Support Cafe's Appeal Against Warman Libel Judgement
Canadian Association for Free Expression
Ph: 905-274-3868; FAX: 905-278-2413
Paul Fromm, B.Ed, M.A. Director
Dominion Day, July 1, 2008
Dear Free Speech Supporter:
"Paul, on your way here, pick up six
sets of tabs 1-100," said Barbara Kulaszka. I was coming down to her place
to have photocopied, bound and tabbed six sets three whopping books of
exhibits from last year's libel trial; six sets of the three volume transcript,
six copies of our Appeal Book, six copies of our Book of Authorities. The tabs
in question were for the 130 exhibits, which all must be arranged in
chronological order. I had to visit several Office Depots to find enough sets
and, then we had to mark up another six sets of tabs 1-50 to make them 101,
101, etc. Each package of 100 tabs was $21.00. I was nearly $300 poorer by the
time I headed down to her place with tabs, some 65 pound cardboard stock for
covers: red for transcripts, buff for exhibits, white for Authorities. [Colours
are very important to the Ontario Court of Appeals.] I helped in the binding
and tabbing as we hastened to meet the mid June deadline to "perfect"
or complete the filing of documents and arguments for our appeal.
This has been a hectic 10 days. Barbara
Kulaszka has worked 18 hour days "perfecting" or completing our
appeal. On June 16, I delivered the "Certificate of Perfection"
and, oh, yes, parted with $201 "perfection fee." [Silly me, I
thought we paid our onerous taxes to help fund a justice system that we can,
from time to time, access and use.
As you may know, last November 23, we
received the crushing news that Mme Justice Monique Metivier had found CAFE
and myself guilty of defaming chronic human rights complaint filer and litigant
Richard Warman. We'd called him a "censor", an "enemy of free
speech" and the "high priest of censorship" for having filed, by
last count, 25 complaints against people for posting dissident views on the
Internet. We were ordered to pay $30,000 in damages and unspecified
"costs."
Warman told the communist ARA in August,
2005 that he pursues a policy of "maximum disruption" -- lawsuits,
human rights complaints, criminal complaints, approaches to people's Internet
service providers, letters to employers -- to try to "shut down the
neo-Nazis by (almost) any means necessary." It's war. His SLAPP suit
against CAFE and myself was meant to silence us and/or ruin us financially.
I consulted Doug Christie my lawyer for
the closing arguments of the case and we immediately filed Notice of Appeal.
Not only was the judgement harsh, it was slipshod and seemed to ignore the
"fair comment" defence. You see, in Canadian libel law,
"fair" comment doesn't necessarily mean "nice" or even
balanced comment. It needs only be the speaker's sincere opinion and based on
facts. The facts were that Richard Warman, in 2003, worked for the Canadian
Human Rights Commission. He had already filed a number of complaints under Sec.
13 about people's Internet postings; he'd sought to get Tom Winnicki and Fred
Kyburz’s ISP's to shut them down. He'd sought to have halls cancel Tom
Kennedy and David Icke's meetings. This was a matter of public interest.
CAFE's mandate is to seek the maximum application of free speech in our
society. Warman's activities were clearly a threat to these freedoms.
I wrote a number of e-mail postings. Usually, I'd reproduce a newspaper article
entirely and make some comments.
Clearly Warman, as is his habit, was
infuriated by any criticism or opposition. Threats of lawsuits soon followed.
Really nothing has changed. He's now suing Freedominion.ca, a conservative
website, as well as lawyer Ezra Levant and a number of conservative bloggers
for criticizing him . With the various law firms he's employing, Warman must
either be wealthier that a banker or have some special backers. He's using the
costly downtown
My
defence team is confident. Barbara Kulaszka, who cut her
teeth on the second Zundel trial, is not given to wild bursts of enthusiasm or
"rah, rah" predictions of victory. However, she sees Madam
Justice Metivier's ruling as having -- to be nice and lawyerly about it
--seriously misread and misapplied the law. "We're going to win," she
told me in her quiet scholarly way;
Here are some gems from our Factum (or
appeal argument: "The comments of Fromm
all related to Warman's activities on free speech and the concern that the
impartiality of the CHRC was being damaged by his activities. These activities
were of public interest, proven by the numerous newspaper articles about
Warman's activities, a TV documentary and invitations to speak on panels about
hate on the Internet and various other speeches on the same topic."
"The
relevant fact is that Fromm honestly believes that Warman's activities are
profoundly threatening to freedom of speech (and he is not the only one who
believes this, as recent events have proved). Fromm believes that such
suppression of speech, however legal it may be, remains dangerous to freedom
and as spokesman for CAFÉ, he was alerting and informing Canadians to this
threat. It is respectfully submitted that Madam Justice Metivier erred in
denying the appellants' attempted use of the fair comment defence because she
ignored the relevant precedents and preferred to limit the appellants' defence
to what she personally considered reasonable comment, not "fair
comment" as the law defines it."
