Post by Gerrald ArnasenPost by harry.maxtor.von.stienPost by Chom NoamskyYou are so fucking gullable. Women cannot possibly be manipulative
psychopaths, can they?
Ever heard of Aileen Wuornos?
Tell it to the jury.
They like you and this jury except the fact that women's violence on men is
ok, as do governments who fund women's groups to promote violence on men and
children you shrill.
Still going on with that SOW case are you??
Kent you know nothing about it you failed embezzler or what was said about
the judgement, that the judge made, the fact is it was all based on feminazi
opinions and slander they used, that wasn't fact and that is what they use
to get the public's tax monies for funding off the government, for these
criminal feminist groups, who use false and misleading lies to put forth
laws in Canada, just as you are still a fucking dimwitted shrill and have no
clue about anything. Go back to trying to be a failed embezzler .
The case outcome was that there
Post by Gerrald Arnasenwas a statement that was over the top by them, but the judge stated that
Wiebe's statements on his fathers bc website were just as bad or worse too.
Here the case and judgement you kook.
IN THE SUPREME COURT OF BRITISH COLUMBIA
Citation: Wiebe v. Bouchard ,
2008 BCSC 249
Date: 20080311
Docket: 04-1156
Registry: Victoria
Between:
Ken Wiebe
Plaintiff
And
Pierrette Bouchard, Isabel Boily, Marie-Claude Proulx, Her Majesty The Queen
In The Right of Canada, and The Minister Responsible for the Status of Women
Canada
Defendants
Before: The Honourable Mr. Justice Nathan Smith
Reasons for Judgment
Counsel for the plaintiff D. H. Christie
Counsel for the defendants Pierrette Bouchard, Isabelle Boily and
Marie-Claude Proulx D. A. Gooderham
Counsel for Her Majesty The Queen In The Right of Canada and The
Minister Responsible For The Status of Women Canada S. Gaudet and
R. J. Danay
Date and Place of Trial: April 23-27, April 30-May 4, 2007 &
January 28 & 31, 2008
Victoria, B.C.
[1] The plaintiff is the creator of a website called B.C.
Fathers, which he says is intended to provide information and peer support
for fathers involved in child custody disputes. A research paper published
by a federal government agency used an image taken from the plaintiff's
website as an example of internet "hate messages." The plaintiff sues the
authors and the federal Crown for defamation. The defendants rely primarily
on the defence of fair comment, although they also raise defences of
justification and qualified privilege.
The Plaintiff's Website
[2] The plaintiff is a computer consultant who works for
companies and government departments on a contract basis. In the late
1990s, he created the "B.C. Fathers" website, which includes material the
plaintiff wrote or contributed to, as well as material taken from other
sources. Its home page states that, among other things, it is "a resource
for fathers who have had their children taken without just cause." The home
page also says "The Canadian Courts enforce the separation of fathers and
children to everyone's great loss, except feminists, politicians and
lawyers."
[3] At least some of the items on the website can fairly be
described as stridently anti-feminist. The plaintiff testified that he is
not opposed to feminism as such, but is critical of what he calls the "more
extreme" feminist view. However, not all of the material on the website
makes that distinction. One article refers to "feminist myths and tricks."
A portion of that article refers to men who express agreement with feminists
and says "You're far from the first man to sell out their own."
[4] The plaintiff said fathers unjustly separated from
children express anger and that anger is reflected on the website. An
example of that anger can be found on another website that is linked to the
B.C. Fathers site. This site publishes a letter from a woman protesting
that the site supports "deadbeat dads," and referred to her own difficulties
in collecting child support. In response, a writer identified as "Dick
Freeman" says:
"Get a job. Get a life. Get off your ex-husband's back, he isn't your
(expletive deleted) slave and he doesn't "owe" you a damn thing. If you can
't handle the kid(s) then give them back to him. You pay him the court
ordered support and see how you bloody like it. "
The plaintiff said that "Dick Freeman" is a pen name and that he is one of
three people who sometimes write under it.
The Defendants' Publication
[5] The alleged defamation is contained in a lengthy document
that contains only two direct references to the plaintiff or his website.
It is therefore necessary to set out the context at some length before the
describing the alleged defamation.
[6] The document at issue is called "School Success by
Gender: A Catalyst for Masculinist Discourse." It is dated March, 2003, but
was not actually released until May of that year. The defendant, Pierrette
Bouchard, was the lead author of the document and for convenience I will
sometimes refer to it as "the Bouchard report." The defendants Isabelle
Boily and Marie-Claude Proulx were research assistants whose names appear as
co-authors. The Bouchard report was the result of a research project funded
by Status of Women Canada (SWC), which also published and distributed it.
SWC is a federal government agency whose function at the time included the
funding and publication of research on issues related to gender equality.
[7] In September, 1999, SWC's policy research fund issued a
call for proposals for research on two themes, one of which was "Where Have
All the Women Gone? Shifts in Policy Discourse." At the time, Dr. Bouchard
was a professor in the faculty of science of education and the head of a
research section at Laval University in Quebec. In response to SWC's call
for proposals, she submitted a proposal to study public and media discussion
of alleged poor school performance by boys, as opposed to girls. In her
proposal, she said she expected the study to "help reveal a reactionary
ideology designed to attack gains by women and to discredit feminism." Dr.
Bouchard testified that she had done previous research on the comparative
academic achievements of boys and girls and, in the course of that research,
formed the view that the issue was not being accurately reported in the
media.
[8] SWC accepted Dr. Bouchard's proposal after review by an
external advisory board and Dr. Bouchard entered into a contract giving SWC
the right of first publication of her report. The Bouchard report was in
fact published in both English and French, in hard copy and by posting on
the SWC website.
[9] The English version of the Bouchard report is 145 pages
long, including appendices and footnotes. The first reference to the
plaintiff's website appears at page 69. The only other reference to the
website is in an appendix that lists a number of organizations. That list
also contains the report's only reference to the plaintiff by name.
However, the plaintiff says that because he was identified in that way, a
number of other, more general statements must be read as referring to him.
