Jamie Sarkonak: Jon Kay’s legal victory exposes Canadian Anti-Hate Network’s anti-conservative agenda
(National Post, November 24, 2022)
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This is a politically motivated group that has no qualms about accusing mainstream conservatives of being racist and using the legal system to try to silence them.
A recent decision by the Ontario Superior Court of Justice has given Canadians yet another reason to question the federal government’s relationship with the Canadian Anti-Hate Network (CAHN),
On Nov. 10, the court dismissed a defamation lawsuit launched by lawyer Richard Warman, also a board member of CAHN. Warman sued journalists Jonathan and Barbara Kay for tweets that criticized CAHN’s links to the Antifa movement in the United States, which has been covered by C2C Journal and The Federalist (the Kays did not name Warman himself in their tweets). In the end, the judge ruled that the tweets weren’t defamatory, which meant the Kays wouldn’t be liable.
Even if the tweets did meet the legal threshold to be considered defamatory, the Kays would have been saved by the legal defences available. The judge said that the statements made had the benefit of being true, noting that, “CAHN did in fact assist Antifa and that the movement has been violent,” and it would be reasonable to state that it is not a “good look” for a human rights organization to support a violent movement.
Additionally, the judge concluded the defence of fair comment could apply, meaning the opinions expressed by the Kays could be reasonably drawn from the known facts and were not expressed out of malice. The judge noted that even “Warman’s evidence was that he and CAHN were part of the Antifa movement,” and its “muscular resistance” and “physical disruption” were known to two other board members.
The decision tells us two things: that there are members of CAHN who are willing to use the legal system to silence its critics, and that there is a relationship between CAHN and the Antifa movement. It’s yet another indicator that the Government of Canada — particularly the Department of Canadian Heritage — should distance itself from the organization.
CAHN has received government funding in the past, including a grant of $268,400 to participate in an “anti-racism action program” from October 2020 to March 2022. The grant agreement, obtained through an access to information request, shows that the money was used to hire additional staff members, facilitate workshops, write articles about hate groups (CAHN covers everyone from far-right neo-nazis to conservative-leaning school board candidates) and engage on social media.
A “recommendation for ministerial approval” form (also obtained through an access to information request), which is used by bureaucrats to review the grant application prior to its approval, described the expected outcomes: “This project will increase the organization’s capacity to counter online hate by hiring four team members to carry out the monitoring of extreme-right groups, report on their activities and file complaints with law enforcement; it will educate the public as to these groups and the damage they create, and will share information through 10,000 Facebook and Twitter followers.”
Reporting citizens to police wasn’t an expectation written into the final grant agreement, but it’s concerning that paying a third-party group to investigate people for the purpose of initiating criminal investigations was on the table in the first place.
On top of that, CAHN has advised the government on numerous occasions. Records from an access to information request show that it was listed as a Canadian Heritage stakeholder on the Public Health Agency of Canada’s vaccine roll-out round-table. That was in January 2021, a month after CAHN signed its contract with the federal government.
In March 2022 — the month the government grant was set to expire — Canadian Heritage created an advisory group to help it craft its online censorship legislation. Among the appointees was Bernie Farber, chair of the CAHN. (Months before he was named to the panel, Farber told the CBC that when it comes to internet regulation, “I would rather have poorly worded legislation than nothing at all.”) The panellists could be paid a maximum of $27,000 for their work.
The panel made a number of recommendations for an online censorship regime, one of which was public education: specifically, the implementation of “programs to improve media literacy and developing a concept of e-citizenship through outreach programs in schools and communities.”
The recommendations were released on June 15, 2022. A couple weeks later, the Government of Canada and CAHN launched an “anti-hate toolkit” for use in schools — a project that was supported by the Canadian Heritage grant. The toolkit’s focus was on far-right radicalization (it should be noted that far-left radicalization and Islamic radicalization, which have also been problems in Canada, were not mentioned in it).
Among other things, the toolkit outlined problematic behaviours in students that should be reported to teachers and corrected, including displaying the Red Ensign (Canada’s former flag), the use of various memes and supporting unsavoury politicians like former U.S. president Donald Trump.
The toolkit is very much a political document that primarily targets the far-right. But in doing so, it goes after mild traditionalism, classical liberal stances on social policy and mainstream conservative values, as well.
Despite the fact the organization was only just incorporated in 2018, members of CAHN have appeared before parliamentary committees multiple times since 2019, often to discuss social policy and public safety. Its members also often appear in the media as independent “experts” on the subject hate.
This is a politically motivated group that is now recognized by a court to be associated with Antifa, and has no qualms about accusing mainstream conservatives of being racist and using the legal system to try to silence them. It’s free to advocate for whatever it wants, but the federal government shouldn’t be using the group to push fundamentally illiberal views on the limits of free speech in a free and democratic society.
