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Date: 20001124 |
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Docket: CA024746 |
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CA024748 |
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Registry: Vancouver |
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COURT OF APPEAL FOR BRITISH COLUMBIA |
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BETWEEN: |
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CLIVE PRESSLER and EILEEN PRESSLER |
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PLAINTIFFS |
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AND: |
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DAVID LETHBRIDGE and WESTCOM TV GROUP LTD. |
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DEFENDANTS |
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Before: |
The Honourable Mr. Justice Esson |
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The Honourable Madam Justice Southin |
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The Honourable Mr. Justice Braidwood |
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Irvine E. Epstein, Q.C. |
Counsel for the Appellant, |
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Daniel W. Burnett |
Counsel for the Appellant, |
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Douglas H. Christie |
Counsel for the Respondents |
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Place and Date of Hearing: |
Vancouver, British Columbia |
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18th and 19th September, 2000 |
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Place and Date of Judgment: |
Vancouver, British Columbia |
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24th November, 2000 |
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Written Reasons by:
Reasons for Judgment of the Honourable Madam Justice Southin:
[1] This is an appeal by the defendants below and cross-appeal by the plaintiffs below from a judgment pronounced after a twenty-five day trial by judge alone of an action for libel awarding against the appellant Westcom TV Group Ltd. (Westcom) to the respondent, Eileen Pressler (Mrs. Pressler), $10,000.00, and to her husband, the respondent, Claus Pressler (Mr. Pressler), $50,000.00, and against the appellant David Lethbridge (Dr. Lethbridge), $1,500 and $10,000 respectively. The judgment awards costs on Scale 3 presumably meaning that the liability for costs is joint and several. The length of the trial dictates the regrettable length of this judgment.
[2] The appellants each seek an order dismissing this action. The respondents, by their cross-appeal, seek an order:
[i] fixing punitive damages in the amount of $50,000 for each Respondent;
[ii] striking those portions of the judgment which find the Respondent Eileen Pressler guilty of a crime; and
[iii] awarding costs to the Respondents in this Court and the Court below as special costs or increased costs at scale 4.
[3] The second order sought is really an application to expunge certain passages of the reasons for judgment, something which this Court cannot do. We can say a passage in reasons for judgment is erroneous but we cannot expunge it.
[4] No argument was addressed to us that the appellants were joint tortfeasors. Therefore, nothing in this judgment addresses the question of whether, if A authorizes words of his which are defamatory to be broadcast, he is jointly liable with and for the same damages as the owner of the station. That question is for another day.
[5] That an action for libel, founded as this is on a television broadcast (described in para. 32 infra) in October 1993 lasting a few short minutes containing, among other passages, excerpts from an interview with Dr. Lethbridge (set out in para. 54 infra), should take twenty-five days puzzled me until, after having struggled to absorb the pleadings, I read the transcript and appeal book - one of the most trying experiences of my years on the bench. It was necessary to do so because of attacks made on the learned trial judge's three findings of fact crucial to his imposing liability on the appellants:
(1) That the broadcast was defamatory;
(2) That Dr. Lethbridge authorized the defamation (the learned judge did not say so in so many words but that is implicit in his judgment);
(3) That both appellants were actuated by express malice.
[6] This trial had only two light moments. The first occurred at the outset of the evidence of the first witness and I cannot forbear to quote it:
[The witness was Charles Stewart Nash.]
BY MR. CHRISTIE:
Q And how long have you been so employed [as Development Services Manager for the District of Salmon Arm Incorporated Municipality], sir?
A Since August 3rd, 1988.
Q And what are your duties in that regard, sir?
A I am responsible for and in charge of the Planning Department, Building Department, Economic Development Functions, and also conduct the statutory duties of the approving officer and the business license inspector.
THE COURT: Wait a moment. You are the Municipality in effect?
THE WITNESS: I don't do -- I don't do windows, Your Lordship.
[7] At the material time, the Presslers and Dr. Lethbridge lived in Salmon Arm, a town east of Kamloops on the Trans Canada Highway, the population of which was about 10,000. There, Mr. Pressler, a pharmacist, had for many years owned and operated a pharmacy in which Mrs. Pressler also had an interest. They had sold their house in Salmon Arm and were building a new house on a twenty-acre property outside the town proper where they proposed to reside with their children. By the time of trial, the pharmacy had ceased to operate. To what extent, if at all, the actions of Dr. Lethbridge contributed to the business failing became an issue at trial.
[8] Dr. Lethbridge, who holds a Ph.D. in psychology, came to Salmon Arm in 1989 to teach at the local college. According to his evidence, in April 1992 he "became aware of them" (the Presslers). He heard about a group called the Canadian League of Rights (the League) which, in his words, is "an anti-Semitic organization and a racist organization" and that "these characterizations" were also true of the Council on Public Affairs. Mrs. Pressler, on her own evidence, is the moving force, if not the sole member, of the Council on Public Affairs, referred to in the learned judge's reasons as "C.P.A.", which has some connection with the League.
[9] Because the words "racist", "anti-Semite" and "Holocaust" are in this age in which what passes as discourse on public questions often consists more of epithets than of reason, when I use these words in this judgment without inverted commas, I mean them as the Oxford Dictionary defines them:
"Racist" -
Racism ... 1936 ... The theory that distinctive human characteristics, abilities, etc. are determined by race; also, = *RACIALISM. Hence Racist.
"anti-Semite" -
Anti-Semitism ... 1881 ... Theory, action, or practice directed against the Jews. Hence Anti-Semite. Anti-Semitic.
[The Shorter Oxford English Dictionary, vol. 2, 3d ed., (Oxford University Press, 1973) Addenda.]
"Holocaust" -
holocaust ... 1 a case of large-scale destruction, esp. by fire or nuclear war. 2 (the Holocaust) the mass murder of the Jews by the Nazis 1939-45. 3 a sacrifice wholly consumed by fire.
[The Concise Oxford Dictionary, 8th ed., 1991]
[10] As to "racist", I am well aware that the definition in the dictionary does not fully express the way in which the word is now used. It frequently connotes someone who does not accept the words of the old hymn, "Red and yellow, black and white, All are equal in His sight."
[11] "Anti-Semitism" is invoked (whether wisely or foolishly is not for me to say) to condemn a wide range of behaviour from the mildly offensive (saying of someone "He is a Shylock.") to the extremely violent (the pogroms of Tsarist Russia).
[12] There are, I think, two kinds of Holocaust "deniers" - those who dispute the usually accepted number of murdered Jews to be six million or thereabouts, to whom the word "revisionist" might be applied, and those who assert there was never a policy implemented by the government of the Third Reich during the rule of Adolf Hitler to exterminate the Jews of Europe. As to the facts of the matter, I proceed on the footing, first, that there were many millions of Jews in Europe before 1939 and when the War ended, where were they, and, secondly, having read at one time a substantial part of Mein Kampf and noted the virulence of Hitler's diatribes against Jews, I consider the destruction of European Jewry to be consistent with his philosophy and, thus, mass murder more probable than not. [For the reader without easy access to Mein Kampf, this passage from Book 1, c. 2, (New York: Reynal & Hitchcock Translation, 1939) at p. 75 will illustrate the point:
Nothing gave me more cause for reflection than the gradually increased insight into the activities of Jews in certain fields.
Was there any form of filth or profligacy, above all in cultural life, in which at least one Jew did not participate?
When carefully cutting open such a growth, one could find a little Jew, blinded by the sudden light, like a maggot in a rotting corpse. ]
[13] I make mention of this because the parties to this appeal are entitled to know that I proceed from the premise that the Holocaust is as certain a fact of history as the moon landing of 1969.
EVENTS LEADING UP TO THE BROADCAST
[14] Dr. Lethbridge found out that the League planned to hold on 30th April, 1992, a meeting at the Salmon Arm Community Centre. He thereupon determined that there should be, and he orchestrated, a demonstration at the Centre. In the evidence, there are various accounts of that demonstration. By then, Dr. Lethbridge had himself established an organization called SACAR, that is to say the Salmon Arm Coalition Against Racism. The description of that demonstration I take from the 1st May, 1992 edition of the "Vernon Daily News", part of which description was printed on page 1 under the headline "Protest ends in chaos" and the rest on page 3 under the heading "Protest turns into ugly scene":
Salmon arm meeting
sparks confrontation
By ANDY TOMEC
Daily News writer
Angry protesters scuttled plans for an allegedly racist right-wing meeting in Salmon Arm Thursday night, touching off a brief melee with an elderly meeting-goer.
Leonard Saunders, 85, slapped a teenage girl across the face during a chaotic confrontation that saw a swarm of taunting protesters surround him as he attempted to leave the Salmon Arm community centre.
Less than an hour earlier, protesters in the centre's parking lot tangled with a silver GM Sprint in a scuffle that saw protesters pound and kick at the car as it attempted to leave the lot.
Protesters report one local teen, Bev Pichard, was sent briefly to hospital with injuries to her ankle after the automobile apparently ran over her foot.
In all, only five supporters, opposed by more than 150 demonstrators, showed up for the abortive meeting, which was to have featured a speech by Ron Gostick, founder of the Alberta-based Canadian League of Rights.
Protest organizer David Lethbridge denounced the CLR as an extreme right-wing and anti-semitic organization that has distributed such holocaust-denying materials such as "Did Six Million Jews Really Die?" and "Anne Frank Diaries a Hoax."
According to promotional literature, Gostick is on an extensive B.C./Alberta speaking tour entitled Moment of Opportunity, that is slated to take him to Kelowna tonight.
Gostick appeared not to be present among the handful of onlookers who ran a gauntlet of protesters through security-guarded doors to attend the meeting. Several observers speculated the group had covertly moved its meeting elsewhere.
Inside, meanwhile, the tiny group of meeting-goers briefly responded to questions from reporters before dispersing.
Saunders confirmed the meeting was organized at the behest of the Council On Public Affairs, the Salmon Arm based right-wing group which is next month planning to honor accused holocaust-deniers at a conference somewhere in the Okanagan.
The conference, originally scheduled for Vernon during the May long weekend, was cancelled when the manager of the Village Green Hotel complained of bomb threats from angry opponents.
The CPA still plans to hold its conference in an undisclosed location somewhere in the region, according to reports in several right-wing newsletters. The conference was also recently promoted on LibertyNet, a Vancouver-based telephone hotline that is currently under a B.C. Supreme Court injunction after allegedly spreading hatred.
Saunders, who described himself as assistant editor of the CPA's newsletter, denied charges the council is a racist organization or that the meeting had racist overtones.
Pressed further on his personal opinions, however, he confirmed his belief that six million jews didn't die in the Second World War holocaust, and that a jewish conspiracy is seeking world domination.
"It's been proven several times that 6 million people couldn't have been killed. It means a certain bunch of people - we won't name names - want control."
Asked whom he was referring to, he said "Zionist Jews".
Despite several attempts, only a single protester managed to get past community centre security and disrupt the meeting.
"How old are you?" the man, who described himself as an ordained minister, asked. "How can a man your age go through life in such ignorance?"
Protesters who gathered outside the community centre were monitored for a brief time by two sunglassed figures in the silver Sprint, one of whom was operating a camcorder.