[10] The Bouchard report analyzes discussion in the media about
comparative school performance of boys and girls. It says that, during the
1990s, much of this media discussion came to focus less on the girls'
success and more on boys' "malaise." That discussion, according to the
report, then began to include more criticism of women and feminism. The
report states in its introduction:
Toward the middle of the decade we begin to see in the media discourses that
cast suspicion on female elementary school teachers, single mothers and
feminists, blaming them for the problems experienced by boys. A key
element seen in this period is the emergence of a victimization theme, in
which boys are portrayed as being discriminated against by an educational
system that has become a feminist environment. More space is given to
experts who support this thesis, including some for other countries.
Co-educational schools are challenged and, toward the end of the decade, we
see systematic links established to male suicide rate, boys on Ritalin,
fathers gaining custody of their children, the suffering of male abusers,
the loss of male identity, false allegations of violence against men etc.
[11] The report says that this discussion is being driven by a
"masculinist lobby" that threatens to "overturn policies that protect women'
s rights." The term "masculinist" is defined first in a footnote referring
to the work of another Quebec writer without quoting the definition, then in
another footnote that refers to "groups that defend men, as a social group,
in different spheres of life". In the body of the report, "masculinism" is
defined as "the equivalent of feminism, as a social movement that pretends
to speak on behalf of all men."
[12] The initial focus of the Bouchard report was on 612
newspaper and magazine articles published in Canada and elsewhere between
1990 and 2000. However, the research was later expanded to include internet
sites operated by "masculinist" groups. The report cites various arguments
and proposals advanced as part of the "masculinist discourse" and includes
this comment:
For masculinists, who of course claim to speak for all men, women are
primarily responsible for making men feel inferior.But even worse than
"women" are feminists, whom masculinists ruthlessly attack. In particular,
they denounce the "plot" that feminists, working in complicity with
governments, judges, police officers and the media, have supposedly hatched
against fathers and men accused of violence.
[13] A subsequent section of the report sets out a "typology of
masculinist groups" that "are increasingly forming national and
international networks and feeding journalists information." These groups
are categorized as follows:
· Men's Rights Groups, who argue that women have attained an equal
position in society and hold more power than men in certain circumstances.
These groups are said to focus on such issues as fathers' rights in divorce
and custody cases and opposition to equal opportunity programs. "The most
conservative groups accuse feminists of being dictators ('feminazis')."
· Pro-Feminist Groups, which generally support women's causes and
highlight "the plurality of masculinities," but "overestimate the change
that can be achieved by individual decisions arising from growing awareness,
and consequently underestimate the strength of structures and traditions."
· Masculinist Therapy Groups, which deal with "men as individuals
and their relationship to masculinity" and which hold a variety of retreats,
workshops and discussion groups for men.
· Conservative Groups, which argue for traditional social roles for
men and women and emphasize the importance of the traditional family.
[14] After setting out this categorization, the Bouchard report
states that the authors had prepared a list of "masculinist groups
(excluding pro-feminists)" on the internet, along with their organizers.
This list of more than 80 organizations is set out in an appendix II. The
first organization listed is "B.C. Fathers" and the plaintiff is named as
the creator of the B.C. Fathers website.
[15] It should be noted here that there is no evidence the
plaintiff's name appears on the B.C. Fathers website, although it does
appear on the linked "Dick Freeman" site, where the plaintiff is identified
as the B.C. Fathers webmaster. The B.C. Fathers website also states that it
is hosted by Continuum Consulting Inc., which is a company operated by the
plaintiff. Dr. Bouchard said she learned the plaintiff's name from a list
of men's organizations obtained from another source. That list refers to
B.C. Fathers and gives the plaintiff's name.
[16] After stating that the authors had prepared a list of
"masculinists" groups, the Bouchard report discusses internet sites, where
the authors say they found "an often hateful, violent and unrestrained
discourse against feminists and women." Three examples are given, including
one identified as coming from the plaintiff's website. After giving these
examples, the report discusses the Criminal Code sections dealing with
harassment and hate propaganda and their relationship to the Charter of
Rights.
[17] The next chapter consists of a response to some of the
claims made by masculinists, suggesting many of the arguments are
unsupported by evidence or ignore other data. At page 75 of the report, it
states:
Although masculinists compare themselves to their female counterparts, they
usually fail to provide relevant data about women's real situation. At
best, some related data (frequently inaccurate or incomplete) are used to
show how hard done by men are; at worst, women's living conditions are
passed over in total silence. Either way, the outcome is the same: the
question of power relationships exercised at the expense of women is
ignored.
The conclusion of the report states, in part at page 88:
This movement offers a different interpretation of relationships between the
sexes, specifically a stubborn denial that girls or women are victims of
discrimination, as a social group, by men. Masculinists are in the process
of building a discourse to show that indeed it is now men, or in this case
boys, who are victims of a school system that has become a feminized
environment.and maintain that feminism is responsible for this situation.
The authors then make a number of recommendations, including monitoring of
internet sites and amendments to the criminal code to deal with hate
propaganda against women.
The Alleged Defamination
[18] As said above, the Bouchard report states on page 68 that
the authors prepared a list of masculinist associations and refers the
reader to an appendix listing these associations. The plaintiff and his
website are the first named on that list. The Bouchard report's reference
to the list of masculinist organization is immediately followed by a
discussion of internet sites: (In all of the following excerpts, the words
and phrases underlined are the ones specifically quoted and alleged to be
defamatory in the Statement of Claim.)
A more thorough examination of the groups feeding the media discourse
revealed an extensive Internet network. Using the resources provided on
these sites, we found a disturbing, even threatening reality involving the
expression of an often hateful, violent and unrestrained discourse against
feminists and women. Far from being an isolated case, this second-level, or
perhaps "underground" discourse focuses on the same problems as those
mentioned in the media (especially regarding fathers' rights), but without
any modicum of restraint. None of the groups state on their Web pages that
they do not wish to be associated or confused with any specific group of the
same type.
Hate-Mongering
Some masculinist groups use the Internet as a vehicle for hate-mongering
against feminists. This accessible and virtually universal medium gives
them the opportunity to say and post almost anything. It is no accident
that this medium is being used by those on the extreme right, pedophiles and
pornographers. It lets them both hide and be found easily. While it is
easy to find information on the Internet, it is just as easy to disseminate
information, whether it is true or not. Some sites contain not just
information but defamatory comments and propaganda inciting fear and hatred.