[Richard Warman, a board member of the Canadian Anti-Hate Network sued journalists Jonathan Kay & Barbara Kay, seeking $25,000 & $10,000 for tweets suggesting CAHN assisted violent Antifa and that Warman uses lawsuits to silence critics. Warman lost big time with costs to be decided. It’s fascinating to learn that a grant of $25,000 from the malodorous Southern Poverty Law Centre helped set up CAHN. CAHN has received hundreds of thousands of dollars from theCanadian taxpayer and $500,000 in 2020 from the Bank of Montreal. CAHN has been a loud proponent of censorship. In a taxpayer-funded booklet to combat “hate” in schools, it makes the ludicrous claim that the Red Ensign is a hate symbol. — Paul Fromm]
ONTARIO SUPERIOR COURT OF JUSTICE OTTAWA SMALL CLAIMS COURT
OVERVIEW [1] This was a claim for $25,000.00 against Jonathan Kay and $10,000.00 against Barbara Kay, for defamation and loss of reputation. [2] The alleged defamatory communication relating to Jonathan Kay was from a hyperlinked article he tweeted on November 12, 2019, titled: “Ant-hate Southern Poverty Law Center Partner Funds Violent Canadian Antifa” [3] On November 12, 2019, Jonathan Kay wrote and/or printed words alleged to be defamatory including: November 12, 2019 @Jonkay “really unsettling. Why wd an “anti hate” group like @antihateca be supporting antifa thugs? Few years back, u could make a case that many antifa members really opposed rt wing extremism, but antifa has now just become a hate cult engaged in street violence”. [image] “Anti-Hate Southern Poverty Law Center Funds Violent Antifa It shouldn’t be a big demand for left-wing groups to disavow Antifa violence and certainly not to partner with the movement or its supporting organizations. The federalist.com Exhibit 1, Tab 3
[4] A further communication tweeted by Jonathan Kay January 25, 2020, reads: “great @c2cjournal piece on the race-hustling at @antihateca, which scares its donors with exaggerated fearmongering, & pushes censorship. Also notes CAHN’S de facto support for antifa, a street gang & dox shop that exudes the same hate CAHN claims to fight [sic]”. [5] The alleged defamatory communication relating to Barbara Kay was from a hyperlinked article she tweeted on November 12, 2019, titled: “Ant-hate Southern Poverty Law Center Partner Funds Violent Canadian Antifa” [6] On November 12, 2019, Barbara Kay wrote and/or printed words alleged to be defamatory including: November 12, 2019 @BarbaraRKay “Not a good look for @antihateca in this article. [image] “Anti-Hate Southern Poverty Law Center Funds Violent Antifa It shouldn’t be a big demand for left-wing groups to disavow Antifa violence and certainly not to partner with the movement or its supporting organizations. The federalist.com
[7] The defendants raise the following defences: a) The impugned publications are not defamatory of the plaintiff (“Warman”) b) Justification of lesser meanings
c) Fair Comment d) Qualified Privilege e) Lack of Malice f) Lack of Damages g) Republication h) s.137.1 of the Courts of Justice Act, R.S.O. 1990, c.C.43
FACTS Parties [8] Warman is a lawyer and at the material time, a volunteer board member of the Canadian Anti-Hate Network (“CAHN”). [9] Jonathan Kay (“Jonathan”) at the material time was a journalist with the Twitter handle “@jonkay”, and Barbara Kay (“Barbara”) was at the material time a columnist at the National Post and had a Twitter handle “@BarbaraRKay”. Publication/Endorsement [10] On November 12, 2019, Jonathan communicated the content referred to, supra, through his Twitter account and the text included a hyper link: https://twitter.com/jonkay/status/119463849796280296
[11] On January 25, 2020, Jonathan Kay published the tweet referred to, supra.
[12] On November 12, 2019, Barbara communicated the content referred to, supra, through her Twitter account and the text included a hyper link: https://twitter.com/BarbaraRKay/status/119426470236223 48880
[13] Notice of Libel was served on the defendants on November 22, 2019.
ISSUES [14] A) Defamation – were the impugned tweets defamatory. Did they contain allegations against Warman that would lower him in the estimation of reasonable people or cause him to be regarded with hatred, fear, or dislike? B) Justification – were the words substantially true. What were the tweets in their natural and ordinary meanings meant or understood to mean? C) Fair comment – Did the tweets consist of expressions of opinion, on matters of public interest. Did the defendants honestly hold those opinions? D) Qualified privilege – were the tweets published in good faith. Did the defendants honestly believe they were fair and accurate and related to maters of public interest? E) Malice – did the defendants believe what they published to be true. Was their belief reasonably held and did they act reasonably in expressing their views? F) Damages – If the words were defamatory, did Warman suffer actual injury or damage to his reputation? G) Strategic lawsuit against public participation – Do the Charter or the Courts of Justice Act offer a defence?