(CONT. FROM PAGE 1)
The placard carrying crowd, dominated by teens, surrounded the car and began pounding on the windows and hood as it twice pushed its way through the mob.
Thirteen year old Nicole Brighouse said she was hit in the legs as the car pushed through.
"Some of us were trying to get out of the way when all of a sudden he just started ramming us," she said.
The driver is reportedly seeking charges against protest organizers for vandalism of his car.
The chaotic scene reached a climax as meeting attendees were cut off by screaming protesters while attempting to leave the building.
Surrounded by pushing protesters, Saunders reached out his arm, slapping 15-year-old Kaila Comeau, also apparently hitting 16-year-old Marlene Streight with the same blow.
"We were walking in front of him, linking arms. And he stuck his hand out and went whap," Comeau said.
Saunders described the incident as an act of self-defence.
"She was coming at me," he said, adding that another student attempted to kick him in the groin.
Lethbridge, a psychology professor for Okanagan College, denied the protesters were guilty of any wrongdoing.
"The people who came into this town are filthy, f---ing fascists, and they deserved to be yelled at and screamed at. They were not mishandled, and they were not in any way hurt or abused."
Teenage protester Jerry Job also denied any wrongdoing.
"I don't think we really acted violently. The only ones acting violently here were the CLR. They were trying to rile us up and provoke us into something."
Job, who claims to have lost several relatives during the Nazi occupation of Poland, described the protest as a spontaneous show of community disgust.
"They try to cover it up with candy coated names like Canadian League of Rights and Council of Public Affairs, and it's wrong," he said.
"These people are not welcome in our community, they're not welcome in the Okanagan, and they're not welcome in this country."
Salmon Arm RCMP confirmed they are still investigating a number of complaints as a result of the incident.
[It is not disputed here that the vehicle belonged to one of the Presslers and that the cameraman within it was one of their sons.]
[15] To this description, Dr. Lethbridge added, when asked, that he "tapped" the Pressler vehicle with a protest sign and "mooned" its occupants. He explained the sign incident as a way of letting the occupants know that by moving the vehicle they were hurting someone, and the "mooning" as a gesture of contempt for photographing him without his permission.
[16] Whether hooliganism is an effective way of fighting anti-Semitism and racism is a question I do not propose to address.
[17] Less than two weeks later, that is on the 13th May, 1992, the "Salmon Arm Observer" carried this item:
Group meets in Vernon
By Richard Rolke
Morning Star writer
A meeting of alleged hate mongers has been held in Vernon.
The Council on Public Affairs had planned to hold its Leadership '92 Conference on the May long weekend, but opted to hold it this past weekend.
According to spokesman Eileen Pressler, the Salmon Arm-based group changed the meeting date for a reason. "The reason we changed it was because of the publicity," she said.
The council's original plan to hold the event at the Village Green Hotel sparked controversy after the Okanagan Jewish Community alleged racists would be honored.
Among those who were alleged to be invited were Jim Keegstra and Malcolm Ross.
Village Green Hotel officials cancelled the meeting after receiving a bomb threat in March.
Pressler wouldn't say how many people attended or who was present.
"That's nobody's business and I don't have to report to anybody about who attended."
She would also not confirm if Keegstra and Ross were honored by the group or where the meeting was held. She did say that one of the topics discussed at the annual gathering was the environment.
Pressler said the location of the meeting will not be revealed because the Council on Public Affairs wants to hold its gathering at the same place next year.
She also took shots at the media and the Okanagan Jewish Community, stating the publicity forced the meeting to be closed to the public.
However, Pressler added that media coverage of the controversy also led to more people attending the gathering.
"It was a successful meeting," she said.
[18] I have included these two extracts from local papers because they show that the political opinions of the Presslers, particularly Mrs. Pressler, before the broadcast, had been disseminated widely in the community.
[19] Sometime between the spring of 1992 and the time of the broadcast, some eighteen months later, Dr. Lethbridge caused to be issued a document which said, among other things:
Since SACARs inception in the spring of 1992 we count among our victories:
1 - A public demonstration that shut down CLR (Canadian League of Rights) meetings in Salmon Arm and Kelowna and inspired similar activities in Oliver and Creston.
* * *
8 - Successful word-of-mouth boycott of Salmon Arm's Pharmasave, operated by the husband of the leader of the antiSemitic Council on Public Affairs (CPA).
9 - Application to the Post Office to remove a satellite station from Pharmasave in Salmon Arm.
[20] Whether, as the respondents allege, the broadcast was part of an ongoing attempt by Dr. Lethbridge to drive them from the community or to raise his own political profile in the community, or both, became an issue at the trial. The foundation for the latter assertion was that after the broadcast Dr. Lethbridge joined the Communist Party and was a candidate for that party in a federal election.
[21] The learned judge addressed the first branch of that issue at paragraph 147 of his reasons:
The defendant Lethbridge made no secret of what I find was his avowed aim to drive the Pressler family from Salmon Arm by destroying Claus Pressler's pharmacy business.
As he made no finding on the second branch, I take him to have implicitly rejected it.
THE PLEADINGS
[22] Cartwright C.J. included in his judgment in Jones v. Bennett, [1969] S.C.R. 277, the pleadings, so far as they were relevant to the issue in the Supreme Court of Canada, and, following that example, I shall do likewise. In doing so, however, I should not wish to be thought to be giving judicial approval to the amended statement of claim, the verbosity of which was bound to lead to a trial which lacked focus.
[23] Although the Canadian Broadcasting Corporation, which also carried the broadcast, was a party at the outset of the action, the respondents discontinued the action against it without, as would have been helpful, amending their statement of claim yet again.
[24] The amended statement of claim upon which the action went to trial was, in part:
4. The Defendants, and each of them, conspired one with the other to create a false, malicious and injurious story under the pretext of news, which was designed to create the maximum impact in damage to the reputations of each Plaintiff by the fabrication and repetition of false rumours, innuendo and gossip, and did thereby in the broadcast on October 11, 1993 and following, (particularized in paragraph 10 following) defame the Plaintiffs and each of them.
5. The Defendant, David Lethbridge, (hereinafter called "the first defendant") is a teacher, political activist and organiser of a group called SACAR whose stated purpose is to discredit the Plaintiffs, and each of them. He has maliciously intended to destroy the Plaintiffs' reputation. He is inciting the community to hate the Plaintiffs, through malicious innuendo and falsehood, by attributing acts and activities to the Plaintiffs which have never taken place. He has advocated a boycott of the Plaintiffs' business. The Defendant Westcom knew or ought to have known they were furthering this objective with their defamatory newscast.
* * *
8. The second defendant first aired the program, particulars of which follow in paragraph 10, on Monday, October 11, 1993, which was Thanksgiving Day, at 6:00 p.m., and again the following day on their "Mid Day Show" at 1:00 p.m. hosted by Mike Roberts. The Defendant Westcom TV Group Ltd. operating as owner of CHBC consented to the rebroadcast of the defamatory stories by the Canadian Broadcasting Corporation.
[There followed in paragraph 10 the text of the broadcast but, as the learned trial judge has described it more fully, I shall leave its description until later.]
* * *
12. The said broadcast depicted the Plaintiffs, Eileen Pressler and Claus Pressler, by innuendo, as dangerous, militant, criminal or borderline criminal, violent persons. It implied by innuendo that the Plaintiffs were involved with underground 'bunkers, telecommunicators, para military training, and created an identification with Waco, Texas, and other horrendous activities. Further, that the Plaintiffs and each of them were dishonest and had some evil purposes or intention, which was not true or lawful in that they were deceiving the municipal officials as to the purpose of their new home currently under construction in the Salmon Arm area.
13. By reason of the facts and matters herein set out, the said broadcast referred to and was understood to refer to the Plaintiffs.
14. The Plaintiffs are both referred to by name in the aforesaid broadcast.
15. The Plaintiffs have been brought into odium and contempt, have suffered great distress and humiliation and have been injured in their reputation because of the aforesaid broadcast.
16. Particulars of the defamatory innuendo are as follows:
(a) By referring to the Plaintiffs as being hate groups, the defendants implied that they were criminals since it is understood in ordinary language to be the description of groups in breach of the Criminal Code prohibition against promoting malice.
(b) The second defendant repeats what they concede in the broadcast to be innuendo without specifying what those innuendoes are. This in its ordinary meaning implies that the stories are worse than can be repeated.
(c) The first defendant indicates he does not want to publicly accuse the Plaintiffs, but he implies he will do so privately, and will repeat rumours as rumours.
17. The first defendant intends to maliciously injure the Plaintiffs and has said so in the defamatory article and elsewhere.
18. The second defendant knew, or ought to have known, that the first defendant was malicious in intent towards the Plaintiffs, both from his expressed intent in the interview, and from any reasonable inquiry as to his past expressions.
19. Wherefore the Plaintiffs say the Defendants, and each of them, conspired one with the other, or others, to arrange false rumours, innuendo and other falsehoods, both by words and the juxtaposition of pictures and images to create a false impression in a deliberate, malicious fabricated news broadcast which they intended to use to discredit, defame, and incite hatred against the Plaintiffs.
20. The CBC and Westcom deliberately selected a number of video and audio images selected from edited previously-made video tapes to falsely imply a criminal character to the Plaintiffs and imply they were involved in criminal activities when they were not, and further to falsely imply that there was substance to the alleged rumours, when there was not.
21. The defendant Lethbridge had endeavoured in this organized story to carry out a boycott of the Pressler business which he had previously proclaimed and advocated in public lectures in the month of March 1993 in Salmon Arm. The defendant Lethbridge displayed malice by disguising as rumours what he had previously stated in the aforesaid lectures was fact. The advocacy of a boycott is pleaded as evidence of malice and not as a claim for business losses. The defendant CHBC, through Gaffney, either knew or ought to have known, of the malice of the defendant Lethbridge, and his proclaimed intention to cause the destruction of the Presslers' business.
[25] In the statement of defence of Dr. Lethbridge, the first twelve paragraphs are generally a denial of the allegations in the statement of claim, save that:
4. This Defendant neither admits nor denies the allegations of fact in paragraphs 6, 7, 8, 9 and 10 of the Statement of Claim except insofar as direct quotations from statements made by this Defendant are quoted and as to those this Defendant admits making such statements.
[26] There are also these paragraphs:
13. In answer to the whole of the Statement of Claim, this Defendant says that any statements made by this Defendant and referred to in the Statement of Claim were made on an occasion of qualified privilege on a matter of interest to the recipient of the statements who had a right to receive the information contained therein and were made by this Defendant without malice or improper motive based upon his bona fide belief in the truth of the statements.
14. In further answer to the whole of the Statement of Claim, this Defendant says that the statements made by him and set forth in the Statement of Claim were fair comment consisting of expressions of opinions, honestly held and made without malice upon facts which were and are a matter of public interest.
[27] He did not plead justification but he did, in his statement of defence, make a quite unnecessary demand for particulars which when coupled with the answer, which I shall set out hereafter, contributed to the general obfuscation of the issues.
[28] For its part, the defence of the defendant, Westcom TV Group Ltd., was this:
1. Except where expressly admitted herein, this defendant denies each and every allegation contained in the Statement of Claim.
