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PART I - STATEMENT OF FACTS

A. Overview

1. On October 21, 1999 the respondent Kari Simpson ("Simpson") spoke at a rally of concerned

parents (the "Rally") and urged them to fight for their rights in a democratic nation by using their

vocal cords and calling in to the Bill Good radio talk show.

A.R., vol. 4, pgs. 453-454.

2. On October 25, 1999 the appellants WIC Radio Ltd. and Rafe Mair (collectively "Mair")

broadcast throughout British Columbia and the Yukon in the editorial portion of "an entertainment

call-in show" words which compared Simpson to Hitler and Governors Wallace, Faubus and

Barnett:

"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 Orville Fauvis or Ross Barnett. They were simply declaring their hostility to a minority. Let the mob do as they wished." (emphasis added).

The editorial was also published on Mair's website. A.R. vol. 1, pgs. 4 and 45, paras. 4-5 and 97; vol. 4, pgs. 389-390; R.R. vol. 1, pg. 49, ll. 42-47, pg. 50, ll. 1.

3. The Trial Judge found the editorial defamatory by imputing that Simpson "would condone

violence". The Trial Judge noted the juxtaposition of Simpson, Hitler and the Southern governors

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with the words "They were simply declaring their hostility to a minority. Let the mob do as they

wished".

A.R., vol. 1, pg. 19, para. 30.

4. The Trial Judge found the defamatory comment protected by fair comment based on

evidence that Mair was "deeply concerned about all forms of intolerance".

A.R., vol. 1, pgs. 33-34, paras. 64-66.

5. The key issue on appeal was error by the Trial Judge in failing to apply the legal test of

honest belief in the defamatory imputation found to be actually conveyed instead of Mair's honest

belief in tolerance.

A.R., vol 2, pgs. 172-173, paras. 41-46 and pgs. 174-176, paras. 49, 51, and 56.

6. The Court of Appeal agreed with Simpson noting that the burden of proving honest belief

rested with Mair, that the defamatory comment must be relevant to the facts pleaded in its support,

that the particularized facts addressed tolerance and supported an imputation of "intolerant bigot" but

that there was no evidentiary foundation for further consideration of the defence of fair comment

based on the defamatory imputation "would condone violence" as found.

A.R., vol. 2, pgs. 93-96, paras. 37-43 and pg. 98, para. 49.

B. Respondent's Statement Respecting Appellants' Statement of Facts

7. The appellants' statement of facts is incomplete and misleading in material respects.

8. The appellants' statement of facts is inaccurate in its assertion that the British Columbia

Court of Appeal allowed the appeal on a ground neither raised nor argued on the appeal.

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9. The appellants' statement of facts is inaccurate in its assertion in paragraph 20 that the the

entire reasoning for reversing consisted of one sentence in paragraph 43 of the Court of Appeal's

Reasons.

C. Additional Facts

Supreme Court of British Columbia Pleadings

10. Simpson claimed that the editorial was defamatory by imputing she was "hostile toward gay

people to the point that she would condone violence toward gay people" but disclaimed any

complaint about the defamatory imputation in the editorial that she was "generally intolerant of gay

people and their lifestyle".

A.R., vol. 2, pgs. 111-112, paras. 5(c) and 6.

11. Mair denied Simpson's defamatory meaning. Mair sought to justify an alternate defamatory

meaning that "Simpson's intolerance towards gay lifestyles was dangerous in that it could

unintentionally incite others to violence". Mair pleaded fair comment but not in respect of an

alternate defamatory meaning. In support of fair comment Mair pleaded six particulars of fact which

contained eight references to tolerance/intolerance and described them as the "foundation facts" for

the comment.

A.R., vol. 2, pgs. 123-126, paras. 4, 5(c) and 7(a)-(g); A.R., vol. 2, pg. 142, para. 15.

Supreme Court of British Columbia Facts and Findings

12. Simpson had a public reputation as a leader of those opposed to schools teaching acceptance

of a gay lifestyle. Simpson's primary message was promoting the use of democratic means to

achieve changes in government. Simpson urged her listeners "to vote, to write, and to speak out

about their values and views".

A.R., vol. 1, pgs. 9-10 and 12, paras. 10 and 15.

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13. Simpson's taped comments at the Rally did not contain any reference to homosexuals, gay-

bashing, threats or the uttering or encouragement of violence.

A.R., vol. 4, pgs. 453-454.

14. Simpson's taped comments at the Rally were played at the beginning of the Bill Good radio

show on October 22, 1999. Good asked Simpson whether she took any issue with a teacher

"because he or she is gay" and Simpson replied "Absolutely not".

A.R., vol. 4, pgs. 453-455.

15. CKNW broadcast four news stories about the Rally between 8 p.m. and 11 p.m. on October

21, 1999 and none contained any reference to Simpson. The only other media coverage of the Rally

was the NOW newspaper article "Board won't breach ruling" published on October 23, 1999 which

contained no reference to Simpson.

A.R., vol. 5, pgs. 776-777; R.R., vol. 1, pgs. 57-58.

16. Mair testified at trial that he believed in tolerance and that he considered Simpson to be

intolerant but Mair never testified he had an honest belief that Simpson would condone or overlook

or forgive any violence which resulted unintentionally from her words.

A.R., vol. 3, pgs. 304-350.

17. Mair testified at trail about his belief in Simpson fostering intolerance without intending

violence:

“And what people like Kari do...and they don’t mean to do this. They don’t want to do this. They would be the first ones to say “I didn’t have that in mind”. But what they do is they give a legitimacy for the kind of intolerance that leads people who don’t understand these things, that are -, for want of a better expression, mad, to take the law into their own hands and think that they’re probably doing God’s work”.

“The dangerous part is that even people who seem to be couching their - their remarks in - innocent terms are, in fact, fostering a lack of - of tolerance in

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the community, which makes it, at least to some people, acceptable, and that’s the dangerous part”.

"Now the people that used the phrases didn't intend there to be the consequences that flowed, I'm sure".

A.R., vol. 3, pg. 342, ll.13-22; pg. 348, ll. 14-19 and 34-35.

18. Paragraph 7(g) of the Statement of Defence pleaded that Simpson had "peaceful intentions".

Mair testified to his belief in Simpson's peaceful intentions:

“...I didn’t say that Kari is - is a violent person or would want violence to happen. I don’t think that - I think that would be the furthest thing from her mind. I think she’s, in her own mind, at least, a gentle person. I’m not talking really about what Kari is. I’m talking about what the consequences of thinking that you’re doing the right thing this way under these circumstances may well be.”

“...But the unfortunate thing is, and I think on Kari’s part, because she just doesn’t understand, I think perhaps if I had a sin in this thing is it’s I’m patronizing her, because I don’t think that she understood just what she was doing and just what the consequences could be of what she was doing.”

“...That we’re not looking here at a woman who is a violent person. We’re not looking at a person who would ever want to have harm come from her words. We’re - we’re not looking at a person who - who is trying to - to accomplish anything nasty in the - in the sense of violence”.

A.R., vol. 2, pg. 126, para. 7(g); A.R., vol. 3, pg. 340, ll. 3-11; pg. 341, ll. 26-32; pg. 343, ll. 35-40.

19. Mair's legal argument at trial stated that "he went through each statement of opinion in the

editorial and explained that he believed them and why". That assertion is not correct. Although

Mair was asked about the portion of the editorial referencing Hitler, Mair was not asked about the

words "They were simply declaring their hostility to a minority. Let the mob do as they wished".

Instead, his lawyer studiously skipped over with those words, stating "moving to the next

paragraph". Mair was never asked what he meant or intended by the skipped over words or

whether he honestly believed they were applicable to Simpson. This remarkable omission was

noted on appeal. (emphasis added)

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R.R., vol. 1, pg. 18, para. 46; A.R., vol. 3, pg. 339, ll. 37-47 and pg. 340, ll. 1-12; A.R., vol. 2, pg. 234, para. 14(c).

20. There was no evidence from Mair that he honestly believed that Simpson would condone any

violence flowing from her words. To the contrary, Mair testified as follows:

“I have never suggested that Kari Simpson is violent in any way, shape or form. As a matter of fact, I would go to her defence any day on that particular aspect. What I do say, though, is that people who mean well and get involved in issues and make well-meaning speeches are also talking to people that don’t mean well and so when the well-meaning person says, “Let’s all phone the Bill Good Show,” whether she knows it, or not, she is inviting people who are not well-meaning, not decent people to phone up and - and use the airwaves.” (emphasis added)

A.R., vol. 3, pg. 367, ll. 4-15.

21. Mair's legal argument at trial stated that "extreme language is protected by the defence of fair

comment, so long as the sting, fairly assessed by the Court, is a comment honestly held by the

defendant." (emphasis added).

R.R., vol. 1, pg. 14, para. 30.

22. Mair's legal argument at trial did not place any particular construction on the word "condone"

or offer a particular dictionary definition of "condone".

R.R., vol. 1, pgs. 3-12, paras. 1-27.