EVIDENCE Richard Warman General [15] Warman is a lawyer, a Judge Advocate General reservist, and has been involved with human rights issues with the Canadian Human Rights Commission, where he was formerly employed, filing 16 successful complaints against neo-Nazis, and white supremacist groups and individuals over the last 20 years. [16] Warman is a well-known public speaker on human rights and anti-racist activism. And a recipient of numerous awards and honors for his human rights advocacy. Exhibit 2, Tabs 4-5 [17] In 2018 the Canadian Anti Hate Network (CAHN”) was formed by three individuals, Bernie Farber, Evan Balgord and Amira Al – Ghawaby. Their website was active from about July of that year. [18] The non-profit corporation started with a budget of $25,000 from the Southern Poverty Law Center (“SPLC”), though there was no formal alliance between them. [19] CAHN’S mandate was to educate the public with respect to hate groups and counter the activities of those hate groups. [20] Warman joined CAHN’s board in 2018. He provided direction to the executive director Balgord, the only paid member, helped obtain funding, and dealt with legal issues as well. His role was coordinating anti racist and anti-fascist movements. [21] Numerous articles including ones from the Canadian Jewish News, the CAHN website, and news articles identify Warman as a CAHN board member from August 2, 2018, to September 2019.
[22] In 2019 a peace bond was issued under s.810 of the Criminal Code against Kevin Goudreau, a member of the Canadian Neo – Nazi movement, for threats against CAHN . The bond named Warman, as part of CAHN. Exhibit 1 – Tab 17 [23] Warman’s work was positively received and resulted in medals for good citizenship; a sovereign volunteer medal; and a Queen’s diamond medal, and an Ottawa Citizen article asking, “is this the bravest man in Canada?” [24] Warman testified that he was on a “hit list” for racists and white supremacists; was criticized by those opposed to legal controls on hate speech; and, generally, was opposed by those holding “libertarian” views. [25] Warman dealt with them by disabusing them, engaging with them, ignoring them if possible, or issuing libel actions against them. His reputation for integrity and honesty is crucial to his work as a lawyer and advocate for human rights. [26] Warman admitted he has received no serious threats in the last 5 years and that the impugned tweets haven’t exacerbated the situation. [27] He still is portrayed positively in mainstream media and has no knowledge of anyone concluding that he personally funds hate groups, which he testified he does not do, nor has he encouraged violence. [28] In cross examination, Warman was referred to a Maclean’s magazine article by Charlie Gillis regarding s13 of the Canadian Human Rights Act and Warman’s use of that section, which required no intent; did not have truth as a defence; and discouraged legitimate free speech. Warman brought more complaints to the CHRC than anyone else.
[29] After a Warman sent a libel notice to a library, the British Columbia Civil Liberties Association got involved resulting ultimately in the repeal of s13. The National Post, Ottawa Citizen, Globe and Mail, Law Times and the Canadian Lawyer all did articles on Warman and his involvement with s13 of the Canadian Human Rights Act.
2008 Libel action against Jonathan Kay and the National Post [30] In February 2018, Jonathan published an article on the National Post website alleging that Warman manufactured his own hate material, and that there was a phony racism industry in Canada. Exhibit 1, Tab 9, p 62/113 [31] Warman then commenced a libel action which was settled. The National Post apologized and retracted the post. November 12, 2019, Tweets [32] Neither Warman nor CAHN had any contact with the defendants before the November 12, 2019, tweets which Warman considered defamatory in that he believed they conveyed the message that he personally funded antifa. [33] Warman admitted in cross examination that he had no knowledge if the impugned tweets were liked, retweeted, commented on and admitted the tweets never went “viral”. [34] Warman did not e-mail Jonathan regarding the November 12, 2019, tweet but instead retained counsel who gave Notice of Libel to the defendants on November 21, 2019. Exhibit 1, Tabs 7,8, page 5/113 [35] Warman contacted The Federalist in December 2019 seeking a retraction since their article was based on an earlier Huffington Post article wrongly alleging the source of funding for Antifa. Exhibit 1, Tab 4, page 38
[36] Although Warman received no response to his December 2, 2019, e-mail, the Federalist did change the article, though not in a manner satisfactory to Warman. Warman never sent a libel notice nor commence an action against the Federalist. Exhibit 8 [37] This action was then commenced in January 2020.
Steven Rogers [38] Rogers is an expert in digital forensics, gave evidence on behalf of Warman regarding the impugned tweets, and filed a report dated January 25, 2020. Exhibit 1 – Tab 18, pages 37/176 [39] Rogers gave evidence as to the number of followers the defendants had but was unable to say how many of those followers saw the tweets and whether those tweets went “viral”. He gave no evidence that any of the tweets were “pinned”. Jonathan Kay General [40] Jonathan is a journalist and has written for the Washington Post, the Wall Street Journal, the National Post, Al Jazeera, and the Canadian Jewish News. He also worked with the New Yorker, Harper, and the Walrus. [41] Kay describes himself as an activist working for social justice causes, and a public intellectual who rejects all ideological extremism. His first employment was in Montreal in 1995 working with Irwin Cotler, a former Minister of Justice and Attorney General of Canada, and a well-known human rights advocate.
