2008 BCSC 1342 Reaburn v. Langen

Before: The Honourable Mr. Justice Grauer

Reasons for Judgment

Counsel for the Plaintiffs:	J.E. Frank
Appearing on his own behalf:	H. Langen
Date and Place of Trial:	September 23 – 25, 2008
	Vancouver, B.C.

INTRODUCTION

[1] At the material time, the plaintiffs were officers of the Royal Canadian Mounted Police serving in the Nelson, B.C., detachment. The defendant Harry Langen was the editor and publisher of a now defunct community newspaper, the Kootenay Chronicle (the "Chronicle"), which served Nelson, Castlegar and Trail, B.C. The plaintiffs claim damages from the defendant for defamation arising out of two articles written and published by the defendant in the Chronicle in September and October of 2003. About 4,500 copies of each edition were published.

[2] These articles concerned events that took place on June 11, 2002, which resulted in the plaintiffs arresting one J.H. on a charge of assaulting a police officer. J.H. was subsequently convicted of that charge. He took no part in these proceedings.

[3] Mr. Langen did not plead justification; the only defence pleaded was qualified privilege. Before me, Mr. Langen raised the issue of whether the reach of this defence should be extended to encompass the public interest responsible journalism test expounded by the House of Lords in Reynolds v. Times Newspapers Ltd., [2001] 2 A.C. 127, [1999] 4 All E.R. 609, and further explained in Jameel v. Wall Street Journal Europe Sprl, [2007] 1 A.C. 359 (H.L.).

[4] In Canada, this extension was recently approved and adopted by the Ontario Court of Appeal in Cusson v. Quan, 2007 ONCA 771, 286 D.L.R (4th) 196. The Supreme Court of Canada has granted leave to appeal from that decision, and the appeal is scheduled to be heard on February 16, 2009. That case, like this, involved the claim of a police officer against a newspaper.

THE ARTICLES

[5] At some point while he was awaiting trial on the charge of assaulting a police officer and other charges, it appears that J.H. prepared an "anonymous" poster giving his side of his encounter with the police, which he posted around the Nelson area. Mr. Langen was intrigued by the information in the poster and contacted J.H., inviting him to come down to the Chronicle office and tell his story. Mr. Langen, who was not a great fan of the RCMP (he described himself as somewhat of a "thorn in their side”), interviewed J.H. three times. Based on the information he obtained in those interviews, Mr. Langen wrote and published the articles in question.

[6] The first article, published in early September, 2003, was on the front page of the Chronicle. The second, published in early October, 2003, appeared on page 9 of the newspaper. Subsequently, when the newspaper folded, Mr. Langen archived the two articles in question and others on the Kootenay Chronicle website. This was done for the purpose of keeping records, rather than to achieve wide publication. At no time until the commencement of this action did either plaintiff contact Mr. Langen concerning the articles.

[7] The two articles read in their entirety as follows:

Will the City of Nelson Be Hosting the

TRIAL OF THE CENTURY?

Recently a poster has been turning up headlined TRIAL OF THE CENTURY. The following story is the result of investigating this anonymous poster – editor

So it’s two against one. And the two are heavily armed and have the weight of the establishment on their side as they take on one brain-injured man who tends to lapse into distraction on occasion, particularly when attempting to listen to more than one at a time. The odds are not in [J.H.]’s favour as he faces a court case where, of the four charges against him is included assault with a vehicle and assaulting a peace officer causing bodily harm.

But [J.H.] is a meticulous man and a stubborn one who isn’t likely to cave in easily to adversity. He attempted to counter-charge the two RCMP constables, Sgt. Rayburn and Peter Maw but was thwarted when the prosecutor, Mr. Ron Webb, refused to accept his pictures as evidence of the alleged beating he withstood at the hands of the constables. These pictures show bruising to his ribs which he can prove were fractured and lacerations to his temples which were allegedly inflicted upon him by the grinding boots of the Sgt.

[J.H.]’s legal problems, aside from his four year wrangle with ICBC re his claim as to the original accident which damaged his brain, began when one of his neighbours in the Appledale area of the Slocan Valley was creating noise at unseemly hours while [J.H.] was attempting to recover. His complaints to his neighbour finally escalated into a brouhaha which found [J.H.] blocking the access road his neighbour was using to convey his noisy tools about. On one occasion, his neighbour’s friend pretended to be intimidated by the classic Cougar [J.H.] was driving which led to the vehicular assault charge, again not witnessed by anyone except the parties opposed to [J.H.].

When the RCMP constables appeared on the scene to question [J.H.] and became cognizant of his brain injury Sgt. Rayburn, according to [J.H.], actually taunted him saying, “Are you always this much of an asshole or is this your brain injury talking?” and when the conversation became more heated Constable Peter Maw allegedly gripped [J.H.]’s arm to prevent his departure, an act which culminated in [J.H.] pushing the more than six foot Mah [sic] away from him. ([J.H.] is a small man in comparison.) This act then precipitated more violence and the two constables launched into [J.H.], Maw getting him into a headlock while [J.H.] attempted to retaliate by clobbering Maw’s eardrum while he was being repeatedly pepper-sprayed by Rayburn. They tumbled about the rock strewn ground as they attempted to overwhelm the now blinded [J.H.], who, having been trained as a first aid attendant, level three, was aware of how to position himself against the onslaught. The Sgt. sustained a minor head injury which he now claims was inflicted upon him by [J.H.] and which [J.H.] claims was the result of the Sgt. clunking his head on a rock in the melee. The Sgt. allegedly proceeded to grind [J.H.]’s temples with his boot after he was hand-cuffed. Head was eventually delivered to a hospital by ambulance, the crew of which made a report as to his injuries.

This report was never examined by Mr. Webb, the prosecuting counsel who considered [J.H.]’s claims against the RCMP constables as being without credibility. This lack of interest on the part of Mr. Webb stretches his own credibility in the eyes of Mr. Webb.