2. With regard to all of the words quoted in the Statement of Claim, this defendant denies that the words were intended to convey or did convey any meaning defamatory of the plaintiffs.
3. Further, the words used by this defendant are constitutionally protected pursuant to section 2(b) of the Canadian Charter of Rights and Freedoms. The defendants rely upon Section 52 of the Constitution Act, 1982 and claim that the law of defamation must be revised to accord with Charter values and in particular, must require that:
a) The plaintiffs prove the words complained of were false;
b) The plaintiffs prove this defendant was at fault, meaning malicious, or alternatively negligent, in publishing the words complained of;
c) The plaintiffs prove they have suffered damage as a consequence of the words complained of; and
d) The qualified privilege defence applies to public discussion of matters of political or public importance.
4. This defendant denies the alleged defamatory meanings or innuendoes in paragraphs 11, 12 and 16 of the Statement of Claim. This defendant denies that the alleged or any defamatory meanings arise from the words particularized by the plaintiff, as set forth in a statement of particulars dated March 27, 1997.
5. Alternatively, this defendant denies the words complained of are false, that this defendant was negligent or malicious or otherwise at fault, or that the words complained of caused any damage to either of the plaintiffs.
5[A] Further, as to paragraph 11, Claus Pressler has played a leading role in the Council on Public Affairs, even if it was actually founded by his wife and co-defendant [sic] Eileen Pressler. Thus the error, if there was one, was insignificant and not defamatory.
6. As to paragraph 12, the news story was neither meant nor understood to depict the plaintiffs as dangerous, militant, criminal or borderline criminal, violent persons or imply involvement with bunkers, telecommunicators or paramilitary training or create an identification with Waco, Texas or other horrendous activities. The relevant passages, were as follows:
Gaffney: "Eileen Pressler ... acknowledged there are a lot of rumours about the purposes of the buildings on their property. Rumours that she says are unfounded, asinine and ridiculous."
"... there are rumours, unconfirmed speculation, of extensive security measures such as guarded perimeter fences, of underground bunkers, of a compound with its own telecommunications and electrical systems, of a barn that is carpeted with numerous rooms and a large spiral staircase. Even that the property is a para military training ground."
Lethbridge: "... People come in with rumours like there's going to be para military training on the land and I say, no, this is ridiculous, they are not going to do para military training. They never had."
"... I think what they've built is a place where they will do what they have always done, hold conventions of extreme right wingers ... and distribute literature which just lies on the border of hate literature.
These passages as a whole were merely meant and understood to mean that the building was intended in part for "conventions of extreme right wingers" and to "distribute literature which just lies on the border of hate literature".
6A. The statements that the building was intended in part for "conventions of extreme right wingers" and to "distribute literature which just lies on the border of hate literature" were the speaker's honest opinion and the said words were fair comment upon a matter of public interest, namely political ideologies, racism and hate, and upon the following facts:
a) The plaintiffs ran an organization known as the Council on Public Affairs ("CPA").
b) The CPA organized conventions devoted to controversial political, religious and racial views.
c) One such convention planned for a Vernon hotel was cancelled by the hotel.
[No "d)".]
e) The CPA published newsletters devoted to controversial political, religious and racial views.
f) The CPA promoted and sold other literature devoted to controversial political, religious and racial views.
6B. Alternatively, the statements that the building was intended in part for "conventions of extreme right wingers" and to "distribute literature which just lies on the border of hate literature" were true in substance and in fact.
7. As to the remainder of paragraph 12, this defendant denies that the story implies that the plaintiffs are dishonest, evil or were deceiving municipal officials. The story reported that a workman stated the building(s) were about 14,000 square feet, which was true, and that a municipal official stated that the plans filed by the defendants indicated a smaller square footage, which was also true.
8. As to paragraph 16, this defendant says:
a) As to subparagraph (a), this defendant denies that the story called the plaintiffs hate groups or criminals. The only passages referring to "hate" were:
Gaffney: "...the Council on Public affairs, which publishes ultra right wing newsletters which support the views of controversial figures such as ... former teacher and convicted hate monger Jim Keegstra."
and
Lethbridge: "...what they've built is a place where they will ... hold conventions of extreme right wingers and print and distribute literature which just lies on the border of hate literature."
These quoted words were the speaker's honest opinion and they were fair comment upon a matter of public interest, namely political ideologies, racism and hate, and upon the facts particularized in paragraph 6A above. Alternatively, the words were true in substance and in fact.
b) As to subparagraph (b), the story does not fail to specify the rumours in question, nor does it suggest they are true. In fact, as set out in paragraph 4(b) above, the story suggests only that the building is for conventions and distribution of newsletters. Therefore, it does not carry the innuendo alleged.
c) As to subparagraph (c), this defendant says Lethbridge's statement that he would repeat rumours as rumours was broadcast along with Lethbridge's statement of that he merely believes the building is for conventions and distribution of newsletters, and therefore does not carry the innuendo alleged.
9. In the further alternative, the words complained of were published on an occasion of qualified privilege arising from:
a) the political or public importance of the subject matter of the news story;
b) the plaintiffs' own invitation to engage in public discussion of their views by their own publication and assertion of those views through the CPA newsletter and conferences;
c) this plaintiff's [sic] duty under the Broadcasting Act and as a member of the news media to ventilate public issues and foster discussion of public matters;
d) the ongoing public debate over the extent to which free speech permits arguably hateful speech, and the notoriety of proceedings known as Keegstra and Zundel, and the plaintiffs' encouragement, through the CPA newsletter of financial support for Keegstra and Zundel in those proceedings.
10. In the further alternative, this defendant says that the plaintiffs have not suffered damages as a consequence of the words complained of in the Statement of Claim, as alleged or at all, but rather, if the plaintiffs' reputations have suffered they have done so as a consequence of the plaintiffs own actions or as a result of non-defamatory reporting and commentary upon those actions.
[29] The demand for particulars referred to in paragraph 4 of the amended statement of defence was in these terms:
TAKE NOTICE that the Defendants request further and better particulars pursuant to Rule 19(11.1) and 19(17) of the following allegations in the Statement of Claim:
1. Under paragraph 12, provide particulars of which words complained of are alleged to bear each of the following defamatory meanings:
a. "Dangerous"
b. "Militant"
c. "Criminal"
d. "Borderline criminal"
e. "Violent"
f. "Involved with underground bunkers"
g. "Involved with paramilitary training"
h. "Dishonest"
i. "Had some evil purpose or intention"
j. "Were deceiving the municipal officials"
2. Under paragraph 12, to provide all particulars of which words complained of are alleged to have created an identification with Waco, Texas, and other horrendous activities.
3. Under paragraph 16(a), to provide particulars of which words complained of are alleged to bear the meaning that the Plaintiffs are "hate groups".
4. Under paragraph 12, to provide particulars of what "other horrendous activities" are alleged.
AND FURTHER TAKE NOTICE that if you do not provide the above particulars within 21 days of the date of this Request, an application will be made to the Court to compel delivery of the same.
[30] The response to the demand was this:
In response to your Demand for Further and Better Particulars dated March 20, 1997, I can respond as follows:
1. Under paragraph 12 of the Statement of Claim the words complained of which bear the defamatory meanings are words from the impugned article which convey these meanings as follows:
[1] "political extremism" in the words of Evans.
[2] "white supremacy and hate groups"
Lethbridge's words:
[3] "this is an organization whose purpose is anti-Semitism and whose purpose quite clearly is racism"
Depicting the premises of the Plaintiffs residence.
[4] "reluctance to speak out publicly"
[5] The words are not the only source of defamatory meaning, but the juxtaposition of clips and interviews to create the impression of fear and danger overall.
[6] "Extensive measures"
[7] "underground bunkers"
[8] "para military training ground"
[9] The repetition of what councillors have heard or citizen concerns.
[10] The implication that this was more than just a honey farm.
[11] "A compound with its own telecommunication system"
[12] "a barn that is carpeted, with numerous rooms, and a large spiral staircase".
2. The foregoing words alleged from the impugned article, juxtaposed with the video taped images depicted at the time, conveyed together the clear meaning that the Plaintiffs are "dangerous".
3. The same words and images taken in the defamatory broadcast bear the following defamatory meaning, implying by innuendo, that the Plaintiffs were "militant", "criminal", "borderline criminal", "violent", "involved with underground bunkers", "involved with paramilitary training", "dishonest" and "had some evil purpose or intention".
4. The defamatory innuendo that the Plaintiffs were deceiving the municipal officials is conveyed by the words "hold conventions of etrteme [sic] right-wingers and print and distribute literature which just lies on the border of hate literature" and that "they are simply building a house, a very big house". This, and the words quoted from the City Councillor, implies truth to the rumours of the deceit by the Plaintiffs.
5. The very fact that a major established news media outlet would publish the rumours quoted throughout the story implies the rumours are true.
6. The elements of the broadcast in words which imply an association with Waco, Texas arise out of the word "compound" repeated throughout the broadcast combined with the words quoted together with all the words quoted in regard to the word "dangerous" in paragraph 2 herein. This, and the images depicted with the innuendo that the rumours must be true, at least in part, carried a further innuendo that the Plaintiffs were involved in Waco-type horrendous activities.
7. In paragraph 16(a) the Plaintiffs are implied to be involved in hate groups based on the words:
A. The final quote of Lethbridge to the effect that "They are opposed by anti Nazis like himself".
Hence by logical inference "They" (the Plaintiffs) are Nazis. Common parlance identifies Nazis as a hate group prone to violence and criminals on a massive scale.
B. In the earlier part of the broadcast, Lethbridge says his group SACAR is "concerned about the growth of fascism". This implies that the Presslers, about whom he is concerned, are fascists.
C. The words of Lethbridge that the Presslers plan to "hold conventions of extreme right wingers and print and distribute literature which just lies on the border of hate literature" implies and carries the meaning that they are either leaders of or involved with hate groups. This also carries the meaning that they are dishonest, and they deliberately skirt the Criminal Code provisions on hate literature.
8. In paragraph 12, particulars of what "other horrendous activities" are alleged are as follows:
(1) The distribution of hate literature or disguised hate literature.
(2) The deceit of municipal officials.
(3) The holding of Nazi, or extreme right wing conventions.
(4) Para military training.
(5) Having a guarded compound with underground bunkers much like the Branch Davidians in Waco, Texas.
(6) Other unspecified activities of concern for councillors and citizens are occurring there.
(7) That they approve of slavery.
(8) That they support Ernst Zundel and James Keegstra in their activities.
(9) That they are involved in white supremacy and political extremism which implies violence and unlawful activities in ordinary common knowledge. This, though it is the CBC introduction, is an accurate description of the impact of the story for which Lethbridge and Westcom TV Group are responsible.
(10) "That this is an organization" (i.e. in which the Presslers are involved) whose purpose is anti Semitism and racism. This is in the view of the Plaintiffs and the mind of right thinking people, horrendous activities.
[31] The issue raised by paragraph 3 of Westcom's statement of defence was the subject of a pre-trial motion. The learned judge's reasons dismissing the motion are reported at (1997), 41 B.C.L.R. (3d) 350. No appeal having been brought from that dismissal, all I need say about it is that, in the result, this appeal falls to be determined on the common law of defamation.