[42] Jonathan is Jewish, and his father fled the USSR, so he is mindful of the dangers of extremism from both the left and right wings of the ideological spectrum. [43] Jonathan was not aware of Warman except for his activity commencing litigation or using s13 of the Canadian Human Rights Act to act against hate groups. He was aware of the 2008 Macleans magazine article entitled “Righteous Crusader or Civil Rights Menace” Exhibit 3 – Tab 6 2008 Libel Action [44] In 2008 Jonathan wrote an article for the National Post describing the admonishment received by Warman from the Human Right Tribunal regarding his infiltrating the Northern Alliance by posing as a neo-Nazi. Exhibit 1, Tab 9 [45] Jonathan relied on expert testimony from Bernard Klatt, believing him to be an expert witness, for the article, which testimony was in part inaccurate. The article was retracted on February 20, 2008. Exhibit 2, Tab 2 [46] Notwithstanding the retraction, Warman still sued the National Post and Jonathan, seeking an apology which Warman described as an antidote to defamation. The action was settled before trial. [47] Jonathan was aware of CAHN, which was led by Bernie Farber, who Jonathan knew for over twenty years, and who Jonathan considered a “good egg” . Jonathan was positively disposed both to Farber and CAHN since Farber was a leader of the Canadian Jewish Congress and fought racism from both the left and right.
[48] Jonathan was unaware of anyone else but Farber as a part of CAHN and did not know Warman was with CAHN until he was served with the libel notice. He was aware of a May 8, 2018, CBC article profiling CAHN but testified that the article made no mention of Warman. Exhibit 6 [49] Jonathan was aware of Antifa and its activities and described its earlier messaging as “benign”. However, subsequent YouTube videos taken of antifa demonstration were described by Jonathan as violent, thuggish, destructive of property and not all about “peace and love”.
November 12, 2019, tweets [50] Jonathan referred to a CAHN article by the CEO Balgord dated September 20, 2017, as an apologist tract for Antifa, describing the need for “physical disruption” to get their message across. Exhibit 3, Tab 9
[51] A Quillette article (Jonathan was an editor) about Columbia’s Journalism dated June 18, 2019, described Antifa as violent and advocating violence to effect change. The article described what happened to Andy Ngo, a friend of Jonathan’s, who was a 5’2” gay Vietnamese conservative journalist covering Antifa activity in Portland Oregon when he was badly beaten by Antifa members, described by Jonathan as “thugs”. Exhibit 5, Tab 32; Exhibit 2, Tab 8 [52] Jonathan described numerous instances where Antifa used intimidation, violence and generally mimicked fascist group activities in Portland, Oregon, and Hamilton Ontario and, for example, screamed at an elderly woman at a town hall event in October 2019, where they tried to block a speaker, Maxime Bernier, and called her “Nazi scum” . Exhibit 5, Tabs 3-6, Tab 31
[53] Jonathan attributed the Federalist article to Bernie Farber and was disappointed that Farber, whom he had great respect for, praised “muscular resistance” (balaclavas and pipes) and felt that CAHN only called out right wing hate mongers. He felt betrayed by Farber. Exhibit 1, Tab 4
[54] Regarding the impugned November 12, 2019, tweet, Jonathan was upset that instead of ratcheting down the culture war and divisiveness, Farber was devoting his own voice and CAHN’s to promoting Antifa, and getting government funding for his efforts, while few Canadians knew about Antifa’s street violence. Exhibit 1, Tab 3
[55] Jonathan testified that he “tagged” or sub tweeted CAHN, so they had notice of the tweet. He was blocked from contacting CAHN directly. The tweet was about CAHN’s organization and was the institutional extension of Farber’s stature. [56] Jonathan had no problem with any private individual supporting Antifa but institutions like CAHN supporting Antifa give it public approbation and signals approval – a very valuable currency. [57] Jonathan had no interest in Warman, said nothing about Warman in any tweet and had no interest in any issues between the Federalist , Huffington Post and Warman. He testified that e thought only of Bernie Farber ad Evan Balgor as being connected with CAHN. [58] As to the tweet itself, Jonathan testified it “dropped like a stone”, there was no image of any likes , retweets, comments , nor was the tweet “pinned” so it would always be on top of Jonathan’s tweets, so there was very little dissemination. He deleted the tweet but doesn’t know whether that was before or after receiving the Notice of Libel.