The case against [J.H.] will go to court in Nelson on August 28 and in the event that [J.H.] files a writ forcing charges to be laid against Rayburn and Wah [sic], the case against these RCMP constables may yet go to court and justice may eventually be seen to be done as opposed to being lost in the dust of the circling wagons. –ed

…

[J.H.] Case Update

Local Slocan Valley man, [J.H.], who sustained a brain injury in a single vehicle accident four years ago, is being chraged [sic] with assaulting a peace office [sic]. These charges are being brought against him by Constable Peter Maw and Sgt. Rayburn of the RCMP, the only witnesses to the fracas, besides [J.H.].

[J.H.] sustained multiple rib injuires [sic] and his head was grounded upon by the boot of Sgt. Rayburn after pepper-spraying [J.H.]. This fact was borne out by the ambulance report re [J.H.]’s condition directly after the altercations. Constable Maw sustained a facial injury in the melee (not Sgt. Rayburn as reported last issue).

As [J.H.] has been deemed by the courts not capable of representing his own defence (despite being quite erudite and focussed) a Mr. Paddy Roberts appeared on August 28 to act on that day as [J.H.]’s agent. The judge challenged Mr. Roberts’ status and insisted that he sign an affidavit that he (Roberts) was not charging [J.H.] a fee. (Only lawyers can charge such fees.)

The atmosphere in the courtroom that day was tense and while the judge was out of the room, Constable Maw and Roberts exchanged hostilities with Maw threatening Roberts with arrest.

This case has been described in an anonymous poster as “The Trial of the Century” and may indeed have significance in that it directly challenges the RCMP as to use of their own power, and conduct that day in Appledale.

The case has been remanded for date in mid-November while [J.H.] organizes his defence.

[8] The plaintiffs allege that the gist of the two articles is that they, in their capacity as police officers, assaulted J.H., ganged up on him, brutally beat him, and injured him, thereby committing the crimes of assault, assault with a weapon, assault causing bodily harm and aggravated assault, all the while using excessive force. They claim that this defamed them and severely injured their character and reputation both as citizens and as police officers, and they seek general and aggravated damages.

THE EVIDENCE

[9] Both plaintiffs testified. Peter Maw is currently a corporal with the RCMP, working in Victoria with the Combined Forces Special Enforcement Unit. He was promoted to corporal in July of 2008. He has been a member of the RCMP for 20 years.

[10] In the years 2000 – 2003, Mr. Maw was a constable working out of the Nelson detachment. The officer in charge of the detachment was the plaintiff James Reaburn. The City of Nelson has its own police force. The RCMP are responsible for the rural area surrounding the city. That area includes Appledale, where the events at issue took place.

[11] J.H. came to Mr. Maw's attention in the context of cross-complaints made by J.H. and his neighbours, whom I will identify as Mr. and Mrs. X, a couple in their early 70s. J.H. lived on rented property adjacent to the property of Mr. and Mrs. X. To get to their property, Mr. and Mrs. X. were obliged to use a service road along the CPR right-of-way. J.H. complained that the Xs were disturbing him with loud noise. Mr. and Mrs. X. complained that J.H. was blocking their access to their property and threatening them. It seems that J.H.'s problem was that he liked to sleep in the morning, to 10:00 a.m. or so, because his sleep patterns had been interrupted by a brain injury suffered in a car accident some years before, and he was unable to sleep at night. He perceived that despite his explanation of the situation, his neighbours persisted in undertaking loud activities such as lawn mowing early in the morning. He then took issue with their right to be using the property and access road at all.

[12] Mr. Maw testified that he called J.H. on the phone in June of 2002 to try and resolve the difficulties between these people. He described J.H. as being extremely aggressive and abrupt, and refusing to listen to reason.

[13] On June 11, 2002, Mr. Maw and his sergeant, Mr. Reaburn, drove out to Appledale to speak to J.H., in the hope of brokering an agreement. Once again, he described J.H. as being extremely aggressive. It was his way or no way. He was particularly annoyed by the suggestion of the RCMP that his neighbours had every right to use the service road. The plaintiffs asked J.H. to walk them out to the road and show them the area. As they walked, they discussed the situation. Mr. Maw explained that the neighbours were not doing anything unlawful and that there was nothing the police could do to charge them criminally. As this discussion proceeded, J.H. became increasingly agitated and belligerent, and then finally lost it. He shoved Mr. Maw on the chest, pushing him down onto the gravel road. Mr. Maw got up to arrest him for assaulting a police officer. He put his hand on J.H.'s arm, whereupon J.H. punched him in the face, driving his sunglasses into his forehead. J.H. then completely lost control.

[14] Mr. Maw testified that he had never seen someone so out of control as J.H. was on that occasion. He tried to wrestle J.H. to the ground and handcuff him, but he was kicking, screaming, punching and swearing. The two of them tried to get him down and keep him down, and eventually Mr. Maw had him in a headlock. Sgt. Reaburn tried to handcuff him, but had to use pepper spray before they could finally subdue him enough to get cuffs on his hands.

[15] After they had handcuffed J.H., they walked him back to the police car. He was complaining that his back was injured, and his eyes were burning. As they were some 40 miles away from the detachment, where they would ordinarily take a detainee who had been pepper sprayed to have his eyes washed out, they took him to the Winlaw ambulance station and had the attendants have a look at him. The attendants took J.H. by ambulance to Kootenay Lake Hospital, and Mr. Maw rode with him in the ambulance. An x-ray exam was performed at the hospital, and the attending physician pronounced J.H. medically fit for detention.

[16] J.H. subsequently filed a complaint with the RCMP, and also through the public complaints commission, alleging that Const. Maw and Sgt. Reaburn had used excessive force. The RCMP complaint was investigated by Staff-Sgt. Morrison of the Castlegar detachment, and the report was reviewed by Regional Crown Counsel. Both investigations found no evidence to support the allegation. Mr. Maw was not disciplined.

[17] As time passed, there were 12 incidents of vandalizing Mr. and Mrs. X’s property, and of the service road being blocked by rocks and logs. Eventually, video evidence was obtained of J.H. committing arson, and he was arrested for mischief. He was also convicted of assaulting Mr. Maw.

[18] Mr. Maw testified he was never contacted by anyone at the Chronicle before the articles in question were published. He received no calls or messages from Mr. Langen. He stated that the articles caused him a good deal of stress and embarrassment. He said that as a member of the RCMP, he has learned to turn the other cheek, but he took great offence to these articles. He was slammed in the paper and on the Internet as somebody who had beaten up a brain injured person, and this was just not the case. As an RCMP officer, his integrity and honesty are crucial.