THE BROADCAST
[32] I shall return to the issues these pleadings raise but first I shall set out the learned trial judge's description of the broadcast to which the parties took no exception in this Court and which, having seen a tape of that broadcast, I find accurate and adopt:
[13] The broadcast commences with Gaffney, to a musical accompaniment, declaiming "Tonight, on Okanagan Magazine, people are nervous in Salmon Arm." It then depicts a busy street in Salmon Arm. A garbage collector is then shown, removing garbage from a dumpster. The camera and tape recorder focus on him. He reacts with "Turn that off." A long shot of the Pressler house is shown next. Gaffney asks the garbage collector, "Why all the unsettling rumours about this property?".
Gaffney then comments:
Good evening and welcome to Okanagan Magazine. I'm Blaine Gaffney. Tonight, aviation for the masses. Flying made affordable. And the ancient discipline of yoga 6,000 years later.
But first, it's the talk of the town in Salmon Arm. Talk of political extremism, of white supremacy, of hate groups, a storm of rumours is brewing. At its centre is a property owned by a Salmon Arm family. Nobody can say for certain, what, if anything, is going on. That hasn't stopped all the speculation.
It sits next to the Trans-Canada highway between Salmon Arm and Canoe. The driveway leads to a 20 acre property that is the source of a great deal of speculation, rumour, innuendo and concern.
As Gaffney speaks, the words "Rampent [sic] Rumours" appear over the image of the driveway entrance to the plaintiffs' property. The videographer walks partly up the driveway accompanied by Gaffney. Gaffney is then shown talking to one Romeo Thomas, with the screen captioned "Romeo Thomas - neighbour":
Gaffney: So you know the people over here?
Thomas: I don't want to know them. We have no use for them. I don't even know what's going on myself.
Gaffney: What makes you say something is going on?
Thomas: Well, there's that woman. She comes over here, talks to the caretaker here. They have no use for them. Other people down the highway here are complaining about them. People over here are complaining about them, so I don't know.
Gaffney: (voice-over) A lot of people are talking about the property and the buildings that have been recently constructed on it, but most are reluctant to speak out publicly.
Gaffney says this against a backdrop of the Pressler house. The garbage collector is shown removing garbage from a dumpster. Gaffney asks him, "Do you know anything about it at all?" The segment in which the garbage collector tells Gaffney to "Turn that off" is then replayed.
[14] This is followed by a close-up of an apparently worried-looking man, purportedly the owner of the motel across the highway from the Pressler property. He says:
Well, we don't talk about it too much, you know. When you're in business you just don't - you don't know what's going on, eh?
[15] The next image is that of a young woman about to enter a store. Gaffney attempts to interview her:
Gaffney: Have you heard anything at all about that piece of property?
Woman: No, I've just heard what people are saying that - I don't know what's really going on so I don't want to say a lot.
Gaffney: What are people saying?
Woman: Well, I don't know. You should talk to Frank, he knows more about it.
Gaffney: What have you heard?
Woman: No, I'm not going to say.
At that point, the woman quickly vanishes.
[16] The next shot closes in on the Pressler home seen through a wire fence. Gaffney states in a voice-over:
So why all the reluctance to talk? Well it has to do with the owners of the property, their background and their beliefs. They are Claus and Eileen Pressler, founders of the Council on Public Affairs, an organization that publishes ultra right-wing newsletters which support the views of controversial figures such as Ernest Zundel.
[17] While Gaffney speaks, the screen depicts two copies of the CPA digest. Next follows old news footage of Ernst Zundel, the Holocaust revisionist and publisher of anti-Semitic racist materials, speaking to someone in a threatening tone "Yeah, we're going to get you yet, don't you worry."
[18] Gaffney continues, saying:
And former Alberta teacher and convicted hate-monger, Jim Keegstra. The Council also organizes controversial conventions, including one last year in Penticton where Eileen Pressler introduces Eustace Mullins.
As he speaks, a close-up is shown of a boxed article taken from the CPA digest entitled "Stop the press!", appealing for funds and prayers for Jim Keegstra, the schoolteacher tried and convicted for promoting hatred.
[19] Eileen Pressler is then shown at a podium introducing one Eustace Mullins, to a relatively large crowd of people. Eustace Mullins is an American author reputed to be notorious for his virulent anti-Semitic and white supremacist viewpoints. He was also a contributing editor to the CPA digest. The words "Eileen Pressler - Council on Public Affairs" appear at the bottom of the screen. Behind the figure of Eileen Pressler appears a banner reading "Onward Christian Soldiers". Mrs. Pressler says to much applause, "He's had a very, very colourful career and he's a very talented man. He's also a very dear friend. It gives me great pleasure to ask Eustace Mullins to come and speak."
[20] Gaffney then states in a voice-over "Mullins is an American writer with extreme racial views." This is followed by a close-up of Mullins speaking, with the words "Eustace Mullins - author" appearing at the foot of the screen. Mullins states:
Well, somehow, even after the Civil War and everything had settled down, our government in Washington got the idea that breeding Negroes was a pretty good idea and that they've been doing it ever since. But they have no idea what to do with them. They don't realize you're supposed to sell them. So consequently we have this vast surplus of blacks who have bankrupted the country.
Gaffney then says "Eileen Pressler speaks highly of Mullins and he also of her." Mullins then says of Eileen Pressler: "She may even make a Canadian out of me some day."
[21] Gaffney next declaims in a voice-over, as a photograph of Eileen Pressler appears on the screen:
So, with Eileen Pressler's extreme right-wing connections, it's not surprising neighbours are concerned about the activities on the 20 acre property.
This is followed by an image of Gaffney walking up the driveway of the Rasmussen home, neighbours of the plaintiffs. This exchange follows:
N. Rasmussen: I don't get too much information. But it's a big house and I think there's probably more to it than meets the eye, but I don't want to say too much 'cause, you know, I live next door so - they are my neighbours.
Gaffney: But something about it concerns you, it seems like?
N. Rasmussen: Yep. Just local rumours, I guess.
[22] The camera then depicts a shot of the Pressler residence, taken through shrubs, portraying construction workers. This is followed by another clip of the Romeo Thomas interview. Gaffney states, "And when neighbours get close to the property the reception isn't friendly." He asks Romeo Thomas:
Gaffney: You were standing right there?
Thomas: They won't even let me go even on the road like that.
Gaffney: They chased you off?
Thomas: They chase you off. We don't want nobody in here.
[23] The camera then focuses on the Pressler property and an angry construction worker. Gaffney states, "Trying to check out the local rumours on-site proved pointless.":
Worker: You guys want to get the [expletive deleted] out, now. We don't want reporters around here, especially if you're recording.
Gaffney: Why is that?
Worker: Because we're working here and we don't like being disturbed. Now get the [expletive deleted] out of here.
Gaffney: I mean, this isn't your property, right?
Worker: Just get the [expletive deleted] out.
Gaffney: O.K.
Worker: You're trespassing as far as I'm concerned. Get the [expletive deleted] out right now.
The worker is one of the Presslers' sons.
[24] Next appears a scene showing Gaffney standing on a property adjacent to the Presslers'. Gaffney on camera narrates:
Neither Claus nor Eileen Pressler would agree to an on-camera interview, but we did talk to Eileen Pressler on the phone and she acknowledged there are a lot of rumours about the purposes of the buildings on their property. Rumours that she says are unfounded, asinine and ridiculous. And she says those rumours are all the product of one man, David Lethbridge.
[25] The screen then depicts a close-up of the defendant, David Lethbridge. The words "David Lethbridge - Coalition Against Racism" appear on the screen.
Gaffney: Are you the source of all these rumours about the Pressler property that are floating around town?
Lethbridge: No. I do not want to publicly accuse the Presslers of doing something on their land that I don't know about. I do know the rumours. I haven't started them, but I will repeat them to others as rumours because citizens are concerned.
The concern is this: this is an organization whose purpose is anti-Semitism and whose purpose quite clearly is racism.
[26] This is followed by a video clip of a group of placard-carrying demonstrators confronting a car attempting to drive through a parking lot. This was taken at a demonstration organized by Lethbridge on behalf of SACAR to protest a meeting of the Canadian League of Rights scheduled to take place at the Salmon Arm Community Centre. The persons inside the car were Claus Pressler and one of his sons.
[27] The defendant Lethbridge is seen striking the Pressler car with his picket sign while surrounded by other protestors blocking the car's progress. The clip further shows the demonstrators carrying placards reading "Counsel on Nazi Affairs [phone number]. Undercover racism." The phone number on the placards is that of the plaintiff Eileen Pressler and her organization, the CPA. One protestor at the scene states "Yeah, that's right, that's your attitude - mow them down, mow them down." As this footage is shown, Gaffney states in a voice-over:
David Lethbridge is the director of SACAR, the Salmon Arm Coalition Against Racism. In April last year the group staged a spirited demonstration against what they said was a racist meeting. SACAR was formed in direct response to the Pressler's activities within the Council on Public Affairs.
[28] Gaffney and Lethbridge are next depicted sitting and conversing at a picnic table in a rustic setting. A close-up appears of Lethbridge, who states:
What SACAR is, is we are simply a community based organization who is concerned about the growth of fascism and we do our best to expose what materials we have.
[29] Next, a shot of the municipal building of the District of Salmon Arm appears. Against this backdrop, Gaffney states:
According to officials at Salmon Arm Municipal Hall the Presslers' claim to be building a honey-processing plant on their property and a retirement home. But there are rumours, unconfirmed speculation, of extensive security measures such as guarded perimeter fences, of underground bunkers, of a compound with its own telecommunications and electrical systems, of a barn that is carpeted, with numerous rooms and a large spiral staircase. Even that the property is a para-military training ground.
As Gaffney narrates, a close-up appears of a wire fence with the Pressler residence in the background, coinciding with the words "extensive security measures such as guarded perimeter fences". A large pile of concrete blocks is visible as the words "underground bunkers" are spoken. Shown next is a shed with an antenna and a pole with an electric apparatus, coinciding with the words "its own telecommunications and electrical systems". The next depiction is of the red barn, as the words "a barn that is carpeted, with numerous rooms and a large spiral staircase" are uttered by Gaffney. As the suggestion about the property being a para-military training ground is made, the screen shows a close-up of a sign reading "No Trespassing".
[30] The defendant Lethbridge is then shown stating:
I have consistently tried to get people not to be upset and paranoid about this. People come in with rumours like there's going to be paramilitary training on this land, and I say, no, this is ridiculous. They're not going to do para-military training. They never have.
An image of a shed to which the "No Trespassing" sign is posted is shown, against which Gaffney states:
Lethbridge believes the Presslers are building a facility to hold meetings of extreme right-wingers so they won't have to worry about booking hotels which later cancel their convention, something that happened last year at a Vernon hotel.