January 25, 2020, tweet [59] Regarding the second impugned tweet, dated Jan 25, 2020, Jonathan was concerned with what he described as “race hustling”, and cancel culture pushing censorship. Exhibit 1, Tab 11 [60] Jonathan contacted a CAHN board member, Professor Perry, who counted 300 right wing extremist groups in Canada, which became a media story attracting the attention of the NDP leader Jagmeet Singh, seeking the names of the groups. The disclosure was never provided. Exhibit 3, Tab 24, Tab 15 [61] Jonathan’s concern was that CAHN was stirring up the idea of apocalyptic threat and calling out right wing but not left wing hate groups. He referred to CAHN articles describing how to find local Antifa chapters and referring to an international Antifa defence fund Exhibit 4, Tab 3, Exhibit 7 [62] Jonathan testified that Warman had a reputation as a litigation enthusiast and is now prominent on the CAHN website, so he has suffered no diminution in reputation . [63] Jonathan did not offer an apology regarding his tweets because none referred to Warman; CAHN was and is still a partisan organization; and, finally, in 2008 when Jonathan and the National Post did retract the impugned article, Warman still sued anyway. Barbara Kay General [64] Barbara testified that she was a journalist for over 22 years and had a lifelong interest in writing about human rights, cancel culture and antisemitism.
[65] Barbara is a self-described “classic liberal” championing individual (as opposed to state’s) rights, due process, freedom of speech, and conscience, and is most concerned with left wing as opposed to right wing antisemitism, since right wing antisemitism has no institutional support. [66] Her concerns are with universities exercising “cancel culture” and repressing free speech. [67] Barbara had a positive impression of Bernie Farber until he got “woke” and, as the voice of the Jewish community, was ignoring left wing antisemitism.
Knowledge of Warman and CAHN [68] Barbara was only aware of Warman’s impersonating fascists and using s13 of the CHRA and suing “small potatoes” and believed he was using libel chill to compel respect. She had no knowledge of any connection with CAHN. [69] Barbara read the Federalist article and sent her tweet the same day it was published. She was concerned with Farber’s praising “muscular resistance” and was unaware that Warman was a CAHN board member. She thought that Farber was CAHN and CAHN was Farber. November 12, 2019, tweet [70] Barbara had used that expression “not a good look” many times before the impugned tweet. Her concern was that an anti-hate group was endorsing antifa which was not a good look for a respectable organization. Exhibit 1, Tab 3 [71] Her testimony was that she believed it was in the public interest to know about that support, and that CAHN could do better. As a journalist her duty was “see something, say something”.
[72] Barbara’s testified that she wanted CAHN to fight antisemitism and wanted their reputation to be good. She believed a government funded organization should do better and live up to its name. [73] As to Warman, Barbara testified that his reputation is flourishing, and that his “brand” is as a human rights lawyer, not as any representative of CAHN. She did not contact CAHN regarding the federalist article or her tweet since she was blocked from contacting CAHN.
ANALYSIS Were the tweets defamatory [74] The plaintiff submits the impugned tweets lowered Warman’s reputation in the eyes of a reasonable person given his association with, and as a board member of, CAHN. [75] The Kays submit that the tweets did not refer to Warman personally, only to CAHN, and further submit that they did not republish the article on the Federalist website which did name Warman. [76] The evidence was that Warman did not run CAHN; was not its most identifiable or visible member; and was often unable to be a part of CAHNs activities due to conflicts of interest with his work with the Judge Advocate General, in cases involving federal parties and politics and the armed forces. [77] Warman’s reputation among those following human rights issues was as a human rights lawyer, not a principal of CAHN. The evidence was that Bernie Farber and Evan Balgord were much more publicly seen as the alter ego of CAHN, and neither has sued the Kays.