23. The Trial Judge found that while the alternate defamatory meanings pleaded by Mair were

substantially true they were neither the only nor the most defamatory of Simpson and that the stings

of other defamatory imputations, including that Simpson would condone violence, were not

substantially true. The latter imputation was characterized in Mair's legal submission at trial as "the

main sting of the libel".

A.R., vol. 1, pgs. 48-49, paras. 104 and 106; vol. 2, pg. 255, para. 25.

24. The Trial Judge found the editorial displayed an "unwholesome virulence" "totally

unwarranted" by the purpose of the Rally and Simpson's speech and demonstrated intrinsic malice.

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A.R., vol. 1, pgs. 39-40, paras. 78-79.

25. The Trial Judge rejected the defence of qualified privilege as the editorial, although on a

matter of public interest, was not in the public interest as it was "slanted, biased, unfair" and

exceeded the occasion by arguably promoting hatred and contempt for a point of view rather than

contributing to serious and fair-minded discourse.

A.R., vol. 1, pgs. 46-47, paras. 94, 101-103.

26. Simpson is barred from speaking on CKNW to respond to Mair's criticism and management

does not respond to her complaints. There has never been an apology or retraction.

A.R. vol. 3, pg. 27, ll.5-47, pg. 272, ll. 1-28; R.R. vol. 1, pg. 51, ll. 39-47 to pg. 52, ll. 1-4, pg. 53, ll. 35-38 and pgs. 54-56.

British Columbia Court of Appeal

27. Simpson alleged legal error by the Trial Judge in failing to apply the test of an honest belief

in the defamatory imputation. The error was expressed in Simpson's factum in the following terms:

“43. The honest belief requires positive evidence from Mair that he intended the defamatory imputation complained of and that the defamatory imputation also represented his honest opinion about Simpson.”

“45. The defence of fair comment is not established by proving an honest

belief in something other than the opinion actually conveyed to the reasonable person by the words published.”

“49. It is in respect of the “sting” that honest belief must be established by

the defendants asserting the defence of fair comment.”

“51. Although Mair testified about his honestly held belief in tolerance and how he perceived Simpson to be a menace to tolerance there was no evidence from Mair that he had an honest belief... that Simpson would condone violence... The absence of such evidence was overlooked by the learned trial Judge although it is vital to the success of the defence of fair comment.”

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“56. The learned trial Judge failed to consider the actual evidence of Mair referable to the impugned comments in the editorial and inconsistent with an honest belief in the words used and complained of. Instead the learned trial Judge referred to Mair’s belief in tolerance and his perceived concern over Simpson’s intolerance although the plaintiff expressly waived any complaint about Mair’s comments respecting intolerance (see paragraph 6 of the Amended Statement of Claim). Consequently, the learned trial Judge erred in failing to consider material evidence that related directly to the necessary ingredients of the defence of fair comment, evidence that is not in dispute and which does not require any finding as to credibility. Consequently, the finding by the learned trial Judge of Mair’s belief is palpably wrong and cause a serious but reversible miscarriage of justice.”

A.R., vol. 2, pgs. 172-176, paras. 43, 45, 49, 51 and 56.

28. Simpson accepted the Trial Judge's finding that "the impugned portion of the editorial was

mostly comment" and that "the underlying facts recited or implied in the editorial were substantially

true" (emphasis added). The Reasons of the Trial Judge enumerated the underlying facts either

recited or implied in the editorial.

A.R., vol. 2, pg. 160, para. 4; A.R., vol 1, pgs. 23-28, paras. 39-47.

29. Simpson did not accept that the "facts recited or implied in the editorial" addressed the

defamatory imputation or sufficiently supported the defamatory imputation. As noted above the gist

of Simpson's argument on appeal was that an honest belief in tolerance did not equate with an honest

belief in the defamatory imputation "would condone violence".

A.R., vol. 2, pg. 160, para. 4 and pg. 175, para. 51.

30. Mair did not cross-appeal the defamatory imputation found by the Trial Judge or the

dismissal of the qualified privilege defence.

A.R., vol. 1, pg. 89, para. 27.

31. The British Columbia Court of Appeal considered that Simpson's first ground of appeal

raised the question: "Is it the law that to succeed in the defence of fair comment, the defendant must

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honestly believe in the imputation. . . or need he only have an honest belief in what he himself

subjectively intended by the words which he used" (the "Question").

A.R., vol. 1, pg. 93, para. 37 and pg. 98, para. 49.

32. The Question had been anticipated by Mair. Mair's factum in the Court of Appeal stated that

"there is no contradiction between Mair's belief and the imputations found by the trial judge" and

that "even if there was an unintended imputation, Mair's honest belief and his motive are both

subjective tests which can only be answered by reference to what the speaker thought he was

conveying".

A.R., vol. 2, pg. 200, para. 26.

33. The Mair factum in the Court of Appeal cited the decision of the Court of Appeal in Jones v.

Bennett in support of Mair's submission that a subjective test was applicable. At the hearing on

February 14, 2006 Southin, J.A. noted that the decision cited had been over-turned by the Supreme

Court of Canada. In a letter to the Court dated February 16, 2006 Mair acknowledged the reversal.

On the appeal to this Court Mair again cites the Court of Appeal decision in Jones v. Bennett for the

same proposition.

A.R., vol. 2, pgs. 204 and 208, paras. 42 and 53(c); R.R., vol. 1, pgs. 47-48; Appellants factum, pg. 30, para. 115(3)(iii); Jones v. Bennett (1968), 66 D.L.R. (2d) 497 (B.C.C.A.)[A.A. Tab 24]; reversed [1969] S.C.R. 277 [R.A. Tab 10].

34. Mair's factum in the Court of Appeal acknowledged as undisputed that "the foundation facts

upon which a comment is based must be substantially true to the extent they are material to the

opinion". (emphasis added)

A.R., vol. 2, pg. 257, para. 34.

35. The British Columbia Court of Appeal answered the Question and allowed the appeal based

on an analysis that encompassed the following:

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(a) paragraph 7 of the statement of defence pleaded facts which supported an imputation

that Simpson was an "intolerant bigot";

(b) Mair had an honest belief that Simpson was an "intolerant bigot";

(c) the defamatory imputation found by the Trial Judge was that Simpson "would

condone violence";

(d) the relevant authorities established the following principles:

(i) the facts pleaded and proven must address the defamatory comment;

(ii) the defamatory comment must represent the honest belief of its author; and

(iii) the author bears the burden of proving (i) and (ii);

(e) given the above, there was no evidentiary foundation for further consideration of the

defence of fair comment based on the defamatory imputation found.

A.R., vol. 1, pgs. 93-96, paras. 37-44, and pg. 98, para. 49.

PART II - RESPONDENT'S POSITION RESPECTING THE APPELLANTS

QUESTIONS IN ISSUE ON APPEAL

36. The Court of Appeal did not reverse the Trial Judge on a ground neither raised nor argued on

appeal. This is not a case of ex mero motu. The Court of Appeal addressed an argument raised by

Simpson and responded to by Mair on that appeal.

37. The Court of Appeal did not reverse the Trial Judge's finding that the words were comment.

The Court of Appeal expressly noted that the defence of fair comment protects defamatory comment

but that the evidentiary foundation for the honest belief in the defamatory comment actually found

was missing. The correct legal test had not been applied by the Trial Judge. The Court of Appeal

properly reversed on the basis of correctness and held that the defence of fair comment was not

available to Mair.

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38. The defence of fair comment appropriately balances the right to free expression and the right

to reputation. Recent international developments concerning the defence of qualified privilege do

not support any modification to the defence of fair comment.

PART III - STATEMENT OF ARGUMENT

A. Issue of Honest Belief in the Defamatory Imputation was Squarely Raised Before the

Court of Appeal by Simpson and Responded to by Mair

39. Mair argues that the Court of Appeal decided an issue ex mero motu without submissions

from the parties. This statement is not correct for the following reasons:

(a) Simpson alleged legal error by the Trial Judge in failing to apply the test of honest

belief in the defamatory imputation as found by the Trial Judge;

(b) Mair responded to that argument by submitting that the honest belief of Mair in the

meaning he thought he was conveying was sufficient to establish the requisite honest

belief;

(c) the Court of Appeal stated the issue as "Is it the law that to succeed in the defence of

fair comment, the defendant must honestly believe in the imputation . . .or need he

only have an honest belief in what he himself subjectively intended by the words

which he used" (the "Question").

The Question incorporated and addressed the arguments made by both Simpson and Mair on the

appeal.

40. Mair also argues in paragraph 30 of his factum that in proceeding ex mero motu the Court of

Appeal disregarded the admission by Simpson that "the underlying facts were substantially true". In

fact, Simpson made a somewhat different admission. Simpson stated that the "learned Trial Judge

found that the impugned portion of the editorial was mostly comment, that the underlying facts

recited or implied in the editorial were substantially true" and that Simpson does not challenge these

findings on appeal (emphasis added).

