CKNW Editorial
for December 21, 1999

Yesterday was a day where after the show a strange juxtaposition took place. First I met with my lawyer, Dan Burnett, on a Libel suit against me … to discuss the Statement of Defence and my counterclaim for damages for libel on me by the plaintiff. Following that I was interviewed by a writer who is preparing an article for a local magazine on libel chill. He naturally wanted my views on the subject since I’ve had a couple of libel suits and there is this one currently against me.

I think the public of Canada ought to be outraged at the law of defamation which runs counter to that of most if not all common law countries.

In the United States, the rule is quite the opposite of here. There, for a plaintiff, being a public person, to succeed must prove malice before the suit is successful.

Before going further, let’s get this on the table. Free speech is a very costly freedom. Words can hurt and words can do damage. If you don’t want editorialists like me to have a wide latitude and prefer that those in the public eye be shielded, then the Canadian law is for you. If on the other hand you would prefer to see the law err on the side of free speech and openness, you live in the wrong country.

Here is what faces a person like me. Suppose a lady we’ll call Ms X becomes a public figure and a very outspoken one at that. Suppose that she becomes very vocal on moral issues like, say, abortion, gay rights and that sort of thing. And suppose as an editorialist I take issue with this public position and vehemently denounce what I see as gross illiberality and unfair attacks on people who have difficulty defending themselves ... and suppose I say so in no uncertain terms. And suppose Ms X sues.

In the United States Ms X must not only prove that the words used were untrue and harmful but malicious as well. In other words the plaintiff must prove that the defendant not only libeled, caused damage but did so maliciously. The Americans, you see, fought a revolution about the right to speak sharply to and about people of influence.

In Canada it is quite the reverse. The onus is on me to show that the statement made was true or fair comment and it’s for me to prove that there was no malice.

Now here comes the part that puts free speech clearly in issue. Suppose, just for sake of argument, Ms X continues to rouse the rabble with inflammatory attacks on those she considers moral lepers – am I permitted to comment?

The answer is a very guarded yes. Very guarded indeed because if Ms X wins the lawsuit against me she will put in evidence other statements I make subsequently to demonstrate malice and thus enhance a claim for punitive or exemplary damages. Now it’s true that if my subsequent attacks on Ms X are true or justified as fair comment they don’t count against me – or do they? Does the judge or jury not think that perhaps these subsequent attacks, though true or justified, still show that Rafe is malicious towards Ms X?

This is called libel chill and it works because cases take so long to resolve that, assuming Ms X remains in the public eye, there are almost certain to be other circumstances where I would feel bound by my duty to my audience and profession to make comment yet would be concerned that this might be seen as malicious.

I’m very fortunate in that I am contracted to perhaps the stoutest defender of free speech in the country. The advice their lawyer gives me is simple – don’t go out of your way to attack for attacking’s sake but call ‘em as you see them. I intend to take that advice.

Just in order to put it all on the table let me remind listeners that you daren’t say anything that offends a person on racial or similar grounds or you will have one of Canada’s iniquitous Human Rights Tribunals on your tail.

What Canadians must decide is, which side of the line they want the law to be drawn – on the side of free speech meaning that sometimes Public persons might be libeled without recourse or on the side of officialdom and the establishment by making it easy to prove libel because the defendant carries the onus of proving truth or justification and lack of malice.

There’s no mystery why the United States is a more open and democratic society than we are – in the States it’s the media that holds the government’s feet to the fire, not the other way around.

Canada, standing alone in this matter, likes to shield the country’s establishment from anything that might hurt their feelings.