[19] Under cross-examination, Mr. Maw was asked why he had not contacted the newspaper to complain about the article, or to seek a retraction or an apology. He said that he had immediately retained counsel by contacting the force's legal fund, and it took time for an opinion to be obtained. He was asked about the line quoted in the article where J.H. was asked whether he was always this much of an asshole, or was it his brain injury talking? Mr. Maw answered that the comment had been made by Sgt. Reaburn before the assault. When they were walking and discussing the situation, J.H. was very rude and was working himself into a lather. He had told them that he was a brain injury victim.

[20] Mr. Maw was asked why he and Sgt. Reaburn, who were armed and trained in takedown techniques, could not have much more easily subdued J.H. Mr. Maw stated that J.H. was totally out of control and dangerous. He had gone berserk. He denied that either he or Sgt. Reaburn put their foot on the side of J.H.'s face, and ground it into the gravel. He denied that any fractured ribs were noted at the hospital. He noted no scars on J.H. Mr. Maw was adamant that there was nothing they could have said or done that would have made any difference to the way things turned out.

[21] Mr. Reaburn was a sergeant in the RCMP. He retired on May 21, 2008, after 36 years on the force. He was stationed in Nelson from 1998 through 2008, and was in charge of the detachment from 1998 through 2004. From 2004 through 2008 he was in charge of the West Kootenay Highway Patrol Unit.

[22] Mr. Reaburn first became aware of J.H. in 2002 as a result of driving complaints. He did not meet him personally, however, until June 11, 2002. Mr. Reaburn had been made aware that Mr. and Mrs. X. in Appledale had had problems with road access and threats from J.H. Const. Maw told him that he was going to go and interview J.H. Because Mr. and Mrs. X. had reported that J.H. been extremely aggressive and had demonstrated violent tendencies, Sgt. Reaburn recognized a potential for violence and decided to go along with Const. Maw. Their purpose was to discuss a neighbourhood dispute.

[23] They met J.H. at his residence and began to discuss the situation. They agreed to go and look at the service road and the property that was being vandalized. As they walked, J.H. became more and more aggressive and obnoxious. He was being very profane and making threatening and obscene remarks. Mr. Reaburn said that it was at this point that he asked J.H. something to the effect of whether this was his brain injury talking or was he just being an asshole. He was not trying to be insulting, but was trying to bring him back to reality. He failed. He then walked ahead while Const. Maw spoke with J.H.

[24] Not long after that, J.H. became very heated. Mr. Maw told him to slow down and raised his hands up in a quieting gesture. At that point, J.H. just charged at Const. Maw and hit him in the chest, knocking him down. Const. Maw then picked himself up and took J.H. by the arm, telling him that he was under arrest. In response, J.H. punched Const. Maw in the face and a fight broke out. They fell to the ground. Mr. Reaburn attempted to assist Const. Maw to gain control of J.H., and cuff him, but had no success. J.H. was berserk. At one point he had Const. Maw under him, and Sgt. Reaburn was concerned for Mr. Maw’s safety. He realized he would be unable to handcuff him as things were, and so he used his pepper spray. This was effective, and he was able to gain control of J.H., and handcuff him. He never at any point put his foot on J.H.'s head. He did put his knee on his back to try and hold him down. He never kicked or punched him. He used the pepper spray only once.

[25] Mr. Reaburn was also the subject of a complaint from J.H. that was investigated by Staff-Sgt. Morrison of Castlegar. After the investigation, J.H. was advised that his allegations had not been substantiated, and he was told that he could apply to the commission for an independent review of the investigation. Sgt. Reaburn was not charged with anything and was not disciplined.

[26] Before the newspaper articles were published, no one at the Chronicle contacted Mr. Reaburn. As far as he knew, he had never met Mr. Langen or heard him speak before the trial. If Mr. Langen did speak to him briefly, he had no recollection of it.

[27] Mr. Reaburn was personally shocked by the articles. He had never had anything like that written about him before. He was aghast. His children at school in Nelson were questioned about it. He had to explain it to his superiors and discuss it with Crown counsel. His reputation was of the utmost importance to him in his position as detachment commander.

[28] When asked why he did not act more quickly if he took such great offence to the articles, Sgt. Reaburn testified that he contacted the RCMP Legal Fund Association promptly, and they arranged for a review before retaining counsel to provide an opinion. It was therefore out of his hands. It did not occur to him to write a letter to the editor to object to the article.

[29] Mr. Reaburn maintained that his remark to J.H. was not meant to be mocking, but was intended to snap him out of his rant. He had to agree that it did not sound compassionate, but stated that it was rather mild compared to J.H.'s manner of speaking. As far as J.H.'s complaint of cracked ribs was concerned, the x-ray showed no such thing at the hospital. It is possible that J.H. was bruised during his arrest as at one point they rolled into a ditch. At no time did Sgt. Reaburn ever put his boot on J.H.'s face.

[30] Mr. Langen also testified. Although he did not plead justification, he nevertheless attempted, both through cross-examination of the plaintiffs and in his evidence in chief, to establish that his articles were nothing more than the truth. This despite warning from the bench of the potential consequences of such a course of action. A tape of Mr. Langen's first interview with J.H. was admitted into evidence, not as evidence of the truth of J.H.'s version of events, but as evidence of what Mr. Langen was told by J.H. before he wrote the articles.

[31] Mr. Langen testified that J.H. showed him photographs of his head with a wound on the right temple, a small red abrasion which J.H. said was a result of having his head stomped on by the sergeant's boot. Mr. Langen interviewed J.H. three times. J.H.’s evidence was consistent throughout, and there was very little doubt in Mr. Langen's mind as to the veracity of his report. J.H. was adamant that the police officers had been overly aggressive and malicious. He particularly took umbrage with Sgt. Reaburn’s remark, which J.H. insisted was spoken when the sergeant's right boot was on his head. Mr. Langen stated that the considerable detail J.H. provided lent to his credibility as a fair witness of the events. Mr. Langen did not agree that his articles were defamatory. He conceded that the tone of them may have given rise to anger, but he offered no apology because he believed J.H.'s account. A brazen account was his style of writing.