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41. The facts recited in the editorial as found by the Trial Judge consisted of the following:

(a) Simpson's involvement in the Ramsay recall effort in Prince George;

(b) a parent had asked the School Board to remove her child from a gay teacher's

classroom on the basis that he was utilizing the three books and the School Board

agreed;

(c) Simpson spoke at the Rally with her voice magnified by a megaphone and used a

chanting, interactive manner of speaking;

(d) Simpson spoke on the Bill Good show last Friday; and

(e) Simpson spoke at the Rally the night before she spoke on the Bill Good show;

A.R., vol. 1, pgs. 23-27, paras. 40-44.

42. The only implied fact found by the Trial Judge was that "the Declaration of Family Rights

was widely publicized and understood to be promoted by both Simpson and CRI". The Trial Judge

noted that "it was set out as one of the particulars in the defence". None of the other particulars

alleged in the amended statement of defence was mentioned by the Trial Judge.

A.R., vol. 1, pg. 30, paras. 52, 53 and 54.

43. The facts recited and implied in the editorial as found by the Trial Judge and not challenged

by Simpson on the appeal did not go to the legal error raised by Simpson, namely, the necessity for

an honest belief in the defamatory imputation. Consequently, there was no "abandonment" by

Simpson on appeal of a key issue as asserted by Mair in paragraph 73 of his factum.

44. Mair suggests at paragraph 75 of his factum that had notice been given by the Court of

Appeal of the issue it was considering Mair could have directed the Court of Appeal to further

evidence. The trial evidence cited by Mair in paragraph 75 of his factum was stated verbatim in

Mair's factum in the Court of Appeal. Mair's submission is without merit as the issue was raised and

argued in the Court of Appeal.

A.R., vol. 2, pgs. 202 and 203.

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45. Where an issue has been raised either on the pleadings or in argument a court can refine and

decide the issue without having acted ex mero motu:

"Clearly a court cannot, ex proprio motu, evaluate a ground of discrimination not pleaded by the parties and in relation to which no evidence has been adduced. However, within the scope of the ground or grounds pleaded, I would not close the door on the power of a court to refine the comparison presented by the claimant where warranted".

Law v. Canada, [1999] 1 S.C.R. 497 at para. 58 [A.A. Tab 30].

46. Further, and in any event, the court can act ex mero motu over the objection of the parties or

in the absence of the issue having been raised by the parties where the court is satisfied that it should

intervene to ensure that the correct decision is obtained.

Lougheed Enterprises Ltd. v. Armbruster (1992), 63 B.C.L.R. (2d) 316, at paras. 36-38 (C.A.) [A.A. Tab 29]; Homex Realty Development Company Limited v. Village of Wyoming, [1980] 2 S.C.R. 1011 at 1036 [A.A. Tab 20]; Cock v. Labour Relations Board (1960), 26 D.L.R. (2d) 127 at 129 (B.C.C.A.) [A.A. Tab 13].

47. The concerns raised by Mair about an ex mero motu decision are inapplicable to the facts of

this case for the following reasons:

(a) Mair was not deprived of the right to make a full answer where the basis of liability

was encompassed by the pleadings and/or was addressed in argument.

Barker v. Montfort Hospital [2007] ONCA 282 at paras. 18-21 [R.A. Tab 1]; Husar Estate v. P. & M. Construction Ltd. [2007] ONCA 191 at paras. 27-35, 44 [R.A. Tab 9]

(b) Mair's right to control the litigation was not affected and the role of Mair's counsel in

the adversarial process was not undermined where the decision complained of flowed

from choices made by Mair and his counsel in the litigation, namely, the content of

the statement of defence and the evidence given by Mair at trial;

(c) the issue addressed by the decision was within the compass of the pleadings and/or

argument and has passed through the crucible of the adversarial process;

(d) Rule 30 of the British Columbia Court of Appeal Rules confers a discretion on the

court to permit a party to raise arguments not raised in a factum. The exercise of the

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discretion was not necessary where, as here, the issue addressed by the decision

arose out of the pleadings and was referenced in the arguments.

British Columbia, Court of Appeal Rules, r. 30 [R.A. Tab 27].

48. The issue determined by the Court of Appeal was engaged by the pleadings and the argument

before it. If it was not on the appellants' "radar" it should have been as the issue was dictated by the

pleadings and proceedings including the statement of defence and the Simpson factum.

Standard of Review

49. Whether words which are comment are capable of being fair (that is to say honest) is a

question of law to be determined by the trial judge before the defence of fair comment is put to the

jury. Whether the same words are, in fact, fair or unfair for the purposes of fair comment is a jury

question.. Failure by the trial judge to answer the threshold legal question--is the comment capable

of being fair--is an error of law. The standard of review on appeal of an error of law is correctness.

Jones v. Skelton [1963] 3 All E.R. 952 at 964-965 (P.C.) [A.A. Tab 25]; Cherneskey v. Armadale, [1979] 1 S.C.R. 1067, at 1074 (Martland, J.), 1079-1081, 1090-1091 (Ritchie, J.) [A.A. Tab 9]; Housen v. Nikolaisen, [2002] 2 S.C.R 235, at paras. 8 and 9 [A.A. Tab 22].

B. Court of Appeal Correctly Stated the Legal Test as Honest Belief in the Defamatory

Imputation Conveyed by the Comment

50. Paragraph 20 of the Appellants' factum asserts that the "entire reasoning for reversing" the

Trial Judge's decision is found in paragraph 43 of the Court of Appeal Reasons. This assertion is not

correct for the following reasons:

(a) paragraph 43 forms part of an analysis that spans paras. 37-43;

(b) Prowse, J.A., expressly referenced the analysis in paragraphs 37-43 in her concurring

Reasons; and

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(c) paragraph 43 expressly incorporated by reference the decisions in Reynolds v. Times

Newspapers Ltd. and Jones v. Skelton, both of which discussed the defence of fair

comment rather than justification.

51. Paragraph 80 of the Appellants' factum mis-states the effect of paragraph 43 of the Court of

Appeal Reasons by, firstly, reading paragraph 43 in isolation, and secondly, by substituting the

words "factual proof" for the words "evidentiary foundation" in respect of the defamatory

imputation. From this mis-statement the Appellants then assert in paragraph 126 of their factum that

the Court of Appeal "imposed a requirement to prove that Simpson 'would condone violence'". No

such conclusion is warranted by the proper construction of the Court of Appeal Reasons.

52. On a fair and common sense reading, paragraphs 37-43 of the Court of Appeal Reasons

indicate that the Court of Appeal:

(a) addressed the defence of fair comment rather than justification;

(b) did not challenge the trial finding that the words were comment rather than statement

of fact;

(c) applied the principles that with fair comment:

(i) the facts pleaded and proven must address the defamatory comment as found

by the Trial Judge; and

(ii) the defamatory comment as found by the Trial Judge must represent the

honest belief of its author; and

(iii) the author bears the burden of proving (i) and (ii) above;

(d) took in account paragraph 7 of the amended statement of defence which

particularized facts which supported an imputation that Simpson was an "intolerant

bigot";

(e) did not challenge the trial finding that Mair had an honest belief that Simpson was an

"intolerant bigot";

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(f) did not challenge the defamatory imputation found by the Trial Judge, namely, that

Simpson "would condone violence";

(g) concluded there was no evidentiary foundation for further consideration of the

defence of fair comment given the gap between the defamatory imputation as found

by the Trial Judge and the honest belief as pleaded and proven by Mair; and

(h) considered that the determination whether there was any evidentiary foundation for

an honest belief in the defamatory imputation was a question of law for the

trial judge and consequently a matter on which the appellate court is entitled

to reverse.

The analysis contained in paragraphs 37-43 of the Court of Appeal Reasons means that Mair failed

to lead any evidence of his honest belief in the defamatory imputation that Simpson would condone

violence and therefore was not entitled to the protection of the defence of fair comment. This

conclusion is correct at law and is the correct result on the facts of this case.

53. The law requires the comment be based on a sufficient substratum of facts relevant to and

addressing the defamatory imputation. This prevents tenuous facts being a springboard for

defamatory comment:

"Comment must be relevant to the facts to which it is addressed".

Reynolds v. Times Newspapers Ltd. [1999] 4 All E.R. 609 (H.L.) at 615 [A.A. Tab 43].

"Sixteen instances of controversial statements and acts attributed to the Minister were pleaded by the defendants as particulars. . . These statements. . . provided the necessary substratum of sufficiently publicized facts to enable the ordinary reader to recognize the nexus of the cartoon and the statements". Van der Zalm v. Times Publishers et al. (1980), 109 D.L.R. (3d) 531 at 536, 538 (B.C.C.A.) [A.A. Tab 52].

". . .it is important to remember that Beutel does not have to prove that his comment was true but only to establish a sufficient factual basis to warrant his comment. . . the comment must be relevant to the facts to which it is addressed. . . there is no need to prove the truth of the comment but only to

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prove a sufficient substratum of true facts on which Beutel based his comment and that those facts warrant his comment". Ross v. New Brunswick Teachers' Association (2001), 201 D.L.R. (4th) 75 at paras. 73, 78 and 83 (N.B.C.A.) [A.A. Tab 45].