The
political climate has changed since Metivier dashed off her
judgement early last Fall. We've had nearly seven months of mounting media
outrage at Sec. 13 of the Canadian Human Right Act. Editorialists, from the
conservative National Post
to the liberal Toronto Star,
have called for the abolition of Sec. 13. There's a drumbeat of animosity
toward human rights commission meddlers and censors. Marc Lemire's
constitutional challenge, in which CAFE is a key "interested party"
and player has exposed a cesspool of CHRC dirty tricks -- widespread use by the
commission and its complainants like Warman of fake names to post racist and
inflammatory comments on the very sites they're complaining about. The Commission's
private sector lawyer Margot Blight has admitted that, up until being hauled
into federal Court by Marc Lemire, the Commission simply ignored its legal
obligation to disclose CHRC spying on its victims. Our efforts have led to an
RCMP and a Privacy Commission investigation into the CHRC's hijacking of an
innocent woman's Internet connection in order to hide some of the Commission's
dirty tricks. And, oh yes, Richard Warman was there when it was done. No wonder the destruction of CAFE is so high on Mr.
Warman's agenda. Now, its the CHRC's behaviour, not the views of
Internet posters that is being scrutinized.
Human
Rights Commissions are deservedly covered with shame . In this
climate, we are hopeful that Madam Justice Metivier's judgement will be
overturned and that hefty costs will be assessed against Warman.
Quite
frankly this is not a battle either CAFE or I can afford to lose.
You've helped me before in the long legal battle with Richard Warman going back
to 2003. I need your help again. In the past year, CAFE has faced legal fees of
$25,000. Just to obtain copies of the transcript cost us a further $2,000.
Then, of course, there's the endless photocopying and other costs.
This is
a battle we can win. This is a battle we must win. Please send your
most generous donation to help us win. In addition to my thanks, I'll be
sending all donors a copy of Miss Kulaszka sharply reasoned and powerful
appeal.
Yours for the flickering flame of free
speech,
Paul
Fromm
CAFE,
__ Here's
my special donation of _____ to help CAFE defend itself against the Warman
libel suit.
__ Here
is my special commitment to help Marc Lemire's Constitutional challenge
________.
__ Please send me a "Hands of the Internet"
tee-shirt. [Black on white]. Sizes: S, M, L,
XL, 2-XL. $20.00
__ Please send me a copy of In Defence of Freedom: Marc Lemire vs. The Canadian
"Human Rights" Enforcers -- book. $10.00
__ Please
renew my subscription for 2008 to the Free Speech Monitor ($15).
Please charge ______ to my
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SUPREME COURT: WHEN EXTRAVAGANT OVERSTATEMENT IS COMMON
9-0 ruling modernizes defence of fair comment
Controversial radio host Mair didn't defame
Christian-values advocate on book-banning, court says, setting terms for
'honest belief'
KIRK
MAKIN
JUSTICE
REPORTER
June
28, 2008
The
media should not live in constant fear of facing a libel suit every time a
provocative commentary is published or broadcast, the Supreme Court of Canada
said yesterday in a major ruling won by controversial
In a
9-0 decision that modernizes the defence of fair comment, the court found that
Mr. Mair did not defame Christian-values advocate Kari Simpson when he
denounced her stand on a book-banning controversy.
"An
individual's reputation is not to be treated as regrettable but unavoidable
roadkill on the highway of public controversy, but nor should an overly
solicitous regard for personal reputation be permitted to 'chill' freewheeling
debate on matters of public interest," Mr. Justice Ian Binnie said.
Judge
Binnie said that the key to a defence of honest belief - particularly in an era
when extravagant overstatement is common - should lie in whether an honest
person could have held the same opinion.
"We
live in a free country, where people have as much right to express outrageous
and ridiculous opinions as moderate ones," Judge Binnie said. "In
much modern media, personalities such as Rafe Mair are as much entertainers as
journalists."
Brian
MacLeod Rogers, a lawyer who represented a coalition of media organizations in the
appeal, said that the ruling "clarifies and strengthens a defence that had
fallen into murky depths and had become too unreliable to be counted on when
most needed."
Mr.
Mair, a former Social Credit cabinet minister, made his controversial comments
during an Oct. 25, 1999, broadcast on radio station CKNW. Using provocative
images of Nazi Germany and the Ku Klux Klan, Mr. Mair took issue with Ms.
Simpson's public support of a
Mr.
Mair said that Ms. Simpson's views on the book banning, "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
Ms.
Simpson alleged that the commentary was tantamount to saying she would condone
violence against gay people.
Judge
Binnie said yesterday the media "regularly match up assailants who attack
each other on a set topic. The audience understands that the combatants, like
lawyers or a devil's advocate, are arguing a brief.
"Of
course, the law must accommodate commentators such as the satirist or the
cartoonist who seizes on a point of view, which may be quite peripheral to the
public debate, and blows it into an outlandish caricature for public
edification or merriment," he said. "Their function is not so much to
advance public debate, as it is to exercise a democratic right to poke fun at
those who huff and puff in the public arena. This is well understood by the
public to be their function."
Judge
Binnie expressed a concern that issues of public interest could go unreported
"because publishers fear the ballooning cost and disruption of defending a
defamation action. ... Public controversy can be a rough trade, and the law
needs to accommodate its requirements."
The
legal tests the court set out to determine "honest belief" include:
The
comment must be on a matter of public interest.
It
must be based on fact.
Although
it can include inferences of fact, the comment must be recognizable as comment.
It
must be capable of satisfying the question: Could any person honestly express
that opinion on the proved facts?