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Monday, December 15, 2008

Fromm and the collection plate

The following is Fromm's response to losing his appeal:

Free Speech Setback: Appeals Court Upholds Warman Libel Decision Against Fromm & CAFE

TORONTO. Tuesday, December 9 was a grim day for free speech and dissent in Canada, especially when it comes to criticizing those actively involved in trying to limit political discussion by dissidents. A three man panel of the Ontario Court of Appeal upheld the 2007 decision by Madam Justice Monique Metivier finding Paul Fromm and the Canadian Association for Free Expression guilty of defamation for 9 Internet postings in 2003 calling then Canadian Human Rights Commission employee Richard Warman a "censor."

The Appeals Court upheld the judge's findings and added $10,000 in costs for the appeal to the original $30,000 award.

Paul Fromm, a long0time free speech activist and a founder of CAFE back in 1981 called the decision "very disappointing. Have our courts become politicized allowing almost unlimited vilification of the so-called 'right' but shielding the left from even the most mild of criticism?" he asked.

The three judges had been snapping and confrontational with Barbara Kulaszka, Mr. Fromm's attorney. They ignored her reminder that the Supreme Court of Canada in the Karri Simpson case had broadened the definition of "fair comment," a key defence under Canadian libel law. In their June ruling, the SCC had held that fair comment need only be sincerely believed by the speaker and be a view that a reasonable person could hold based on the facts. It need not, in the normal sense of the word, be fair, or balanced or even just.

In her eloquent address ot the Court, Miss Kulaszka argued that Sec. 13, the Internet censorship provision of the Canadian Human Rights Act had been denounced as censorship by newspapers and columnists across Canada. "Newspapers across this country have called for repeal of Sec. 13 before they get hit by it. Mr. Fromm was the first to sound the alarm. He should be rewarded.

"The issues of free speech on the Internet are huge," she warned. "Mr. Fromm was responding to Mr. Warman's actions."

In a chilling exchange, one of the Appeals Court judges suggested that if "suppressing 'hate speech' was in the public interest, wouldn't strong criticisms of people like Mr. Warman, who was making war on what he called Internet 'hate', be contrary to the public interest.?"

In appeals, the arguments (or Factum), books of authorities, transcripts and exhibits are filed months before and presumably read by the judges before the hearing. At the hearing, each side highlights its arguments and the judges ask questions and probe the arguments.

Sensing strong hostility to her argument, Miss Kulaszka warned the judges: "Your ruling will set the standard. The Karri Simpson case shows you can say incredibly bad things about the Right and it's 'fair comment.'"

"Does the same thing apply to Mr. Fromm and CAFE" she asked. "Can you say critical things about the Left and it's 'fair comment'?"

The judges adjourned just before noon. They returned at 2:15. They did not even ask to ear Richard Warman's lawyer Pam MacEachern but immediately delivered their decision dismissing the appeal. Ignoring most of Miss Kulaszka's arguments, they stated:

* the statements complained of (by Mr. Warman) were capable of being defamatory;
* with agree that the trial judge found it impossible to distinguish statements of fact from opinion (in CAFE's postings);
* it is clear that the trial judge's findings of malice were correct.

Miss Kulaszka was flabbergasted. Most of the 9 impugned postings wre newspaper reports. Above each was a signed "Dear Free Speech Supporter" commentary by Mr. Fromm. The distinction between statements of fact and opinion or commentary was vivid.

Alan Shanoff, a retired lawyer who specialized in libel, wonders whether the Simpson decision would have applied to criticism of the left. Are our courts hopelessly politicized? "The Supreme Court decision involved a radio editorial by Rafe Mair, a well-known British Columbia talk show host. He lambasted a social activist, Kari Simpson, for the position she took opposing any positive portrayal of gay lifestyle in public schools. Mair called Simpson a bigot and said she had 'placed herself alongside skinheads and the Klu Klux Klan." He also made references to Hitler when he said: 'I'm not suggesting that Kari was proposing or supporting any kind of holocaust or violence but neither really -- in the speeches, when you think about it and look back -- neither did

Simpson sued Mair and the radio station for defamation, the lowering of her reputation. The Supreme Court's ruling also clarified the defence of fair comment. Fair comment is the defence that allows defamatory expressions of opinion to be published. I've always had a problem with the name of this defence, because of the use of the word "fair." Many courts have wrongly stated a comment must be fair or a comment must be one a "fair-
minded" person could express. I'm sure jurors have also been befuddled by the word "fair."