54. The facts particularized in paragraph 7 of the amended statement of defence are those the

defendants plead attract the defence of fair comment. Those facts must provide a sufficient

substratum as a matter of law to support the defamatory comment and warrant further consideration

of the defence of fair comment:

"In my view the starting point is to identify the comment the defendants say is to be found in the words complained of and which they are seeking to defend as fair comment. . . A plaintiff is entitled to know what case he has to meet under a defence of fair comment just as much as he is entitled to know what case he has to meet when faced with a defence of justification. Where justification is pleaded, a defendant is now required to spell out in his pleading the meaning of the words, which if it is their true meaning, he will seek to justify. . . In my view by parity of reasoning, when fair comment is pleaded the defendant must spell out, with sufficient precision to enable the plaintiff to know what case he has to meet, what is the comment which the defendant will seek to say attracts the fair comment defence. . . unable to conclude that the pleaded facts are incapable of supporting a comment to the effect now being set up by the defendants. Whether they do or not is, a matter for the jury". (emphasis added).

Control Risks Ltd. v. New Library Ltd., [1990] 1 W.L.R. 183 at 189-190 (C.A.) [R.A. Tab 6].

55. The law also requires that the author have an honest belief in the defamatory comment. This

does not mean that the author must prove the truth of the defamatory comment:

"The true test is whether the opinion, however exaggerated, obstinate or prejudiced, was honestly held by the person expressing it. . . The comment must represent the honest belief of its author."

Reynolds, supra at 615 [A.A. Tab 43]

". . . the protection is afforded only when the opinion represents the honest expression of the view of the person who expresses it. . . a defence of fair

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comment is dependent upon the fact that the words in issue represent an honest expression of the real view of the person making the comment". (per Martland, J.)

". . . in the absence of any proof of honest belief of the writers, and having regard to the denial of honest belief by the defendants themselves, the defence of fair comment cannot, in my view, prevail" (per Ritchie, J.)

Cherneskey, supra at 1072-1073, 1091 [A.A. Tab 9].

". . . did the comment made by the cartoon represent the honest opinion of Mr. Bierman?. . . what the cartoonist intended the cartoon to say coincides with what the ordinary and reasonable person would take the cartoon as saying. . . I conclude from the whole of Mr. Beirman's testimony that that indeed represents an honest expression of his real view".

Van der Zalm, supra at 538-539 [A. A. Tab 52].

"Therefore had the proper test been applied the question should have been whether Beutel honestly held the view which he expressed in the cartoon on the facts indicated in the cartoon or facts pleaded and relied on at trial".

Ross, supra at para. 80 [A. A. Tab 45].

56. The sub-stratum of fact as particularized in the Statement of Defence did not address the

defamatory imputation actually conveyed by Mair's words. Consequently, it was not sufficient.

Further, Mair lacked an honest belief in the defamatory imputation actually conveyed by his words.

Failure to consider or properly apply the legal test for sufficiency of particularized facts and honest

belief in support of the defamatory comment is grounds for full appellate review as a matter of law.

The decision of the Court of Appeal is correct at law, correct in its result on the proven facts and was

reached by applying the correct standard of appellate review.

57. Paragraph 115(e) of the Mair factum proposes that the plaintiff bear the onus of proving no

honest belief. Mair's submission is contrary to the weight of Canadian authority. In Hill the remarks

of Martland, J. and Ritchie, J. in Cherneskey (see para. 55 of this factum) were referenced with

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approval by Cory, J., speaking for all of the Court on this point. Further, the adoption of a different

approach by Dickson, J., dissenting, in Cherneskey was responsive to a concern about newspapers

publishing third party opinion on which they may hold no or a different opinion. This concern has

been removed by statutory reforms. Consequently, there is no necessity to depart from established

Canadian principles of onus of proof.

Hill, supra at 1173, [A.A. Tab 19]; Cherneskey, supra at 1072, 1073, 1091, 1096-1097 [A.A. Tab 9]; Appendix A Table.

58. Paragraphs 120-122 of the Mair factum attempt to limit the defamatory imputation found by

the Trial Judge to the sense of "overlook, forgive or acquiesce in". The Trial Judge did not so define

or limit the defamatory imputation, Mair did not submit a dictionary definition to the Trial Judge for

her consideration and Mair did not appeal the defamatory imputation as found by the Trial Judge.

Further, the full sense of the word "condone" includes "to approve" and "to sanction".

The New Shorter Oxford English Dictionary, 1993 ed., s.v. "condone" [A.A. Tab 57].

C. The Law of Defamation Strikes an Appropriate Balance Between Freedom of

Expression and Reputation

59. Much of Section C of the Mair factum (and paragraphs 85, 86, 90-92, 98-99, 102-103 and

135-136 in particular) expressly refers to fair comment. Paragraph 98 of the Mair factum states that

in respect of fair comment "the consideration of Charter values is not a matter of changing the law

so much as choosing which enunciation of the defence best protects the need for free expression on

social and political matters" (emphasis added). However, the referenced international cases deal

with the defence of qualified privilege rather than the defence of fair comment. The defence of

qualified privilege is not a matter strictly before this Court as the dismissal of that defence was not

appealed by Mair and the British Columbia Court of Appeal otherwise did not deal with the defence

of qualified privilege. The discussion which follows, therefore, addresses the Mair submission in

terms of the defence of fair comment.

Constitutional Necessity for Checks and Balances

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60. Freedom of expression as a fundamental right predated the Canadian Charter of Rights and

Freedoms (the "Charter") and although of fundamental importance has never been an absolute right:

"The right of public discussion is, of course, subject to legal restrictions; those based upon considerations of decency and public order, and others conceived for the protection of various private and public interests with which, for example, the law of defamation and sedition are concerned. In a word, freedom of discussion means. . . "freedom governed by law".

Reference re: Alberta Legislation, [1938] S.C.R. 100 at 133 [R.A. Tab 18].

61. Sections 2(b) and 32 of the Charter constitutionally enshrined freedom of expression as a

fundamental freedom guaranteed between the individual and the state. Section 1 of the Charter

subjected the freedom of expression to "such reasonable limits prescribed by law as can be

demonstrably justified in a free and democratic society". Section 1 of the Charter informs the

guarantee of freedom of expression, confirms that it is not absolute and permits necessary and

proportionate limitations on it.

62. In private litigation the Charter only applies to the common law to the extent of an

unjustified inconsistency with Charter values and subject to the following constraints:

(a) any judge-driven change is to be incremental in nature only;

(b) Charter values provide a guideline for any modification to the common law; and

(c) the party alleging the inconsistency bears the onus of proving both that the common

law is inconsistent with Charter values and that its provisions cannot be justified.

Hill v. Church of Scientology, [1995] 2 S.C.R. 1130 at paras. 96-98 [A.A. Tab 19].

63. The values protected by the free expression guarantee are individual self-fulfilment, truth

seeking and democratic participation. Defamatory expression is not typically within the "core"

values of free expression: defamatory statements are only "tenuously related" to s. 2(b) values as

they are "inimical" to the search for truth, they are "detrimental" to the advancement of healthy

Page 21

participation in the affairs of the community and they are "harmful" to the interest of a free and

democratic society.

Canada v. JTI-Macdonald Corp., 2007 SCC 30 at paras. 34, 36 [R.A. Tab 5]; Hill, supra at para. 106 [A.A. Tab 19]; Sidney Kentridge, "Freedom of Speech: Is It the Primary Right" (1996) 45 Internat. & Comp. Law Quarterly 253 at 259 [R.A. Tab 23].

64. Protection of reputation is a Charter value as it reflects the "innate dignity of the individual,

a concept which underlies all the Charter rights".

"Reputation is an integral and important part of the dignity of the individual. It also forms the basis of many decisions in a democratic society which are fundamental to its well-being: whom to employ or work for, whom to promote, whom to do business with or to vote for. Once besmirched by an unfounded allegation in a national newspaper, a reputation can be damaged for ever, especially if there is no opportunity to vindicate one's reputation. When this happens, society as well as the individual is the loser. . . Protection of reputation is conducive to the public good."

Reynolds, supra at 622 [A.A. Tab 43];see also Hill, supra at paras. 107-108, 120-121 [A.A. Tab 19].

65. Protection of reputation and freedom of expression co-exist as Charter values, both are

equally worthy of protection and are to be balanced against each other rather than freedom of

expression being according hierarchical priority:

"A hierarchical approach to rights, which places some over others, must be avoided, both when interpreting the Charter and when developing the common law. When the protected rights of two individuals come into conflict. . . Charter principles require a balance to be achieved that fully respects the importance of both sets of rights".

Dagenais v. CBC [1994] 3 S.C.R. 835 at 877 [A.A. Tab 15].

66. Defamation litigation is often a "high risk enterprise" in which the plaintiff faces

considerable hurdles in addition to the usual uncertainties of an action. Not the least daunting is the

prospect from the outset of personally financing the costs of litigation against the resources of media

conglomerates, whether insured or publicly funded, and the uncertainty of obtaining an award of

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damages and costs that covers the costs of litigation particularly if a "scorched earth" defence is

conducted.

Leenen v.CBC, [2000] O.J. No. 3435 at para. 4 [R.A. Tab 13]; Myers v. CBC, [1999] O.J. No. 4380, aff'd [2001] O.J. No. 2228 at pg. 6 (C.A.); leave to appeal dismissed [2001] S.C.C.A. No. 433 [R.A. Tab 17].

