Date: 19980520 Docket: 934277 Registry: Victoria IN THE SUPREME COURT OF BRITISH COLUMBIA BETWEEN: CLAUS PRESSLER and EILEEN PRESSLER PLAINTIFFS AND: DAVID LETHBRIDGE, WESTCOM TV GROUP LTD. DEFENDANTS REASONS FOR JUDGMENT OF THE HONOURABLE MR. JUSTICE OWEN-FLOOD Counsel for the Plaintiff: Douglas Christie Counsel for the Defendant David Lethbridge: Irvine E. Epstein, Q.C. Counsel for the Defendant Westcom TV Group Ltd. Daniel W. Burnett Place and Date of Hearing: October 3, 1997 November 10,12,13,14,17,18,19,20, 21,24,25,26,27,28, 1997 December 1,2,3,4,5,8, 1997 March 16,17,18, & 19, 1998 Victoria, B.C. [1] The plaintiffs, Claus Pressler and Eileen Pressler, a husband and wife, sue the defendant Westcom T.V. Group Ltd. ("Westcom") and Dr. David Lethbridge ("Lethbridge") for defamation arising from a television program broadcast by Westcom on its station CHBC TV Kelowna, on October 11, 1993 and again on October 12, 1993 on CBC Vancouver, pursuant to a contract with the Canadian Broadcasting Corporation ("CBC"). It was further re-broadcast by the CBC on the national station CBC Newsworld, on October 25, 1993, election night in Canada. The broadcast was researched, scripted and produced by Blaine Gaffney, a reporter with Westcom, for a program entitled "Okanagan Magazine". [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. [3] In the event that the plaintiffs were defamed and no defence is established, the defendants plead that neither plaintiff suffered any damages and, if either did suffer damages, the damages are nominal. [4] The plaintiffs also sue the defendants for conspiring, the one with the other, to defame by creating under the pretext of news, a false, malicious and injurious story designed to cause the maximum damage to their reputations by the fabrication and repetition of false rumours, innuendo and gossip. Background [5] The plaintiffs have lived in Salmon Arm, British Columbia for some 25 years. In that community, Claus Pressler conducted a pharmacy for many years, latterly as the local Pharmasave. Eileen Pressler worked from time to time as a volunteer and a small business owner, being involved in different community activities. The couple have two sons. [6] Eileen Pressler testified that she first became interested in the free speech issue after learning of James Keegstra's conviction for what she regarded as simply "expressing his thoughts". With a view to establishing a forum for this issue, Eileen Pressler, in the name of the "British Columbia Free Speech League", began to produce, edit and circulate a newsletter. Subsequently, she incorporated the Public Affairs Research Associates Inc. ("PARA Inc."). The newsletter was continued under its auspices. It was renamed "The Council on Public Affairs Digest". The Council on Public Affairs (the "CPA") is essentially the "public persona" through which PARA Inc. operates. Mrs. Pressler is its sole shareholder, editor and driving force. [7] I am satisfied that Claus Pressler was neither a founder of the Council on Public Affairs, nor involved in any significant manner in the operations of the CPA. His interest in the CPA was primarily that of a man supportive of his wife. [8] The defendant Lethbridge is a professor of psychology at the Salmon Arm campus of Okanagan University College. He has lived in that community since 1989. He only became aware of the Presslers and the Council on Public Affairs in 1992. After briefing himself on what he perceives as the racist, anti- Semitic white supremacist opinions of the CPA, he engaged in a campaign to expose and counter those viewpoints. Lethbridge founded the Salmon Arm Coalition Against Racism ("SACAR") to achieve these goals. [9] The Defendant Westcom owns and operates CHBC TV Kelowna, a licensed television broadcasting outlet in the Okanagan Valley, doing business as Okanagan Valley Television. [10] The Presslers and Lethbridge were not unknown to each other prior to the alleged defamatory broadcast. The evidence establishes that numerous exchanges took place between Eileen Pressler and Lethbridge by way of letters in community newspapers. In addition, there were more than a few occasions involving the parties in acrimonious encounters. Clearly, both Eileen Pressler and Lethbridge are strongly committed to their viewpoints. Each sees the other with disdain, to say the least. [11] In the summer of 1992, the Presslers began construction on a newly-purchased property on the Trans-Canada Highway near Salmon Arm. A new barn was erected. This was used to store building materials the following winter. In the spring of 1993 construction began on a retirement home. There was also a pre- existing small house on the property, referred to as the "honey house". This was intended to be turned into a honey-processing operation. All construction on the property took place in conformity with local bylaws. All the required permits were obtained. The necessary inspections were conducted by municipal officials. There was total compliance by the Presslers with the zoning and land use bylaws and laws generally. [12] In order to illustrate the overall nature of the broadcast, I set out its text, together with a description of the accompanying visual images. The Impugned Broadcast [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 see 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. [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 Impact of the Broadcast [37] I accept the testimony of Salmon Arm resident Ronald Adams, an investment broker and part-time columnist. He watched the broadcast. It convinced him that the Presslers had some kind of military encampment. As a result, he drove past the property to see for himself if there were bunkers and other indicia of a fortified emplacement. Prior to the broadcast, Adams said he had heard rumours to which he had not given weight until the broadcast. The broadcast persuaded him that there must be some substance to the rumours. The broadcast left him with the impression that the Presslers had a sophisticated telecommunications centre on their property. Adams concluded that there must be something going on that "was not right". He further concluded that both the Presslers must not only be active militant racists and white supremacists but were using their property for paramilitary purposes. [38] Adams also concluded that, in light of the broadcast, the pharmacy business of the plaintiff Claus Pressler was finished. In Adams' view, no one would shop at a pharmacy owned by a militant white supremacist. Indeed, Adams said he hesitated to be associated at all with the Presslers for fear of being tainted as a racist. I accept his view that the result of the broadcast was that both the plaintiffs became pariahs in the eyes of the community. [39] Adams also testified that reports in the community about the Presslers being racists pre-dated, by some two years, the broadcast of October 11, 1993. Adams said that but for the broadcast he would never have suspected that there might be barns and bunkers guarded by perimeter fences, and that sort of thing, on the property. [40] In the result, I am satisfied that the broadcast, with its dual aspect of racism and anti-Semitism on the one hand, and the building of a large, quasi-military, defended convention centre as opposed to a lawful retirement home and hobby farm on the other, was the "last straw" for the Presslers' reputation in Salmon Arm. [41] I accept that not only Eileen Pressler but her husband and children suffered. I note that the evidence is self evident that Eileen Pressler, unlike the rest of the family, by her propagation of racism and anti-Semitism, brought much of this maelstrom of angry public opinion on her own head. [42] In the result, Claus Pressler's pharmacy became, so-to- speak, a morgue. By January 1994, he had to lay off staff. I accept his evidence that after the broadcast all he could do was stand in the dispensary looking out into the mall. People would peer in to, but not enter, his pharmacy. He managed to keep it going until the end of the lease in April 1996. He could not find a buyer so he moved the pharmacy to downtown Salmon Arm. He sold the business in 1997, receiving $10 for goodwill. When he sold it he was 60 years old. Originally he had planned to work until he was 65. He unsuccessfully sought employment as a pharmacist with the purchaser. The new owner subsequently hired another pharmacist. I accept that there were other factors, over and above the activities of Eileen Pressler and the CPA, that militated against the survival of the pharmacy. These factors included the arrival of a new competitor, the loss of an anchor tenant in the Centenoka Mall where Claus Pressler's pharmacy was located at the time of the broadcast, the loss of a long-time pharmacist employed by him to his competition, and the opening of a Shoppers Drug Mart at the other mall in town, to say nothing of the two years of adverse publicity generated in the local media by Eileen Pressler and the CPA preceding the broadcast. [43] In summary, while Claus Pressler's practice as a pharmacist was hurt by a myriad of factors, the reality is that the broadcast was its coup de grace. I find he was damaged by two particular allegations in the broadcast, first, the false assertion that he was a co-founder of and active participant in the CPA and, second, that he was a militant racist and anti- Semite. None of these things were true. The worst that can be said of Claus Pressler is that he was, in a sense, a hanger-on in his wife's activities in these fields. He was not and never has been, save insofar as when pressed for his views, an active participant. By the same token, I