Wednesday, April 9, 2008

Case of the day - Warman v. Fromm [2007] Ont. Sup. Ct. J.

In honour of the conservative bloggers served today with Statements of Claim, I thought I would look at an earlier defamation case brought by the same plaintiff, Richard Warman. Note that this is not a hate speech case, but one brought in court under tort law. Still, it's pretty relevant to the big news on the blogosphere today. A link to the case is here.

A couple years ago, Warman sued the Canadian Association for Free Expression and Paul Fromm for certain postings about him that appeared on the website freedomsite.org and were distributed via e-mail to other sites. In the words of the Court, Warman alleged that these writings mischaracterized him "as an enemy of free speech, a member of the thought police, a high priest of censorship, and an employee who abused his position at the CHRC in order to limit freedom of expression and pursue his own ideological agenda." The Court used the proper legal test for determining whether the statements were defamatory, a test which was most recently stated in the Supreme Court case Botiuk v. Bardyn: would the material tend to lower the Plaintiff in the estimation of right thinking members of society, or expose that person to hatred, contempt, contempt or ridicule? Would a reasonable person think less of the subject of the writings after having read them?

This is the test the plaintiff has to meet. Once this burden is discharged, however, the case is not closed. The burden merely then shifts to the defendant, who must establish one or more of the several available accepted defences. A common one is the defence of truth: when a statement is found by the Court to lower the plaintiff in the eyes of reasonable people, it is assumed then that the statement is untrue. This is a rebuttable presumption, which the defendant can displace by proving the truth of his words, which can be done in any number of ways. Another defence is that of fair comment, which means that the impugned statements were made without malice, in good faith, on a matter of public interest. Where the plaintiff is a public figure, this defence is easier to establish.

The Court went through the postings one by one, applying the Botiuk test each time. All nine were then found to be defamatory. There is, of course, much room for disagreement here. While all the postings were about the plaintiff and all referred to him in negative language, they varied greatly in strength and vitriol. For example, the first post was probably the strongest; it included terms like "thought police," "enemy of free speech," accusations of fanatacism, etc. This kind of language was echoed at least four other postings. But there were others written with much different wording, such as the third posting which referred to Warman as the Canadian Human Rights Commission's "hatchetman." Another message called the plaintiff a "professional censor" carrying out an "ideological vendetta" against those with whom he disagrees. Taking all these messages to be defamatory, the judge then examined and dismissed the defendants' arguments on fair comment and truth.

The judge's analysis of the truth defence is particularly problematic. Responding to the defendant's contention that the statements were true, the Court said that there was much falsehood in some of them, including descriptions of Tomas Winnicki as an 'anti-Israel critic', and of Richard Kyburz as a 'tax critic.' Winnicki and Kyburz were, in fact, people whom the Canadian Human Rights Commission had previously found guilty of disseminating hate propaganda, and so the Court here finds that the descriptions of them as innocent critics are so misleading as to be outright false. This should not, however, preclude the defence of truth in every case, I think. It would be important to consider whether the words written about Warman himself had any truth to them - the ones about him being a censor, for example. On the other hand, it could be argued that the characterizations of Winnicki and Kyburz were integral to the allegations about thought policing, and so a falsehood about them was also a falsehood about the plaintiff.

A good argument in Warman's favour, I suppose, would be an analogy to others in the legal community who often take up controversial fights. A defence lawyer known for defending sex criminals, for example, would probably have a cause of action if some website posted comments referring to him as an 'enemy of public decency' or a 'friend of rapists'. In this light, the judge's offer of the Winnicki and Kyburz convictions as evidence that Warman was engaged in a righteous fight is understandable, if somewhat simplistic. I would hope that such protection would extend to those who defend terrorists in court, or Neo-Nazis. There is no reason to tar a lawyer just because he brings cases that are politically unpopular.

Having said that, though, it is usually accepted that mere insults are not, by themselves, actionable in most cases. According to Allen Linden and Bruce Feldthusen's Canadian Tort Law,
some insults would be enough to meet the test, but the examples they give are far beyond what was written about Warman on freedomsite. Some actionable insults they give include:

"[T]o accuse someone of being a homosexual, of wife-swapping, of molesting a minor, of having a venereal disease...To call someone a drunk, or "hideously ugly," or a traitor is defamatory. To impute an unpopular political belief, such as implying that a person is a Communist, or behaves like a Nazi secret service agent, may be defamatory.

"To speak disparagingly of a person's professional capacity can amount to defamation, such as calling a doctor a "quack" or a lawyer a "shyster" or a "thief."... Where a professional gambler was accused of cheating, the court awarded damages because the accusation was injurious to his professional reputation and would disrupt his source of income."


It would seem that the comments about Warman could be construed as being injurious to his reputation as a lawyer - calling him a member of the thought police, or a professional censor, might do this. But calling him a censor is not really the same thing as calling a doctor a quack, or a gambler a cheat, is it? I mean, the impugned comments did not say that Warman does what he does badly, the way calling a lawyer a "shyster" would imply. Rather, they assert that Warman's very occupation - bringing hate-speech complaints to the CHRC - is not a legitimate one. It would be similar to calling a pornographer a "purveyor of filth," or a cigarette manufacturer a "merchant of death." The distinction is subtle, but key. In the first instance (doctor = quack), the accuser implies that the person is incompetent, dishonest, etc. In the second instance (plaintiff before CHRC = thought police) the accuser implies that the person is involved in something undesirable, that the very business in which the person is mixed up is a bad one. Now, keeping this in mind and using the textbook's definition, the comments on Fromm's site were probably not defamatory. Of course, the textbook could be wrong, or I could be misreading it.

As for the new lawsuit against Ezra Levant, Small Dead Animals, Five Feet of Fury and the rest, the defence of truth will probably be central, even more so than it was in Warman v. Fromm. I understand that the main point of contention is some posting that Warman is alleged to have written in the course of his hate-speech investigations. York v. Okanagan Broadcasters stands for the proposition that where a criminal offence is alleged, the accuser need only establish the truth of the allegation on a balance of probabilities. This post, if one reads it carefully, probably could disclose a criminal offence under s. 319 of our Code. Or, it might not - it's hard to tell with these hate messages. The upshot of this is that the defendants would only have to prove on a balance of probabilities that the message was, in fact, written by the plaintiff. Whether this could be done is an open question.