."
A 2006 B.C. Court of Appeal decision written by then-justice Mary Southin, concluded that Mair defamed Simpson and couldn't rely on the defence of fair comment.
Southin, who cited extensive case law in her ruling, stated there is "no evidentiary foundation" that Simpson would condone violence, so there could be no further consideration of Mair and WIC Radio's defence of fair comment.
The Supreme Court of Canada, on the other hand, concluded that Mair and WIC Radio could rely on a defence of fair comment.
"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," wrote Justice Ian Binnie in the decision. "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."
The Supreme Court of Canada stated that the "honest belief" defence of fair comment -- i.e. the disseminator of the comment must believe it to be true -- must be modified.
Binnie wrote that fair comment must contain four 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?
The onus is on the defendant to prove this in court.
Plaintiffs can still succeed if they can prove the defendant was "subjectively actuated by express malice".
Justice Louis LeBel added the following: "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."