find that neither he nor his wife have been involved in any zoning or other misuses of their land as implied in the broadcast. Neither of them have been in any way connected with the building of any fortified convention centre that could be used for para-military purposes. Neither of them has had any connection with any such land misuse. All they built is what they said they were building, namely, a retirement home with an attached hobby farm. [44] Apart from destroying the Presslers standing and that of their family, there were other repercussions flowing from the broadcast. These included a written query concerning their land use from the provincial Agricultural Land Commission. On December 15, 1993 the Commission wrote to both plaintiffs: This is further to your conversation with Craig Sobering of our staff on November 12, 1993... ...you also inquired what source of information suggested that an assembly use may be planned for the subject holding. Please note that it was following the CHBC Kelowna news broadcast on October 25, 1993 that the Commission became concerned that an assembly use might be proposed for the property in question. As the District of Salmon Arm has not been able to clarify this issue to our satisfaction, we would appreciate it if you could alleviate this concern. The Presslers were able to alleviate the concerns in question, their concerns being without foundation. [45] In the result, the broadcast, with its double thrusts of racism and misuse of farm land, was the straw that broke the camel's back for the plaintiffs. [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. [47] As a result of the broadcast not only were the Presslers seen as persons with anti-Semitic, racist views, but they were also portrayed as being extremists who were engaged not in passive but in active steps to propagate their views by using their land for quasi-military purposes and extreme right-wing conventions. This they were not doing. The Law [48] The law of defamation aims to protect reputation. The test is whether the alleged defamatory imputation tended to lower the estimation of the plaintiffs among reasonable, right- minded people, not avid for scandal, in the community: Lewis v. Daily Telegraph Ltd., [1963] 2 All E.R. 151 (H.L.). The plain meaning of the words must be considered, but the context in which the statements were made, including extrinsic knowledge of the audience, the manner in which the statements are publicly expressed, and innuendo may also be taken into account. The statements must also be capable of identifying the plaintiffs. I find that the broadcast clearly identifies both plaintiffs. [49] The defendants deny that the broadcast conveyed any defamatory meaning with respect to either of the plaintiffs. I find to the contrary in respect of each of the defendants and both plaintiffs. In doing so, I bear in mind the law enunciated by the Ontario Court of Appeal in MacDonald v. Mail Printing Co. (1901), 2 O.L.R. 278 where Ferguson J.A. wrote, on behalf of the court at p. 282: Any written words published are defamatory which impute to the plaintiff that he has been guilty of any crime, fraud, dishonesty, immorality, vice or dishonourable conduct, or has been accused or suspected of such misconduct, and so too are all words which hold the plaintiff up to contempt, hatred, scorn or ridicule, and which, by thus engendering an evil opinion of him in the minds of right-thinking men, tend to deprive him of friendly intercourse and society. [50] It is clear that the repetition of rumours is actionable if those rumours are defamatory, and it is no defence to show that the rumour did in fact exist, or to claim that the story was simply repeated as a rumour. The defendant must establish that the substance of the rumour is true: See Cookson v. Harewood, [1932] 2 K.B. 478n (C.A.). [51] Defamation in the context of a television program is distinct from defamation solely in written form. In Colour Your World v. Canadian Broadcasting Corporation (1994), 17 O.R. 308 (Ont. Gen. Div.) Somers J. wrote the following at p. 336: In this case we are dealing with an allegedly libellous segment of a television broadcast. Unlike a written statement in a newspaper or magazine article which can be studied, re-read, considered and reflected upon, what is said and depicted in a television show is of a more transitory nature. Thus, the method of presenting particular words which in themselves are strictly speaking true can shade or even alter the meanings of those words to the point where what has been said has been given a defamatory meaning. The court cites the decision of Cory J.A. (as he then was) in Grossman v. CFTO T.V. Ltd. (1982), 39 O.R. (2d) 498 at pp. 502- 503: On the other hand, television or radio broadcasts can be ephemeral and fleeting. Ephemeral though it may be, the impact of a broadcast may be far greater than that of a newspaper article. The audio-visual effect can be devastating. The words used in the broadcast may be of secondary importance to a number of other features. The intonation, tone of voice and inflection can make innocent words defamatory. A voice combined with background effects, scenery, music or images can still more readily lead to an insidious result where, although innocent words are used, a person is held up to the most flagrant ridicule and contempt. [52] I am also instructed by the observations made by Esson J. (as he then was) in Vogel v. C.B.C. (1982), 3 W.W.R. 97 (B.C.S.C.) where, at p. 143, the court observed: But the impact of it was immeasurably increased by photographs and other visual devices and by deceptive methods which were employed to give the accusations the appearance of being very much more serious than, in print, they were seen to be. At p. 155, Esson J. stated: I have made many references to the impression conveyed to viewers. This is a matter which must be considered in assessing television programs, which, by reason of their transitory nature, tend to leave the audience with an impression rather than a firm understanding of what was said. Images, facial expressions, tones of voice, symbols and the dramatic effect which can be achieved by juxtaposition of segments may be more important than the meaning derived from careful reading of the words of the script. Television is different from the printed word. The interested reader can reread and analyze. The emphasis in considering the defamatory impact of, say, a newspaper story must therefore be upon the words used. Libel by television is, in this respect, more like slander. In slander cases, regard may be had to such things as gestures and intonations: see Gatley on Libel and Slander, 7th ed. (1974), p. 500, para. 1225 ... Thus in assessing whether a television program is defamatory, it is not simply the words as literally spoken that are to be considered, it is the entire thrust and effect of the program that must be evaluated, including the overall impression left with viewers. Reputation [53] A letter to the editor of January 15, 1986 and many other similar letters, reveal that Eileen Pressler is a Holocaust revisionist. In that letter, in reference to an earlier newspaper correspondent name Rodgers, she wrote: As for Mrs. Rodgers' specious contention that millions of Jews died in Nazi concentration camps, the credibility of the so-called state authorized version of the "Holocaust" was challenged during the Zundel "show trial" and before that, at the Nuremberg War Crimes Tribunal in 1946. There was never indisputable evidence presented by anyone to date to support the theory of the extermination of "millions" of Jews. However, the promoters of the "Holocaust" industry bravely soldier on. It is very interesting to note that every nation and its peoples may be rationally criticised with the singular exception of Israel and Jews for fear of being labelled anti- Semitic or worse,... [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. [55] The instances of engendering hatred of identifiable groups in the Digest are legion. One example is in CPA Digest Vol. 7, No. 1, published January 1991, where she comments on Zionists at p. 8: Instead, like the cowards, liars, serpents, hypocrites and vipers, for which the Lord Jesus Christ roundly condemned them, they continue to slink about inflicting their evil deeds and vengeful hatred against His people. ... [56] In CPA Digest Vol. 8, No. 1, published January 1992, Eileen Pressler comments on the Alberta Human Rights Inquiry into the activities of Aryan Nations member Terry Long at p. 4: But this inquiry was more than just the "legal persecution" of one individual. It was designed not only to harass Terry Long and his family, but to intimidate anyone who dares speak out in a way which might be interpreted by them as "racist" or "anti- Semitic". In other words, speech in Canada must be "politically correct" always. Correction: it must be "Jewishly correct", or else! It is time we called a spade a spade. "Politically correct" is a nice new euphemism coined to mean anything that Zionist-Jewry approves. Similar espousals are found throughout. In CPA Digest Vol. 7, No. 9, published September 1991, Eileen Pressler referred to the above Inquiry as "sort of like a gang rape". [57] At p. 10 of that issue of the Digest, Eileen Pressler wrote about what she perceives as "overkill" by various human rights tribunals, perpetuated by "organized Jewry": And the reason for this over-kill is that organized Jewry is able to bring this kind of pressure to bear at any time there is a perceived threat of exposure about the true nature and character of their inordinate power and ability to control events and people. As hard as they try