67. The common law of defamation does not concern itself with the publication of defamatory

material unless it is unlawful--not otherwise justified, protected or excused. The identification of the

injurious zone of expression entails a prolonged process which presents significant hurdles to a

claimant and involves:

(a) a finding that the words complained of are defamatory;

(b) a finding that the defamatory imputation of the words is not true;

(c) a finding that the defences (eg., truth, fair comment or qualified privilege) are not

established;

(d) alternately, a finding that a defence of fair comment or qualified privilege is defeated

by actual malice which is a difficult burden for a plaintiff to satisfy; and

(e) generally, a refusal to award an interlocutory restraining order where the author

evidences an intention to plead fair comment or qualified privilege.

The multiple stages that must be traversed before a plaintiff recovers a defamation award reflects the

broad field of expression which is permitted and only proportionally curtailed in the exceptional

circumstance of a defamatory and untrue expression not otherwise saved by defences of general or

particular application. While the object of the law of defamation is to protect reputation in

appropriate circumstances the pre-requisites for an award controverts the assertion that the law of

defamation over-emphasizes the protection of reputation at the expense of freedom of expression.

68. The balance is further tilted in favour of expression by statutory provisions enacted since the

Charter and permitting timely correction or retraction of innocent mis-statement and/or written

apology in mitigation of damages and permissible publication of defamatory comment of a third

party author without any honest belief by the publisher provided a person could honestly hold the

opinion and the publisher did not act maliciously.

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Appendix A Table; Extracts of provincial defamation statutes [R.A. Tabs 28-39].

Society Benefits from the Protection of Reputation

69. Any blanket assertion that the law of defamation prospectively inhibits free expression does

not establish an unjustified inconsistency with Charter values; rather, it assumes what has to be

proved. The assertion does not offer any empirical measurement of the extent to which free speech

is chilled by the threat of civil liability or that it has imposed too onerous a burden or that it is

invariably an inappropriate chill. Nor does it account for other variables that affect a decision to

publish or not publish:

"The defamation law, it is said, has a "chilling effect" on the freedom to discuss government, governmental institutions and political matters which is inconsistent with the freedom. The submission does not illuminate the answer to the relevant question. It simply translates into tendentious language the legal truism that the tort of defamation achieves its purpose of providing protection for personal reputations by providing the remedy of damages against the tortfeasor".

Theophanous v. H & W Times (1994), 124 Aust. L.R. 1 at 37 (H.C.) [A.A. Tab 51].

"It is true that the restrictions on freedom of speech that have been thought necessary to give reasonable protection to personal reputation may have a tendency to chill the publication, not only of untruths, but also of that which may be true but cannot be proved to be true. But there is nothing new in this. Nor, as far as I am aware, is there any way of assessing which tendency is the greater--although experience of libel litigation is apt to generate a suspicion that it is the former" (per Lord Cooke).

.

". . . the discipline of having to justify each claim to the benefit of qualified privilege should the statements of fact which made by the media turn out to be defamatory. The description of this discipline as having a "chilling" effect on free speech, as if this in itself shows that something is wrong with it, is too simple. Of course, it does "chill" or inhibit the freedom of the communicator. But there are situations in which this is a necessary protection for the individual" (per Lord Hope).

Reynolds, supra at 640, 654 [A.A. Tab 43].

Page 24

70. The law of defamation does not impair the "marketplace of ideas". Any properly functioning

marketplace requires protection against private abuse that exploits at the expense of others. This is

particularly the case in any market dominated by a few particularly powerful or concentrated

players. The law of defamation is a necessary and indispensable component to the marketplace as it

deters abuse that could otherwise frustrate the proper functioning of the marketplace of ideas.

Richard Epstein, "Was New York Times v. Sullivan Wrong?" (1986) 53 U. Chi. L. Rev. 782 at 799-800 [R.A. Tab 20].

71. Canada has media of robust size, resources and influence supplying a continuous and ample

diet of reporting, investigative journalism and caustic comment. The media's reluctance to expose

their inner workings except on their own terms coupled with their self-interest in the libel chill

debate supports a healthy skepticism that the chill they allege is not always a "bad" chill.

Demonstrated shortcomings in the media's self-policed internal safeguards suggests that the thrust of

the libel chill objection is nothing more than a quest to be placed beyond the reach of legal

responsibility.

Myers, supra at paras. 146-152 [R.A. Tab 17]; Robert Martin, Essentials of Canadian Law-Media Law, 2nd ed. (Toronto: Irwin Law Inc., 2003) at 208-209 [R.A. Tab 25].

72. The most significant change in expression since Cherneskey and the Charter is not new

inhibitions on expression but expansion of freedom of expression with the advent of internet/website

communication. The media has gone on-line and the public now has an easy ability to search and

access current and archived material. The relative anonymity of publishers on internet sites

including blogs coupled with the instantaneous proliferation of media expression through

republication on websites such as YouTube has given defamatory media expression a permanent life

in databases accessible at the click of a key. Meanwhile, the push for expanded freedom of

expression has continued without any organized plea for better protection of reputation in the face of

this new electronic environment.

73. The Charter value of freedom of expression is necessarily subject to checks and balances to

preserve a free and democratic society. The harm posed to society by defamatory expression

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capable of widespread diffusion by instantaneous electronic communication requires a renewed

emphasis on protection of reputation. The law of defamation must continue to balance freedom of

expression against reputation by disciplining all media publishers to act responsibly and

accountably. It can continue to preserve the value in freedom of expression by placing the emphasis

on accuracy of statements of fact and honesty of belief in comment. The democratic process relies

on a credible media and public faith in the veracity of the media. Without the "check" of a

meaningful libel law public confidence in the media will be eroded and society will suffer the social

cost of the deprecation of truth in public discourse.

"Setting the standard of journalistic responsibility too low would inevitably encourage too great a readiness to publish defamatory matter. Journalists should be rigorous, not lax, in their approach. . . once untruths can be published with impunity, the public will cease to believe any communications, true or false".

Loutchansky v. Times Newspapers Ltd., [2002] QB 783 at 809 (C.A.) [R.A. Tab 15].

74. Freedom of defamatory expression is also inimical to a democratic society by offering

inadequate protection to the reputation of public figures who hold unpopular or politically incorrect

views. The danger posed by an unchecked right of free expression is that unrestrained defamatory

expression about such persons will cause them to be shunned or deter them from participating in

public debate and result in them being effectively silenced. This puts at risk the open and pluralist

society that free speech is associated with, limits true choice that comes with an appreciation of

alternatives and thereby impairs the marketplace of ideas. This also deters mainstream citizens from

participating in public matters as it will appear that those who participate receive little or no

effective protection leaving only the most brazen or unscrupulous to participate.

75. Lastly, it would be naive to think that if freedom of expression is expanded to permit

defamatory comment without honest belief in the defamatory imputation that defamed persons

defamed will not ultimately be driven to respond through easy and widespread diffusion of

retaliatory defamatory comment. This is the logical outcome of any emasculated libel law that does

not protect against defamatory comment unsupported by honest belief. What little civility remains

Page 26

in contested public discourse will be lost without any corresponding social gain in terms of the

values of free expression.

76. Observations about responsible journalism often assume a hierarchical media structure

presided over by an editor and subject to some professional or press-room guidelines. The advent of

the internet with media sites including archives of current and back issues generally accessible to the

public presents the prospect of continuous and indefinite publication by persons possessing no

editorial skills or ethics but with the means of establishing a website and engaging in general

uninhibited publication. Retractions and apologies attached to an original publication may not

appear when republished on different web sites. Since free expression is the right of everyone the

responsibilities that accompany free expression must apply to all publishers whether inside or

outside a formal structure of accountability. The practicalities of the situation compel the

recognition that technological change permitting greater ease and breadth of media publication may

impose a higher than ever obligation on main stream media to state true fact and honest belief to

prevent the republication of defamatory material. In other words, the very technological advances

that facilitate expression and defamation may necessitate a greater concern and protection for

reputation by retrenching and re-emphasizing common law requirements for defences to defamation

to protect reputation.

The Defence of Fair Comment is Consistent with Charter Values

77. The appellants have not identified with any particularity how, if at all, the defence of fair

comment is inconsistent with Charter values. Previously, an alleged inconsistency has been

considered and rejected:

"The submission [of the Canadian Civil Liberties Association] advocates re-evaluation of the law in the areas of the defence of fair comment. . . Its main thesis is that in achieving the delicate balance between freedom of expression and protection of reputation, the application of Charter values, to the extent

Page 27

that the law is inconsistent with the underlying values of the Charter should inform the development of the law.. . I have not found that the law of defamation conflicts with or derogates from the underlying values of the Charter. Therefore, there is no need to consider changes to the guiding principles of the common law of defamation applicable to the issues raised in this appeal".

Ross, supra at para. 84 [A.A. Tab 45].

