I hear the SCC call, inter alia…the Lying Jackal and Lucy

Louise
#1. June 28th, 2008, at 3:04 AM.

Sounds like a great wedding gift for Kathy Shaidle!!

WL Mackenzie Redux
#2. June 28th, 2008, at 5:20 AM.

The court just demanded that litigious axe grinders and sensitivity profiteers grow a thicker hide.

Kathy Shaidle
#3. June 28th, 2008, at 7:56 AM.

Not only that: we were quoting a public document word for word, i.e., the transcript of an HRC hearing (a hearing paid for by our tax dollars btw) in which a man recognized as a computer expert by the tribunal itself testified under oath about the authorship of the Anne Cools post.

Were I to blog excepts of damning expert testimony from transcripts from the OJ trial, OJ may not like it very much, but I don’t see how he’d have much of a right to complain, let alone sue.

truewest
#4. June 28th, 2008, at 7:58 AM.

Jay, Jay, Jay,
If you want to be a lawyer, go to law school. If you want to pretend to be a lawyer, pretend in some area other than defamation law, which is a notoriously vexed and technical area of the law.
You’ve managed to get this almost entirely wrong. As follows
1) This decision does NOT take Canadian defamation law into Sullivan territory. Under Sullivan, which applies in the US, statements about public figures are protected by qualified privilege, which means that you can get your facts wrong, as long as you don’t do so maliciously - i.e. intentionally or with reckless disregard for the truth.
This decision is about fair comment, which protects expressions of opinion, and, in particular, the question of whether the defendant must have an honest belief in the defamatory opinion. The honest belief requirement produced some perverse results, most notably in Cherneskey v. Armadale Publishers Ltd, in which a newspaper was found liable for defamatory statements in a letter to the editor because, at trial, the editor who decided to print admitted he didn’t share the views of the letter writer.
2) Rothstein would have done away with the requirement entirely, but that’s not the view of the majority. Rather, it made the honest belief test objective; could a person hold this view based on the true facts presented by the speaker or known to the audience? This change allows speakers to, for example, play the devils advocate, to engage in the give and take of debate without fear of facing a defamation case in which the contradictions and inconsistencies in their opinions becomes an issue. In adopting this position, the court endorsed the dissenting view of Justice Brian Dickson in Cherneskey. This is, of course, the same Brian Dickson who, as Chief Justice, wrote the majority opinion in Taylor.
3) This is NOT good news for the Slanderous Six. Despite your attempt to soft-sell what the case is about, the central complaint is of Warman’s suit is that the defendants stated, falsely, that he had made the Cools post. This was not speculation that he might have done so, based on past practice. It was not an opinion that he was likely to have done it, because he’d done stuff before. In all cases, it was a bald statement of fact that he did do it, one that offered as proof a jerry-rigged chart created by a neo-Nazi techno-geek. Fair comment doesn’t help them here.

The one person it may help is Merle Terlesky, who is defending a SLAPP suit filed by noted libel warrior Ezra Levant. Terlesky’s observation that Levant liked to poke Muslims in the eye and that the Western Standard might have fared better if Ezra hadn’t spent his time swanning about, promoting the Ezra brand, would seem to fall squarely within the more robust fair comment defence.
Of course, it order to avail yourself of the defence, you have to be able to afford to fight it out in court. And for all the whining about the human rights tribunals and the “process being the punishment” it is far more expensive to defend a defamation claim than ti fight a human rights complaint. Deep pockets don’t prevail every time, but if you’ve got shallow pockets, you’re going to have a hard time staying in the game.

WL Mackenzie Redux
#5. June 28th, 2008, at 4:26 PM.

” Of course “chilling” false and defamatory speech is not a bad thing in itself, but chilling debate on matters of legitimate public interest raises issues of inappropriate censorship and self-censorship. Public controversy can be a rough trade, and the law needs to accommodate its requirements.”

Reltively clear message there from the bench eliciting judicial tolerance and “acommodation” of potentially offensive controversial publishing…seems like a win for freedom of expression to me despite all the obfuscating baffle gab.

As always you can’t lie or tell falsehoods and expect to escape defamation…but fair comment and critical publishing are confirmed as being on the constitutionally protected menu.

WIC . v. Simpson is a landmark ruling for free expression.

Terry Glavin
#6. June 29th, 2008, at 6:33 PM.

I don’t know if your analysis is right, but this:

“We no longer live in the world of “gentlemen’s clubs” or regimental messes where, to write an NSF cheque got you a room with a table and a gun in the drawer.”

. . . is one of the best sentences I’ve read anywhere all week.

Just saying.

Merle
#7. July 6th, 2008, at 8:52 PM.

Thank you truewest! money is indeed a problem as I am indebt now for $5000.00+ and who know where it will end.

merlet@shaw.ca