[32] According to Mr. Langen, his articles were simply relaying the accounts of a citizen to his readers. He saw pictures of the injuries Mr. Langen said he had suffered, and he was told about the ambulance report. He concluded that these were injuries that J.H. had received in the course of a bungled arrest. He quoted Sgt. Reaburn’s "asshole" line which he felt was indicative of the contempt the police displayed towards J.H.

[33] Mr. Langen denied any sense of malice, but said that he felt it important to alert the public to potential problems with policing in the community. He thought it was incumbent on him to use his influence to focus on such issues, because the behaviour of the constabulary was fundamental to the public's sense of security, and he felt that the plaintiffs had failed in their duty to J.H. as a citizen in the community. Mr. Langen considered that he had a duty to inform the public in order to bring this questionable behaviour to light.

[34] He felt that the reaction of the plaintiffs was simply due to their regret at their own action.

[35] Mr. Langen stated that before he published the articles, he attempted to contact the plaintiffs in order to hear their side. He left messages at the Castlegar RCMP detachment, but received no response. Mr. Langen testified that he did get hold of Sgt. Reaburn briefly by telephone, but the sergeant was dismissive. He assumed that they were not interested in talking to him about the matter.

[36] Although Mr. Langen felt that J.H. was being truthful, he knew that he should get the other side of the story and tried to do so. He was unsuccessful. He did not speak to others who might have information such as J.H.'s wife (whom J.H. described as doubting his story) or his neighbours, Mr. and Mrs. X (in relation to whom other assault charges were pending against J.H. in addition to the charge of assaulting a police officer). He was aware that J.H. confessed to memory problems, but that did not seem to be an issue in relation to this matter.

DISCUSSION

[37] The first issue to be determined is whether the articles defamed the plaintiffs. Mr. Langen argued that there was really very little difference between the account published in the articles, and what the plaintiffs admitted at trial. The only real differences were that the plaintiffs denied any boot grinding, and maintained that the pepper spray had been used only once. He argued that it was ludicrous to suggest that J.H. was making his story up.

[38] The evidence of J.H. was, of course, admissible only to show what Mr. Langen had been told. It was not admissible as evidence of the truth of what occurred. As justification was not pleaded, it was not open to Mr. Langen to attempt to prove that his articles were factually correct.

[39] I accept the evidence of the plaintiffs as to what occurred on June 11, 2002. It was undoubtedly a regrettable incident, and the comment made by Sgt. Reaburn was both unfortunate and unwise. I nevertheless accept that things did get out of hand as a result of the actions of J.H., and that the plaintiffs were thereby faced with a dangerous situation which they handled as best they could in the circumstances. It follows that the clear indication in the articles that the police started the violence, and acted with excessive force in administering a severe beating to J.H., thereby committing a serious assault, defamed the plaintiffs.

[40] The question accordingly arises as to whether the articles were published on an occasion of privilege. Mr. Langen was quite clear that his articles were offered as reportage, not as comment. His only defence to the defamation, then, is that of qualified privilege.

[41] The defence of qualified privilege was described by Lord Nicholls of Birkenhead in the Reynolds case as follows (supra at pp. 193-194):

In Davies v. Snead (1870) LR 5 QB 608 at 611 Blackburn J spoke of circumstances where a person is so situated that it 'becomes right in the interests of society' that he should tell certain facts to another. There are occasions when the person to whom a statement is made has a special interest in learning the honestly held views of another person, even if those views are defamatory of someone else and cannot be proved to be true. When the interest is of sufficient importance to outweigh the need to protect reputation, the occasion is regarded as privileged.

[42] In Botiuk v. Toronto Free Press Publications Ltd., [1995] 3 S.C.R. 3 at para. 78-80, the Supreme Court of Canada had this to say:

Qualified privilege attaches to the occasion upon which the communication is made, and not to the communication itself. It was explained in this way by Lord Atkinson in Adam v. Ward, [1917] A.C. 309 (H.L.), at p. 334:

… a privileged occasion is … an occasion where the person who makes a communication has an interest or a duty, legal, social or moral, to make it to the person to whom it is made, and the person to whom it is so made has a corresponding interest or duty to receive it. This reciprocity is essential.

Where an occasion is shown to be privileged, the bona fides of the defendant is presumed and the defendant is free to publish remarks which may be defamatory and untrue about the plaintiffs. However, the privilege is not absolute. It may be defeated in two ways. The first arises if the dominant motive for publishing is actual or express malice. Malice is commonly understood as ill will towards someone, but it also relates to any indirect motive which conflicts with the sense of duty created by the occasion. Malice may be established by showing of the defendant either knew that he was not telling the truth, or was reckless in that regard.

Second, qualified privilege may be defeated if the limits of the duty or interest have been exceeded. In other words, if the information communicated was not reasonably appropriate to the legitimate purposes of the occasion, the qualified privilege will be defeated.

[43] The privilege can thus be defeated if the plaintiff is able to establish that the defendant was actuated by malice. In this context, malice can be established by demonstrating that the defendant was motivated by something other than the reciprocal interest that gives rise to the privilege, such as a desire to injure. Malice is also established when it is shown that the maker of the statement did not have an honest belief in its truth. But as the Supreme Court of Canada pointed out in Botiuk, supra at para. 96:

A distinction in law exists between "carelessness" with regard to the truth, which does not amount to actual malice, and "recklessness", which does. In The Law of Defamation in Canada, R.E. Brown refers to this distinction in this way (at pp. 16-29 to 16-30):

… a defendant is not malicious merely because he relies solely on gossip and suspicion, or because he is irrational, impulsive, stupid, hasty, rash, improvident or credulous, foolish, unfair, pig-headed or obstinate, or because he was labouring under some misapprehension or imperfect recollection, although the presence of these factors may be some evidence of malice.

[44] The plaintiffs argued that the defence of qualified privilege was not available to Mr. Langen in the circumstances of this case, for three reasons.