As Gaffney speaks, a shot of The Village Green Hotel, identified by a large street sign, is shown. A woman is portrayed in an office of the hotel, on the telephone with her back to the camera. The evidence establishes that The Village Green Hotel was the hotel into which Eileen Pressler had booked a convention sponsored by her Council on Public Affairs, entitled "Leadership 92". That convention was to feature right-wing speakers, many of whom are fairly described as propagandists for the far-right, holding anti-Semitic, white supremacist viewpoints. The Village Green Hotel cancelled the convention, citing a bomb threat as its reason.
[31] Lethbridge is next shown stating, with regard to the Pressler property:
It will be defended, of course, because it will be impossible to get into. It's difficult to picket and protest because it's right on the highway. I think what they've built is a place where they will do what they have always done, hold conventions of extreme right-wingers and print and distribute literature which just lies on the border of hate literature.
[32] A picture of workmen on the plaintiff's land is then shown, with Gaffney stating in a voice-over, "But workmen on the site say they're simply building a house, a very big house." A drywaller appears. Gaffney questions him:
Gaffney: How many square feet, do you know?
Man: Fourteen thousand.
[It appears that Gaffney and the unidentified man were at cross-purposes. The house was some 3,000 square feet but it required some 14,000 square feet of drywalling.]
[33] The camera then moves to Gaffney interviewing the building inspector for the Salmon Arm Municipal District. This is captioned "Gordon Isaac - Building Inspector" appearing at the bottom of the screen. Isaac says, "Mrs. Pressler has declined to offer plans for viewing to yourself". Then, a long distance shot of the Pressler house appears, photographed in such a manner that the house fills the entire screen. Gaffney states:
We weren't allowed to see the plans for the large structure, but the local building inspector says it's much smaller than fourteen thousand square feet.
Again, Isaac is shown at the municipal building. The following exchange takes place between Gaffney and Isaac:
Isaac: To date we have plans for a residential building.
Gaffney: How big is it?
Isaac: It's not extraordinarily large by today's standards.
[34] The scene then changes to a close-up of Gaffney and Isaac studying the building permit obtained by the Presslers from the municipality. The following exchange takes place:
Gaffney: And is what's going on there, as far as you can determine, in keeping with the zoning regulations for the property?
Isaac: I have no reason to believe otherwise. I don't have any controversy with the Presslers at this time.
[35] An entirely different scene follows showing Gaffney and a woman engaged in conversation out-of-doors. The words "Dorothy Argent - Salmon Arm Councillor" appear on the screen, and the following words are spoken:
Argent: Citizens have said that they're really concerned that they feel that there's other activities that are happening on there.
Gaffney: (voice-over) Even though the Salmon Arm building inspector says nothing on the Pressler property contravenes zoning bylaws, council members want to check it out for themselves.
Argent: There have been some concerned citizens that have come forward to us and are concerned that there's more than a honey farm. And so at the present time, you know, we will be doing an inspection just, to just check on the use.
[36] The next scene depicts the Presslers' honey house in the background, with what appears to be a concrete wall or trench in the foreground. I find that this concrete structure is in fact a single concrete brick, made to resemble a trench or wall by means of manipulative photography. As this image appears, followed by one of the red barn, Gaffney states:
Salmon Arm council can only insist what's built on the property is in keeping with zoning restrictions. It has no control over the Presslers or the Council on Public Affairs. In that regard, Lethbridge is the local watchdog.
The scene switches to Lethbridge, who concludes the broadcast with the words:
If they declare that they want free speech, then quite certainly I think those of us in the anti-Nazi organizations have a right to this very same free speech and we will use it to discredit them.
Gaffney has the last word:
While construction on the Pressler property continues, so too do preparations by the Salmon Arm City Council to have an on-site look at the property. A date for their inspection has not yet been determined.
That completes the broadcast.
THE PLEADINGS REVISITED
[33] I return now to the pleadings. The learned judge said of them this:
[2] The defendants deny that the broadcast contained any defamatory meanings. Alternatively, in response to part of the allegation of defamation, the defendants plead truth. Qualified privilege and fair comment are also pleaded in answer to other aspects of the alleged defamation.
[34] The learned judge in this paragraph erred in saying "the defendants" pleaded truth. Dr. Lethbridge did not and in this Court he complains of the learned judge saying that he did. As to Westcom, I do not know whether it intended its paragraph 5 to be a plea of justification and I take the pleas in paragraphs 6B and 8 to mean no more than that it was true that the building was intended, in part, for "conventions of extreme right-wingers" and "to distribute literature which just lies on the border of hate literature".
[35] In other words, I do not take these pleas, and the importance of this will emerge hereafter, to be a plea that if the words used meant, as the Presslers had alleged, that they were criminals, that it is true that the Presslers were criminals. To put it yet another way, I do not understand either of the appellants to have pleaded, if the words bear the meaning set out in paragraph 16(a) of the statement of claim, that the words are true.
[36] I make these further comments on these pleadings:
(1) Paragraph 12 of the statement of claim was, for the respondents' purposes, far too broad and the particulars gave the appellants the opportunity to turn the trial into a trial of Mrs. Pressler's opinions. I infer the draftsman was unfamiliar with the course followed by counsel for the plaintiff in Speidel v. Plato Films, Ltd., infra, para. 75, in not complaining of everything. Although it is not wrong to plead what is sometimes called a "false innuendo", it is unnecessary to do so. In this case, the respondents, if they wanted to put some particular construction on the words, could simply have alleged: "The said words meant and were understood to mean that the plaintiffs were constructing a compound for the purpose of paramilitary training and the holding of conventions and in doing so were in breach of the zoning and building restrictions of the District of Salmon Arm which, in obtaining their building permit, they had deceived."
The learned judge, on that plea, could have prevented the trial turning into a full-blown inquiry into Mrs. Pressler's opinions, an inquiry which took up, I would judge, about three-quarters of the trial.
(2) Why the respondents alleged in paragraph 4 a conspiracy and in paragraph 5 express malice, I am unable to comprehend.
(3) The appellant Lethbridge pleaded qualified privilege and fair comment. As to both, he failed to give proper particulars. He ought to have stated what the occasion of qualified privilege was. As to fair comment, he should have stated the nature of the public interest.
(4) What Westcom's paragraphs 6, 6A and 6B are intended to convey, I am not sure, but, as I have already indicated, I do not take them as a plea of justification in the sense of asserting that the words were true in substance and in fact, i.e. there was to be paramilitary training and the construction was contrary to law. I take them to be a denial of the innuendoes pleaded and an assertion that the buildings were to be used for disseminating literature, fairly called hate literature, albeit not necessarily criminal hate literature, i.e. literature within the proscriptions of ss. 318 and 319 of the Criminal Code:
318.(1) Every one who advocates or promotes genocide is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years.
(2) In this section "genocide" means any of the following acts committed with intent to destroy in whole or in part any identifiable group, namely,
(a) killing members of the group; or
(b) deliberately inflicting on the group conditions of life calculated to bring about its physical destruction.
(3) No proceeding for an offence under this section shall be instituted without the consent of the Attorney General.
(4) In this section "identifiable group" means any section of the public distinguished by colour, race, religion or ethnic origin.
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.
(2) Every one who, by communicating statements, other than in private conversation, wilfully promotes hatred against any identifiable group 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.
(3) No person shall be convicted of an offence under subsection (2)
(a) if he establishes that the statements communicated were true;
(b) if, in good faith, he expressed or attempted to establish by argument an opinion upon a religious subject;
(c) if the statements were relevant to any subject of public interest, the discussion of which was for the public benefit, and if on reasonable grounds he believed them to be true; or
(d) if, in good faith, he intended to point out, for the purpose of removal, matters producing or tending to produce feelings of hatred towards an identifiable group in Canada.
* * *
(6) No proceeding for an offence under subsection (2) shall be instituted without the consent of the Attorney General.
(5) Paragraph 7 of the statement of defence of the appellant Westcom is an evasive plea. If it means that the building was to be 14,000 square feet, that simply was not true.
(6) When a plaintiff seeks to defeat a plea of qualified privilege or fair comment by an allegation of express malice, he should do so by way of reply, although B.C. Supreme Court Rule 19(23) relieves him of the obligation to give particulars. In this case, as I have already noted, the respondents, for some inexplicable reason, had pleaded express malice in their statement of claim.
LIABILITY
a) Was the broadcast defamatory?
[37] A judge sitting alone on a trial in an action for defamation, must first ask himself whether the publication complained of is capable of bearing a defamatory meaning (a question of law) and then whether the publication was defamatory, in other words, did it hold the plaintiffs up to hatred, ridicule and contempt (a jury question).
[38] Although this Court is not fettered in considering whether a trial judge erred in answering a question of law, we are, when considering his answer to the jury question, constrained by the usual restrictions on interfering with a trial judge's findings of "fact".
[39] I am satisfied this broadcast was capable of bearing a defamatory meaning and I am not persuaded that, in finding it to be defamatory, the learned judge committed any reversible error.
[40] Although it is not a crime in Canada today to engage in paramilitary activity unless the Governor in Council has issued a proclamation under s. 70 of the Criminal Code, right-thinking Canadians look upon such activity, which is contrary to our traditions, with contempt. I am satisfied also that in British Columbia - I cannot speak for the rest of Canada - to accuse a man of cheating on the municipal rules relating to land use will hold him up to odium.
[41] To show how the learned trial judge addressed those two issues, I now quote from his judgment:
[46] The false allegations of misuse of land for military-type purposes and the building of a convention centre accentuated, substantiated and greatly exaggerated the rumours of racism and anti-Semitism already in existence.
* * *
[76] The plaintiffs submit that the broadcast left the following impressions with viewers, capable of conveying the alleged defamatory meanings:
a. Claus Pressler is one of the two founders of the racist Council on Public Affairs and is an active member. The CPA publishes racist and anti-Semitic hate literature and holds conferences of racial extremists;
b. People know what is happening on the Pressler property but will not talk because they are afraid of the Presslers extreme right-wing views and connections to extreme racists and anti-Semitic hatemongers;
c. Attempting to check out the rumours about the Pressler property on site was pointless as reporters were evicted from the property by a violent man;
d. Claus and Eileen Pressler both refused to talk to Gaffney on camera and therefore have something to hide;
e. David Lethbridge is a courageous, knowledgeable and credible anti-racism activist;
f. The Presslers are not building a retirement home but a compound with extensive security measures, guarded perimeter fences, underground bunkers, private telecommunication and electric systems, and possibly paramilitary training, and a barn that is carpeted with numerous rooms and a large spiral staircase;
g. The Presslers are deceiving municipal officials about the construction on their property and its purpose and are really engaging in unlawful criminal activity on the property;
h. Lethbridge is the community's sole watchdog over the Presslers' activities as the Salmon Arm municipal Council has no control over them or the CPA.
* * *
[91] The Presslers claim that the broadcast was defamatory in portraying them as not building a retirement home but, rather, a compound with extensive security measures, guarded perimeter fences, underground bunkers, its own telecommunication and electrical systems, a carpeted barn with numerous rooms, a large spiral staircase, with paramilitary training ground potential.
[92] I find that the broadcast indeed made such averments and that they are entirely without foundation. As such they constitute a defamation of both Claus and Eileen Pressler. I find that the Presslers were building precisely what was stated in the building permit filed with the building inspector. That is to say they were not building a fourteen thousand square foot military compound or convention centre. In fact they were building a retirement home of 3,165 square feet of finished area with two farm buildings, namely, the honey house and the red barn.