Other sites maintained by men's groups display direct threats to feminists
and their allies and contain vicious comments.
[19] Beginning at page 69, the report then gives three examples
of what are stated to be hate messages on the internet. The first of these
examples reproduces an image that is identified as coming from the B.C.
Fathers site. This image, which is reproduced in the report and which the
plaintiff agrees appeared on his site, consists of a reproduction of the
swastika flag of Nazi Germany, with the four branches of the swastika
altered so that each resembles the letter F. Below that is a photograph of
a baby whose hand appears to be raised in a familiar obscene gesture
involving the middle finger. The words "Get the hint?" have been added to
the photograph and, below the photograph is the caption: "We are all tired
of feminazism. So stop it, okay?" In case my description is unclear, I
have reproduced the image as it appeared in the report and it is attached to
this judgment as Appendix A.
[20] The reproduction of this image in the repot is accompanied
by the following:
We found this picture on the "BC Fathers" site. It combines images of
extreme violence (the swastika, SS symbol synonymous with supremacy and
racism, transformed so the ``F`` of feminism catches your attention, and a
picture of a baby who is supposed to be making a threatening comment) with
the play on the words ``feminism`` and ``Nazism`` and the hateful, angry
raised-finger gesture. The whole picture is a very strong symbolic
accusation of mothers. This is a father-oriented site, and the decision to
use a young child was not a neutral choice.
This picture suggests the possible breakdown of the mother-child
relationship. It is a barely veiled threat by the authors of the site.
Reproduction and family issues are central to this propaganda. The message
below the picture-"we are all tried of feminazism. So stop it, Okay"--is
prescriptive and authoritarian. In effect, the authors of the message are
claiming to speak for everyone (``all``) except for feminists or
pro-feminists. There is no ambiguity in the wording and no question of
discussion or objection; the message simply tells feminists to "stop it."
[21] The plaintiff is not referred to by name in that passage,
but is identified in the appendix as the creator of the B.C. Fathers
website. In addition to being defamatory in itself, the plaintiff says his
identification in that way would lead a reasonable reader to connect him
with other statements in the Bouchard report that do not refer to him
directly. These other statements appear as follows.
· An abstract, at the beginning of the Bouchard report, includes a
statement that there is ``a need to ensure closer monitoring of
hate-mongering sites to determine whether legal action should be taken.``
· In an executive summary, the report refers to an ideology that
aims to challenge gains made by women and discredit feminism. It states
that his ideology is mainly spread through the print media and internet
sites of men's associations and that ``some statements also incite hatred
and violence.`` The executive summary refers to a number of
recommendations contained in the report, including a recommendation that
"consideration be given to whether legal action can be taken under s. 319 of
the Criminal Code" (the hate propaganda section).
· Page three of the report, as part of the introduction, refers to
an extensive network using the internet and says: "We have found a discourse
of hate, often violent and unchecked, directed at women and feminists." The
report states that this "underground discourse" operates without any of the
restraint shown in other media, adding: "This is one of the peculiar
features of the internet; it enables extremists, racists, supremacists,
heterosexists, misogynists and other individuals and groups from the right
and extreme right to openly espouse their positions without restriction."
· Page 7, in a section discussing international economic forces that
have led to a feeling of insecurity in segments of the population, states:
"One American researcher (McCarthy,1998, cited in Lingard and Douglas, 1999)
suggests that his economic insecurity may produce "a resentment politic" in
the male population and promote a resurgence of the right wing, racism and
various anti-feminist groups."
· Page 18, near the end of a section discussing research
methodology, says: "After presenting our research findings, we offer
readers our thoughts on the form of violence that amounts to "hate
mongering" and on attacks against women and feminism." That is followed
immediately by a paragraph headed "Internet Research," which begins with the
statement: "Our analysis revealed a number of men's groups behind the
stands taken; either the authors were members of these groups or journalists
gave them visibility by covering some of their activities. We wanted to
find out more about these groups by searching on the Internet."
· At pages 72 and 73, the report discusses section 319 of the
Criminal Code, which makes it an offence to incite hatred against an
identifiable group. It notes that the Criminal Code's definition of
"identifiable group" referred at the time to a section of the public
distinguished by colour, race, religion or ethnic origin, adding that: "If
the Anti-Terrorism Bill is enacted, the list of distinguishing
characteristics will be expanded to include sexual orientation, sex, age and
physical or mental deficiencies."
· The report contains 15, specific recommendations. Recommendation
number four, at page 92, is:
In light of the growing use of the internet by masculinist groups to develop
misogynist sites inciting violence and the growing number of discussion
groups used to promote hatred of women, we suggest that a monitoring
organization be established, similar to Hate Watch, but focussed [sic]
solely on gender social relations. It would be useful to maintain, publish,
disseminate and update a list of misogynist groups.
· Recommendation number 8 says:
Along the same lines, studies should be carried out to put together files
concerning section 319 of the Criminal Code. Mechanisms must also be
developed to ensure the safety of those who publicly denounce hate messages
against women, specifically action against electronic mail harassment
practices, defamation and infringement of privacy through Internet sites.
Since such action is limited to protecting an identifiable group within the
meaning of s. 318 of the Criminal Code.and this section does not provide for
the fact that a group distinguished by gender, such as women, may be subject
to hate propaganda, we recommend that s. 318 be amended to include women
among the segments of the public distinguished by sex in the definition of
"identifiable group."
· Recommendation number 14 at page 93 says:
Many women and women's groups may experience repercussions from the
propaganda of the masculinist discourse, whether in terms of grants to
maintain existing resources or create new ones, increased violence against
women and the consequent need to accommodate more women, access to public
resources, employment equity, possible discrimination in the application of
legislation and the creation of new bills, or in terms of the education of
girls at risk-completely overlooked-and guilt trips laid on those who
succeed etc. We suggest that support be given to establishing a monitoring
and awareness network (an observatory centre) among people and groups
targeted by these discourses, notably gays and lesbians, who are victims of
the same hate propaganda. This network could also be responsible for
gaining a better understanding of how masculinist groups are influencing
policy makers, in order to make them aware of the limitations and
shortcomings of these discourses. All policies, measures, programs or
legislation related to equal opportunity should be monitored.
