Basically, not even comparing someone to a “Nazi” counts as “malice” now. This was the offending graph:
Before Kari was on my colleague Bill Good’s show last Friday I listened to the tape of the parents’ meeting the night before where Kari harangued the crowd. It took me back to my childhood when with my parents we would listen to bigots who with increasing shrillness would harangue the crowds. For Kari’s homosexual one could easily substitute Jew. I could see Governor Wallace – in my mind’s eye I could see Governor Wallace of Alabama standing on the steps of a schoolhouse shouting to the crowds that no Negroes would get into Alabama schools as long as he was governor. It could have been blacks last Thursday night just as easily as gays. 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. They were simply declaring their hostility to a minority. Let the mob do as they wished.
Ezra Levant explains it all for you:
On defamation law, I’ve written recently about the new Supreme Court ruling, the most significant reform of the law in thirty years. It essentially ends the tort of defamation when the words complained about are a defendant’s opinion, restricting defamation suits to cases where the defendant gets his facts wrong. A simple example of this difference would be: “he’s a detestable idiot” vs. “he stole from the cash register”. The first is an opinion; it’s neither true nor false. The second is a fact; it’s either true or false. The law now accepts almost any opinion as reasonable, including “outrageous” or “ridiculous” opinions. I tell prospective defamation plaintiffs that, unless their defamer has a material fact wrong, there’s really no point in suing.
Not even Raif Mair himself seems to get it:
Mair said Supreme Court Justice Ian Binnie “made me very angry when he referred to the kind of work I did as ‘shock jock,’ something not even my worst enemy would accuse me of.”
“I have written the judge, giving him a resumé of my media career and asking that he change that part of the judgment.”
“You can ask the Supreme Court to reconsider a decision,” [Professor] Blom said Monday.
“If they make a mistake, if they misstate something, they now and then issue a correction.
“But on a thing like this, which is the adjective used, I can’t imagine them going back to edit the decision in that way.
“The rule is that what a court says is absolutely privileged in terms of the court making defamatory statement.
“You can’t sue a court because they said mean things about you.”
But here he is, anyway — “How I Changed Libel Law”:
This judgment sets forth the standards for defamation to be found in areas of public interest and they are:
(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?
(e) even though the comment satisfies the objective test, the defence can be defeated if the plaintiff proves that the defendant was actuated by express malice.
Although this falls short of the American standard (see Sullivan vs. New York Times) it goes a long way towards killing “libel chill.” (…)
…the commencement of a libel suit starts you down a very long, slippery slope and there’s no backing up. It can be a ruinous process for most individuals, for even if you win, your legal bill will be the size of some small country’s annual budget.
While, not unnaturally, I’m glad I won my lawsuit and glad that the plaintiff lost, I come away from the case with this nagging thought: how did it take nine years, God only knows how many hours in examinations for discovery, plus a hugely expensive paper war and 13 judges for the plaintiff, in this case where the facts were uncomplicated, to find out she had no case?
The Supreme Court of Canada has clarified the law of libel and made it much easier for people like me to comment on public affairs. That’s how it should be in a society that has shut up all muckrakers and tenderized all public comment.
We needed that.
Now we need a system where access to law is not denied to all but the wealthy.
Kari Simpson’s filed an appeal, but acknowledges it has little chance of going anywhere. This is from her press release (via email):
There is no doubt that ignorance, malice and politics motivated Rafe Mair’s conduct but the Courts of this land should be guided by truth and without fear or political favour. If the Supreme Court of Canada refuses my application for a Re-Hearing, Canadians will no longer have to speculate about justice being denied to some, it will be a proven fact. Truth should trump politics in the Courts of this Land.