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Rafe Mair’s landmark free speech case credited in salmon activist Staniford’s victory

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Posted October 12, 2012 by Damien Gillis in Media
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I was delighted to learn recently that my good friend and colleague, leading salmon farming critic Don Staniford, won a major victory in the BC Supreme Court over the aquaculture industry – in large part thanks to an important legal precedent established by another good friend and colleague, Rafe Mair.

According to an opinion piece by Andrew Gage of West Coast Environmental Law, it was Rafe’s landmark victory at the Supreme Court of Canada a decade ago that formed the basis of Don’s victory in a defamation case brought against him last year by Mainstream Canada (the local arm of Norwegian global aquaculture giant Cermaq). At issue was a campaign the globetrotting British activist Staniford created comparing the salmon farming industry with Big Tobacco.

In his analysis of the case and judge’s ruling in favour of Staniford, announced two weeks ago, environmental law expert Andrew Gage explains how the precedent set by Mair’s victory in an unrelated defamation suit from his days on the radio at CKNW helped get Don off the hook today:

Don won because the Supreme Court of Canada has recently expanded the “defence of fair comment” in a case known as WIC Radio Ltd. v. Simpson. That case was a defamation suit against BC’s own Rafe Mair for comments that he made comparing a speech made by Kari Simpson on homosexuality to speeches made by Hitler and U.S. segregation era politicians. The Supreme Court of Canada allowed Rafe’s appeal, and in doing so, said that individuals who express honestly held opinions – as long as they are clearly opinions and not claims of fact – cannot be found guilty of defamation. The Supreme Court says that the defence applies where:

(a) the comment must be on a matter of public interest;

(b) the comment must be based on fact;

(c) the comment, though it can include inferences of fact, must be recognisable as comment;

(d) the comment must satisfy the following objective test: could any [person] honestly express that opinion on the proved facts?

(e) even though the comment satisfies the objective test the defence can be defeated if the plaintiff proves that the defendant was [subjectively] actuated by express malice.

Don’s case is the first defamation case that we’re aware of involving defamation by an environmental activist since the Supreme Court’s decision in WIC Radio, and Adair J. found that Don’s cigarette packages satisfied all of these criteria. In doing so, she made a couple of findings which will protect environmentalists and others seeking to comment on high profile public issues.

As Gage alludes to above, the campaign created by Staniford that led to Mainstream’s suit involved a series of cigarette package graphics – disseminated through his website, social media and print materials – containing images of the salmon farming industry and statements comparing it to the tobacco business. The essence of the comparison was more with regards to the industry’s PR tactics and corporate behaviour than medical matters, though many of the graphics raised specific health impacts for marine life and humans from its operations and products.

Staniford and his lawyer David Sutherland characterized Mainstream’s legal strategy as a SLAPP suit (Strategic Litigation Against Public Participation) – designed to shackle criticism of the company through the threat and reality of unwieldy legal costs. While Sutherland, acknowledged as one of the country’s top media and free speech lawyers, worked pro bono or at a reduced rate for much of the case, Don’s cause drew an outpouring of public support. In the end he raised $50,000 for his legal fund online, mostly through small donations, plus several other larger contributions from salmon fishermen’s unions, Norwegian anti-aquaculture groups and NGOs like West Coast Environmental Law.

I’ve had the privilege of working alongside both Don and Rafe for a number of years, doing battle with the Norwegian aquaculture giants around the world – and am proud of their significant contributions both to this cause and to the protection of free speech.

My assessment of Cermaq/Mainstream’s tactics in this case – apart from the legal dimensions, which are not my province – is that this Norwegian-Canadian Goliath allowed its own pride and bullying attitude to draw it into a battle it should never have waged.

Don had some valid points and he wasn’t the first to make them – in fact, the genesis of his campaign concept was a comment made by mutual ally and aquaculture critic Otto Langer in a documentary Don and I produced together a few years ago, called “Farmed Salmon Exposed”. In that film, the retired DFO senior scientist and manager equates the industry’s choice to deny steadfastly the growing body of evidence of its environmental impacts with Big Tobacco’s denial of health effects. But rather than agree to disagree with Don’s campaign, rebutting it through their own PR machine (which they did in abundance), they had to go one step further and bully him through the courts.

They saw Don was financially vulnerable and decided to attack him with a vengeance.

But Don had many assets on his side they failed to see: overwhelming public goodwill stemming from years of frustration with the industry – which translated into tens of thousands of dollars for Don’s legal fund – a skilled lawyer with a point to prove, and that little case won years ago at the Supreme Court by Rafe Mair.