[45] The first reason was that the publication of the articles was too wide to satisfy the principle of reciprocity emphasized by Lord Atkinson in Adam v. Ward, supra. They were originally published to the Kootenay region (the communities of Trail, Castlegar and Nelson), and then, via the Internet, to the world. Consequently, the occasion of the communication of the information was not subject to privilege at all.

[46] The second reason was that even if the occasions were privileged, that privilege was nevertheless defeated because of actual malice on the part of Mr. Langen. In this regard, it was suggested that he had an ulterior motive for writing the articles; the articles were oppressive, and he continued with his accusations even after hearing the police evidence at J.H.'s trial. He stubbornly refused to apologize, and continued to try to prove the police wrong at trial, the plaintiffs argued, because his dominant motive was to criticize the RCMP.

[47] The third argument was that even if the occasions could be considered to have been privileged and there was no actual malice, the articles were not reasonably appropriate for the occasion, and therefore exceeded the duty (on the part of the defendant) and interest (on the part of the recipients of the information). They were not simply communicating concerns about the use of excessive force or inadequate investigation, but were sensationalizing, pre-judging and accusatory. The privilege was therefore lost.

[48] With respect to the first issue, concerning the breadth of publication, the plaintiffs relied on the case of Moises v. Canadian Newspaper Co. (1996), 24 B.C.L.R. (3d) 211, [1997] 1 W.W.R. 337 (C.A.). There the Court of Appeal for British Columbia referred to the judgment of the Supreme Court of Canada in Jones v. Bennett, [1969] S.C.R. 277 at 284, which followed a line of cases going back to Douglas v. Tucker, [1952] 1 S.C.R. 275. In Jones it was described as settled law that a plea of qualified privilege could not be upheld where the words complained of were published to the public generally.

[49] As the Court of Appeal noted, however, several of its own decisions made it clear that the principle enunciated in Jones was not absolute. These included Parlett v. Robinson (1986), 5 B.C.L.R. (2d) 26, 30 D.L.R. (4th) 247 (C.A.) and Baumann v. Turner (1993), 82 B.C.L.R. (2d) 362, 105 D.L.R. (4th) 37 (C.A.).

[50] In Parlett, the defendant Member of Parliament who was the official spokesperson for his party on the affairs of the Ministry of the Solicitor General, sought to persuade the Minister to hold a public inquiry into allegations that the plaintiff, a correctional service official, was profiting from an inmate's work. Having failed to persuade the Minister, the defendant held a press conference to express his concern, in the course of which, and later on television, he defamed the plaintiff. Hinkson J.A., for the Court, noted at p. 37 that while the defendant in Jones "was under no duty to communicate the concern he had about the plaintiff to anyone", the defendant in Parlett had "a duty to ventilate the subject matter and the electorate [had] an interest in knowing of the matter" (p. 39). This established the required reciprocity of duty and interest. Publication to the world was not considered too broad since the group with a bona fide interest in the matter was the electorate in Canada.

[51] In Baumann, there had been a dispute about a proposed source of water for the defendant district. The defendant mayor of the district wrote a letter to the Minister of the Environment for British Columbia, in answer to a letter of the Minister which had referred to an earlier letter of the plaintiff’s. In his letter, which the defendant copied to the Squamish Times, he expressed the view that the plaintiff had misused his status as a professional engineer. The majority held that the publication in the newspaper came within the Parlett principle. The defendant had an interest in ventilating the subject matter of the project, and the opposition thereto by the Minister and by the plaintiff, to his constituents, and the constituents had a bona fide interest in knowing of that opposition. Accordingly, publication in the local newspaper was not considered to be unduly wide, and the privilege was not lost.

[52] Parlett was also applied by the Nova Scotia Court of Appeal in the case of Campbell v. Jones (2002), 220 D.L.R. (4th) 201. There, the Court held that comments made at a press conference by two lawyers complaining about how the police treated their clients, imputing racism to the police, attracted qualified privilege. At para. 69, Roscoe J.A. said this:

It has always been the task of judges to determine what constitutes an occasion of qualified privilege, and it is, therefore, within the power of the common law courts to modify the common law incrementally to ensure that it conforms with Charter values.

[53] In Reynolds, supra, the former prime minister of the Republic of Ireland sued The Sunday Times for libel in an article suggesting that he had deliberately misled the Irish Parliament and his cabinet. On the issue of publication to the world at large, Lord Nicholls said this, supra at page 195:

Frequently a privileged occasion encompasses publication to one person only or to a limited group of people. Publication more widely, to persons who lack the requisite interest in receiving the information, is not privileged. But the common law has recognized there are occasions when the public interest requires that publication to the world at large should be privileged…. Whether the public interest so requires depends upon an evaluation of the particular information in the circumstances of its publication. Through the cases runs the strain that, when determining whether the public at large had a right to know the particular information, the court has regard to all the circumstances. The court is concerned to assess whether the information was of sufficient value to the public that, in the public interest, it should be protected by privilege in the absence of malice.

[54] Lord Nicholls began his analysis with reference to the high importance of freedom of expression – the freedom to impart and receive information and ideas. He noted the important role discharged by the media in the expression and communication of information and comment on political matters, and remarked supra at p. 200 as follows:

Without freedom of expression by the media, freedom of expression would be a hollow concept. The interest of a democratic society in ensuring a free press weighs heavily in the balance in deciding whether any curtailment of this freedom bears a reasonable relationship to the purpose of the curtailment. In this regard it should be kept in mind that one of the contemporary functions of the media is investigative journalism. This activity, as much as the traditional activities of reporting and commenting, is part of the vital role of the press and the media generally.

[55] At the same time, the learned Law Lord noted that reputation is an integral and important part of the dignity of the individual, stating supra at p. 201:

Once besmirched by an unfounded allegation in a national newspaper, a reputation can be damaged for ever, especially if there is no opportunity to vindicate one's reputation. When this happens, society as well as the individual is the loser. For it should not be supposed that protection of reputation is a matter of importance only to the affected individual and his family. Protection of reputation is conducive to the public good. It is in the public interest that the reputation of public figures should not be debased falsely.

[56] I would add parenthetically that I consider this sentiment to be as true of members of the local police force as it is of prime ministers. I observe in that regard that the Kootenay Chronicle was not a national newspaper. Nevertheless, the impact of a community newspaper on the reputation of persons who live and work in that community can be as injurious as the impact of a national newspaper on those who act on a larger stage.