[22] The plaintiff alleges that the effect of all of these
statements is to identify him as a hatemonger and a danger to women, to
associate him with racists, extremists, pedophiles, pornographers and
terrorists and to assert that he has committed criminal offences. In his
testimony at trial, the plaintiff said he learned about the Bouchard report
in the late spring or early summer of 2003. He said he was shocked and
believed he was being put on a list of people who needed to be "watched or
marginalized or criminally charged." This was particularly serious, he
said, because the document carries the logo of the government of Canada.
[23] The plaintiff says he has never threatened or expressed
hatred to women and has never condoned violence. However, he says he does
criticize what he calls the "extreme elements" of feminism and uses the word
"feminazism" to distinguish that extreme position from mainstream feminism.
[24] As for the image of the baby and the altered swastika
reproduced in the Bouchard report, the plaintiff said he used the swastika
to highlight the use of the word "feminazism." He thought the picture of the
baby was funny, but agreed it was intended to be insulting.
[25] At the time the Bouchard report was published, the plaintiff
said that he was working for the British Columbia government as an
information technology contractor and was concerned the report, which was
distributed to provincial officials, would affect his work opportunities.
This was particularly so because he was working on a project involving the
ministry of Community, Aboriginal and Women's Services, which works with
SWC.
[26] About 1,500 hard copies of the Bouchard report were
published and distributed according to SWC distribution lists, which include
research organizations, individual researchers, libraries and universities.
Libraries that listed the report in their catalogues included the Vancouver
Public Library and the National Library of Canada. The report was also
posted on SWC's website, but in November, 2003, the appendix listing
organizations was removed from the on - line version, apparently as a result
of complaints from some of the organizations listed. Of course, the list,
including the plaintiff's name, can still be found in the hard copies that
are in circulation.
[27] Dr. Bouchard testified that she used the word "masculinist"
because she needed a way to name the phenomenon of males expressing
resentment, anger or unhappiness. She adopted the term from an article
written in French by a Martin Dufresne, which defined the word as "the
discourse of demands formulated by men as men." The Dufresene article in
which the term is used is titled "Masculinism and sexist criminality."
[28] Dr. Bouchard said that when she decided to expand her
analysis to include the internet, the defendant Isabelle Boilly was given
the task of researching internet sites. Ms. Boilly testified that when she
came across the plaintiff's site and the image of the baby and altered
swastika she was disturbed and shocked by the image. She took it as one
that associated feminists with Nazis by using something very important to
women-their child-and that she believed the image, by using a baby, was an
attack on mothers. She interpreted the words "stop it", in the context of
the image, as a threat and considered the image to be an example of "verbal
violence." The defendant Marie-Claude Proulx testified that she had a
similar reaction when Ms. Boilly showed her the image. She said it was "as
if the baby was telling me I don't need you and I don't care about you."
[29] Dr. Bouchard testified that when Ms. Boilly showed her the
image from the plaintiff's site, the first thing she saw was the altered
swastika which was "like a knife going through my heart." She said she had
never previously seen or heard the word "feminazism" and interpreted the
images as a "violent message that 'we are fed up and stop it'." She said
that, as a feminist, she took the message that "they hate us and they want
us to get that message."
[30] When it was suggested to them on cross-examination that the
image was clearly meant to be sarcastic, ironic or humourous, the defendants
said they did not see any humour in it. Asked if they had at the time ever
heard of an American talk show host and author who counsel suggested had
popularized the term "feminazism" in Anglophone culture, they said they had
not.
The Tort of Defamation
[31] In order to succeed in an action for defamation, a plaintiff
must show:
1. That the words complained of are defamatory;
2. That they referred to the plaintiff; and
3. That they were published to a third party.
R.E. Brown, The Law of Defamation in Canada, 2nd ed. [Brown] (looseleaf)
(Toronto: Thomson Carswell, 2007) at pages 1-31.
[32] If the plaintiff proves those elements, the defendant can
rely on a number of specific defences. The relevant defences in this case
are justification (truth), fair comment and qualified privilege.
[33] The law of defamation deals with the protection of an
individual's reputation. In Hill v. Church of Scientology, [1995] 2 S.C.R.
1130, 126 D.L.R. (4th) 129 (S.C.C.) the Supreme Court of Canada said:
Although much has very properly been said and written about the importance
of freedom of expression, little has been written of the importance of
reputation. Yet, to most people, their good reputation is to be cherished
above all. A good reputation is closely related to the innate worthiness
and dignity of the individual. It is an attribute that must, just as much
as freedom of expression, be protected by society's laws.
Democracy has always recognized and cherished the fundamental
importance of an individual. That importance must, in turn, be based upon
the good repute of a person. It is that good repute which enhances an
individual's sense of worth and value. False allegations can so very
quickly and completely destroy a good reputation. A reputation tarnished by
libel can seldom regain its former lustre. A democratic society, therefore,
has an interest in ensuring that its members can enjoy and protect their
good reputation so long as it is merited.
Was the Plaintiff Defamed?
[34] There is material on the plaintiff's website that many
readers would find offensive. The defendants had every right to attack the
views and attitudes that are expressed there and the plaintiff, having
decided to put forward those views in a public forum, can not complain when
others take issue with them. However, that does not diminish the plaintiff'
s right to protection of his reputation as an individual. Therefore, the
first issue that needs to be determined is which words refer to the
plaintiff.
[35] If an allegedly defamatory statement does not identify the
plaintiff by name, the question is whether a reasonable person would
understand that it referred to the plaintiff. (Taylor-Wright v. CHBC-TV A
Division of WIC Television Ltd., [1999] B.C.J. No. 334 (Q.L.) (B.C.S.C.) at
para. 26; affirmed 2000 BCCA 629, 82 BCLR (3d) 50. The Court must apply a
two-part test. The first step is a question of law - whether the statement,
having regard to its language, is capable of referring to the plaintiff. If
so, the second question is whether the statement in fact would lead a
reasonable person to conclude it refers to the plaintiff. (Dale's Trad'N
Post Ltd. v. Rhodes, [1987] B.C.J. No. 2096 citing Knupffer v. London
Express Newspapers, [1944] 1 All E.R. 495.).