[78] The plaintiff has not proven, on a balance of probability, that the impugned tweets would lead a reasonable person to believe they referred to Warman. While they could refer to Warman, they did not actually refer to him and, as found, supra, he was not CAHN’s alter ego nor was he CAHN’s sole actor, or even its primary actor. [79] Defamation of CAHN does not constitute defamation of Warman. Warman has failed to prove, on a balance of probability, that he was “the face” of CAHN, or it’s alter ego, and although a reference to CAHN could refer to Warman, that is not sufficient in law to constitute defamation of Warman. Foulidis v Ford 2012 ONSC 7189 [80] The Kays evidence was that they both saw Bernie Farber as the chair of CAHN; the face of CAHN and its most prolific member because he was the CEO of the Canadian Jewish Congress. [81] They did not have Warman in mind as part of CAHN when they published their tweets, and their evidence was that they did not even know Warman was a CAHN board member until served with Notice of Libel. [82] Articles published in 2018 on CBC and TVO refer to Farber as the founder of CAHN and refer to Evan Balgord as a co-founder. Neither mention Warman. At the time of the impugned tweets, November 2019, CAHN had more than 15 members. It was not a minor organization, and its identity was not the same as any board member. Exhibit 3, Tab 10; Exhibit 6 [83] Farber’s Wikipedia page refers to Farber running the Canadian Anti Hate Network with Evan Balgord. There is no mention of Warman. Warman’s Wikipedia page does not refer to his role as a CAHN board member. Exhibit 3, Tab 22, page 227; Exhibit 5, Tab 24
[84] Neither CAHN , Farber, Balgord nor other CAHN board members sued the Kays, and Warman did not sue the Federalist nor the C2C Journal, the Canadian publication which published the article referred to in the 2020 tweet. [85] Warman admitted in cross exam that a person reading the impugned tweets may not have associated them with him, and in fact gave no evidence that anyone reading the tweets believed they were about him. [86] Warman did submit that the Federalist article headlined in the tweet referred to him and was defamatory, but he also testified that he wrote the Federalist asking them to remove the allegations about him personally funding violent Antifa groups in the body of the article (which they apparently did) and did not seek to have them change the headline nor remove other allegations referring to CAHN. Exhibit 8 [87] The headline/sub headline of the tweets criticize CAHN policy but do not refer to any individual, and any person would therefore have to read the article itself to understand the tweets or headline. The ordinary meaning of the tweets and headlines is that CAHN provides material assistance to Antifa, not that Warman personally funds violent groups. [88] The Kays did not republish the Federalist article by simply linking to it, and Warman’s name appears only in the article, not the headline or sub headline. This does not constitute a repeat or republication of the defamatory content. Crookes v Newton [2011] 3 SCR 269 [89] I find therefore that the plaintiff did not discharge the burden of proving on a balance of probability that the defendants’ words referred to him and were defamatory of him.
[90] Even if the impugned tweets were defamatory, which I have found has not been proven, the Kays have raised defences which would shift the onus to Warman to prove malice on the part of the Kays, or either of them.
Fair Comment [91] The public has an interest in the fight against hate crime in Canada and the parties involved in that fight, including CAHN and Antifa. [92] The Kays both gave evidence of their longstanding activism regarding human rights and antisemitism and their tweets comment on the fact that the Federalist and C2C Journal articles both allege that CAHN supports or assists the Antifa movement. [93] Warman’s evidence was that he and CAHN were part of the Antifa movement; Farber has praised their muscular resistance; and Balgord referred to Antifa’s use of physical disruption. Exhibit 1, Tab 4; Exhibit 3, Tabs 8, 9 [94] The Kays evidence, which I accept, was that Warman was not the subject of their tweets – they were unaware that he was a CAHN board member at the relevant times – and that Farber and CAHN were the subjects since Farber was well known, particularly within the Jewish community, and CAHN had influence as a partly government funded Canadian organization. [95] I find therefore that it has not been proven, on a balance of probability, that the opinions which were the subject of the impugned tweets were dominantly motivated by malice. [96] I accept the Kays’ evidence that they reasonably believed their opinions to be accurate, and find that there was insufficient evidence to establish, on a balance of probability, that there was a reckless disregard for the truth.
Justification [97] The evidence disclosed that CAHN did in fact assist Antifa and that the movement has been violent. The Kays submission, which I accept, is that a human rights network like CAHN arguably (except in the most extreme circumstances) should not support a violent movement, and to do so, to most reasonable observers, would not be a “good look”.
Qualified privilege [98] The defendants have not proven, on a balance of probability, that the recipients of the impugned tweets had an interest or duty to receive them. The test is objective – i.e., it is not whether the Kays believed the recipients (which include, in the case of tweets, the world at large) but whether they were necessary to discharge the duty giving rise to the privilege. [99] The case cited by the defendants regarding the application of qualified privilege to tweets, which is under appeal, is not applicable here. There was no moral nor professional duty on the Kays as there was in the medical doctor in the Gill decision. Gill v Maciver, 2022 ONSC 1279
DAMAGES [100] Although there was no evidence led as to reputational damage; the impugned tweets were “dud” and did not go “viral”; the first tweet was deleted prior to the Notice of Libel being served; and there was no publication of the Federalist article which was considered by Warman to be the most defamatory, general damages are presumed in a defamation case.
[101] While Warman is well known as a righteous crusader against white supremacy and right-wing racist hate and has been recognized and appropriately lauded for his work, he is also a controversial figure and I accept the evidence of the Kays that he has used litigation to silence or intimidate those he sees as his critics, or who oppose his methods of prosecuting hate groups. [102] I also accept the Kays’ evidence as to why no apology was made given that Jonathan Kay was still sued after the National Post retracted its article and apologized for its inaccuracy, in 2008. [103] Finally, I accept the evidence of the Kays that no apology was warranted where neither of them referred to Warman in their tweets and did not in fact even have him in mind when they published them. [104] Had Warman succeeded in this action against the Kays, I would therefore have awarded nominal damages in the amount of $5,000 against Jonathan Kay and $500 against Barbara Kay whose tweet was far less recognizable and damaging to Warman.
AWARD [105] Having regard to all the above, and in recognizing the importance of maintaining open debate on matters of public interest, while being mindful that although freedom of expression is to be protected, it is not a “get out of jail free card” for those exceeding reasonable limits, the plaintiff’s claim is dismissed.