First, one might wonder if the Mair decision might have differed had Mair not attacked an easy target. It's easy to assail someone like Simpson whose anti-gay views are not popular or politically correct. Suppose Mair had attacked a gay supporter? The result should be the same but would it?"

You have to wonder. Mr. Warman would now seem safe from public criticism -- a problem facing Ezra Levant, the National Post, National Post editor Jonathan Kay, and a number of conservative bloggers who face libel suits. Mark and Connie Fournier face no fewer than three libel actions launched by Mr. Warman for comments on the freedominion website.

So, the court protects Warman from criticisms like "censor."

What about "perverted monster'? In 1985, after Toronto publisher Ernst Zundel's first "false news" trial, Vancouver talk show host Gary Bannerman directed a furious commentary tirade at Doug Christie, Mr. Zundel's lawyer and, among other things, called him a "perverted monster." That was okay. That was fair comment said a B.C. Court and the judgment was upheld on November 26, 1990 by the B.C. Court of Appeals. (Christie v. Westcom Radio Group Ltd.)

What about a cartoon depicting a minister sadistically clipping the wings off a fly? Robert Beirman, a freelance cartoonist depicted then Human Resoureces Minister Bill Vander Zalm doing just that in a June 22, 1978 cartoon. Vander Zalm had advocated cutting benefits to some unemployed recipients in B.C. Then Premier Vander Zalm won in the lower court, but, in February 15, 1980, judgment the B.C. Court of Appeals overturned the decision, thus ruling that suggesting Vander Zalm was acruel sadist was "fair comment." (Vander Zalm v Times Publishers)

What about calling a Christian author and teacher, Malcolm Ross, who has written religious books critical of Jews, a Nazi, Josef Goebbels and an author of "hate literature?" All of these smears were contained in cartoons by New Brunswick cartoonist John Beutel. In a May 31, 1001 judgment, the New Brunswick Court of Appeal found these lies to be "fair comment." (Ross v. New Brunswick Teachers' Association)

"I am presently consulting with our lawyers as to what to do next," Paul Fromm concludes.

Fromm then cuts right to the chase:

Dear Free Speech Supporter:

CAFE and I need your help. We are $17,500 behind in our legal bills [to say nothing of the possible $40,000 debt, if this judgement stands.]. Just a few days before the court hearing, I filed a Motion to introduce the Moon decision and the torrent of press editorials supporting repeal of Sec. 13. Another $56 in photocopying and courier costs, plus $127 Court filing fee. [Who said justice is free?]

Please help us with the backing we need for this crucial battle for freedom of speech in Canada.

Paul Fromm,

CAFE, Box XXX, Rexdale, Ontario, X#X #X#
__ Here's my special donation of _____ to help CAFE defend itself against the Warman libel suit.
__ Please send me In Defence of Freedom: Marc Lemire vs. The Canadian "Human Rights" Enforcers - $10.00
__ Please renew my subscription for 2009 to the Free Speech Monitor ($15).
Please charge ______ to my VISA#_____________________________________________

Expiry date: __________ Signature: ___________________________________________

Name: __________________________________________________

Address: __________________________________________________

Does Fromm have a job? Or is his job asking for an accepting money from suckers? We mean supporters. And what is Babs Kulaszk's win/loss record as an attorney? It seems for us that for every success, there are 10 failures.

1 comment:

Anonymous said...

"Does Fromm have a job?"

We would doubt it. Like all serious political type organizations, there are sure to be long standing supporters with a bit of spare brass to donate.