[36] The only explicit reference to the plaintiff is in the list
that appears in the appendix and labelled "List of Men's Associations."
That list refers to "B.C. Fathers" and to "Ken Wiebe, creator of the BC
Fathers web site." The significance of the appendix is set out at page 68,
where the authors state they have "prepared a list of masculinist groups."
That reference follows a discussion of the different types of masculinist
groups. Although it is clear that the authors disagree with these groups,
there is nothing in the description or listing of them that can be
considered defamatory.
[37] That discussion is followed by a discussion of an internet
network formed by masculinist groups and the presence of an "often hateful,
violent and unrestrained discourse against feminists and women". The report
then makes the statement that "some masculinist groups use the internet as a
vehicle for hate mongering." The key word, in my opinion, is "some," which
re-enforces the fact that the authors are not and cannot be taken to be
claiming that all the individuals and organizations listed in the appendix
are promoting or spreading hatred.
[38] However, the report then goes on to give specific examples
of hate messages, including one that is stated to come from the B.C. Fathers
site. Therefore, although not all organizations listed in the appendix are
said to be spreading hatred, the reader is clearly told that B.C. Fathers is
one that is. The appendix identifies the plaintiff by name as the founder
of the B.C. Fathers web site. Accordingly, a reasonable reader would
understand the Bouchard report to be stating that the plaintiff was using
his site to express hatred of women and feminists.
[39] By the time a reader got to the portion that identifies the
plaintiff's website, he or she would have encountered several general
references, beginning with the abstract and the executive summary, to "hate
mongering sites," a "discourse of hate" and statements that "incite hatred
and violence." When first encountered, none of these earlier statements
refer to the plaintiff in any way. However, they do refer to a class of
"hate mongering sites," "internet sites of men's associations" and "an
extensive network using the internet." When the authors give examples of
these groups and internet sites, a website identified as having been created
by the plaintiff is included. At that point, all of the previous statements
about hate message become capable of referring to the plaintiff and I
conclude that a reasonable reader recalling those passages would likely
conclude they referred to the plaintiff.
[40] In its recommendation section, recommendation number four
refers to "misogynist sites inciting violence" and suggests formation of a
monitoring organization. That follows the explicit identification of the
plaintiff and, in light of the earlier statements, it is open to a
reasonable reader to conclude this is a further reference to the plaintiff,
with the additional suggestion that the plaintiff is among those who must be
monitored.
[41] A defamatory statement is one that "tends to lower the
plaintiff in the estimation of right-thinking members of society generally
or to expose him to hatred, ridicule or contempt." (Chernesky v. Armadale
Publishers, [1979] 1 S.C.R. 1069 at 1079). Just as it is defamatory to
label a person a racist (as was the case in Chernesky) there can be little
doubt that an association with hatred and violence against women would
"lower the plaintiff in the estimation of right-thinking members of
society."
[42] I therefore conclude that there are a number of statements
in the Bouchard report that are capable of suggesting and do suggest to a
reasonable reader that the plaintiff, through his website, promotes hatred
of women and that those statements are therefore defamatory.
[43] The plaintiff alleges that certain other statements in the
Bouchard report carry different or additional defamatory meanings,
associating the plaintiff with pornographers, pedophiles, racists and right
wing extremists. In the context of the entire document, I do not accept
that those words are capable of being read as suggesting that the plaintiff
is a pedophile, a pornographer or a racist. The comments simply imply that
the plaintiff uses the same medium as other groups. But in so doing, the
words would lead a reasonable reader to conclude that the plaintiff is
expressing views that are equally repugnant and is deserving of a similar
level of public contempt. I conclude that they are therefore, in that
sense, also defamatory of the plaintiff.
Defences
[44] The defendants rely primarily on the defence of fair
comment, but have also advanced the defence of justification. Where both
defences are advanced in support of the same statements, they are usually
mutually exclusive. The defence of justification relates to allegations of
fact and requires the defendant to prove the substantial truth of the
defamatory statement. The defence of fair comment relates to matters of
opinion or analysis, which are not capable of proof, although they must be
based on true facts. In Chernesky, the Supreme Court of Canada said:
Comment or criticism is essentially a statement of opinion as to the
estimate to be formed of a man's writing or actions. Being therefore a mere
matter of opinion, and so incapable of definite proof, he who expresses it
is not called upon by law to justify it as being true, but is allowed to
express it, even though others disagree with it, provided that it is honest.
(at page 1072)
[45] Whether a statement is one of fact or comment - or, more
precisely, whether a reasonable reader would take it as fact or comment - is
to be considered in the context of the entire publication in which the
allegedly defamatory statement appears. In Scott v. Fulton, 2000 BCCA 124,
73 BCLR (3d) 392, the Court of Appeal adopted the following passage in the
House of Lords decision in Telnikoff v. Matusevich, [1991] 3 W.L.R. 952:
The first matter considered by Drake J. and the Court of Appeal was whether
those parts of the defendant's letter which were defamatory in character .
were capable of being regarded as statements of fact or could only properly
be held to be comment . Drake J. said that on a consideration of the letter
as a whole he had no doubt that these paragraphs constituted comment. If he
had felt any doubt about the matter he would presumably have left it to the
jury to decide, having regard to the law as stated in Halsbury's Laws of
England, 4th ed., (1979) vol. 28, para. 228:
"The question whether all or some of the words complained of are statements
of fact or comments is a question of construction for the judge. If, in his
opinion, there is no reasonable doubt, he must direct the jury accordingly;
but if, in his view, there is reasonable doubt as to whether the words are
statements of facts or expressions of opinion he must leave it to the jury
to decide."
[46] I take that to mean that the Court must go through a process
similar to the one used in deciding whether the words complained of refer to
the plaintiff. The Court must first decide whether the words are capable of
being understood as a statement of fact and, if so, whether that is indeed
how an ordinary reader would understand them. In regard to the second part
of that test, the Court emphasized in Scott that the matter is not one of
academic analysis but "what a reasonable person would immediately think."