COSTS [106] If the parties are unable to agree on costs, each party has 10 days from the release of these reasons to serve and file cost submissions, not to exceed 3 typed pages excluding a Bill of Costs, together with copies of any offers made pursuant to Rule 14 of the Rules of the Small Claims Court, which would impact costs
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Dated at Ottawa this 9th day of November 2022. David Dwoskin Deputy Judge D. Dwoskin
Chairman of Trudeau-funded ‘anti-hate’ network spreads antisemitism hoax to smear Canadian truckers
The image is identical to the photo posted on Twitter two weeks ago by someone in Miami, Florida. Advertisement The Post Millennial The Post Millennial February 6, 2022 7:30 PM 3 mins reading
In an apparent effort to smear the truckers, Chair of the “Anti-Hate” Network Bernie Farber has spread disinformation on social media regarding the ongoing Freedom Convoy. Advertisement
In a Sunday tweet, Farber posted a picture of an antisemitic flyer and said it was “taken by a friend in Ottawa at the Occupation. Apparently in plain sight.”
However, it appears the image is identical to the photo posted on Twitter two weeks ago by someone in Miami, Florida. As pointed out by Jonathan Kay who said, “Wow Bernie, isn’t it incredible that the picture your ‘friend in Ottawa at the Occupation’ sent you is identical to the photo posted on Twitter two weeks ago by someone in Miami, right down to the ceramic design in the background?”https://platform.twitter.com/embed/Tweet.html?creato
Upon further investigation, it appears Kay is correct. Cleveland Jewish News confirmed the flyer was from weeks ago and completely unrelated to the Freedom Convoy.https://platform.twitter.com/embed
Despite the flyer being a hoax, Farber’s tweet was retweeted by numerous politicians and journalists. Angie Seth of CTV said “this is both disgusting and horrifying,” in reaction to the fake photo.
“This is sick,” said Kyle Harrietha, Deputy Chief of Staff and Director of Parliamentary Affairs to Canada’s Minister of Natural Resources. Advertisement
NDP MP Charlie Angus also fell for Farber’s hoax. “The #ottawaoccupation gang came to Ottawa with swastikas scrawled on Canadian flags. This sh*t isn’t hidden its right there in the open” he said.
Some have already deleted their retweets as the hoax quickly became obvious. Images of their retweets can be found in Kay’s Twitter thread.
Farber replied to Kay’s tweets saying, “Jon, respectfully, antisemitic and racist flyers are produced and too easily accessible online to be copied and distributed. This particular flyer is not new to me either.”
“You told us the image was from the Ottawa Occupation. The photo you tweeted was taken in Miami two weeks ago,” replied Kay, putting pressure on Farber.
Yes in fact that photo has been reproduced numerous times I’m told over the last few weeks,” Farber replied, seemingly contradicting himself.
“But that’s not what you said. You posted the photo and said it was from the Ottawa occupation. Instead it was a photo that someone took in Miami, and then you got it and told everyone it was taken in Ottawa,” Kay replied.
“The pic sent to me was of a copy of this flyer allegedly seen in Ottawa where the picture I posted was taken. And yes its been seen elsewhere as well. Apologies for my unclear language,” said Farber.
“It wasn’t ‘unclear’ You said the photo was ‘taken’ by your friend at the Ottawa occupation, which started 8 days ago, But the photo you posted was taken at least two weeks ago…. in Miami. I’m really interested in the explanation,” Kay said, continuing to mount pressure on Farber.
“Jon, last time. The pic sent to me was taken in Ottawa as I understand it. It could have come from social media originally. Don’t know. That’s it my friend. Have a good one,” Farber concluded, dodging any accountability.
Outside of the fake photo promoted by Farber, leftists on Twitter also shared a photo of a man holding an antisemitic sign. However, they completely neglected to point out that this individual had his racist sign torn up and was lambasted by the convoy.
Bernie Farber is the Chair “Anti-Hate” Network, which receives $250,000 in annual grants from the Trudeau government. Despite holding such a serious position, Farber is openly spreading disinformation in order to besmirch the truckers.
Farber’s false tweet still remains active at the time of publication.
Bernie Farber, the former CEO of the Canadian Jewish Congress and current leader of the “Canadian Anti-Hate Network,” was caught spreading a hate hoax on Sunday in an effort to smear Canadian truckers.
Farber posted an image of an anti-Semitic flier and said it was, “Taken by a friend in Ottawa at the Occupation. Apparently in plain sight.”
After being exposed, Farber blamed his “friend from Ottawa” and insisted the “friend” told him they “saw the same thing,” though Farber himself said he “cannot attest to it” as he’s not even in Ottawa.
“That said racist and antisemitic posters and flyers have now been seen by others,” Farber insisted.