* * *
[98] After seeing and hearing the television broadcast, the ordinary person would have likely concluded correctly that the female plaintiff was a racist and anti-Semite and, wrongly, that her husband was a co-founder of the CPA and as heavily involved in that group's activities as his wife. Further, an ordinary, reasonable person would have concluded that both the plaintiffs were deceiving the municipal authorities by not building a retirement home but instead a fourteen thousand square foot fortified convention centre, with bunkers and armed perimeter fences, among other characteristics, that could potentially be used for paramilitary purposes in aid of extreme right wing views.
[99] Insofar as the defamation concerning land use was concerned, I observe that no attempt was made by either defendant to justify the false imputation about what the Presslers were building on their land. As there was not a jot of evidence to support such imputation, this is not surprising.
[42] The learned judge found that the specific allegations of defamation set out by him in paragraph 76 of his judgment were encompassed within the statement of claim. The appellants made no direct attack on this finding. Therefore, I accept it.
[43] On the question of whether the learned judge erred in holding the broadcast to be defamatory, counsel for Westcom made in his factum only one assertion of error, thus:
The learned Trial Judge applied the wrong legal principles in determining the meaning of the words complained of, and erroneously held the words meant:
a) the Presslers had underground bunkers and were using their property for quasi-military purposes.
b) Claus Pressler was as involved in the CPA as his wife and is a militant racist and anti-Semite.
[44] Upon this, counsel for the appellant Westcom expanded in his factum thus:
... the Trial Judge relied on overturned authority on the treatment of images; failed to account for context; relied upon the subjective evidence of one witness; gave the words their worst possible meaning; elevated "rumours" to allegations of fact; and elevated references to the CPA to direct allegations against Claus Pressler.
[45] The "overturned authority" to which counsel is referring is the judgment of Somers J. in Colour Your World Corp. v. Canadian Broadcasting Corp. (1994), 17 O.R. (3d) 308 (Ont. Gen. Div.) in which that learned judge had held that television imagery can lead to impressions which are libellous even if the words themselves are not. Counsel referred to this passage in the judgment of the Ontario Court of Appeal reversing that judgment, (1998), 38 O.R. (3d) 97 at 107:
There may well be circumstances where the impact of what the viewer sees and hears so dramatically contradicts the words used, that the meaning of those words attributed by a viewer is distorted. But one cannot ignore the content of the statements made. The fact that there are both visual and auditory components to a television broadcast does not render the words used irrelevant. When determining how a reasonable viewer might perceive the meaning of a broadcast, we must look not only to image, sound and sequence, we must also look to the actual words used. If the content of those words is not distorted by the audio-visual aspects of the broadcast, they should be deemed the primary conveyor of a program's meaning.
[46] I do not agree with this passage if it means what counsel for Westcom says it means. In my opinion, a publication must be taken whole to determine whether it contains a defamatory sting. The words and the pictures cannot be separated and the learned trial judge in the case at bar did not err as asserted.
b) Is Dr. Lethbridge liable for the broadcast?
[47] Counsel for Dr. Lethbridge took a different tack.
[48] His fundamental proposition, as I understood it, was that the words of Dr. Lethbridge used by Westcom in the broadcast, in and of themselves, were not defamatory and, thus, Dr. Lethbridge should bear no liability for the defamation which resulted from the juxtaposition of other images and words with his words, which were some only of the words which had been spoken by him in the interview he gave to Westcom's reporter, Mr. Gaffney, sometime before the broadcast and which was recorded on tape.
[49] That recorded interview was consequent upon an earlier interview he had given to Mr. Gaffney at the latter's instigation.
[50] No authority which grapples with the question of the liability for the whole of a broadcast of a person whose words are used as part of that broadcast was drawn to our attention.
[51] The learned judge did not directly address this question. I infer that he did not because it was not raised directly to him.
[52] The question is of importance because a common technique of television producers is to interview a number of persons and take bits and pieces from each interview and put them together in a way thought to be interesting. This technique is capable of giving a false impression of the meaning the interviewee intends by his words to convey, by virtue either of editing out other words of the interviewee or juxtaposing the words used with the words of others.
[53] Publication is the essence of defamation. In principle, I consider an interviewee is liable for a publication on television if by his antecedent dealings with the broadcaster he has authorized the publication of its substance and its sting and what is published by the broadcaster is that substance and that sting. This is an application to the modern media of R. v. Cooper (1846), 8 Q.B. 533, 115 E.R. 976.
[54] Dr. Lethbridge, as I have said, gave an interview, which was taped, to the reporter, Mr. Gaffney. The transcript of the interview from which the words used were extracted is too long to quote in full but I quote part of it now:
MR. LETHBRIDGE: -- really hangs himself because when he writes a letter, particularly a vile one, he'll send it to 50 or 60 people so it's not at all difficult to get copies of his pro-Nazi letters.
MR. GAFFNEY: He doesn't seem to care much about it, I guess. So anyways, getting to these Presslers. Maybe you should generally tell me why you have a concern say about the Presslers in general.
MR. LETHBRIDGE: Well, my concern is with the Council on Public Affairs, which is an organization created and run by Ilene Pressler. The problem with this organization is that they've held two conferences, one called Leadership '91, and one called Leadership '92. And certainly Leadership '92 has been called in the press, the largest collection of white supremacists and racists ever brought together in Canada at one time and that's certainly the case. High profile white supremacists and, quite honestly, neo-Nazis like David Irving, Eustace Mullins, Everitt Slivern, Fred Leuchter, Jim Keegstra, Malcolm Ross.
There are a dozen high-profile individuals who run the gamut from white supremacy through anti-Semitism all the way through to neo-Nazism were gathered together at a conference. Same thing at Leadership '91. They had Ernst Zundel and Bo Gritz who is a presidential candidate for Liberty Lobby, which the biggest anti-Semitic organization in the United States.
So these are not small local neo-Nazis. These are important and powerful people. And it indicates something about the strength of the Council on Public Affairs that they can bring together such a disparate extreme right-wingers under one roof. To have what is essentially a unity meeting.
There's that problem, then, of course, there is their Council on Public Affairs Digest, which is, quite frankly, overtly anti-Semitic. Has published pro-fascist articles and that kind of thing. What we're looking at then is an extreme right organization which has considerable strength.
Their Council on Public Affairs Digest, which used to be a monthly and is now, I believe, a bi-monthly, has a circulation internationally of 12,000 people. It goes out to apartheid South Africa, it goes out to Germany, it goes out to Croatia, it goes out to England, it goes out to the United States.
MR. GAFFNEY: From where?
MR. LETHBRIDGE: It is published -- pardon me, yes, published, put together in Salmon Arm. Obviously, it's not printed at any Salmon Arm printing company. Where the actual printing is done, I don't know. But it's a Council on Public Affairs Salmon Arm publication. So it's large. It has strength. And as far as we know it's main purposes are the recruitment to these extreme right views through the publications and through the conferences.
MR. GAFFNEY: Now, of course, you're always going to hear, hey, people got the right to think what they want to think and free thought, that sort of thing.
MR. LETHBRIDGE: Um-hum.
MR. GAFFNEY: Does that hold here?
MR. LETHBRIDGE: I have no problem with that, what we have to look at is the context and that is that over the last dozen years the rise of fascism has grown expeditiously around the world. A fascist party member was elected in England on the week-end. There's been -- Mussolini's granddaughter was elected in Italy.
These are not isolated things. Since Stalinism collapsed in eastern Europe, Nazi collaborationist, individuals and organizations have come to the force again. Particularly, say in Lithuania, Bulgaria, Romania. I was watching TV last night --
MR. GAFFNEY: How does that relate to what's happening right here in Salmon Arm though?
MR. LETHBRIDGE: How it relates to it is that they're internationally neo-Nazis and Hitler apologists are on the rise. And this is part of an international network through its ties to other organizations. For example, the Canadian League of Rights is a very strong ally of the Council on Public Affairs. They named Ilene Pressler woman of the year last year. In that organization the Canadian League of Rights is a well-known anti-Semitic organization with international ties through WACL in South Korea.
* * *
MR. LETHBRIDGE: Um-hum. To get back to your question about the issue of free speech. It's part of the purpose of Salmon Arm Coalition to make sure that people in town and across the province understand exactly who is speaking about what. Anti-Semitic groups, neo-Nazi groups, white supremacist groups generally prefer to operate under cover. Under cover of darkness, not to expose themselves. Once they're exposed, this, I think, helps discredit and destroy these organizations, that's our purpose. If they declare that they want free speech, then, quite certainly, those of us in the anti-Nazi organizations have a right to this very same free speech and we will use it to discredit them.
* * *
MR. GAFFNEY: Yeah. Let's just get familiar to this new place they're building down here on the highway.
MR. LETHBRIDGE: Um'hum.
MR. GAFFNEY: Well, generally, just what can you tell me about that place?
MR. LETHBRIDGE: What we can tell you is there's a 20 acre area of land on Highway 1, which is owned by the Presslers. Where they're doing a considerable amount of building. I understand from City Hall that they maintain that they're building a honey processing plant. I also understand from City Hall that no one at City Hall believes it, certainly no one in the community that we've spoken to believes this and I don't believe this personally. So that then opens up the issue of what exactly they are building and why.
There have been a lot of rumours and I can certainly pass those onto you because I think that they are at least partially substantiated. That is that they will have their own electrical system, which is in some sense separate from the city. They will have their own telecommunications system, which again is also separate. I understand there's some underground bunkers or at least underground vaults on this property. The thing that appears to be a barn, I understand, is carpeted and has phone jacks and toilet stalls and a staircase. So it's clearly not a barn.
When we're watching them constructing this, from what we can see from the highway, the size of the barn, there was a central house, which looks like a typical three or four bedroom house, and now you can no longer see that because it's surrounded by a very large structure, something let's say in the order of a moderately sized motel. I've never been there. I can only report those rumours.
* * *
Unfortunately, what SACAR is, is we are simply a community-based organization who is concerned about the growth of fascism, and we do our best to expose what materials we have. I do not want to publicly accuse the Presslers of doing something on their land that I don't know about. I do know the rumours. I haven't started them. But I will repeat them to others as rumours because citizens are concerned.
MR. GAFFNEY: And the rumours are?
MR. LETHBRIDGE: The rumours are that they're building a compound with underground bunkers and separate telecommunication systems, not that they're building a honey processing plant.
MR. GAFFNEY: So Ilene Pressler, I talked to her on the phone, I think I mentioned to you earlier. She says that you are the single source of all these rumours that are floating around town?
MR. LETHBRIDGE: Is that right?
MR. GAFFNEY: Are you the source of all these rumours about the Pressler property that are floating around town?
MR. LETHBRIDGE: No, as a matter of fact, I heard this about the telecommunications and electrical systems all the other stuff, the armed perimeter fence from another individual in town, who I will not name. We have a lot of anonymous witnesses come to us and tell us things. Some of the people who did some of the work on the property came and spoke to me. Now, I don't have to generate rumours about these people.
MR. GAFFNEY: Yeah.
