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Libel has become much harder to prove

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Mayor Sam Katz's libel suit against the publisher of the University of Winnipeg student newspaper, the Uniter, and the author of an article the mayor says implies he's a crook is on a collision course with the law's latitude to express outlandish, even unfair views.

The object of Katz's legal ire is a short but rambling Dec. 4, 2013 Uniter article by volunteer writer Josh Benoit. It was published under the headline The Local Political Blunder.

It invokes, in rapid succession, Rob Ford, Bill Clinton, Martha Stewart, the Sage Creek fire hall, Katz, local property-development company Shindico, insider trading, former city CAO Phil Sheegl, a book of the New Testament and rapid transit. It also concludes with an imagined conversation between Katz and Sheegl.

Following the filing of his lawsuit, the mayor said in interviews that he'd settle for a retraction of the allegedly libelous comments, coupled with an apology. So far, neither the publisher nor the writer has retracted the purportedly offending parts of the piece. The University of Winnipeg itself was also sued. But its position is that it was erroneously made a party to the action.

The first line of defence to a libel action that targets an opinion piece like Benoit's is what's called the right of fair comment. To raise fair comment as a defence, you don't have to prove the truth of the opinion. You just have to establish it was made in good faith on a topic of public interest.

This wouldn't be hard to do in the case of Winnipeg's fire hall-land swap debacle. It was the subject of a scathing Ernst and Young audit commissioned by the city and released last October. The repercussions of building a fire-paramedic station on land the city doesn't own are still being played out at city hall.

Fair comment also requires the opinion be made without malice -- meaning it wasn't made simply to spread scandal or destroy reputations. Again, not an impediment here in light of the public notoriety of the fire-hall controversies.

Canadian defamation law of recent vintage has generally tilted in favour of free expression over protection of reputation. And in a landmark 2008 decision, the Supreme Court of Canada further expanded the fair-comment defence.

The case was a Canadian cause célèbre. It featured controversial British Columbia radio shock-jock Rafe Mair and his employer, WIC Radio Ltd., as defendants.

In a 1999 radio broadcast, Mair likened prominent B.C. anti-gay activist Kari Simpson's comments at a public rally to Nazi Germany, the Ku Klux Klan and U.S. segregation-era southern governors. Simpson sued. She argued Mair's on-air comments suggested she condoned violence against gays.

The Supreme Court, relying on the doctrine of fair comment, absolved Mair. In doing so, it made a policy decision -- that in a democracy, free speech merits the broadest possible protection. The court's clear message was that protection of reputation must generally yield to freedom of expression.

In exonerating Mair, the court forged an extraordinarily flexible fair-comment defence. It also went out of its way to underline that though the Charter of Rights and Freedoms didn't apply to the lawsuit -- because it didn't involve government action, but rather private parties -- it wanted the modern law of defamation (which includes libel) to mirror what it termed "charter values."

The Supreme Court also unanimously ruled expressions of opinion don't have to be fair.

"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 on behalf of the court. "Public controversy can be a rough trade and the law needs to accommodate its requirements."

Extravagant opinions, figurative speech and even hyperbolic language are therefore permissible. But precisely how far journalists or commentators can go in expressing unfair opinion isn't absolutely clear. Whether fair-comment law protects fictive larcenous conversations between real people like Katz and the city's ex-CAO is anybody's guess.

What is certain, however, is that the mayor's libel claim against Benoit and his publisher is now tougher to prove in a Canadian courtroom than it was just six years ago.


Douglas J. Johnston is a Winnipeg lawyer.

Republished from the Winnipeg Free Press print edition February 11, 2014 0

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