to deny this accusation, they prove its merit by their actions and example. In our humble opinion, there isn't a group of people anywhere in Canada today, that can demonstrate more plainly the characteristics of a more spiteful, unforgiving and vengeful behaviour more capably, than do the Jews. They are filled with blind rage and hatred against anyone who dares criticize them or expose the truth about them. They prove it consistently by their unrelenting persecution of honest, decent, law-abiding people whose only "crime" is seeking truth. Yet in their attacks on people like Ross, Zundel, Keegstra, John Ross Taylor and now Terry Long, Jews always have a willing coterie of sycophants in the media, government, justice system and the rank and file of the apostate Judeo-Christian churches who aid them in advancing their cause. ... [58] This vitriol extends beyond references to Jews. A further example of the views held by Eileen Pressler is found in her editorial at p. 6 of CPA Digest Vol. 7, No. 4, published April 1991: When people have only been exposed to a "Zionist- liberal" slant, they become submerged in a flood of social distortions... Christianity has been singled out by these distortion experts as one of the primary targets, twisting spiritual beliefs out of shape by their agents, the satanic "preachers". These agents of deception have so confused our people, that they can no longer make the distinction between Christianity and churchianity, but treat them both as one and the same. They are not the same! ... Suffice to say that we are fed a steady diet of such lies as: "God wants the races merged together, racial integration and miscegenation is desirable; immigration from Third World countries (of alien cultures) is to be encouraged; we are all equal; Nazis are everywhere, while Communism is now dead; we must support homosexuals, if we are to fight AIDS, after all homos and lesbians are just like us;" right, and then we're told that we must never, under no circumstances, criticize Israel or Jews because it is anti-Semitic to do so, yet to viciously put down Germans is standard practice, and not considered hatred against an identifiable group, nor hatemongering. ... And so it is with words like Fascism. If suffic- iently distorted and perverted these words can be used to smear anyone who might be seen as a threat to these Zionist agents of deception. [59] In addition to writing in this vein, Eileen Pressler also published essays and letters written by others with analogous attitudes. CPA Digest Vol. 8, Nos. 5 and 6, published May/June 1992, contains a letter from Mr. Blair of Surrey, B.C., which states in part: The indigenous white population of Canada is being replaced (i.e. destroyed) with blacks, browns and yellows. ... Since whites are now too demoralized to take their own land, this is one instance of genocide that will go unpunished. Except by Mother Nature, of course. And she'll fix a severe penalty: death of a once great peoples and their incomparable culture and nation, to be replaced by just another stinking Third World slum country swarming with dark and sullen mongrels. [60] In response to an essay expressing the view that the end of apartheid in South Africa amounts to a "mongrelization and a hell on earth for us" (CPA Digest Vol. 8, Nos. 11 and 12, November/December 1992), at p. 11 Eileen Pressler replies: The foregoing commentary by Mrs. Worman is her personal opinion based on the laws of Scripture. However, in today's "politically correct" society, her remarks are bound to be misconstrued as "racist" by those who are ignorant of their own roots and racial history, no matter what their race or color. We believe that God created each race perfect and distinct and intended for them to remain distinct and separate in as pure a state as when each was created. If God intended for races to mix 'n match, He would have created one race of "tan". So let us honour our Creator in obeying His laws. [61] In CPA Digest Vol. 9, No. 1, published in January/February 1993 Eileen Pressler republished with approval an article from the Salmon Arm Observer in which she had been interviewed. In that interview she comments that because animals of different species "know better" than to "mix", so too should human beings of different races refrain from interbreeding. [62] Apart from her writings which speak for themselves, Eileen Pressler, through the CPA, has sponsored and participated in various conferences providing a platform for advocates of views not dissimilar in many instances from her own. Some of these conferences and lectures were advertised in the CPA Digest. [63] I accept the testimony of Eileen Pressler that in 1991 her Digest had some 1,200 to 1,500 regular subscribers. I accept her estimation that its readership would be significantly greater because, as she put it, to arrive at the true readership it is necessary to multiply the number of subscribers by five. [64] I accept the evidence of Eileen Pressler that notwithstanding all of this, she has never been involved with the Ku Klux Klan or with armed people dressed in Nazi-style uniforms. I accept that she is very opposed to violence and has neither directly advocated nor been involved in violent activities. [65] Eileen Pressler, by way of the CPA, has advertised and promoted several books which can only be classified as virulently anti-Semitic. One such example is The Last Battle Cry by Jarah B. Crawford, containing statements about Jews such as: "Jews are the children of Satan" and "Jews are half breed, race mixed, polluted people not of God". This book has been proscribed in Canada as hate literature since October 1992. I accept that Eileen Pressler has never read the book but she has, through the CPA, publicized and distributed it. [66] I accept that starting in March 1992 when the CPA's planned "Leadership '92" conference became a matter of public controversy, both Eileen Pressler and the CPA have been the subject of extensive and ongoing media coverage in the B.C. interior, and occasionally beyond. [67] The evidence shows that for approximately 18 months before the broadcast some 130 newspaper articles were published, many with front page headlines, referring to Eileen Pressler and the CPA. Terms employed to describe her included "racist", "white supremacist", "hate fest", "fascism", "evil", "wingnuts", "bigots", "extremists", "anti-Semitic". Indeed, one feature article in the Salmon Arm Observer published before the television broadcast was headlined: "Eileen Pressler has been called a racist, a bigot and neo-Nazi". This article was reprinted in the CPA Digest and commended as fair and factual by Eileen Pressler. [68] I accept that, as she announced in the March/April 1993 issue of her Digest, Eileen Pressler was in process of moving her CPA operation to a new location. She testified that the new location was the retirement home on the 20 acre property, the subject of the broadcast. [69] In the result, I conclude that Eileen Pressler and the CPA are missionaries for anti-Semitism and pro-white racism. She denies this, saying she hates no one and that her views are rooted in strong Christian beliefs, but her denials ring hollow. Her writings say it all. I find that 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. However, she was not regarded in the community as either violent or militant, or as a criminal or person likely to engage in covert deception of local authorities. [70] I am persuaded that the extreme right-wing beliefs and connections with racist and anti-Semitic associates of Eileen Pressler were, as the previous local newspaper publicity amply demonstrates, well known in Salmon Arm and adjacent communities. Prior to the broadcast complained of, the average person in the area who knew of the Presslers was not afraid of either of them, but simply regarded Eileen Pressler as an extremist. [71] Both defendants take the position that the plaintiff Claus Pressler was an active participant in the activities of the CPA, and could be justly described as such, as indeed he was described by both defendants in the broadcast. The defendant Westcom concedes that his involvement pales in contrast with the intense participation of Eileen Pressler. [72] In support, the defendants refer to the evidence of the journalist, Thomas Hawthorn, the author of an article published on November 18, 1990 in the Vancouver Province newspaper entitled, "Trail of Denial". That article referred to the Canadian speaking tour of Holocaust revisionist David Irving, and mentioned both Presslers: The tour was organized by the Council on Public Affairs, a group based in Salmon Arm which claims it operates "in defence of our Christian heritage." Irving's sponsors shun the spotlight. The Council, a previously unknown link, in what has been called the Holohoax network, operates behind the anonymity of a postal box and a facsimile machine. The Province has learned that Salmon Arm cosmetologist Eileen Pressler and her husband Claus Pressler promoted Irving's tour. Claus Pressler, a pharmacist at the Pharmasave drug store in the Okanagan community, denies he heads the council but admits he sees messages the group receives by fax. Pressler, 53, says the accepted historical accounts of the Holocaust are "a battleship of lies" and "hate propaganda" against the German people. Pressler, who was born in Silesia, now a part of Poland, said he believes Irving's revisionist account. "I can only support the man" he said. Pressler said Israel promotes the Holocaust so that it can continue to get reparation payments from Germany. ... [73] In his testimony Thomas Hawthorn swore, and I accept it as true, that he spoke to Claus