[57] Lord Nicholls rejected the proposal that the common law should develop a new subject matter category of qualified privilege, of "political information". That would not give adequate protection to reputation. He emphasized the "elasticity" of the common law principle of qualified privilege as enabling interference with freedom of speech to be confined to what is necessary in the circumstances of the case. This elasticity included a "responsible journalism" approach that would enable the court to give appropriate weight, in today's conditions, to the importance of freedom of expression by the media on all matters of public concern – not just political information.

[58] Lord Nicholls then set out a non-exhaustive list of 10 factors, with illustrative comments, to be taken into account in determining whether the defendant newspaper had conducted itself in accordance with the standards of responsible journalism:

1. The seriousness of the allegations. The more serious the charge, the more the public is misinformed and individual harmed, if the allegation is not true.

2. The nature of the information, and the extent to which the subject-matter is a matter of public concern.

3. The source of the information. Some informants have no direct knowledge of the events. Some have their own axes to grind, or are being paid for their stories.

4. The steps taken to verify the information.

5. The status of the information. The allegation may have already been the subject of an investigation which commands respect.

6. The urgency of the matter. News is often a perishable commodity.

7. Whether comment was sought from the plaintiff. He may have information others do not possess or have not disclosed. An approach to the plaintiff will not always be necessary.

8. Whether the article contained the gist of the plaintiff's side of the story.

9. The tone of the article. A newspaper can raise queries or call for an investigation. It need not adopt allegations as statements of fact.

10. The circumstances of the publication, including the timing.

[59] The Jameel case, supra, concerned a report that the Saudi Arabian Monetary Authority was monitoring bank accounts associated with prominent businessmen to ensure that they would not be used to transmit funds to terrorist organizations. The plaintiffs were among those listed.

[60] Lord Bingham confirmed that qualified privilege arises where a statement is defamatory and untrue but is nevertheless in the public interest, noting supra at para. 32 that the rationale of Lord Nicholls' test of responsible journalism was that "there is no duty to publish and the public have no interest to read material which the publisher has not taken reasonable steps to verify." He emphasized that the 10 factors listed by Lord Nicholls were "intended as pointers which might be more or less indicative, depending on the circumstances of the particular case, and not, I feel sure, as a series of hurdles to be negotiated by a publisher" (para. 33). The fundamental focus for the responsible journalism analysis related to "the thrust of the article". Accordingly,

… consideration should be given to the thrust of the article which the publisher has published. If the thrust of the article is true, and the public interest condition is satisfied, the inclusion of an inaccurate fact may not have the same appearance of irresponsibility as it might if the whole thrust of the article is untrue (para. 34).

[61] Lord Bingham then criticized the Court of Appeal's upholding of the trial judge's denial of Reynolds privilege on a single ground, that the newspaper had failed to delay publication of the plaintiffs' names without waiting long enough for the plaintiffs to comment:

This seems to me, with respect, to be a very narrow ground on which to deny that privilege, and the ruling subverts the liberalizing intention of the Reynolds decision. The subject matter was of great public interest, in the strictest sense. The article was written by an experienced specialist reporter and approved by senior staff on the newspaper and the Wall Street Journal who themselves sought to verify its contents. The article was unsensational in tone and (apparently) factual in content. The [plaintiffs'] response was sought, although at a late stage, and the newspaper's inability to obtain a comment recorded. It is very unlikely that a comment, if obtained, would have been revealing, since even if the [plaintiffs'] accounts were being monitored it was unlikely that they would know. It might be thought that this was the sort of neutral, investigative journalism which Reynolds privilege exists to protect (para. 35).

[62] In the Cusson case, supra, Sharpe J.A. undertook a very thorough review of these and many other decisions, including the antipodean authorities of Lange v. Australian Broadcasting Corp. (1997), 145 A.L.R. 96 (H. Ct.) and Lange v. Atkinson, [2000] 3 N.Z.L.R. 385 (C.A.) (which I have not canvassed in these reasons due to their different statutory contexts). At para. 133, Sharpe J.A. set out the following proposition:

Our task, it seems to me, is to interpret and apply the earlier decisions in light of the charter values at issue and in light of the evolving body of jurisprudence that is plainly moving steadily towards broadening common law defamation defences to give appropriate weight to the public interest in the free flow of information.

[63] The learned Justice of Appeal concluded that the appropriate result was to adopt, in its broad outline, the public interest responsible journalism defence, stating at para. 139:

As I see it, this defence represents a natural extension of the law as it has been developing in recent years, an incremental change "necessary to keep the common law in step with the dynamic and evolving fabric of our society"…. It amounts to a sensible halfway house between the two extremes of the traditional common-law no-fault liability on the one hand, and the traditional qualified privilege requirement for proof of malice on the other. The public interest responsible journalism defence recognizes that in relation to matters of public interest, the traditional common-law unduly chills freedom of expression but, at the same time, rejects the notion that media defendants should be afforded a licence to defame unless the innocent plaintiffs can prove deliberate or reckless falsehood. It rights the common-law imbalance in favour of protection of reputation and creates a proper balance between that value and freedom of expression.

[64] In the present case, one way in which the extended defence would benefit the defendant is this: if the defendant journalist can establish that the content of the publication was a matter of public interest, then he avoids the problem of the older line of cases culminating in Jones, supra, which suggest that qualified privilege cannot arise where the words complained of were published to the public generally. As noted, the trend since Parlett, supra, across Canada and abroad, has been to move beyond that limitation, but it becomes rather simpler under the public interest responsible journalism test. In essence, when public interest is established, the reciprocity referred to by Lord Atkinson is presumed.

[65] The question therefore becomes whether the allegedly wrongful behaviour of two police officers in their confrontation with J.H., leading to his being criminally charged, constituted a matter of public interest (that is, something that it would be in the public's interest to know, rather than something that would interest the public). If so, then on the public interest responsible journalism defence, the occasion was one of privilege. Given that J.H. was being tried for the crime of assaulting one of the police officers I am prepared to conclude that it did.