Farber’s Canadian Anti-Hate Network, a thinly veiled pro-Israel advocacy organization modeled after the Anti-Defamation League, received $250,000 from Justin Trudeau’s Liberals in 2021. https://platform.twitter.com/embed/Tweet.html?dnt=true&embedId=twitter-widget-
Farber’s Anti-Hate Network posted an article on Friday calling for new “anti-hate” legislation to advance mass internet censorship and imprison Canadians who post “hate” online.
The article said the Ottawa “occupation” shows “why we need anti-hate legislation.”
“Every day the government allows social media companies to self-regulate, Canadians are getting misled, enraged, and absorbed into the far-right and Covid conspiracy movement,” Farber’s group said. “Now a far-right mob has occupied the capital.”
“It will be difficult, if not impossible, for members of the intertwined antivaxx and far-right movement to come back to reality. New people are finding them every day. With online harms legislation, we may be able to disrupt that pipeline by making it harder for dis/misinformation to find people. We may be able to build a fence of protection both online and offline around the groups that the far-right slanders, harasses, threatens, and attacks. We have to try.”
Bernie Farber, the former CEO of the Canadian Jewish Congress and current leader of the “Canadian Anti-Hate Network,” was caught spreading a hate hoax on Sunday in an effort to smear Canadian truckers.
Farber posted an image of an anti-Semitic flier and said it was, “Taken by a friend in Ottawa at the Occupation. Apparently in plain sight.”
It turns out the exact same photograph was shared by someone on Fascist Twitter two weeks ago in Miami. https://platform.twitter.com/embed/Tweet.html?dnt=true&embedId=twitter-widget-0&features=eyJ0ZndfZXhwZXJpbWVudHNfY29va2llX2V4cGlyYXRpb24iOnsiYnVja2V0IjoxMjA5NjAwLCJ2ZXJzaW9uIjpudWxsfSwidGZ3X2hvcml6b25fdHdlZXRfZW1iZWRfOTU1NSI6eyJidWNrZXQiOiJodGUiLCJ2ZXJzaW9uIjpudWxsfSwidGZ3X3NwYWNlX2NhcmQiOnsiYnVja2V0Ijoib2ZmIiwidmVyc2lvbiI6bnVsbH19&frame=false&hideCard=false&hideThread=false&id=1490439304224686082&lang=en&origin=https%3A%2F%2Fussanews.com%2Fcanadian-anti-hate-network-caught-spreading-hate-hoax-to-smear-truckers%2F&sessionId=2c2373b49fea3262a3f3af36047a9fe42c61a316&siteScreenName=USSANews&theme=light&widgetsVersion=0a8eea3%3A1643743420422&width=500px https://api.banned.video/embed/620083b5f8a338099ccc008e https://platform.twitter.com/embed/Tweet.html?dnt=true&embedId=twitter-widget-1&features=eyJ0ZndfZXhwZXJpbWVudHNfY29va2llX2V4cGlyYXRpb24iOnsiYnVja2V0IjoxMjA5NjAwLCJ2ZXJzaW9uIjpudWxsfSwidGZ3X2hvcml6b25fdHdlZXRfZW1iZWRfOTU1NSI6eyJidWNrZXQiOiJodGUiLCJ2ZXJzaW9uIjpudWxsfSwidGZ3X3NwYWNlX2NhcmQiOnsiYnVja2V0Ijoib2ZmIiwidmVyc2lvbiI6bnVsbH19&frame=false&hideCard=false&hideThread=false&id=1485289742073794570&lang=en&origin=https%3A%2F%2Fussanews.com%2Fcanadian-anti-hate-network-caught-spreading-hate-hoax-to-smear-truckers%2F&sessionId=2c2373b49fea3262a3f3af36047a9fe42c61a316&siteScreenName=USSANews&theme=light&widgetsVersion=0a8eea3%3A1643743420422&width=500px
After being exposed, Farber blamed his “friend from Ottawa” and insisted the “friend” told him they “saw the same thing,” though Farber himself said he “cannot attest to it” as he’s not even in Ottawa.
“That said racist and antisemitic posters and flyers have now been seen by others,” Farber insisted.
Farber’s Anti-Hate Network posted an article on Friday calling for new “anti-hate” legislation to advance mass internet censorship and imprison Canadians who post “hate” online.
The article said the Ottawa “occupation” shows “why we need anti-hate legislation.”
“Every day the government allows social media companies to self-regulate, Canadians are getting misled, enraged, and absorbed into the far-right and Covid conspiracy movement,” Farber’s group said. “Now a far-right mob has occupied the capital.”
“It will be difficult, if not impossible, for members of the intertwined antivaxx and far-right movement to come back to reality. New people are finding them every day. With online harms legislation, we may be able to disrupt that pipeline by making it harder for dis/misinformation to find people. We may be able to build a fence of protection both online and offline around the groups that the far-right slanders, harasses, threatens, and attacks. We have to try.”