Pressler on the telephone and that Mr. Pressler made the statements quoted. [74] I accept that in his capacity as consort to Eileen Pressler, Claus Pressler accompanied her to many CPA-sponsored speeches and conferences. He likewise accompanied Eileen Pressler to the July 1992 meeting of SACAR, and also visited the April 30, 1992 protest at the Salmon Arm Community Centre, out of concern for her safety. The overlap in use of the fax machine for both pharmacy and CPA purposes does not persuade me that Claus Pressler was a prime mover in the CPA. Similarly, the fact that Eileen Pressler relocated the CPA office in the basement of their new retirement home does not implicate Claus Pressler. I reject the evidence of Dr. Gary Botting, who stated that at the "Leadership '91" conference Claus Pressler manned a book table and video camera as being evidence in support of Mr. Pressler's involvement with the CPA. On cross- examination, Dr. Botting's recall of material aspects of that conference was badly shaken. [75] I am satisfied on the evidence that Claus Pressler is, as I have said, a passive Holocaust revisionist. He is that and nothing more. I am satisfied that by and large he has never been, nor is he now, a significant player in the activities of the CPA. I am not persuaded that Claus Pressler's reputation in the community was that of a racist or an anti-Semite; at most it was that of someone who questioned the veracity of accepted reports on the Holocaust. The Alleged Defamation [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, knowledgable 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. [77] I find that these specific allegations of defamation are encompassed within the statement of claim. [78] It is clear that the broadcast attributes to Claus Pressler the same degree of involvement in the CPA as his wife, Eileen Pressler, and does in fact label him as a co-founder of the CPA. I am satisfied that Eileen Pressler was the sole founder of the CPA. The evidence from the corporate search of PARA Inc. reveals that Eileen Pressler and Tola (Lois) Haynes are the only two directors and officers of this company. I find that Haynes was nothing but a nominal figurehead, and that all control of PARA Inc. and the CPA was in the hands of Eileen Pressler. Haynes replaced former director and officer Leonard Saunders. [79] By the same token, I am persuaded that Claus Pressler is neither an active principal supporter nor a member of the CPA. I conclude that he was involved to some extent by way of supporting his wife's activities in relatively minor ways. The broadcast depicts Claus Pressler as both a founder and major participant in the CPA. I find those statements in the broadcast to be untrue. [80] Whether such an association can be characterized as defamatory depends on both the nature of the CPA and the reputation of the plaintiff Claus Pressler. I now consider the nature of the CPA. [81] I find that the CPA is indeed an anti-Semitic and white supremacist organization of the far-right. Further, I find that it does hold conventions of extreme right-wingers and prints and distribute literature furthering such ends. The CPA Digest is replete with examples of outright racism, anti- Semitism and white supremacist viewpoints offensive to most Canadians. It is not inaccurate to characterize the CPA Digest as an instrument of extreme far-right intolerance promoting concepts antithetical to society. Neither is it remiss to classify the views it disseminates and the literature it prints, advertises and distributes as hate literature. Indeed, I find that in disseminating and propagandizing such views, Eileen Pressler and the CPA have committed the tort of publicly inciting hatred against identifiable groups, namely, persons of Jewish background and others of non-white origin, in such a manner as could lead to a breach of the peace. [82] In so concluding I bear in mind that such conduct not only potentially constitutes a crime against an identifiable group or individual but also, by its very nature, is equally capable of constituting a tort for which the perpetrator may be found civilly liable at the behest of the identifiable group or individual. [83] This, of course, is a double-edged sword. It potentially applies to the defendants as well as the plaintiffs. [84] That is not to say that a person is not entitled to have prejudices, biases or hatreds. Everybody has the right to hold such views. What no person has the right to do is to either incite public hatred of any identifiable group or individual or to discriminate against any such persons because of these prejudices, biases or hatreds. If they do so, they must bear the legal consequences, be they civil or criminal. [85] The issue is not to adjudicate between good and evil, but rather to assess whether at bar an actionable defamation has occurred. Both plaintiffs insist that their primary concern is the freedom to exercise and preserve the right of freedom of expression, regardless of how unpopular the views expressed may be. Nonetheless, all rights and freedoms entail a concomitant duty that they be exercised within the law. Claus Pressler is entitled to express his revisionist views and I find that when he has done so, he has been within the law. Insofar as Eileen Pressler is concerned, her rabid views, as they would be regarded by all reasonable people, have in many instances been expressed in a manner that I can only characterize as unlawful. The Defendant Westcom [86] The broadcast certainly implied that some people approached by Gaffney were reluctant to speak about what was taking place on the Pressler property. It tied this reluctance to the substance of the Presslers' alleged racist views. This implication was achieved through the manipulative interview techniques used by Gaffney and the misleading editing of the video footage to create a false impression. The entirety of that raw footage reveals the real reason certain people were reluctant to talk was to avoid becoming involved in the acrimonious dispute between the CPA and SACAR. This controversy was based largely but not entirely, as many interviewees made clear, on rumours and innuendos as opposed to facts pertaining to the Presslers' property. The raw footage reveals that some interviewees had no knowledge of either the Presslers or the controversy. These interviews were either not broadcast, or were broadcast out-of-context. [87] The innuendo of mistrust or fear among the people of Salmon Arm is present throughout the broadcast, and does cast defamatory aspersions upon the plaintiffs. [88] The plaintiffs allege that they were defamed by Gaffney's statement in the broadcast that trying to check out the local rumours on site proved pointless. That statement was made while the television camera showed a worker (in fact, the plaintiffs' son) facing the camera and ordering Gaffney and his entourage off the property. Counsel for the plaintiffs claim the video image depicted the worker as violent. Although this individual certainly used language that can only be described as colourful, if not Damon Runyonesque, I am not persuaded that he was portrayed by his actions as being violent. I cannot see that portraying what the Presslers' son actually said and did when Gaffney and his camera man appeared, uninvited, with their camera and tape recorder on, while construction work was in progress, is of itself capable of constituting a defamation. I do bear in mind that the incident forms part of the larger picture conveyed, I find falsely, in the broadcast that the Presslers were deceiving municipal officials about construction on the property. [89] I find there is nothing defamatory in Gaffney stating that both Claus and Eileen Pressler refused his invitation for an on-camera interview. Gaffney did state that he had spoken to Eileen Pressler on the phone and she had acknowledged that there were a lot of rumours about the purpose of the buildings on their property. Mrs. Pressler told him the rumours were "unfounded, asinine and ridiculous", and were generated by David Lethbridge. Although it is untrue that Claus Pressler refused an on-camera interview, this statement is not defamatory in itself, but again goes to the implication that the Presslers were deceiving municipal officials. It is not an example of the best in journalism. [90] I find there is nothing defamatory of either plaintiffs in the portrayal of Lethbridge as a courageous, knowledgeable and credible anti-racist activist. However, I find that Lethbridge did repeat defamatory rumours in the broadcast which he knew or ought to have known were untrue. I am satisfied that with respect to the plaintiffs he made statements that were untrue. In addition, he organized demonstrations during which he committed the tortious acts of creating a disturbance, including causing minor damage to the Presslers' son's car, and unlawfully preventing access to the Salmon Arm Community Centre by Claus Pressler and his son. [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. [93] The defamatory descriptions of the property were both conveyed expressly and, by juxtaposition of images, impliedly. I find that Gaffney and, therefore, the defendant Westcom, knew at all material times prior to the broadcast that what the Presslers were building was precisely what they told the Salmon Arm municipality they were building. The raw footage confirms that it must have been plain beyond peradventure to Gaffney, as he trespassed on the Presslers' property, that it was simply a big house, with an adjoining barn with a chicken coop and chickens, and a smaller house. Both the words in the broadcast relating to the property, and