MR. LETHBRIDGE: Their actions speak for them, I think.
MR. GAFFNEY: Yeah. She says that she's the victim of just -- she just wants to go out there with her husband, build a nice retirement home, live in peace and quiet and raise a few honey bees.
MR. LETHBRIDGE: Um-hum.
MR. GAFFNEY: That's what she said. Don't buy it, hey?
MR. LETHBRIDGE: No, I don't. She has lied on several occasions.
[The reader will note, if he or she compares this last passage with the broadcast that the words spoken by Dr. Lethbridge were rearranged, although the rearranging does not change the sense.]
* * *
MR. LETHBRIDGE: People should be patient. Combating fascism, combating the rise of neo-Nazism isn't something that's accomplished in a week or in a month. We're here for the long haul, we've exposed what we have. Sooner or later the Presslers will expose their hand about this compound.
I could speculate, and I will. What I think that this place is for is obviously not a retirement home. You've looked at it yourself. It's enormous. Why would you retire to anything the size of a motel?
What this place is, in my opinion, is a place where they're going to have conventions. A place where they're going to have things like Leadership '92, only Leadership '93, Leadership '94. Then they won't have to worry about so-called bomb threats, which, of course, never occurred. They won't have to worry about unionized labour refusing to cater their racist parties, which is what truly occurs. They'll be able to have their own little motel on their own property. They can invite as many high-powered racist speakers as they like and as many members of this community as they're foolish enough to believe in the value of fascism to come and listen to them all on their own property.
It will be defended, of course, because it will be impossible to get into. It's difficult to picket and protest because it's right on the highway. I think what they've built is a place where they will do what they've always done, hold conventions of extreme right-wingers and print and distribute literature which just lies on the border of hate literature.
I have consistently tried to get people not to be upset and paranoid about this. People come with rumours like there's going to be paramilitary training on this land. I say no, this is ridiculous. They're not going to do paramilitary training, they never have. They have never been involved in street violence and it would be utterly foolish of them to engage in paramilitary training on a piece of land on the highway.
So although the Presslers will accuse me of stirring up hysteria about them, it's quite the contrary. I've always tried to get people to understand the precise nature of the work that they're involved in.
[55] Having compared these extracts with the broadcast, I am of the opinion that the sting and substance of the broadcast and the sting and substance of Dr. Lethbridge's remarks in his interview, are the same. The broadcast as a whole reflects Dr. Lethbridge fairly.
[56] If, as he asserted in the interview, he did not believe the Presslers had any paramilitary intentions, he ought not to have repeated to Mr. Gaffney the rumours of the details of construction, details which were false.
[57] To say, "there are rumours to a certain effect but I do not believe them" is to speak words which, if the sting of the rumour would hold the person of whom the words are spoken up to odium, are capable of a defamatory meaning.
c) Are the appellants entitled to defeat the claim on their pleas of fair comment and qualified privilege?
[58] I come then to the pleas raised of qualified privilege and fair comment.
[59] The learned judge, in paragraphs 137 to 159 addressed the issue of express malice. He concluded that both Westcom and Dr. Lethbridge were actuated thereby. He then said:
[160] In light of my finding that the defamatory statements made by both defendants were made with express malice, I hold that the defences of qualified privilege and fair comment are defeated. However, I consider the merits of these defences as they were argued by the defendants.
[60] What followed in paragraphs 161-169 might be characterized as obiter.
[61] I mean no disrespect to the learned judge when I say that in my opinion, contrary to his, there was here no occasion of qualified privilege.
[62] The essence of the defence is a duty, legal, social or moral, to publish the matter complained of to persons with a corresponding duty or interest to receive it.
[63] In Blackshaw v. Lord, [1983] 2 All E.R. 311 (C.A.), Stephenson L.J. summarized the principles in terms which I consider accurate, at 327:
The subject matter must be of public interest; its publication must be in the public interest. That nature of the matter published and its source and the position or status of the publisher distributing the information must be such as to create the duty to publish the information to the intended recipients, in this case the readers of the Daily Telegraph. Where damaging facts have been ascertained to be true, or been made the subject of a report, there may be a duty to report them (see eg Cox v. Feeney (1863) 4 F & F 13, 176 ER 445, Perera v. Peiris [1949] AC 1 and Dunford Publicity Studios Ltd. v. News Media Ownership Ltd. [1971] NZLR 961), provided the public interest is wide enough (Chapman v. Lord Ellesmere [1932] 2 KB 431, [1932] All ER Rep 221). But where damaging allegations or charges have been made and are still under investigation (Purcell v. Solwer (1877) 2 CPD 215), or have been authoritatively refuted (Adam v. Ward (1915) 31 TLR 299; affd [1917] AC 308, [1916-17] All ER Rep 157), there can be no duty to report them to the public.
* * *
There may be extreme cases where the urgency of communicating a warning is so great, or the source of the information so reliable, that publication of suspicion or speculation is justified; for example, where there is danger to the public from a suspected terrorist or the distribution of contaminated food or drugs; but there is nothing of that sort here. So Mr. Lord took the risk of the defamatory matter, which he derived from what he said were Mr. Smith's statements and assumptions, turning out untrue.
[64] What happened in this case does not fall within those "extreme cases" of which Stephenson L.J. spoke.
[65] In Globe and Mail Ltd. v. Boland, [1960] S.C.R. 203 at 207-208, Cartwright J. said, having quoted from the trial judgment with which he did not agree:
With respect it appears to me that, in the passage from his reasons quoted above, the learned trial judge has confused the right which the publisher of a newspaper has, in common with all Her Majesty's subjects, to report truthfully and comment fairly upon matters of public interest with a duty of the sort which gives rise to an occasion of qualified privilege.
It is well to bear in mind the following passage from the judgment of Lord Shaw in Arnold v. The King Emperor [(1914), 30 T.L.R. 462 at 468], quoted by Lebel J.A.:
The freedom of the journalist is an ordinary part of the freedom of the subject, and to whatever lengths the subject in general may go, so also may the journalist, but apart from statute law, his privilege is no other and no higher. The responsibilities which attach to his power in the dissemination of printed matter may, and in the case of a conscientious journalist do, make him more careful; but the range of his assertions, his criticisms, or his comments, is as wide as, and no wider than, that of any other subject. No privilege attaches to his position.
and see also to the same effect, Banks v. Globe and Mail Ltd., [1961] S.C.R. 474.
[66] As the appellant Lethbridge did not give any particulars in support of his plea, we are left to infer what those particulars may be. As I understand the argument, it is that as the Presslers, especially Mrs. Pressler, are racists, anti-Semites and Holocaust deniers, Dr. Lethbridge had a duty to communicate, at least to the local population, that in their new premises the Presslers were intending to operate, and were in the process of constructing, illegally, a military or paramilitary compound, and were planning to produce from those premises objectionable literature and to hold conventions to propagate their objectionable opinions.
[67] When analysed, this is an argument that every citizen has a right, protected by law, to publish to all and sundry, of and concerning persons who hold and publicly profess objectionable opinions, defamatory statements. No authority was cited in support of such a broad concept of occasion of qualified privilege. If adopted, such a concept would enable every citizen to arrogate unto himself the right to decide, according to his view of the public good, when reputations may be ruined.
[68] I do not accept that. The citizen's right of free speech neither imposes upon him a duty, nor gives him a right, to damage the reputations of others.
[69] As to Westcom, I have already quoted its plea of qualified privilege (paragraph 9 of its statement of defence) and need not repeat it.
[70] I will assume that (b) is true in fact and (c) is true in law and that there was ongoing public debate as defined in (d).
[71] However, as to (a), the draftsman does not say what the "subject matter" of the story was. Implicit in this plea is that the real subject of the story was the opinions of the Presslers, particularly Mrs. Pressler. But there was no story in those opinions. The story was in their new house, if and only if it was not simply a new house with outbuildings. In the truth about what was being built there was no story. Would the television station have broadcast a story which simply said, "Mrs. Pressler, of the Council on Public Affairs, who is well known in Salmon Arm as an anti-Semite and Holocaust denier, and her husband Claus, are building a new house."?
[72] If, of course, there had been a meeting of the Council of the District of Salmon Arm in which a report of some kind had been made to the Council raising doubts as to whether the Presslers were obeying the municipal regulations concerning their property, Westcom might have been able to assert that there was an occasion of qualified privilege in reporting events at the Council. But nothing of that sort happened here.
[73] Thus, in my opinion, neither of these appellants can invoke the defence of qualified privilege.
[74] As to fair comment, the essence of a plea of fair comment is that the facts underlying it are true.
[75] In Speidel v. Plato Films, Ltd., [1961] A.C. 1090, [1961] 1 All E.R. 876 (H.L.), a case which exemplifies the complexity of the law of defamation, Lord Denning remarked, at 888 (All E.R.):
Rumour is a lying jade, begotten by gossip out of hearsay, and is not fit to be admitted to audience in a court of law.
[76] Although he made that remark not in the context of a plea of fair comment, it is apt to a plea of fair comment. A rumour is not a fact for the purpose of the plea. If a rumour is not true, it cannot protect him who publishes it and comments on its implications from an action for defamation.
[77] To the extent the broadcast asserts that Mrs. Pressler particularly is anti-Semitic and a racist, it is both true and fair comment. Beyond that, it is not.
[78] Having so concluded, I need not address the esoteric question of whether, if the comment is on its face fair, its author is nonetheless liable if he was actuated by express malice. There is respectable authority for the proposition, although the weight of authority may be the other way, that fair comment is no libel (see Campbell v. Spottiswoode, (1863) 3 B. & S. 769, 122 E.R. 288) and, therefore, malice or the absence thereof is irrelevant.
[79] Having so concluded on the pleas of qualified privilege and fair comment, I need not address whether the learned judge committed any palpable and overriding error in concluding that both appellants were actuated by express malice.
DAMAGES
[80] I do not overlook, however, that much of what the learned judge said on that topic relates to the issue of damages to which I now turn.
[81] The appellant Lethbridge asserts the learned trial judge erred in assessing damages by:
a) failing to take into account sufficiently the reputation of the plaintiffs which preceded the broadcast and which was due to their own activities;
b) awarding damages for the loss of the pharmacy business when the plaintiffs expressly stated that they were not seeking damages for their loss of business income and produced no evidence in support of such a claim.
[82] For its part, the appellant Westcom said the learned judge erred in assessing damages by:
a) awarding damages to both Presslers for meanings which were more extreme than the words can bear;
b) awarding large damages to Claus Pressler based upon a finding of damage to his pharmacy career without admissible evidence of such damage and in disregard of relevant evidence to the contrary.
[83] The passage in the learned trial judge's reasons for judgment on damages was this:
[170] Bouck J. set out the pertinent law in Neeld vs. Western Broadcasting Co. Ltd. (1976), 65 D.L.R. (3d) 574 at p. 576:
As I understand the law the measure of damages must bear some relation to the actual standing and reputation of the plaintiffs in the community prior to the libel. The higher the reputation the greater the damages. Of course the precise nature of the libel is also relevant. A person with a poor reputation is not defamed if the truth is told of him. The more the libel gets away from the truth the greater is the effect on the award of damages. The closer the libel is to the truth the less the damages must be.