78. Fair comment is only a live issue where the comment complained of is defamatory and not

true. Even then the comment will be protected from liability provided it is on a matter of public

interest, based on sufficient true facts and the author of the statement has an honest belief in the

defamatory imputation. Honest belief in the comment is the "cardinal test": it requires that the

"words in issue" represent an honest expression of the real view of the commentator.

Cherneskey, supra at 1072-1073, 1082, 1091 [A.A. Tab 9]; Van der Zalm, supra at 538-539 [A.A. Tab 52]; Ross, supra at para. 80 [A.A. Tab 45].

79. The author's honest belief in the comment is properly the launch pad for the broad right to

publish comment:

". . . the special position of the media as a vehicle for the expression of opinions by members of the public may, however, be said to be given some recognition in the fact that where a newspaper or broadcaster publishes the apparently bona fide opinion of a member of the public it may rely on the defence even though it does not share the opinion. . . Although the European Court of Human Rights has emphasized the importance of the role of the media in disseminating ideas and fostering debate (especially on political matters) and that "value judgments" are not to be required to be shown to be true, the present law of fair comment would seem to accord with this in so far as it simply requires an honest expression of opinion". (emphasis added)

Gatley on Libel and Slander, 10th ed. (London: Sweet & Maxwell, 2004), at 291-292 [R.A. Tab 21 ].

"a defendant does not have to persuade the court. . . to agree with his opinions. . . . It is important that one should be able to conduct one's affairs and regulate one's speech with some degree of assurance, if necessary with the assistance of legal advice, as to what the likely consequences may be. If the touchstone is honesty, that has the great merit of being a straightforward criterion--not the least for jurors to put into practice". (emphasis added)

Page 28

Branson v. Bower [2002] QB 737 at 747 (Q.B.) [R.A. Tab 4].

"Freedom of speech does not embrace freedom to make defamatory statements out of personal spite or without having a positive belief in their truth. In the case of statements of opinion on matters of public interest, that is the limit of what is necessary to protection of reputation". (emphasis added)

Reynolds, supra at 622 [A.A. Tab 43].

80. The requirements for fair comment are not unduly onerous as they are consistent with the

values of free expression:

(a) a matter of public interest on which a person may make fair comment is "not to be

confined within narrow limits";

London Artists Ltd. v. Littler [1969] 2 All E.R. 193 at 198, cited in Reynolds, supra at 615 [A.A. Tab 43].

(b) Society benefits from receiving accurately stated fact and honestly believed comment

since these promote self-fulfilment, truth seeking and democratic participation.

Similarly, there is little public benefit or social utility in defamatory comment that is

either not supported by relevant true facts or not honestly believed by its author.

This is particularly pertinent to matters of public interest where the stakes include the

proper functioning of democratic process and where fair comment based on

sufficient true facts and honest belief enhance the free expression that is beneficial to

our society;

(c) the defamatory imputation in which the author must have an honest belief is the plain

meaning which has been determined by the trier of fact as reasonably and objectively

arising to the ordinary listener without having any special knowledge, without giving

it the worst possible meaning and rejecting "those meanings which can only emerge

as the product of some strained or forced or utterly unreasonable interpretation".

This is not an exacting standard: it settles for only those defamatory meanings which

can be reasonably and objectively drawn rather than for the obscure and is consistent

with the expectations and practices of responsible journalism:

Page 29

"Responsible journalism is the point at which a fair balance is held between freedom of expression on matters of public concern and the reputations of individuals. Maintenance of this standard is in the public interest and in the interests of those whose reputations are involved".

Jones, supra at 958 [A.A. Tab 25]; Lewis v. Daily Telegraph Ltd. [1964] A.C. 234 at 258 (H.L.) [R.A. Tab 14]; Bonnick v. Morris [2002] 2 W.L.R. 820 at para. 23 (P.C.) [R.A. Tab 2].

(d) an honest belief in the defamatory imputation as found by the trier of fact, if it exists,

will be within the author's control to summon and prove with a minimum of fuss and

bother and its proof will not pose a significant fetter on free expression.

81. The appellants contend in paragraph 115(3)(iii) of their factum that Mair's honesty of belief

for the purposes of fair comment should be measured by what he understood he was conveying

rather than what has been found to have been conveyed. There is no authority for this proposition:

(a) firstly, the Court of Appeal decision in Jones v. Bennett cited by Mair was

overturned on appeal to the Supreme Court of Canada. Secondly, the defence of

qualified privilege presumes honest belief in the truth of what is published in the

absence of express malice. The issue before the Court of Appeal in Jones was

whether express malice was made out by the author refusing to say whether he

believed imputations suggested to him but not intended. Jones held that the silence

did not establish the plaintiff's burden of proving express malice defeating an

accepted occasion of qualified privilege. This reasoning is inapplicable to the

defence of fair comment where the honest belief in the defamatory imputation is not

presumed but must be established first and separately from express malice.

Jones v. Bennett (1968), 66 D.L.R. (2d) 497 (B.C.C.A.)[A.A. Tab 24]; reversed

[1969] S.C.R. 277 [R.A. Tab 10]; Cherneskey, supra at 1080 [A.A. Tab 9];

(b) the Court of Appeal decision in Cimolai v. Hall cited by Mair likewise concerned

the requirements for express malice sufficient to defeat an occasion of qualified

privilege and is not of application to the defence of fair comment.

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Cimolai v. Hall, [2007] B.C.J. No. 810 at paras. 52-53 (C.A.) [A.A. Tab 11].

82. The substitution of the author's subjective understanding of what he (supposedly) hoped to be

conveying for the requirement that the author have an honest belief in the meaning that has been

found to have been conveyed will be an inadequate safeguard to reputation and the public interest in

free expression. The author controls the selection of the facts. The author is instrumental in the

enunciation of the comment based on the selected facts. He is reasonably presumed to intend the

reasonable objective meaning arising from his words. If a defamatory imputation arises from the

words crafted by the author based on facts selected by the author why should the author escape

liability based on an amorphous subjective belief in a different meaning? Such an approach

encourages dishonest comment which is not in the public interest and sloppy draftmanship on

matters of importance which is likewise not in the public interest and is contrary to professional

journalism.

"Where questions of defamation arise ambiguity is best avoided as much as possible. It should not be a screen behind which a journalist is "willing to wound, and yet afraid to strike." In the normal course a responsible journalist can be expected to perceive the meaning an ordinary, reasonable reader is likely to give to his article. Moreover, even if the words are highly susceptible of another meaning, a responsible journalist will not disregard a defamatory meaning which is obviously one possible meaning of the article in question".

Bonnick, supra at para. 25 [R.A. Tab 2].

"Miss Sharp argues that the notion of a 'single meaning' is equally inapplicable in the context of fair comment. There is no authority to support this proposition. . . When one is addressing the defence of fair comment, the test to apply is what the relevant defendant actually published, rather than what he intended or believed the meaning to be. As with any other defence, the first step is to identify the meaning of the words and then to consider whether the defence of fair comment has been made out. It would be hopelessly impractical to judge the validity of the fair comment defence by what the author or the words intended, thought or hoped they might convey".

Lowe v. Associated Newspapers Ltd., [2006] EWHC 320 at 363 (Q.B.) [R.A. Tab

16].

Page 31

83. Is there public benefit from simply permitting the publication of defamatory imputation not

supported by the author's honest belief as part of the right of freedom of expression under s. 2(b) of

the Charter? Freedom of expression is not an absolute right. Freedom of expression is subject to

the rule of law and countervailing societal interests such as protection of reputation. The expression

that is fundamental to a free and democratic society and in which society has an over-riding interest

is expression in which the author has an honest belief including the defamatory comment based on

true facts. Honesty is the touchstone of free expression. It guarantees that the balance struck

between reputation and free expression is in respect of genuine opinion. An honest belief in the

actual meaning conveyed by the words is not a restrictive standard as it corresponds with what is

expected of responsible professional journalists and the badges of accuracy and honesty. A free and

democratic society is not enhanced by the expression of defamatory comment in which the author

has no honest belief any more than it is enhanced by other examples of irresponsible journalism.

The requirements for honest belief in comment encourages the free expression of sincerely held

opinion and constrains only the expression of false defamatory opinion or defamatory expression

that in fact expresses something different from the publisher's sincerely held opinion. Any

modification that attenuates the key requirement of honesty will "gut" the defence of fair comment

and expose society to dishonest comment.

No "Modernizing" Developments Cited by the Appellants respecting Fair Comment

84. Paragraphs 104-109 of the Mair factum reference foreign developments in the defence of

qualified privilege. Mair suggests that these cases represent a "modern" trend by enlarging the

occasions of qualified privilege to include, by one means or another, greater freedom of expression

to the public at large on matters of public interest. However, the defence of qualified privilege has

always been known for its elasticity and its ability to grant protection because the "common

convenience and welfare of society requires frank communication of questions of fact" on that

particular occasion. While the privilege usually involves limited publication to relatively small

Page 32

identifiable groups that share the common duty and interest the occasions of privilege are not closed

categories confined to "narrow limits" and are sufficiently flexible to adapt to changing social

conditions. When previously required by the public interest the bounds of a privileged occasion

have been expanded to permit a particular publication to be made to the world at large. However,

developments that draw upon the essential characteristics and purpose of qualified privilege do not

transplant to the defence of fair comment.