the way in which these words were stated in conjunction with particular images, were defamatory. [94] I am mindful that in the broadcast the defendant Lethbridge made it clear that "They're not going to do para- military training. They never have." He also opined that what the plaintiffs were building was a large, defended encampment that would be impossible to penetrate. It would be used to hold conventions of extreme right-wingers, and to print and distribute racist literature. In that regard, I am satisfied that Eileen Pressler did plan to, and did use, her retirement home for the purpose of printing and distributing such literature. By the same token I am equally satisfied that she did not plan to use the property or any structure on it for conventions. [95] I find that the broadcast did portray the plaintiffs as deceiving municipal officials as to the real use of their property. As I have said, Gaffney knew prior to the broadcast precisely what was occurring on the property. The unedited tape of raw footage from which Gaffney produced the broadcast makes that clear. Gaffney represented, as did the defendant Lethbridge, that while there may not yet be a fire there was certainly the smoke of deception on the part of the Presslers. I find that both the Presslers were defamed by these misleading and untrue representations. [96] The plaintiffs claim that the broadcast defamed them in that it represented that the municipal council had no control over the use the Presslers made of their land and buildings and, further, that the defendant Lethbridge was the only local watchdog. Statements to that effect were made by Gaffney against a background of what appeared to be a concrete wall or trench but was actually a single concrete brick, with the Presslers' honey house in the background. I find that a trick of photography was employed to create this impression. It was also alleged that the red barn was carpeted, with numerous rooms and a large spiral staircase. These allegations were made with the implication that municipal officials were unaware of and unable to prevent these developments from taking place on the property. I find that this implication of deceit did in fact defame the Presslers. [97] I find the statement that the defendant Lethbridge is the "only local watchdog" is something of an overstatement but is not defamatory of the Presslers. [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. [100] Lethbridge testified that after the broadcast the rumours died down because the broadcast had cleared the air. I do not accept that. The more probable explanation is that following the broadcast the rumours died down because the content of those rumours was regarded as likely true. [101] The raw footage tape reveals that Gaffney "cut and pasted", by way of juxtapositioning, editing, and rearranging the statements of interviewees, to create an entirely misleading sensational story. The program suggests that the people of Salmon Arm are frightened of the Presslers not merely because they are racist and anti-Semitic but more importantly because they were building on their twenty acres a fortified convention centre for right-wing extremists that may well be used for paramilitary training. I am satisfied that the result of Gaffney's editing was to colour the broadcast in a manner detrimental to the plaintiffs. [102] There are many examples revealed in the raw footage tape of the manipulative techniques employed by Gaffney. For example, at the beginning of the program, after Gaffney states that "people are nervous in Salmon Arm", an image of the garbage collector saying "turn that off" creates the impression that this individual is aware of the Presslers' activities and possibly fearful of being video-taped or recorded. The raw footage tape reveals that the garbage collector, thinking the camera and its sound recorder are switched off, as Gaffney has told him they were, explains that there are "two factions in town, one of which is white-supremacist, and they are arguing all the time." He does not mention the Presslers specifically, or express any fear of them or any concern for what they might be doing on their property. [103] Perhaps the most egregious example of exploitative editing to create a false impression is that of the Romeo Thomas interview. The broadcast tape gives the impression that this man, and others, do not want to know the Presslers because of their views and their activities on their property. These comments of Thomas are broadcast in conjunction with the image of the angry worker ordering Gaffney off the property. I find that was done for the purpose of creating a false impression of secrecy, and concealed wrongdoing on the property. The raw footage shows that Thomas does not even know the names of the Presslers and has no knowledge of rumours about the property or of their political views. He dislikes the Presslers because they are in his opinion, "rip-off artists", and he was once chased off the property for attempting to collect apples fallen from a tree. Thomas states in the raw footage tape that he knows nothing about the land in question. He thinks it is owned by the municipality. [104] The "No Trespassing" sign portrayed in the broadcast was used to further the suggestion in the broadcast that the property is a paramilitary training ground. This juxtaposition of words and images buttressed the impression of secrecy, wrongdoing and deceit. [105] The raw footage tape reveals that many interviews conducted by Gaffney are taken out-of-context in the final broadcast tape. The motel owner, depicted in the broadcast as being nervous and worried about what is taking place on the property, states in the raw footage tape that he is not concerned about the property as he does not know what is going on there. [106] Next Gaffney is shown speaking to the young woman entering a store, who in the broadcast tape gives the impression that she knows something but will not talk about it. Gaffney, in the subsequent voice-over asks, "Why all the reluctance to talk? Well, it has to do with the owners of the property, their background and their beliefs..." This implies that the young woman is fearful of talking because of the beliefs of the Presslers. The raw footage tape reveals that the young woman had only heard rumours, and for this reason she did not wish either to say much or to reiterate rumours. [107] The broadcast next presents Nellie Rasmussen as being fearful of the Presslers because of their extreme right-wing connections and, further, as being afraid to say too much because she lives next door. It conveys the impression that she thinks there is more to the Presslers' building than meets the eye. The raw footage tape shows that Nellie Rasmussen went on to comment that she was not sure of anything because the speculation was based on rumour, not on fact. She says unless the information was "right from the horse's mouth" it was "all gossip". The false impression is created in the broadcast that Nellie Rasmussen is really concerned about the Presslers, and fearful of them and their land use. [108] I further find it significant, insofar as malice on the part of Westcom is concerned, that certain other interviewees portrayed on the raw footage with material comments were edited out in the impugned broadcast. I find that this was done by Gaffney in order to slant the broadcast to the prejudice of the Presslers. These interviews are with people who either show no concern about the Presslers, or have never heard of them or the rumours about them and their property. [109] I find that Gaffney knew or ought to have known that the construction worker who quoted the fourteen thousand square foot figure to him was in fact a drywaller and was in all likelihood referring to the dimensions of his drywalling job. Nonetheless, Gaffney repeated this figure more than once during the broadcast, leaving the impression that the building on the property might be that size. [110] I further note that Gaffney, as he testified, interviewed the Mayor of Salmon Arm and was told by him that what the defendant Lethbridge was trying to do to the Presslers, in trying to run them out of town, was criminal. Needless to say Gaffney did not include this item in the broadcast. [111] The raw footage tape reveals that Gaffney spent some time at the Salmon Arm Municipal District office speaking to Mr. Isaac, the building inspector. During this meeting, he learned the true size of the Presslers' building, as it was printed for all to see on the building permit. Mr. Isaac told him that the Presslers had conformed with building requirements. In the broadcast, Mr. Isaac's statements are edited selectively and out of sequence to give the impression that the municipal district is unaware of what is really being built on the Pressler property. [112] Gaffney, in the broadcast, told the viewers that both the Presslers had refused an on-camera interview. This was true of Eileen Pressler but not of Claus Pressler. Gaffney conceded in his testimony that he had never even spoken to Claus Pressler, to say nothing of ever having received a refusal from him. [113] In the result I am satisfied that Westcom falsely presented a picture of deception and dishonesty insofar as Claus Pressler was concerned by depicting him as something he never was and is not, namely, a co-founder and active protagonist of and for the Council of Public Affairs in its campaign of anti-semitism and white supremacy. Those things were true of Eileen Pressler but they were not true of her spouse. [114] The thrust of the broadcast went much further than suggesting that the plaintiffs were anti-Semitic and racist. Its real thrust