In choosing to take this beef into the courts, Mainstream gambled and lost big time. Not only will they have to repay some of Staniford and Sutherland’s legals costs as part of the court’s judgement, but they suffered yet another black eye in the media.

As Andrew Gage asserts in his insightful post-mortem, Staniford’s case is a “victory for free speech” and “give[s] environmentalists some comfort that they won’t be held liable for any controversial statement made about corporations.” Yet it also underscores how heavily the legal process has become weighed toward corporations – and should prompt renewed discussion about tilting the balance more in the direction of free speech and social activism:

…the decision does nothing to address the broader problem of allowing large corporations with extremely deep pockets to drag their political opponents into court. The costs of going to court (and defamation cases are particularly expensive) are prohibitive for activists, but are a tax deductible expense for big companies. The result is an unequal playing field where those who speak out against environmental destruction risk being sued by deep-pocketed opponents.

Gage and Sutherland both offer solutions, including legislative changes to ban corporate lawsuits in defamation and specifically restricting SLAPP suits. Clearly, Don’s case brings these concerns to the fore again and it’s high time we had this discussion at the political level, instead of relying on costly courtroom battles to decide these matters one precedent at a time.

For the moment, though, I offer a pat on the back to my two friends and colleagues, Don and Rafe, for their ongoing commitment to the environment and free speech. Both have the balls to take on Goliath and the skill to land one between the eyes every now and then.


About the Author

Damien Gillis

Damien Gillis is a Vancouver-based documentary filmmaker with a focus on environmental and social justice issues - especially relating to water, energy, and saving Canada's wild salmon - working with many environmental organizations in BC and around the world. He is the co-founder, along with Rafe Mair, of The Common Sense Canadian, and a board member of both the BC Environmental Network and the Haig-Brown Institute.

6 Comments


  1.  

    It will be interesting to see what happens to this judgement when the decision involving Rafe Mair is voided. Rafe is well aware that the trial judge, Justice Marvyn Koenigsberg, in Simpson v. Mair was not qualified to preside over that case (of any other for that matter) and manufactured evidence. Rafe Mair also knows that an inquiry into that matter is being sought. For more information about what Rafe Mair isn’t talking about visit Driveforjustice.com

    Rafe Mair is a liar. What is more tragic is that he fails to right a wrong and seems willing to allow others to pay the price.




  2.  
    Lloyd Vivola

    Hats off to Don and all who support him. But Andrew Gage and David Sutherland are right with regard to corporate lawsuits that intimidate citizen participation in democracy ( north and south of the border ). Corporations can “buy” free speech and public relations. If they cared about free speech and debate, they would openly discuss the opinions of their critics. Perhaps courts should first compel as much. Instead, big corps maintain war chests to drag earnest critics like Don Staniford into the public spotlight on “free speech” issues as a way to avoid and discredit indirectly original questions concerning BC fish farms. If they lose in court on free speech, they still succeed at using the venue to remind the public that they will go after you if you cause them trouble. You might recall Oprah Winfrey and her botched journalistic forum on mad cow disease; the beef industry reeled her in like a big public relations “catch”, lost the free speech suit against her, but used it to send a loud message in their defense. By contrast, Rafe, Damien, Don, Alex and Wild Salmon supporters wage a far more effective, disciplined information campaign. Savor the victory. And do carry on.




  3.  

    Since Don was not guilty of defamation, why did the Court make unrelated derogatory comments about Don? For instance: Why should the Count expect Don NOT have contempt for any of the Fish farm stuff? After all there’s nothing wrong with having contempt for things that are contemptible. Fish farms and their corporate managers are both contemptible and so was the law suit. As for the defense. Why didn’t the Court dismiss the suit based on the Vanderzalm Cartoon outcome? Didn’t that ruling find that cartoons are protected from defamation suits? Don’s Salmon cigarette packs are definitely cartoons. Seems to me the decision was used give the Corporate interest a few too many goodies.




  4.  
    erik

    It can sometimes be instructive to look at the historical record. This quote is from the US but has transferablilty to Canada. In 1918 the US crafted “improvements” to the then prevailing “Sedition Act’.

    When the US was at war(most of the last century) these conditions applied.
    1. “to willfully utter, print, write, or publish any disloyal, profane, scurrilous, or abusive language about the form of government of the United States , or the Constilation of the United States. or the military or naval foreces of the Untited States. or the uniform of the Army or Navy of the United States,”

    and so on for another two sets of conditions.

    Good luck staying out of prison.




  5.  
    lynnescape

    3 cheers for the good guys. We may not have deep pockets as activists, but we have deep commitment and pure hearts. Love wins, love always wins.





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