[47] Telnikoff, referred to in Scott, provides an illustration of
the difference between fact and comment that is particularly useful in this
context. In that case, the plaintiff had written a newspaper article and
the defendant wrote a letter in response that, among other statements,
characterized the plaintiff's position as a "racialist recipe." Lord Keith
of Kinkel said the "racialist" reference was pure comment, but other parts
of the same sentence and other parts of the letter appeared to attribute to
the plaintiff specific words that he had not used and could be read as a
statement of fact to the effect that the plaintiff had said those things.
[48] In this case, the defendants do not attribute any specific
statements to the plaintiff beyond the excerpt from the website that is
reproduced in the Bouchard report. Statements that the plaintiff's website
expresses or promotes hatred of women and feminists represent the defendants
' interpretation or analysis of the message they believe is conveyed by the
material on that website. As such they must be seen as matters of comment
rather than allegations of fact.
[49] However, counsel for the plaintiff argues that because the
promotion of hatred is an offence under the Criminal Code, R.S.C. 1985, c.
C-46 the defendants have stated as a fact that the plaintiff committed a
criminal offence. An allegation that a person has committed a criminal
offence, counsel submits, must always be regarded as an allegation of fact.
[50] Counsel gives no authority for that general proposition, but
it would obviously be correct in most cases. A statement to the effect that
a person stole certain property at a certain time would clearly be a
statement of fact. If no specific theft is alleged, but a person is called
a thief, that would in most cases be considered an allegation of fact that
the person has at some point committed a criminal offence or is likely to do
so. That is because the word "thief" is well and commonly understood to
mean a person who has committed a specific criminal offence, the nature of
which is well understood in common parlance.
[51] However, a reference to hate or hatemongering is not so
clearly and unambiguously associated with a criminal offence, either in
common parlance or in law. The relevant provision of the Code is s. 319:
319.(1) Every one who, by communicating statements in any public place,
incites hatred against any identifiable group where such incitement is
likely to lead to a breach of the peace is guilty of
(a) an indictable offence and is liable to imprisonment for a term
not exceeding two years; or
(b) an offence punishable on summary conviction.
The phrase "identifiable group" is defined as having the same meaning as in
s. 318, which says:
318. (4) In this section, "identifiable group" means any section
of the public distinguished by colour, race, religion, ethnic origin or
sexual orientation.
[52] An allegation that a person is a hatemonger or spreading
hatred can only be an allegation of a criminal offence if the alleged hatred
is directed at a group that is identifiable on one of the specific bases set
out in the section. The allegation in this case is that the plaintiff was
promoting hatred of women and feminists. As the defendants clearly state in
their report, neither women nor feminists are among the groups protected
from hatred by s. 319(1). One of the recommendations of the report involves
possible future amendments to the Code that would include women in the
category of identifiable groups, but an allegation that the plaintiff has in
the past promoted hatred against women or feminists or that he continues to
do so cannot, by definition, be an allegation of fact that a criminal
offence has been committed. In terms of the two part test discussed in
Telnikoff, the statements are not capable, as a matter of law, of being an
allegation of criminal conduct.
[53] Because I have concluded that the passages at issue are
matters of comment rather than statements of fact, the defence of
justification has no bearing on this case and I must determine whether the
defendants satisfy the test of fair comment.
[54] Some authorities refer to the defence of fair comment as
having five elements. The statement must be (1) a comment, (2) based upon
facts that are true, (3) made honestly and fairly, (4) without malice, (5)
on a matter of public interest. (Dhami v. Canadian Broadcasting Corp., 2001
BCSC 1811, [2001] B.C.J. No. 2773 (Q.L.) (B.C.S.C.) at para 138, adopting
Brown, at chapter 15-18. However, in Vander Zalm v. Times Publishers (1980)
18 BCLR 210 (B.C.C.A.) Nemetz C.J.B.C. adopted a three part test at
paragraph 7:
First, the matter must be recognizable to the ordinary reasonable man as a
comment upon true facts, and not as a bare statement of fact. Secondly, the
matter commented upon must be one of public interest. Finally, . the
comment must be "fair" in that it must, to quote Martland, J. in Cherneskey
(supra) at p. 1073, "represent an honest expression of the real view of the
person making the comment."
[55] Both formulations include the requirement that the matter be
one of public interest and there can be no dispute about that issue in this
case. By creating a website and posting material on it, the plaintiff
obviously decided that material was of public interest and related to social
or political issues. Any response to or comment upon it must be of equal
public interest.
[56] Both formulations also require that the comment be based on
true facts. The supporting facts must be either stated in the publication
or generally known and must be proven to true. (Ross v. New Brunswick
Teachers Association, (2001) NBCA 62, 201 D.L.R. (4th) 75, (N.B.C.A.) at
para 69).
[57] In this case, the defendants reproduced an image that the
plaintiff admits was on his website. The defendants made statements about
that image and what they considered to be its symbolic meaning and
underlying message. For the purpose of the defence of fair comment, the
"facts" on which the comment is based consist of the image itself and the
fact that it appeared on the plaintiff's website. Some readers looking at
the image may agree with what the defendants say about it. Others may fail
to see how the defendants drew those conclusions, while still others may
think the defendants have misinterpreted and over-reacted to an attempt at
humour or satire. The point is that the image is there for readers to
consider in light of what the defendants say about it. In my view, that
makes it a classic example of a comment based on true, clearly stated facts.
[58] The question then becomes whether the other statements in
the Bouchard report that I have found to be references to the plaintiff are
also fair comment based on stated true facts. These other statements refer
to a discourse of hatred on the internet without giving specific examples
and without naming the plaintiff or anyone else. As Lord Denning said in
Slim and Others v. Daily Telegraphs Ltd. and Others, [1968] 2 Q.B. 157 :
When [a plaintiff] complains of libel, he complains of the injury which the
words do to his reputation in the minds of the ordinary reader. Now the
ordinary reader takes the imputations as a whole. He does not divide them
up into bits. Nor should the plaintiff be able to do so. (at page 168)
[59] Most of these other comments appear early in the Bouchard
report. They are general statements that the reader would anticipate being
discussed in greater depth later in the document. The reader then comes to
page 69, where specific examples are given and the plaintiff is named for
the first time. If, as I have held to be the case, a reader would at that
point conclude that the earlier statements referred to the plaintiff, the
same reader would have to consider those earlier statements in reference to
the image that is reproduced. These earlier comments are not independent
assertions, but are entirely dependent upon the comments at page 69 for
their foundation.