was that both Presslers were not only right- wing extremists but, more importantly, they were building on their property an armed and defended secret compound of some fourteen thousand square feet to be used for holding conventions of the far-right and possibly even for paramilitary training. Thus the Presslers were accused of deceiving the Salmon Arm municipal authorities by only applying for a permit for a 3,165 square foot retirement home. These allegations were all totally untrue. There was not a shred of evidence to support them. They were contrary to the facts known to Westcom at the time of the broadcast. This false picture was created by Westcom by juxtaposing the rumours with images of the property giving the rumours credibility and substance. It was also furthered by editing and altering the word order of the interviewees, to say nothing of the massive omissions of raw footage indicating that the rumours were untrue. [115] It is undeniably clear that Gaffney himself studied the building permit obtained by the Presslers for their property. Their compliance with the permit was confirmed by Mr. Isaac. Gaffney also spent some time observing the activities on the property and the property itself and surely knew that a more balanced story could be presented. Instead, any information which did not support the type of sensational story which Gaffney was bent on producing was selectively omitted from the broadcast. [116] In his testimony, Gaffney claimed that the source of his statement in the broadcast that "there are rumours, unconfirmed speculation ... of a barn that is carpeted, with numerous rooms and a large spiral staircase" uttered by Gaffney against a scene depicting the red barn on the Pressler property, was Geneva Maclean, a neighbour. [117] The evidence makes clear beyond peradventure that there was not an iota of truth behind any of the rumours about the red barn. The barn was an ordinary barn with not one of the features listed by Gaffney. The barn was used for storage of building materials and had an attached poultry coop giving access to the barn. There was no justification whatever for the rumours about the barn. I accept Geneva Maclean's testimony that she was familiar with the barn and knew it was nothing more or less than an ordinary farmyard barn. I accept her testimony that it did not have any of the rumoured characteristics related by Gaffney. I further accept that at no time did she reiterate the rumours to Gaffney. I accept her testimony that it was Gaffney who put the rumours to her and she, in reply, said to him that she does not "pay attention to rumours". Further, she did not know the Presslers and did not wish to talk about them. Where Gaffney's testimony differs from that of Geneva Maclean, I accept the testimony of Geneva Maclean. In the result, I find that Gaffney had no honest belief in the veracity of the rumours and other statements he included in the broadcast, insofar as the use of the Presslers' land was concerned. [118] In addition to illustrating how the information collected by Gaffney was used to construct the defamatory broadcast, I find that it all ineluctably points to express malice on the part of Westcom as against each of the plaintiffs. The Defendant Dr. Lethbridge [119] I hold that the defendant Lethbridge had nothing to do with the editing of the interviews or any other aspect of the broadcast apart from his interview. That is not to say that the statements he made in the raw footage tapes from which the broadcast was prepared are not relevant. Those statements do not form part of the defamation at bar. They are germane to whether or not there was malice in law on the part of the defendant Lethbridge in his repetition of defamatory rumours. The defendant Lethbridge, unlike the defendant Westcom, did make clear that the Presslers never have conducted paramilitary training on their land and, in his view, they had no plans so to do. He said this suggestion was, in his view, ridiculous. Nonetheless, he repeated defamatory rumours about other aspects of the property to the detriment of the Presslers. "Waco" [120] The plaintiffs complain that the defamation made in the broadcast about their property use was exacerbated because Gaffney and the defendant Lethbridge used terms such as "compound" and "bunker", carrying a military connotation which, taken with the broadcast as a whole, conjured up images of the Branch Davidian cult in Waco, Texas. The plaintiffs contend that this must be so, in the context of the fact that the Waco story of the cult's headquarters being raided by the FBI and set on fire received massive publicity in Canada and the world in April 1993. [121] Blaine Gaffney testified that Waco, Texas, never once entered his mind in preparing the broadcast. I accept that this was so. I further accept that there was no evidence that any of the images contained in the broadcast bore any relationship to those portrayed several months earlier about Waco. I am of the view that the evidence at bar is consistent with the fact that what most people remember about Waco is a huge fire and an armed stand-off, neither of which had any realistic parallel with the Westcom story in the broadcast at bar. [122] On the evidence, I am not persuaded that the mere fact that the broadcast used terms such as "bunker" and "compound", even when looked at in the context of the broadcast as a whole, was such that it could properly be said that the broadcast conjured up even the slightest suggestions of the Waco story. I so find, notwithstanding the evidence of Anita Macdonald that, at her hairdressing salon, some of her customers and hairstylists thought that the Presslers were "Waco types" and that Salmon Arm was becoming a "little Waco". [123] It takes more than a few swallows to make a summer. On the evidence, I find the Waco aspect of the plaintiffs' claim for damages is a "bridge too far". I hold so because I have concluded that no fair-minded person, viewing the broadcast, could reasonably relate it to the Waco incident. Conspiracy 3ΙΈ There is nothing in the evidence to suggest that the defendants Westcom and Lethbridge were acting together pursuant to any express or implied agreement to commit any tort, defamation or otherwise. I am not persuaded that any conspiracy to defame the Presslers has been established. [125] The provision of the Charter of Rights and Freedoms guaranteeing freedom of expression was raised by the defendants. I share the established view that the Charter does not apply in litigation between private parties. Justification [126] In essence, the defendants and each of them in the broadcast have given credence to rumours by selective editing of statements of interviewees and also by juxtaposition of images and words to create the false impression that Claus Pressler was an active participant, a believer and a co-author of his wife's activities. Further, the impression is given that both plaintiffs were violating municipal laws by building a defended and fortified convention centre. [127] It is true that in the broadcast both defendants speak sometimes, but not always, in terms of rumour. The plaintiffs rely on the dicta of Greer L.J. in Cookson v. Harewood, supra at p. 485 where he quoted the trial judge: ...if you repeat a rumour you cannot say it is true by proving that in fact the rumour existed; you have to prove that the subject-matter of the rumour was true. [128] The same principle was enunciated by Gordon J.A. in Tucker v. Douglas, [1950] 2 D.L.R. 827 (Sask. C.A.) aff'd. [1952] 1 S.C.R. 275 (S.C.C.) where, at p. 841, after reviewing many cases, the learned judge wrote: The authorities quoted above show that proof of the existence of a rumour ... is not a justification of the defamatory word contained in such rumour ... [129] This principle was applied by McNiven J. in X. v. Y., [1947] 2 W.W.R. 1011 (Sask. K.B.). In that case, the plaintiff was suing the defendants for slander. The headnote correctly sets out the ratio decidendi of the decision. In its germane parts the headnote reads: The statement that "I heard" or "there is a rumour" or "it has been reported" that the plaintiff "has V.D." or "venereal disease" held ... to be actionable per se... Said words conveyed much more than a suspicion, and to repeat a rumour is more reprehensible than merely stating an isolated fact. The claims of privilege on the ground that the communications were made to a proper person as a matter of public interest and concern were not sustained. [130] This principle was enunciated by the New Brunswick Supreme Court, Appeal Division by Grimmer J. in Trafton v. Deschene, [1917] 36 D.L.R. 433 at p. 434: Every repetition of a slander is a wilful publication of it, rendering the speaker liable to an action. ... It is no defence that the speaker did not originate the scandal, but heard it from another, even though it was a current rumour and he believed it to be true. ... It is no defence that the speaker at the time named the person from whom he heard the scandal. [131] The defendants do not take issue with this law but contend that each case must be considered in its individual circumstances. The defendants argue that the impugned publication, in its whole context, asserts that the rumours of paramilitary training and so on are not true and therefore cannot be defamatory. Further, the defendants contend that the court should accept the evidence of the defendant Lethbridge that after the impugned broadcast, in his view, the rumours dropped off. Thus the defendants' contentions on the true meaning of the broadcast depend on findings of fact. [132] I am persuaded that while the broadcast does contain a statement