[66] On this analysis, it is no longer necessary for the plaintiff to proceed to prove malice in order to defeat the privilege. The onus remains with the defendant to establish responsible journalism. Nevertheless, I turn at this juncture to consider the plaintiffs' argument that Mr. Langen was motivated by malice.

[67] One of the classic statements of the requirement of honest belief in this context is found in the speech of Lord Diplock in Horrocks v. Lowe, [1975] A.C. 135 at 150:

… what is required on the part of the defamer to entitle him to the protection of the privilege is positive belief in the truth of what he published or, as it is generally though tautologously termed, "honest belief". If he publishes untrue defamatory matter recklessly, without considering or caring whether it be true or not, he is in this, as in other branches of the law, treated as if he knew it to be false. But indifference to the truth of what he publishes is not to be equated with carelessness, impulsiveness, or irrationality in arriving at a positive belief that it is true. 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 recognize the cogency of material which might cast 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 or true. The law demands no more.

[68] I find that the evidence fell well short of establishing malice on the part of Mr. Langen, whether actual or imputed. I am satisfied that he had a genuine belief in the truth of the story he was told by J.H. That he may have been biased against the RCMP and the establishment in general, that he may have been careless in coming to the conclusions he did, that he may have been headstrong and self-righteous, do not constitute actual malice. He was not at all indifferent about whether what he wrote was true or not; to the contrary, he was convinced of its rightness. As he stated in his submissions, righteous anger and malicious intent are very different things.

[69] I therefore return to the defence of responsible journalism. I begin with the question posed by the House of Lords in the Jameel case, supra: was the thrust of the article true? Clearly not. The thrust of the article was not that the police and J.H. had gotten into a fight while the police were trying to arrest him and it was questionable as to who assaulted whom, but that the police had in fact brutally assaulted J.H., and now were charging him with assault instead.

[70] Did Mr. Langen nevertheless act responsibly? I have already concluded that he did not act maliciously, but I am unable to accept that he acted responsibly. It is all very well to say that he believed what J.H. told him on the basis of three interviews, but he also recognized his responsibility, as a journalist, to check the story out and verify the facts. As Gray J. stated in Charman v. Orion Publishing Group, [2007] 1 All E.R. 622 (Q.B.) at para. 130,

It seems to me where, as I have found, the imputation conveyed to readers in relation to Charman was that cogent grounds exist for suspecting that in his capacity as a police officer he had been guilty of corruption, a responsible journalist should evaluate with some care the material in which that imputation is based. Such a journalist should in my view subject of the material to a degree of critical analysis.

[71] Gray J. also described "reportage" as where the publisher

… has neutrally and disinterestedly reported in an even-handed way unattributed allegations which are of legitimate and topical interest to the readers of the publication but has not adopted those allegations as being true or otherwise embellished them (para. 108).

[72] Although Mr. Langen tried unsuccessfully to contact the plaintiffs, his inability to do so gave rise in my view to a need to interview others who might be in a position to know something about the situation. He did not interview Mr. and Mrs. X., to whom he referred in the story. Given the charges against J.H., he failed to recognize in him a person with an axe to grind. Most important was the tone of the article. It did not simply raise questions, but adopted allegations as fact, notwithstanding that the whole matter was already under investigation as a result of J.H.'s complaints. Mr. Langen also used needlessly inflammatory phrases that went well beyond proper reportage, such as:

So it's two against one. And the two are heavily armed and have the weight of the establishment on their side as they take on one brain injured man ….

… but [J.H.] was thwarted when the prosecutor, Mr. Ron Webb, refused to accept his pictures as evidence of the alleged beating he withstood at the hands of the constables. These pictures show bruising to his ribs which he can prove were fractured and lacerations to his temples which were allegedly inflicted upon him by the grinding boots of the Sgt.

… and in the event that [J.H.] files a writ forcing charges to be laid against [Reaburn and Maw], the case against these RCMP constables may yet go to court and justice may eventually be seen to be done as opposed to being lost in the dust of the circling wagons.

[J.H.] sustained multiple rib injuries and his head was grounded upon by the boot of Sgt. Rayburn after pepper-spraying [J.H.].

There was nothing at all neutral about Mr. Langen’s reports.

[73] Also of significance is the fact that the public interest in police behaviour, miscarriage of justice and abuse of power could easily have been accommodated without naming the officers in question. Finally, I note that Mr. Langen chose not to communicate a number of facts related to him by J.H. in the taped interview that would tend to have evened things out somewhat by demonstrating, for instance, J.H.'s propensity to violence ( e.g. "And this arm is free so I just nailed him in the head six times.").

[74] Taking all of these factors together, I am satisfied that the defence of public interest responsible journalism would not assist Mr. Langen in this case even if it were available to him in law.

[75] Employing a traditional common law analysis, I arrive at the same result. I conclude that these same factors have the effect of defeating the defence of qualified privilege. Their existence establishes, in my view, that the information communicated by Mr. Langen was not reasonably appropriate to the legitimate purpose of the occasion. Accepting his evidence that the interest in question was the public's interest in their security of person at home and the integrity of the constabulary, the factors noted above persuade me that Mr. Langen exceeded that interest in the manner in which he chose to communicate his report. By doing so, he lost the privilege that the occasion would otherwise have attracted: see Botiuk, supra, at para. 80, and Hill v. Church of Scientology of Toronto, [1995] 2 S.C.R. 1130 at para. 146-147. As the Supreme Court of Canada noted with respect to one of the defendants in the Hill case:

While it is not necessary to characterize Manning's conduct as amounting to actual malice, it was certainly high-handed and careless. It exceeded any legitimate purpose the press conference may have served (para. 156).

[76] In the result, I find that the defence of qualified privilege is not available to Mr. Langen. He is accordingly liable to the plaintiffs for defaming them.

DAMAGES

[77] In reliance on three cases involving claims of police officers for defamation, the plaintiffs sought general damages of $25,000 each, with aggravated damages of $10,000 each. The three cases were Treitz v. Suvila, [1996] O.J. No. 4579, Jutasi v. Duhaime (2003), 17 C.C.L.T. (3d) 282, both from the Ontario Superior Court, and Kurtenbach v. Lalach, 2008 SKQB 20. Counsel for the plaintiffs very properly also directed me to a case in which the plaintiff police officer was awarded considerably less: Liboiron v. Majola, 2005 ABQB 952.