Reynolds, supra at 615, 617 [A.A. Tab 43].

The American Experience with the Actual Malice Rule of Sullivan

85. The First Amendment to the Constitution of the United States of America states that

"Congress shall make no law abridging the freedom of speech or of the press". Based on that

guarantee a rule was formulated that a public official may not recover damages for a defamatory

falsehood relating to his official conduct unless he proves that the statement was made with 'actual

malice'--that is, with knowledge that it was false or with reckless disregard of whether it was false or

not. Actual malice must be established by a plaintiff with "convincing clarity" (the "actual malice

rule").

New York Times Co. v. Sullivan, 376 U.S. 254 (1964) at 280, 285-286 [A.A. Tab 35].

86. The actual malice rule has been criticized for having struck an "improvident balance"

between free expression and protection of reputation and was rejected in Hill because:

(a) it resulted from a unique social-political context with particular compelling facts

including the absolutist formulation of the First Amendment;

(b) it unduly favoured free expression and inadequately protected reputation; and

(c) it diverted the inquiry from truth to fault with resultant deprecation of honesty in

public discourse.

Dun & Bradstreet v. Greenmoss Builders, 472 U.S. 749 (1985) at 767-769 [R.A. Tab 7]; Hill, supra at 122-141 [A.A. Tab 19].

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87. The actual malice rule makes it more difficult to sue successfully. If media publication is

"chilled" by the fear of uncertain, lengthy and expensive defamation litigation the actual malice rule

should have disposed of the "chilling effect". That has not proved to be the case. The actual malice

rule is now criticized for perversely contributing to a new "chilling" effect caused by expense and

uncertainty:

(a) distinguishing between libel plaintiffs based on status is akin to "nailing a jellyfish to

the wall" and is contrary to the common law tradition that "citizens are not divided

into different classes";

(b) the actual malice requirement does not lend itself to preliminary disposition and

results in protracted litigation;

(c) the minute investigation of the defendant's state of mind and journalistic practices

increases the complexity and expense of litigation and results in extensive intrusion

of media;

(d) the emphasis on actual malice has increased the awards of punitive damages;

(e) jury non-compliance with charges to apply the actual malice standard betrays a

skepticism about media practices and frustrates the purpose of the rule.

David Kohler, "Forty Years after New York Times v. Sullivan: The Good, the Bad and the Ugly", Oregon Law Review [Vol 83, 2004] [R.A. Tab 24]; Charles Tingley, "Reputation, Freedom of Expression and the Tort of Defamation in the United States and Canada: A Deceptive Polarity", (1999) 37 Alta. Law Rev. 620 [ R.A. Tab 26]; Great Britain, Report on Practice and Procedure in Defamation (London: Lord Chancellors Dept., 1991) at 164-165 [R.A. Tab 22].

88. Institutional differences between Canada and the United States prescribe different roles for

the media and suggest different outcomes in terms of striking the balance between freedom of

expression and protection of reputation:

"The separation of powers that exists in American government is such that the President is never obliged to field questions from the Congress. Instead, the President's line of communication to the public and Congress alike is forged through the media. Press conferences are staged and carefully tailored information is released to different press sources. . . Canada's parliamentary system exercises particular influence upon the role of the press in Canada. Unlike the American president, Canadian ministers are directly accountable

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to the legislature. Specifically, forty-five minutes are reserved out of each day that Parliament is in session for Question Period during which Members of Parliament may ask any question of any member of the House. Opposition members use this opportunity to launch scathing and biased attacks on the government of the day. In doing so, they enjoy absolute immunity from civil liability and their often defamatory attacks may be printed by the press under a qualified privilege. Whereas the American press must initiate reporting about public officers, the Canadian press may look directly to Parliament for its material and may in turn carry out its reporting function by ensuring that its coverage is even-handed".

There is nothing in the American experience that calls for the importation of the actual

malice rule to Canada generally or in respect of any particular defence.

Tingley, supra at paras. 37, 41 [R.A. Tab 26]; see also Douglas Alderson, "The Constitutionalization of Defamation American and Canadian Approaches to the Constitutional Regulation of Speech" (1993) 15 Advocates Quarterly 385 [R.A. Tab 19].

The Antipodean Rejection of the Actual Malice Rule in Favour of Honest Belief.

New Zealand

89. New Zealand's Bill of Rights Act 1990 provides for freedom of expression (s.14) subject to

any reasonable limit prescribed by law which may be demonstrably justified in a free and democratic

society (s.5) and was modelled on the Charter. This right combined with New Zealand's electoral

system dictated that while the general public may have a proper interest in receiving statements

which "directly concern the functioning of representative and responsible government" the

determination of an occasion of qualified privilege will depend on an assessment of the particular

occasion. The assessment includes a consideration of the "circumstances and context of the

publication" and the "actual content of the information". The determination is to be on a case-by-

case basis with a tightly defined subject matter. The extension of the occasion of qualified privilege

was constrained by the redefinition of the common law concept of actual malice to provide a

stronger safeguard against abuse:

"while carelessness will not of itself be sufficient to negate the defence its existence may well support an assertion by the plaintiff of a lack of belief or recklessness. In this way the concept of reasonable or responsible conduct

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on the part of the defendant in the particular circumstances becomes a legitimate consideration".

Responsibility is the price of an expanded freedom of expression and it is exacted by greater scrutiny

of practices such that "if a false and defamatory statement which qualifies for protection is made,

and is disseminated to a wide audience, the motives of the publisher and whether the publisher had a

genuine belief in the truth of the statement will warrant close scrutiny". (emphasis added)

Lange v. Atkinson (2000), 3 N.Z.L.R. 385 at 391, 394, 395-398, 400 (H.C.) [R.A. Tab 12].

Australia

90. Freedom of communication is implied by the Australian Commonwealth Constitution and

protects communication between people concerning political or government matters. The freedom

of communication is not absolute and is limited to what is necessary to the effective operation of the

constitutional government. While the common law of defamation must conform to the constitutional

norm it is to do so in a manner that is "reasonably appropriate and adapted to serving the legitimate

end of protecting personal reputation without unnecessarily or unreasonably impairing the

[protected] freedom of communication". In extending the categories of qualified privilege to

communications made to the public on a government or political matter the key issue is whether a

particular communication is protected by the extended category of qualified privilege. Concerned

with the capacity of widespread defamatory publication to cause significant damage the extended

category of qualified privilege was subject to a requirement of "reasonableness of conduct" which

goes beyond mere honesty and requires the defendant to prove that:

(1) he had reasonable grounds for believing that the imputation was true;

(2) he took proper steps to verify the accuracy of the material;

(3) he did not believe the imputation to be untrue; and

(4) he sought and published a response from the person defamed except where not

practicable or unnecessary to give the person an opportunity to respond.

The Lange reasonableness test is rigorous due to the breadth of publication possible with a generic

privilege of political information. Consequently, the occasion of qualified privilege may be

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precluded by a "a knock out blow" such as when the publisher "did not take proper steps to verify

the accuracy of the material and did not believe the imputation to be true" (emphasis added).

Lange v. Australian Broadcasting Corporation (1997), 189 C.L.R. 520 at 556, 560-561, 566, 568, 571-574 (H.C.A.) [R.A. Tab 11]; Herald & Weekly Times Ltd. v. Popovic, [2003] VSCA 161, at paras. 95, 197, 221-229 [R.A. Tab 8].

The English Rejection of the Actual Malice Rule in Favour of Honest Belief

91. In Reynolds the House of Lords rejected a generic category of qualified privilege for

publication of "political information" to the world at large, whatever the source and whatever the

circumstances, as too broad by depriving the defamed of recourse other than by the difficult task of

proving that the publisher lacked an honest belief in the statement and too narrow by being confined

to political speech or discussion. Whether an occasion is one of qualified privilege is to be

determined on a case-by-case basis having regard to all of the circumstances and deciding whether

"the publication of particular material was privileged because of its value to the public". The onus

of proof is borne by the defendant who "will know much more of the facts leading up to

publication". The object is to ensure that any interference with freedom of speech is no more than is

necessary to protect reputation in the particular circumstances. The Court cautioned that "freedom

of speech does not embrace freedom to make defamatory statements out of personal spite or without

having a positive belief in their truth". An illustrative and non-exhaustive list of circumstances was

proposed which takes into consideration "the seriousness of the allegation", "the urgency of the

matter", "whether comment was sought from the plaintiff", "whether the article contained the gist of

the plaintiff's side of the story" and the "tone of the article".

Reynolds, supra at 625-626, 627, 630 (Lord Nicholls) and 646-647 (Lord Steyn) [A.A. Tab 43].