[171] I also am mindful of the principle enunciated by Wood J.A. in Westbank Indian Band v. Tomat (1992), 63 B.C.L.R. (2d) 273 (B.C.C.A.) at p. 297:
...the courts must be careful not to award damages which may tend more to stifle the free expression of opinion than to rehabilitate the reputation of the defamed.
[172] It has been urged that if I award damages at all it should be only the proverbial farthing or cent. In respect of the plaintiff Eileen Pressler, in light of my findings, I have considered this submission and found it wanting. In my view, it would send the wrong message in law. The plain fact of the matter is that Eileen Pressler was defamed in respect of the use to which she proposed to put the property. The defamation was primarily that the plaintiffs were deceiving the municipal authorities, by building not a modest retirement home and hobby farm but a large fortified convention centre with potential for paramilitary use. That was the thrust of the broadcast. This must be viewed in the context of the reputation of Eileen Pressler and the CPA. An award of one cent would send the message that, against one who holds unpopular views, defamation is covertly acceptable and will not be condemned by the courts. It would be equivalent to saying that Eileen Pressler is not entitled to the protection of the law. She, like every citizen, is neither above nor below the law. She is entitled to protection, with all the rights and concomitant duties that protection entails.
[173] In assessing damages, because of my findings of fact notwithstanding the express malice of both defendants, I decline to award either of the plaintiffs exemplary or punitive damages.
[174] In the result, I award the defendant Eileen Pressler general damages in the amount of $10,000 against the defendant Westcom. Against the defendant Lethbridge, I award $1,500 in general damages to Mrs. Pressler.
[175] With regard to the plaintiff Claus Pressler, no spouse can be blamed for the vices, or indeed take credit for the virtues, of the other spouse. Claus Pressler has, at least partly as a result of the broadcast, suffered great insult to his reputation losing his lifelong career as a local pharmacist.
[176] In the result, I award to Claus Pressler $50,000 in general damages against the defendant Westcom. Against the defendant Lethbridge, I award $10,000 in general damages to Claus Pressler.
[84] It must be read in the light of all his previous findings. Among those findings were the following:
(1) Mrs. Pressler and the Council are "missionaries for anti-Semitism and pro-white racism" ... "her reputation in the community prior to the broadcast of October 1993 was that of a right-wing extremist holding anti-Semitic and racist views." ... "Claus Pressler is ... a passive Holocaust revisionist. He is that and nothing more." [Paras. 69 and 75.]
(2) From that part of the judgment entitled "Reputation":
[54] However, Eileen Pressler's viewpoints extend beyond those of Holocaust revisionism, as illustrated by her writings in the CPA Digest. Much of the material printed in the Digest, although leaning toward the far-right ideologically speaking, is within the mainstream of right-wing thought. The Digest reprints articles from various other newspapers. A smaller portion of the Digest's content expresses viewpoints that can only be described as viciously white supremacist, racist, and anti-Semitic. Such viewpoints go beyond what is acceptable in a free and democratic society. They engender hatred of identifiable groups in violation of the Criminal Code. Thus they are beyond the pale of the law. They are both tortious and criminal.
From that part entitled "The Alleged Defamation":
[81] ... Indeed, I find that in disseminating and propagandizing such views, Eileen Pressler and the CPA have committed the
(3) Dr. Lethbridge orchestrated and took part in the demonstration of 30th April, 1992.
(4) Just prior to the 30th April, 1992, demonstration, "Lethbridge orchestrated hate calls to the CPA telephone number, including a call he made personally. In his call he said:
Yeh, I got a message for you, you fucking Nazi pigs. Any more of these goddamn rallies and there's gonna to be trouble. We're fed up with you so just fuck off. " [Para. 143.]
(5) Dr. Lethbridge said, in an interview to the "Globe and Mail" published February 6, 1993:
What has an effect is when the family breadwinner goes down the tubes. My objective is simply to have the council disband and its members leave town. [Para. 145.]
His aim, as I have already remarked, was found by the learned trial judge to be to drive the Presslers from Salmon Arm by destroying Claus Pressler's business.
(6) After the broadcast, he repeated the "rumours" in a speech in April 1994.
[85] After the learned trial judge handed down judgment in this case, this Court handed down judgment in Brown v. Cole (1998), [1999] 7 W.W.R. 703, 61 B.C.L.R. (3d) 1, in which I said, at paras. 107-108:
Compensatory damages - I put aside for the moment aggravating circumstances - in actions for defamation have many aspects:
1. the compensation for "insult offered and pain given", to borrow the words of Lord Devlin in Rookes v. Barnard, [1964] 1 All E.R. 367 (U.K. H.L.), at 413;
2. vindication of reputation;
3. injury to pride and self-confidence - this may just be another way of saying "insult offered and pain given";
4. social damage and possible economic damage which may result but which cannot be expressly proven - this is particularly important, in my opinion, in defamation in the mass media.
[86] As to "injury to pride and self-confidence", Mrs. Pressler testified thus:
A ... I -- I just couldn't believe what I had seen. It was so horrific. It was just an unbelievable broadcast. I had lived in Salmon Arm for all these years and in -- in all my years of watching television, I had never, ever seen anything so devastating, so brutal. We had -- we had been attacked as racists, we had been attacked as anti-Semites and then white supremacists and broadcasts with burning crosses and so on, and each event escalated, each time it became worse and worse, and this was the culmination of everything else. And then in addition to it, we were portrayed as dangerous, we were portrayed as -- as militant, we were portrayed as -- as deceiving the city as to what we were building, as to what the purpose of these buildings was.
THE COURT: Just wait -- wait a moment, please. Yes?
THE WITNESS: What started out as just simply building a retirement home became a public event. We were open to public scrutiny. Everyone was privy to our -- our private home, our -- our -- the buildings on it, the property, and it was extremely difficult to -- to -- to even absorb this, that this was happening to us. It was like a nightmare. The effect of this broadcast was absolutely devastating in every way. It was very destructive. It -- it destroyed almost overnight our family in the community, our standing in the community. We became outcasts, we became pariahs because suddenly what had been in print before or in television, um, suddenly it was validity to this.
* * *
A When that broadcast was aired, I received calls from relatives in Saskatchewan and Alberta and I spent in one case in excess of two hours talking to my sister trying to explain to her that what she saw wasn't true and that we didn't have bunkers and we didn't have a compound, we didn't have any of these things that were alleged. And at the end of two-and-a-half hours, I am not sure that I had entirely convinced her. That's how realistically portrayed this was.
Q How would a little broadcast on CHBC-TV get on or heard or seen in Saskatchewan?
A Well, this broadcast was aired first on October 11th, which was Thanksgiving, and then two weeks later it was aired again on the 25th of October on CBC Newsworld, which was nationwide, and that was the -- the -- night of the election, the federal election, which certainly would have had a larger viewing audience than usual because of the pole -- the votes being tabulated shortly thereafter.
Q Are you familiar with the story about Waco, Texas?
A Yes, I am. And this certainly brought up or conjured up visions of -- of Waco to us when we watched this programme being aired about us, because of the various terminology that was used such as "compound" and "paramilitary" and the security fences and bunkers, underground bunkers and so on.
[87] On that evidence, taken with other passages in her evidence, the broadcast had, to her, these "stings" or innuendoes, using that term in the sense of the natural and ordinary meaning of the words:
(1) That they were "dangerous" and "militant", that being a reference to the suggestion that they were building a compound to be used for paramilitary purposes;
(2) That they were constructing this compound contrary to the zoning and building bylaws of the District of Salmon Arm.
[88] Dr. Lethbridge's first attack on the amount is that it failed to take into account sufficiently "the reputation of the plaintiffs".
[89] As I understand the law, what, if raised, may be taken into account is the general reputation of the plaintiff in that sector of the plaintiff's life which has relevance to the libel complained of. (See Lord Radcliffe in Speidel v. Plato Films, Ltd., supra, at 885 (All E.R.).)
[90] There was no evidence that the respondents had any general reputation in the community for disregarding land use laws or otherwise being poor citizens of the District of Salmon Arm or participating in or advocating paramilitary operations. So, in one view of the matter, Mrs. Pressler's general reputation of holding lunatic opinions was irrelevant. Had the respondents complained only of those defamatory stings, it would have been wrong in law, in my opinion, for the learned judge to have taken into account, in assessing damages, the general reputation which she, and to a much lesser extent Mr. Pressler, had for their opinions as found by the judge to exist.
[91] But the respondents, by their statement of claim, put their reputations in issue and must, I think, suffer, as they did, the consequence of the learned judge making the findings he did.
[92] To come directly to the complaint of Dr. Lethbridge, I am simply not persuaded that the learned judge did not give sufficient weight in assessing damages to his own findings. The assessing of damages in libel actions is not a science. I was, when I first read the judgment, surprised at how low the award of compensatory damages against Dr. Lethbridge was. I am not persuaded now that it was too high.
[93] As to the complaint of both appellants that damages were awarded to Mr. Pressler based upon damage to his pharmacy career, I see no error. In the case of Dr. Lethbridge, his avowed aim was to destroy the Pressler business. He can hardly complain if the judge finds that by the defamation he helped the destruction.
[94] As to both appellants on this branch, in Brown v. Cole, supra, I remarked that there may be taken into account as an aspect of compensatory damages "possible economic damage which may result but cannot be expressly proven" which I said was particularly important in defamation in the mass media. There was nothing new in that remark of mine and I am sure the learned judge had the principle before him at the time he assessed these damages.
[95] I would dismiss the appeal.
THE CROSS-APPEAL
[96] I turn now to the cross-appeal.
[97] The Presslers claim punitive damages against both Westcom and Lethbridge. They do not seek an increase in compensatory damages.
[98] As to Westcom, this broadcast was not in the highest traditions of responsible journalism, but as I doubt there was any profit in it, I do not find helpful such cases as Cassell & Co. Ltd. v. Broome, [1972] A.C. 1027, [1972] 1 All E.R. 801 (H.L.). I think Mr. Gaffney was blinded by Mrs. Pressler's avowed opinions and thus was unable to grasp that what he was doing was wrong. Therefore, I would not interfere with the refusal of the judge to award punitive damages against Westcom.
[99] The claim for such damages against Dr. Lethbridge, I do not find so easy to dismiss. Dr. Lethbridge took part in this broadcast as part of his avowed aim to drive the Presslers from Salmon Arm. No private citizen has the right in Canada to drive anyone, no matter how objectionable his opinions may be, out of anywhere. If Mrs. Pressler has committed a crime, it is for the Attorney General to prosecute her, if the Attorney General considers it is in the public interest to do so. Dr. Lethbridge's laudable aim of combating racism and anti-Semitism does not justify the means he adopted. A proper purpose of punitive damages is to warn off others who assert that ends in law justify means or who assert that they may take the law into their own hands. A lynch mob is still a lynch mob even if the person lynched committed the crime.
[100] Holding that opinion, I do not understand how the learned judge made no award of punitive damages against Dr. Lethbridge in this case. As to quantum, $15,000.00 is sufficient for the purpose. To that extent, I would allow the cross-appeal.
[101] On the question of striking out portions of the judgment,