[60] The report continues on to make certain recommendations,
including monitoring of internet sites and changes to the Criminal Code.
These are clearly matters of opinion. A reader seeing those recommendations
and interpreting them as being directed at the plaintiff would by then have
seen the image on page 69 and be in a position to agree or disagree with the
necessity or desirability of what the defendants suggest.
[61] The difference between the two formulations of the test for
fair comment that I referred to earlier lies in the concept of malice. The
test adopted in Vander Zalm refers to the requirement that the comment be an
honest expression of the defendant's real view, while the five-part test
appears to add a separate requirement that the statement be made without
malice. That choice between those two tests is potentially significant in
this case.
[62] The plaintiff, in addition to arguing that the individual
defendants could not and did not honestly believe their statements, submits
that the defendants had other motives that amount to malice. The plaintiff
submits that the defendants made a deliberately selective reading of
material out of context in order to attack people they considered to be
ideological enemies and to create a "blacklist." Counsel for the plaintiff
also argues that the defendants had an oblique motive related to
continuation of funding for government programs related to women. In
effect, counsel argues that the defendants needed to create an enemy to
serve their own interests.
[63] In Slim v. Daily Telegraph, Lord Denning said, at page 170:
.in considering a plea of fair comment, it is not correct to canvass all the
various imputations which different readers may put upon the words. The
important thing is to determine whether or not the writer was actuated by
malice. If he was an honest man expressing his genuine opinion on a matter
of public interest, then no matter that his words conveyed derogatory
imputations; no matter that his opinion was wrong, or exaggerated or
prejudiced; and no matter that it was badly expressed so that other people
read all sorts of innuendoes into it; nevertheless, he has a good defence of
fair comment. His honesty is the cardinal test. He must honestly express
his real view.
I stress this because the right of fair comment is one of the essential
elements that go to make up or freedom of speech. We must ever maintain
this right intact. It must not be whittled down by legal refinements.
[64] There are many statements in the common law to a similar
effect, which Martland J. in Chernesky summarized by saying that "a defence
of fair comment is dependent upon the fact that the words in question
represent the real view of the person making the comment."
[65] It has also been said many times that the comment does not
have to be "fair" in the sense of being reasonable. In Reynolds v. Times
Newspapers, [2007] 2 A.C. 127 Lord Nicholls said:
. the time has come to recognise that in this context the epithet "fair" is
now meaningless and misleading. Comment must be relevant to the facts to
which it is addressed. . The true test is whether the opinion, however
exaggerated, obstinate or prejudiced, was honestly held by the person
expressing it: see Diplock J. in Silkin v. Beaverbrook Newspapers Ltd.,
[1958] 1 WLR 743, 747.
The passage was adopted by the New Brunswick Court of Appeal in Ross, where
the Court added:
Therefore, for a comment to be protected by a plea of fair comment, the
comment must be relevant to the facts to which it is addressed, but it need
not be reasonable nor one with which the trier of fact agrees. It need only
be proven to be "fair" or "relevant" in the sense that the comment relates
to the proven underlying facts on which the commentator relies and
represents an honest expression of the real view of the person making the
comment. To be protected, comment need not be proven to be true.
[66] The question of an improper motive amounting to malice
frequently arises in relation to the defence of qualified privilege. In
Hill, the Supreme Court of Canada said at paragraph 45:
Malice is commonly understood, in the popular sense, as spite or ill-will.
However, it also includes ... "any indirect motive or ulterior purpose" that
conflicts with the sense of duty or the mutual interest which the occasion
created ... Malice may also be established by showing that the defendant
spoke dishonestly, or in knowing or reckless disregard for the truth.
[67] Although the concept of malice has often been treated in the
same way in cases involving fair comment as in cases involving qualified
privilege, the authors of Gatley on Libel and Slander (10th edition),
(London: Sweet & Maxwell, 2004) tenth edition) state at page 309 that this
is incorrect. The defence of qualified privilege is based on the notion of
performance of a duty or protection of an interest. A motive unrelated to
that duty or interest may destroy the privilege. However, the defence of
fair comment is based solely on the importance of protecting the freedom of
comment on matters of public interest. On that analysis, Lord Nicholls said
in Cheng v. Tse Wai Chun, [2000] 3 H.K.L.R.D. 418 (H.K. Ct. of Final
Appeal):
A comment which falls within the objective limits of the defence of fair
comment can lose its immunity only by proof that the defendant did not
genuinely hold the view that he expressed. Honesty of belief is the
touchstone. Acutation by spite, animosity, intent to injure, intent to
arouse controversy or other motivation, whatever it may be, even if it is
the dominat or sole motive, does not of itself defeat the defence.
That is also the view of Professor Brown, who states at pages 15-103:
If the defendant has reported his or facts correctly and the comment has
been made honestly and fairly, that should be sufficient; the state of mind
of the defendant should otherwise be irrelevant.
[68] Dr. Bouchard and her co-authors have testified that they
were shocked and offended by the image on the plaintiff's website. They
explained that reaction in part as one of horror that feminists, like
themselves, would be associated with Nazism and were particularly offended
that a baby would be used to convey a message that they considered hateful
and threatening to women. Having heard their evidence-in- chief and on
cross-examination, I accept that was their genuine and sincere reaction.
Dr. Bouchard testified that when she looked at the image, she thought of the
notorious École Polytechnique massacre (where female engineering students in
Montreal were murdered by a gunman expressing hatred of feminists). I
accept that the individual defendants, as feminist academics working and
living in the province where that tragedy occurred, may be less likely than
other readers to see humour or satirical intention in what they perceived to
be an attack on feminists.
