The Defence of Fair Comment and the Denigration of “Old Wisdom” in Simpson v Mair

“When there is a sea of change in the accepted wisdom of society,” confided Madame Justice Southin of the British Columbia Court of Appeal (“BCCA”) in the opening paragraph of Simpson v Mair and WIC Radio Ltd, 2006 BCCA 287 [Simpson], “those who have adhered to the attitudes of the past, what I call the ‘old wisdom, ‘in a very short space of time may find themselves denigrated by adherents of the new wisdom.” In Simpson, Southin J.A. relies on both deft historical analysis (showcasing her vast knowledge of both the history of Jim Crow America and Interwar Germany), and dramatic prose (see above quotation), to imbue the reader with a sense of the inherently contextual nature of defamatory comments. However, Southin J.A.’s opinion represents a considerable narrowing of the defence of fair comment to the tort of defamation, one with the potential to create a chill in journalistic freedom of expression, unless, that is, the Supreme Court of Canada takes issue with the BCCA’s finding in Simpson when it hears the case this December.

The champion of the “old wisdom” in Southin J.A.’s narrative is Kari Simpson of the Citizens Research Institute Society. Ms. Simpson was a major figure in a coalition opposed to the teaching of ‘gay lifestyle’ in B.C. public schools. For her steadfast opposition to homosexuality in public schools, Ms. Simpson caught the ire of Rafe Mair, “denigrating” member of the “new wisdom.” He made the following remarks about Ms. Simpson on his own radio show, “The Rafe Mair Program” on 25 October, 1999:

I really hate to give Kari Simpson any more publicity, something she soaks up like a blotter, but she’s become such a menace I really think something must be said. … 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 … Whether she realizes it or not, Kari has by her actions placed herself alongside skinheads and the Klu Klux Klan. … Kari Simpson is thank God permitted in our society to say exactly what she wishes, but the other side of the free speech coin is a public decent enough to know a mean-spirited, power mad, rabble rousing and, yes, dangerous bigot when they see one.

Less then a month after Mr. Mair’s comments aired, Ms. Simpson brought an action, alleging that Mr. Mair’s statements were “false and malicious.” Ms. Simpson alleged that Mr. Mair had made several defamatory imputations, most notably that Ms. Simpson had a general hatred, and was apt to cause harm to gay people.

At trial there was little debate as to whether or not Mr. Mair’s statements constituted defamation. More contentious however, was whether they were they could be saved by one of the accepted defences to defamation. In his statement of defence, Mr. Mair argued three such defences. First and foremost, he claimed fair comment; Mr. Mair submitted that the impugned comments related to a matter of public interest, (namely intolerance of homosexual lifestyle), that they were made in good faith, and that they were based upon true facts. Mr. Mair also claimed the defence of qualified privilege, arguing that his comments arose from a “legitimate common duty and interest between Mair and his listeners in providing and receiving information and opinions about tolerance of homosexual lifestyles and in answering and discussing public statements by the Plaintiff on the subject.” Finally, Mr. Mair advanced a Charter argument, positing that the impugned commentary was protected under s. 2(b) of the Charter of Rights and Freedoms, and as such, that any law imposing tort liability thereon was of no force or effect unless it placed the burden on the Plaintiff to prove that Mr. Mair’s comments were false, caused damage, and was either malicious or negligent.

At trial, it was the fair comment defence that came to Mr. Mair’s rescue. Koenigsberg J. concluded that Mr. Mair’s comments constituted fair comment, because they satisfied the three essential elements to a fair comment defence, namely (1) that the impugned words be comments as opposed to facts, (2) that they be based upon facts that are proven to be true, and (3) that they concern a matter of public interest. (Simpson v Mair and WIC Radio Ltd., 2004 BCSC 754).

On appeal however, Southin J.A. found that Mr. Mair’s comments failed to satisfy the factual component of fair comment. She found instead that the comments disclosed an implication – that Ms. Simpson would condone violence against homosexuals – that lacked the evidentiary foundation necessary to required for a fair comment defence. Put differently, since Mr. Mair did not believe that Ms. Simpson would condone violence (a contention that Koenigsberg J. had attributed to Mr. Mair’s comments at trial) a fair comment defence was not available. As such, by drawing the comparison between Ms. Simpson and the likes of Adolf Hitler, the Klu Klux Klan, and southern U.S. governors such as George Wallance and Orville Faubus, all of whom not only preached hatred but incited violence, Southin J.A. found that Mr. Mair went beyond the pale of fair comment.

Leaving aside the issue of whether or not Mr. Mair’s comments were in good taste (which is irrelevant vis a vis the defence of fair comment), I find the dismissal of the fair comment defence in Simpson troubling for two reasons. First, on each occasion that Mr. Mair drew a comparison between Ms. Simpson and an infamous historical figure or movement in the impugned radio broadcast, he was quick to qualify his characterizations, expressly stating that he was not suggesting that Ms. Simpson was herself condoning violence against homosexuals. After drawing the comparison between Ms. Simpson and the Klu Klux Klan for example, Mr. Mair tempered his comments in the following way:

I’m not talking [about] the violent aspects of those groups but the philosophical parallels to other examples of intolerance.

Although Mr. Mair is, (in my opinion) guilty of sloppy journalism, by repeatedly asserting that his comparisons did not extend to the issue of violence, he expressly omitted any imputation that Ms. Simpson condoned violence against homosexuals, a detail that that the BCCA appears to have overlooked.

More significantly, the appellate court decision marginalizes the defence of fair comment. Not only do defendants in defamation suits wishing to invoke fair comment need to demonstrate an honest belief in the meaning of their comments, they now need to demonstrate honest belief in the meaning of their comments as apprehended by the trier of fact. They are therefore subject to the whim of the trier of fact’s interpretation, however dissimilar such an interpretation may be from their own.

The practical effect of this is that members of the media wishing to make contentious statements are now more likely to take pause and consider whether what they say or write will be construed as defamatory. Accordingly, Simpson, if upheld by the Supreme Court of Canada will likely produce a chill in journalistic freedom of expression, one of the hallmarks of a well-functioning democracy.