[78] In the Hill case, supra, the Supreme Court of Canada had this to say at para. 190 about aggravated damages in defamation cases:

If aggravated damages are to be awarded, there must be a finding that the defendant was motivated by actual malice, which increased the injury to the plaintiff, either by spreading further afield the damage to the reputation of the plaintiff, or by increasing the mental distress and humiliation of the plaintiff…. Malice may be established by intrinsic evidence derived from the libellous statement itself and the circumstances of its publication, or by extrinsic evidence pertaining to the surrounding circumstances which demonstrate that the defendant was motivated by an unjustifiable intention to injure the plaintiff.

[79] Counsel for the plaintiff submitted that among the circumstances that would suggest malice on the part of Mr. Langen was his continued attempt to justify his reportage at trial. I do not accept that as evidence of malice, as opposed to evidence of Mr. Langen's own strongly held view that he was right and the police officers were wrong. Had I found in his favour on the defence of qualified privilege, however, I would have denied him costs upon the dismissal of the action because of his persistence in that regard. As it is, I have already found that Mr. Langen was not motivated by actual malice, and I therefore decline to award aggravated damages. There may nevertheless be aggravating factors that I am entitled to take into account in assessing the plaintiffs' general damages, which must be assessed at large.

[80] The concept of damages being awarded "at large" was explained by Lord Hailsham LC in Cassell & Co Ltd v. Broome, [1972] 1 All E.R. 801 at 824 (HL):

In actions of defamation and in any other actions where damages for loss of reputation are involved, the principle of restitutio in integrum has necessarily an even more highly subjective element. Such actions involve a money award which may put the plaintiff in a purely financial sense in a much stronger position than he was before the wrong. Not merely can he recover the estimated sum of his past and future losses, but, in case the libel, driven underground, emerges from its lurking place at some future date, he must be able to point to a sum awarded by a jury sufficient to convince a bystander of the baselessness of the charge. As Windeyer J well said in Uren v. John Fairfax & Sons Pty Ltd (1967), 117 CLR 118 at 150:

It seems to me that, properly speaking, a man defamed does not get compensation for his damaged reputation. He gets damages because he was injured in his reputation, that is, simply because he was publicly defamed. For this reason, compensation by damages operates in two ways – as a vindication of the plaintiff to the public, and as a consolation to him for a wrong done. Compensation is here a solatium rather than a monetary recompense for harm measurable in money.

That is why it is not necessarily fair to compare awards of damages in this field with damages for personal injuries. Quite obviously, the award must include factors for injury to the feelings, the anxiety and uncertainty undergone in the litigation, the absence of apology, or the reaffirmation of the truth of the matter complained of, or the malice of the defendant. The bad conduct of the plaintiff himself may also enter into the matter, where he has provoked the libel, or where perhaps he has libelled the defendant in reply. What is awarded is thus a figure which cannot be arrived at by any purely objective computation. This is what is meant when the damages in defamation are described as being 'at large'.

[81] In the Hill case, supra at para. 182, the Supreme Court of Canada adopted the factors set out in Gatley on Libel and Slander (8th ed.) at pages 592-93 as those which should be taken into account in assessing general damages, as follows:

In an action of libel "the assessment of damages does not depend on any legal rule." The amount of damages is "peculiarly the province of the jury" [or in this case, the trier of fact], who in assessing them will naturally be governed by all the circumstances of the particular case.

They are entitled to take into their consideration the conduct of the plaintiff, his position and standing, the nature of the libel, the mode and extent of publication, the absence or refusal of any retraction or apology, and "the whole conduct of the defendant from the time when the libel was published down to the very moment of their verdict. They may take into consideration the conduct of the defendant before action, after action, and in court at the trial of the action," and also, it is submitted, the conduct of his counsel, who cannot shelter his client by taking responsibility for the conduct of the case. They should allow "for the sad truth that no apology, retraction or withdrawal can ever be guaranteed completely to undo the harm it has done or the hurt it has caused." They should also take into account the evidence led in aggravation or mitigation of the damages.

[82] I will now review the factors which I find to be of significance to the assessment of damages in this case, beginning with those which would tend to increase the award:

· The plaintiffs were at the material time of good standing and reputation in the community.

· The plaintiffs were police officers, whose integrity and good character are essential to their calling.

· The allegations were of criminal and brutal behaviour, of particular concern to a police officer.

· In relation to the plaintiff James Reaburn, the repeated allegation that he deliberately stomped on J.H.'s face and ground it into the gravel while J.H. was handcuffed, was especially egregious.

· The defendant persisted in his attempt to demonstrate that J.H. was right and the police officers were wrong, right up to and through the trial even though justification was never pleaded.

· The defendant refused to apologize.

[83] Factors which, in my view, would tend to reduce the award include the following:

· The plaintiff James Reaburn was truthfully reported as having made an insulting comment which could hardly enhance his reputation.

· The plaintiffs made no complaint after the publication of the first article.

· The newspaper was not widely distributed and the website was relatively unknown.

· Much of the difficulty and embarrassment suffered by the plaintiffs was due not to Mr. Langen's report, but to J.H.'s two complaints about their behaviour, which resulted in the investigations that took place.

[84] Taking all of these factors into account, as well as the cases cited by counsel for the plaintiffs, I assess the general damages of the plaintiff Peter Maw at $20,000, and of the plaintiff James Reaburn at $22,000. I would have assessed the general damages of the plaintiff James Reaburn at a higher level because of the aggravating factor of the particularly offensive allegation that he ground his boot into J.H.'s face. I consider, however, that the mitigating factor of the truth of the report of his comment to J.H. offsets that aggravating factor to some degree.

CONCLUSION

[85] The defendant is liable to the plaintiff Peter Maw for general damages in the amount of $20,000, and to the plaintiff James Reaburn for general damages in the amount of $22,000, plus pre-judgment interest in both cases. The plaintiffs are entitled to their costs at scale B.

“GRAUER J.”

Citation:	*Reaburn v. Langen*,
	2008 BCSC 1342