by Lethbridge that the paramilitary training rumour is without foundation, the effect of the broadcast taken as a whole, notwithstanding the denial, is that a defended compound is being built that may well be used for paramilitary training. I find that is defamatory. It was untrue and had no basis in fact. [133] The defendant Westcom urges that, notwithstanding the reporting of rumours and in some instances the presentation of rumours as fact in the broadcast, in the context of the whole there were indeed many rumours in the community. Rumours were rampant about the use to which the Presslers were putting their land. Westcom and Lethbridge were simply trying to get to the bottom of the rumours. The defendants rely on Lewis v. Daily Telegraph Ltd., supra. I distinguish that case on its facts. There, the defendant newspapers established that what they published was true, namely that the plaintiff was the subject of an inquiry into his affairs by the fraud squad. It was held that, this being so, there was no libel as there was in fact an investigation. Here, the defamatory statements have not been established as true. [134] In summary, I am of the view that the plain ordinary meaning of the broadcast is, insofar as the allegations concerning the plaintiff Claus Pressler are concerned, that he is a co-founder, a prime mover, and an active participant in his wife's activities and that of her Council on Public Affairs, is untrue and defamatory both in substance and in fact. [135] I further conclude that the allegations concerning the use by the Presslers of their land, and their alleged deception and violation of the zoning and Agricultural Land Reserve laws, are defamatory and untrue in fact and substance. [136] The defence of justification fails. Malice: The Defendant Westcom [137] The burden of establishing malice lies with the plaintiffs. I accept the law as enunciated by Professor Raymond Brown in The Law of Defamation in Canada, 2d ed. (Toronto: Carswell, 1994) at p. 1049: The primary consideration is the state of mind of the defendant at the time when the words were published. The actual or express malice must exist as a fact at the time the publication takes place and inspire or colour that communication. If malice is shown, the privilege normally attaching to the occasion is lost, and the defence will fail, for "a person is not to be allowed with impunity maliciously to defame another". Actual or express malice will destroy or avoid the privilege. The words will become "as arrows feathered with malice". If the defendant is also relying upon a defence of fair comment on a matter of public interest and it is shown that the comment was uttered maliciously, that defence will fail as well. This rule reflects the careful balance which the law has drawn between the protection of legitimate personal and public interests on the one hand and private reputation on the other. [138] Professor Brown further writes at p. 1051: Malice amy be shown if there is evidence that the defendant used the occasion with a wrong intention. Purity of motive is the test. Malice involves "the intentional doing of a wrongful act with intent to cause damage". "[A]ny indirect motive, other than a sense of duty, is what the law calls `malice'." The occasion must not be used for bad, corrupt, dishonest, evil, guilty, illegitimate, improper, indirect, oblique, selfish, unjustifiable, ulterior, wicked, wrongful or even sinister purpose or motive. [139] In Vogel, supra, Esson J., in regard to malice, said the following at p. 174: ... What the law regards as malice is any indirect motive other than a sense of duty: Gatley, p. 326. The purported motive of the defendants was to serve the public interest by exposing corruption in high places, but the real motive was to enhance their own reputations by producing a sensational program. Their concern was not as to whether the allegations were true or as to whether the public interest was served. It was rather to give to allegations of scandal the appearance of truth to the extent necessary to succeed in achieving their goal. That attitude, in law, is malice. [140] In Colour Your World, supra, the court quoted this passage from Vogel finding that the indirect motive of seeking to produce a sensational story took precedence over the defendant's duty to produce a balanced program, and as a result, express malice was established. Both Vogel and the case at bar have in common the circumstance that in each case the defendant television broadcaster deliberately omitted segments of interviews, arranging the interviews and accompanying images in such a way as to create maximum misleading dramatic impact at the expense of veracity. [141] In the result I am persuaded that, motivated by the desire to enhance its reputation and ratings by producing a sensational programme, to accomplish its object Westcom engaged in ambush interviews, trickery in the sense of pretending to some interviewees that their statements were off-record, juxtapositioning not just of the words of the interviewees but of images so as to create deceitful implications, and the editing out of statements by interviewees so as to slant the broadcast in such a manner as to imply that the false allegations pertaining to the property and its use had substance. I find these actions constitute express malice on the part of the defendant Westcom. Malice: the Defendant Lethbridge [142] I find the defendant Lethbridge was angry and disturbed by the racism and anti-semitism promulgated by Eileen Pressler and the CPA. He resolved to battle against her and her organization. Alas, I find that in his enthusiasm to struggle against bigotry and intolerance he allowed his mind to fall into such a state of anger and unreason as to lose balance not just in regard to his chief protagonists, Mrs. Pressler and the CPA, but also to the whole Pressler family, namely, her husband and their children. Not only that, he took to recklessly casting false aspersions against not just Eileen Pressler but also her husband without stopping to ascertain whether what he was saying was true or false. [143] I am satisfied on the evidence that just prior to the April 30, 1992 demonstration organized by the defendant Lethbridge at the Salmon Arm Community Centre, 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. The other calls that I find he organized were in a similar vein though in some cases the language was less salty. [144] At the demonstration led and organized by Lethbridge on April 30, 1992 he committed the tort, personally and by exhorting his followers, of blocking the access of persons wishing to attend, including Claus Pressler and his son who were there to check on security, and Lethbridge, with his own placard, banged the Pressler car in addition to blocking access to the roadway. In the result he directly and indirectly caused minor damage to the car. His conduct constituted an unlawful act in civil law. His behaviour culminated in Lethbridge and another "mooning" the Pressler car. [145] In an interview published by the Globe and Mail on February 6, 1993 the defendant Lethbridge, having said that the type of campaign he was mounting was the most effective way to combat anti-semitism, added: 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. [146] I find that the family breadwinner he was referring to was Claus Pressler, who owned and operated the Salmon Arm Pharmasave through a company in which his wife owned 49% of the shares and he owned 51%. The pharmacy was operated by Claus Pressler. Eileen Pressler, although a shareholder, was not materially involved. [147] 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. [148] The defendant Lethbridge in a speech delivered at a meeting at the Laquena Coffee Shop on April 23, 1994 revealed his attitude towards the plaintiff Eileen Pressler: This woman is such filth. She is a professional liar. She earns money to send to Ernst Zundel, who converts it in Germany to bullets to kill people. [149] In that same speech, broadcast on a Vancouver radio station, Lethbridge answered a question from the audience on "the compound with this big building at Salmon Arm": Part of the reason we're being sued is there was a television broadcast about - about 20 acres that Eileen Pressler, head of the Council on Public Affairs, and her husband, Claus, purchased in Salmon Arm. 20 acres of land. I don't know whether that sounds like a lot to you or a little bit to you. ... But 20 acres is the same size as Aryan Nation's compound in Hayden Lake. It's not huge. It's a thing. What are they building there? They say they're building a hobby farm for their retirement. But there's a barn there. Looks like a traditional red barn. Looks like a red barn. It's not a red barn. The neighbour, who saw them building it, confirmed what we already knew, and that is that it's carpeted. It has multiple telephone jacks, multiple toilet stalls, a circular staircase to the second floor. It's not a barn. This means it's something else. Do we know what it is? That's where I got into trouble when the TV man said, "What do you think it is?" I said, well, what I think it is, is probably they're going to have meetings of racists and neo-Nazis like they've always had. That's what they're probably going to do there. ... The city has confirmed to us what the neighbour confirmed to us and that is, you know, the carpeting, the phone jacks and all that. Beyond that, I just don't know ... [150] On the evidence I find that the municipality never did confirm to the defendant Lethbridge or anyone else his allegations about the spiral staircase, phone jacks, toilet stalls and carpeting in the red barn. [151] In this