92. The occasion of privilege is determined by the test of public interest. Notwithstanding a

purported honest belief in false statements of fact coupled with publication on a matter of public

concern an occasion of qualified privilege may not arise if the indices of "responsible journalism"

are missing in a material respect. In Reynolds the article was wanting based on the difference in the

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presentation of fact between the Irish and English edition and the omission in the latter of a key

explanation by the plaintiff:

"A most telling criticism of the article is the failure to mention Mr. Reynolds' own explanation to the Dail. . .The subject matter was undoubtedly of public concern in this country. However, these serious allegations by the newspaper, presented as statements of fact but shorn of all mention of Mr. Reynolds' considered explanation, were not information the public had a right to know. I agree with the Court of Appeal this was not a publication which should in the public interest be protected by privilege in the absence of proof of malice".

Reynolds, supra at 627 (Lord Nicholls), 637 and 647 (Lord Cooke agreeing), 657 (Lord Hobhouse agreeing) [A.A Tab 43].

93. The Reynolds circumstantial factors illuminate whether the standard of "responsible

journalism" has been met and one or more of the factors may be determinant in a particular case. In

Jameel, Lord Hoffman noted that "in most cases the Reynolds defence will not get off the ground

unless the journalist honestly and reasonably believed that the [defamatory] statement was true"

while Baroness Hale of Richmond noted that "if the publisher does not himself believe the

information to be true he would be well-advised to make this clear" and that "the tone in which the

information is conveyed will be relevant".

Jameel v. Wall Street Journal, [2006] UKHL 44 at paras. 54, 62, 149 [A.A. Tab 23].

Convergence of Commonwealth Approaches in Hill

94. While the Commonwealth countries have offered a range of possible solutions to a common

problem they exhibit an area of convergence. Their approach to the balancing of free expression and

protection of reputation does not involve the actual malice rule; rather, it strikes the balance based

on the flexible concept of "reasonableness/responsible journalism" judiciously applied on a case-by-

case basis and maintaining honesty of belief. Hill anticipated this approach with its statement "those

who publish statements should assume a reasonable level of responsibility". The differences in

approach boil down to whether the "circumstances of publication" permit an occasion of qualified

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privilege to arise (Reynolds--whose approach was likely dictated by the jury finding of no malice,

ie., no abuse of the occasion of privilege) or constitute an abuse of the occasion and defeat it

(Lange). The advantage of the approach is that it allows each jurisdiction to tailor the occasions of

qualified privilege to local imperatives. The approach also preserves some public adjudication of

truth or falsity in cases of public interest which is salutary both in terms of public vindication of

reputation and the compelling importance of the public knowing the truth on a matter of public

interest. It is notable that each of the jurisdictions have, in spite of their differences, wisely accorded

considerable weight to protection of reputation in spite of rights of free expression. This likely

arises from recognition that mass media is concentrated, powerful and prone to excess while the

individual is relatively vulnerable and is often unable to effectively answer personal criticism to

vindicate reputation in the absence of judicial protection. In that respect the emphasis of the

approach on the right of reply is commendable. While the details of "responsibility" remain to be

worked out some indication was provided in Hill and Botiuk where factors similar to the Reynolds

circumstances were discussed, namely, the "seriousness of the allegation", the lack of "urgency to

the matter" and the "tone" of the statement.

Hill, supra at paras. 155-156 [A.A. Tab 19]; Botiuk v. Toronto Free Press Publications Ltd. [1995] 3 S.C.R. 3 at paras. 84, 85, 87, 88 [R.A. Tab 3].

No Change to Outcome in this Case

95. The Commonwealth approaches to the balancing of freedom of expression and protect of

reputation, whether applying Reynolds or Lange (either version), do not compel a different outcome

in this case:

(a) Reynolds and Lange proceed on the basis that the author has an honest belief in the

statement published and complained of. while Mair did not;

(b) the circumstances of the publication of the editorial offend one or more of the

illustrative factors in Reynolds or the test of reasonable conduct in Lange, eg.,

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unnecessary scathing tone as found by the Trial Judge, no urgency to the publication,

no opportunity given to Simpson for response; and

(c) the rationale for the privilege is the "public interest". The Trial Judge's finding that

the editorial was not in the public interest was never challenged by Mair.

PART IV - ORDER SOUGHT CONCERNING COSTS

96. The respondent asks that she be awarded the costs of this appeal as well as costs below.

PART V - ORDER SOUGHT

97. The respondent seeks that the appeal be dismissed.

ALL OF WHICH IS RESPECTFULLY SUBMITTED.

DATED at the City of Vancouver, in the Province of British Columbia, this 13th day of

July, 2007.

_______________________________ Lianne Potter Lianne Potter Law Corporation Solicitor for the Respondent Kari Simpson

Page 40

PART VI - TABLE OF AUTHORITIES

TAB

DESCRIPTION

PARAGRAPHS

A. CASES

Barker v. Montfort Hospital, [2007] ONCA 282

47

Bonnick v. Morris, [2002] 2 W.L.R. 820 (P.C.) (BAILII)

80, 82

Botiuk v. Toronto Free Press Publications Ltd., [1995] 3 S.C.R. 3

94

Branson v. Bower, [2002] QB 737 (Q.B.)

79

Canada v. JTI-Macdonald Corp., 2007 SCC 30 (LexUM)

63

Control Risks Ltd. v. New Library Ltd., [1990] 1 W.L.R. 183 (C.A.)

54

Dun & Bradstreet v. Greenmoss Builders, 472 U.S. 749 (1985)

86

Herald & Weekly Times Ltd. v. Popovic, [2003] VSCA 161

90

Husar Estate v. P. & M. Construction Ltd., [2007] ONCA 191

47

Jones v. Bennett, [1969] S.C.R. 277

33, 81

Lange v. Australian Broadcasting Corporation (1997), 189 C.L.R. 520 (H.C.A.)

90

Lange v. Atkinson (2000), 3 N.Z.L.R. 385 (H.C.)

89

Leenen v. Canadian Broadcasting Corp., [2000] O.J. No. 3435

66

Lewis v. Daily Telegraph Ltd., [1964] A.C. 234

80

Loutchansky v. Times Newspapers Ltd., [2002] QB 783 (C.A.)

73

Lowe v. Associated Newspapers Ltd., [2006] EWHC 320 (Q.B.)

82

Myers v. Canadian Broadcasting Corp., [1999] O.J. No. 4380 (S.C.) (QL), aff'd [2001] O.J. No. 2228 (C.A.) (QL); leave to appeal dismissed [2001] S.C.C.A. No. 433

66, 71

Reference re: Alberta Legislation, [1938] S.C.R. 100

60

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B. SECONDARY SOURCES / OTHER MATERIALS

ARTICLES & TEXTBOOKS

Alderson, Douglas, "The Constitutionalization of Defamation: American and Canadian Approaches to the Constitutional Regulation of Speech" (1993) 15 Advocates Quarterly 385

88

Epstein, Richard "Was New York Times v. Sullivan Wrong?" (1986) 53 U. Chi. L. Rev. 782

70

Gatley on Libel and Slander, 10th ed. (London: Sweet & Maxwell, 2004), pg. 291-292

79

Great Britain, Report on Practice and Procedure in Defamation (London: Lord Chancellors Dept., 1991)

87

Kentridge, Sidney "Freedom of Speech: Is It the Primary Right" (1996) 45 Internat. & Comp. Law Quarterly 253

63

Kohler, David "Forty Years after New York Times v. Sullivan: The Good, the Bad and the Ugly" Oregon Law Review [Vol 83, 2004]

87

Martin, Robert, Essentials of Canadian Law - Media Law, 2nd ed. (Toronto: Irwin Law, 2003), pg. 208-209

71

Tingley, Charles "Reputation, Freedom of Expression and the Tort of Defamation in the United States and Canada: A Deceptive Polarity", (1999) 37 Alta. Law Rev. 620

87, 88

LEGISLATION

British Columbia, Court of Appeal Rules, r.30

47

Defamation Act, C.C.S.M. c. D20, ss. 4, 9, 16, 17

68

Defamation Act, R.S.A. 2000, c. D-7 ss. 4, 9, 15, 16

68

Defamation Act, R.S.N.B. 1973, c. D-5, ss. 4, 8.1, 16, 17; Loi sur la diffamation, L.R.N.B. 1973, ch D-5, art 4, 8.1, 16, 17

68

Defamation Act, R.S.N.L. 1990, c. D-3, ss. 5, 11, 18, 19

68

Defamation Act, R.S.N.S. 1989, c. 122, ss. 5, 21, 22

68

Defamation Act, R.S.N.W.T. 1988, c. D-1 s. 4, 10, 18, 19

68

Page 42

Defamation Act, R.S.P.E.I. 1988, c. D-5, ss.5, 9, 17, 18

68

Defamation Act, R.S.Y. 2002, c. 52, ss. 4, 8, 17, 18

68

Libel and Slander Act, R.S.B.C. 1996, c. 263, ss. 6, 6.1, 7

68

Libel and Slander Act, R.S.O. 1990, c. L.12, ss. 5, 9, 20, 24

68

Libel and Slander Act, R.S.S. 1978, c. L-14, ss. 4, 7, 8, 15

68

Loi sur la presse, L.R.Q., c. P-19, art. 4-7; Press Act, R.S.Q., c. P-19, ss. 4-7

68

New Zealand Bill of Rights Act 1990 (N.Z.), 1990/109, s.14

89