[69] The plaintiff argues that the defendants made no effort to
consider the image in context, no effort to contact him to find out what his
true motives were and no effort to learn the humourous, if disparaging,
meaning of the term "feminazism" in Anglophone culture. In my view, none of
that is relevant to the defence of fair comment. The law of fair comment
imposes standards of honesty and factual accuracy. It does not impose
standards of objectivity or impartiality. Both the Supreme Court of Canada,
in Chernesky, and the Court of Appeal, in Vander Zalm, adopted the
frequently quoted charge to the jury of Diplock J. in Silkin v. Beaverbrook
Newspapers Ltd.:
People are entitled to hold and to express freely on matters of public
interest, strong views, views which some of you, or indeed all of you, may
think are exaggerated, obstinate or prejudiced, provided - and this is the
important thing - that they are views which they honestly hold. The basis of
our public life is that the crank, the enthusiast, may say what he honestly
thinks just as much as the reasonable man or woman who sits on a jury, and
it would be a sad day for freedom of speech in this country if a jury were
to apply the test of whether it agrees with the comment instead of applying
the true test: was this an opinion, however exaggerated, obstinate or
prejudiced, which was honestly held by the writer?"
[70] Similarly, the same judge, by then Lord Diplock, said in
Horrocks v. Lowe, [1974] 1 All E.R. 662 (H.L.) (albeit in the context of
qualified privilege);
In ordinary life it is rare indeed for people to form their beliefs by a
process of logical deduction from facts ascertained by a rigorous search for
all available evidence and a judicious assessment of its probative value.
In greater or in less degree according to their temperaments, their
training, their intelligence, they are swayed by prejudice, rely on
intuition instead of reasoning, leap to conclusions on inadequate evidence
and fail to recognise the cogency of material which might case doubt on the
validity of the conclusions they reach. But despite the imperfection of the
mental process by which the belief is arrived at it may still be 'honest'.
i.e. a positive belief that the conclusions they have reached are true. The
law demands no more.
[71] It therefore does not assist the plaintiff to argue that the
defendants approached the matter with an ideological or political agenda.
They obviously did. Most commentary on political or social issues, whether
in the media or in academia, flows from the authors' pre-existing point of
view and is frequently made for the specific purpose of either persuading
others to accept those opinions or re-enforcing those opinions in those who
already share them. There may be some political or social commentators who
approach every issue with a completely open mind, who meticulously consider
and present all possible arguments on every issue and who carefully avoid
advocacy, but even if such paragons exist, the law has never suggested they
are the only ones entitled to benefit from the defence of fair comment.
[72] In this case, Dr. Bouchard, who considers herself a
feminist, believed there was a "reactionary ideology" attempting to
discredit feminism and undermine its achievements. The goal of the research
project was to find evidence of that "masculinist discourse" and to warn
against it. The defendants put forward what they believed to be the
evidence supporting the initial hypothesis. They expressed the view that
the image they found on the plaintiff's website represented the most extreme
example of what they had found. The plaintiff himself did something similar
from the opposite point of view when his website listed a number of
quotations from feminist authors as examples of what he considered the
offensive "radical extreme" of feminism.
[73] The plaintiff says that any fair-minded reader would have
recognized the image relied on by the defendants as a cartoon, capable of
innocuous and humourous meaning. The nature of cartoons was central to
Vander Zalm, where Aikins J.A. said at paragraph 85:
The particular difficulty in the present case, which may well apply to most
cases involving cartoons, is to ascertain the meaning conveyed. It is in the
nature of a cartoon not to speak directly. This needs little elaboration,
but it is worth giving a definition. I borrow the definition of "cartoon"
from the Encyclopedia Britannica (1961), given in the reasons for judgment
of the Chief Justice, as follows:
. a pictorial parody. which by devices of caricature, analogy and ludicrous
juxtaposition sharpens the public view of a contemporary event, folkway, or
political or social trend. It is normally humorous but may be positively
savage.
The trial Judge clearly recognized the difficulty of interpretation arising
from the nature of a cartoon . His conclusion was that the cartoon should be
considered "symbolically, allegorically or satirically, as it should be and
would be by the viewing public." I think the trial Judge was right in
reaching this conclusion. Every "reasonable man of ordinary intelligence"
is familiar with cartoons, whether political or otherwise. They are
published in an unending stream. The reasonable man of ordinary
intelligence would clearly understand that political cartoons are rhetorical
in the sense that the cartoonist makes his point indirectly by the use of
symbolism, allegory, or satire and I would add, exaggeration.
[74] In Vander Zalm, the alleged libel was contained in a cartoon
and the Court of Appeal held it to be fair comment. In this case, the
alleged libel is contained in a commentary on the cartoon. The fact that
cartoons use symbolism, allegory or satire rather than direct statement
makes it inevitable that readers will view them through the lens of their
own knowledge, experience, prejudices and sensitivities. Some will not "get
the joke" and may see a symbolic or allegorical meaning very different from
what the cartoon's publisher intended.
[75] Whatever message the plaintiff intended to convey with the
cartoon, the defendants interpreted it in a way that they considered to be
offensive and hateful. It does not matter whether the Court or anyone else
accepts that interpretation. I have found their interpretation and the
statements flowing from it to represent their honestly held opinion at the
time. While setting out that opinion, they reproduced the image at issue,
giving their readers the opportunity to agree or disagree with their
comments.
[76] In summary, I find that the plaintiff was defamed, but the
defendants have satisfied the necessary requirements for a successful
defence of fair comment. Having reached that conclusion, I do not need to
consider the alternate defence of qualified privilege or to deal with the
issue of damages. The plaintiff's claim is dismissed.
Nathan Smith, J.
Post by Gerrald ArnasenHe had to justify the
statements in court as you remember. And the case was decided without any
damages payable to Wiebe.
And if you read the case which you didn't, you would have known the judge
did state that slander was used.
Post by Gerrald ArnasenPost by harry.maxtor.von.stienThe verdict from the seven-woman, five-man jury capped more than three days
of tense deliberations. But after deliberations punctuated by a temporary
impasse, when they returned to court to tell the judge they were deadlocked
and were urged to go back and try again. I will to bet the women brow beated
the men to let her off..
You weren't there so you wouldn't know. Most likely you're wrong since it
isn't a verdict based on gender.
Bullshit you kook... the feminazi and gay lobbing groups have a lot of
power, not only in the courts but also over governments and the political
potato heads, and I had posted many facts on this issue...So fuck off you
fail embezzler