speech, albeit after the broadcast, I find that Lethbridge is reiterating as the truth what he said were rumours in the actual broadcast. I find that at the time of the broadcast he knew or should have known that while these rumours existed there was no basis for them. I note that even the simplest of checks would have revealed to Lethbridge what Gaffney already knew from talking to the building inspectors in advance of the broadcast, namely, that the Presslers were building not a defended fourteen thousand square foot compound but simply a 3,165 square foot retirement home. The defendant Lethbridge in the raw footage tape, when interviewed by Gaffney on this, said he did not believe it and that Eileen Pressler had "lied on several occasions". [152] The defendant Lethbridge, in his evidence and in his discovery, claimed that Charles Nash, the manager in charge of the planning and building department of the Salmon Arm Municipal District, had told him that the planning officers had been in the Presslers' barn and confirmed that it was carpeted and had phone jacks. I accept the evidence of Charles Nash that between 1992 and 1993 he had three conversations with the defendant Lethbridge. Two of these were office visits by the defendant and one was a phone call. Lethbridge put forth a note he made of the information obtained as a result of those conversations: Planning officers have been in the barn and confirmed carpeting and phone jacks. Charges cannot be laid unless they hold meetings on the property. [153] I accept the evidence of Mr. Nash that he never said and has no knowledge of ever having said any such thing to the defendant Lethbridge. Further, at no time did he ever tell the defendant Lethbridge that the Presslers' barn had multiple phone jacks and/or toilet stalls and/or a spiral staircase and/or carpeting. I further accept that Mr. Nash never said such things to the witness Nellie Rasmussen. By the same token I accept that Nash never said to Lethbridge that Nash and his inspectors did not believe the Presslers are building a honey processing plant. Neither did he say that he and his inspectors were monitoring the situation and knew that a heavy fence was being erected and were prepared to bring the police on-site and charge the Presslers if necessary. By the same token, he did not say to the defendant Lethbridge that a court injunction will be filed if necessary. He said none of these things. [154] Where the evidence of the witness Nash and Lethbridge conflicts I have no hesitation in accepting the evidence of the witness Nash. [155] In regard to the defendant Lethbridge I conclude, insofar as his recollection of his conversations with Nash is concerned, that the defendant Lethbridge was so inflamed with his crusade against the Presslers that he lost all objectivity and perspective in his recollection of his conversations with Nash. [156] In the raw footage tape, when interviewed by Gaffney, the defendant Lethbridge explained his position on rumours: 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 have 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 on to 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 telecommunication 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 staircase. So it's clearly not a 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 ... The raw footage tape then relates the following exchange: Gaffney: We were at the City Hall looking at the building permit. The inspector there, he said he looked out there and it looked like a regular old big house to him, nothing out of the ordinary. Lethbridge: Is that right? Gaffney: Does that surprise you? Lethbridge: Yes it does. I wonder what degree of inspection they've accomplished. [157] At trial the defendant Lethbridge testified that when he had driven by the Pressler property he did not see either a fence or bunkers so he did not think that those particular rumours were true. Notwithstanding this, as the raw footage tape shows, he told Gaffney that generally speaking the rumours were partially substantiated. [158] I find that Lethbridge, in the broadcast, re-stated rumours in a cavalier manner without regard to whether they were true or false. Had he taken reasonable steps he could have ascertained that they were false independently of speaking with the Presslers. He was, I find, reckless as to truth or falsity of what he said about the Presslers' land use. [159] In the result, I am satisfied that the defendant Lethbridge was motivated improperly and therefore made the defamatory statements with express malice against both of the plaintiffs. [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. [161] The defendant Westcom submitted that the rumours about the Pressler property were of such concern in Salmon Arm that the community had an interest in the broadcast, and the defendant had a duty to "ventilate" the concerns publicly. I note that the program was originally broadcast in the Okanagan area, and the next day broadcast on the Vancouver CBC station. It was again re-played on the national CBC Newsworld about two weeks later, on federal election night in Canada. [162] On occasions to which a qualified privilege attaches, a person is entitled to write or speak honestly to the best of his or her belief, and is not liable for false statements unless the person has published the words maliciously and has not made bona fide use of the occasion. [163] At bar, I find that the rumours about the Pressler property had, in the Okanagan community served by Westcom, reached such a level that there was an interest and indeed a duty on Westcom to report on them in a fair and honest manner. For reasons outlined in my findings on malice, it is clear this was not done. The information in the broadcast was neither honestly presented, nor do I find it could have been believed by the defendant Westcom. [164] Further, the duty to make the publication on matters of concern to the Okanagan community served by Westcom is not of such significance as to justify its broadcast throughout Canada and beyond via CBC Newsworld. By way of its contractual arrangements with the CBC, Westcom did broadcast to the world, and I find that this broadcast was too wide, in the absence as at bar of special circumstances of urgent need, to be privileged. [165] The defendant Lethbridge submitted that he was solely motivated by a sense of civic duty to oppose racism and anti- Semitism. Such concepts he believes are inimicable to the foundation of Canadian society. He claims that any publication he made was primarily directed to the local community but that he was justified in seeking, as he did, a wider audience, as Eileen Pressler and the CPA address a large audience. His counsel urges that Lethbridge was under a duty to make the impugned communications, and that he was not guided by any personal malice against the plaintiffs. [166] I accept that Lethbridge was motivated by laudable ideals in fighting the twin scourge of racism and anti- Semitism. However, I find that in his zeal his behaviour removes from his reach the defence of qualified privilege. Racism and anti-Semitism are based on unacceptable stereotyping, so too was Lethbridge's view of the entire Pressler family. He tarred them all with the same brush, although he must have known it was unfair so to do. He deliberately tried to drive them out of town. He succeeded in contributing to the ruin of Claus Pressler's pharmacy. He boasted publicly of this as a victory. He spread rumours which, in many instances, he knew not only were untrue, but could not possibly be true. It cannot be said that he acted with an honest belief and without malice. [167] In regard to the defence of fair comment, the statements identifying Eileen Pressler as a racist and anti- Semite are true and fair. Such statements, insofar as Claus Pressler is concerned, are neither true nor fair. The defendant Westcom does not plead fair comment in respect of comments made about the Pressler property. The defendant Lethbridge pleads fair comment in regard to the whole of the impugned broadcast. [168] The law on the defence of fair comment is succinctly set out by Nemetz C.J.B.C. in Van Der Zalm v. Times Publishers (1980), 109 D.L.R. (3d) 531 at pp. 535-536: The three elements of the defence of fair comment are well known. First, the matter must be recognizable to the ordinary reasonable man as a comment upon true facts, and not as a bare statement of fact. Secondly, the matter commented upon must be one of public interest. ... Finally, ... the comment must be "fair" in that it must, to quote Martland J. in Cherneskey [(1978), 90 D.L.R. (3d) 321] at p. 325 D.L.R...., "represent an honest expression of the real view of the person making the comment". [169] In the result, I am satisfied that the defence of fair comment fails on the first and third of the three tests set out for both defendants, to say nothing of being defeated by express malice. The comments, while made on a matter of public interest, were neither comments recognizable to the ordinary person as comments upon true facts, nor were they presented as opinion. Further, the comments could not be described as fair. The statements made did not represent an honest expression of the real views of either defendant. The defence of fair comment fails for both defendants. Damages [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. Costs [177] Even though this has been a lengthy and hard-fought trial I am not persuaded that any costs other than ordinary costs on Scale 3 are appropriate, and I award these costs to the plaintiffs. "D. Owen-Flood, J." _____________________________________ The Honourable Mr. Justice Owen-Flood