Editor’s note: In this article originally published in the National Post, Barbara Kay rips the façade off Bill C-63 (https://www.canada.ca/en/canadian-heritage/services/online-harms.html) to expose it for the totalitarian, freedom-crushing piece of legislation that it is. Increasingly, Western countries are using hate speech legislation to silence criticism of poorly thought-out government policies on matters such as immigration and multiculturalism and to prevent citizen reporting about their consequences. Canada is positioning itself as a leader in this censorial trend.
The wrapping to make the horror show that is Bill C-63 more palatable includes regulations against child pornography and online bullying, among other items already covered by the criminal code or that could easily be included as amendments. But the meat of the bill is in the proposed regulations that would crush free speech by empowering the federal cabinet to bypass Parliament in creating legislation and encourage grievance-mongers to make frivolous and malicious accusations without consequence, all while imposing draconian penalties on offenders, or people merely thought (by some anonymous person) to be likely to be an offender. Bill C-63 makes a mockery of the Charter of Rights and Freedoms.
We hope that readers of Barbara Kay’s article will sign our petition for Parliament to withdraw or (should it be passed) repeal this bill (it is now in second reading). We are currently seeking a member of Parliament to agree to authorize the online publication of our petition. We will notify our members when this has been done and also post the link to our petition on our website. We also invite you to write your member of Parliament and the prime minister to express your concerns. For Canadians who believe in freedom, now is the time to stand up.
Barbara Kay: Canadians can’t allow the online harms bill to snuff out free speechby Barbara Kay, National Post – September 8, 2024
Bill C-63 would punish mere expression and give draconian new powers to government. It’s unfit for a democracy
The sands of time were already running low for Justin Trudeau’s government. Jagmeet Singh’s just-announced withdrawal from their mutually supportive contract has widened the waist of the hourglass. Parliament resumes sitting on Sept. 16, and the Liberals will urgently seek to pass Bill C-63, the Online Harms Act, now in its second reading.
If passed in its present incarnation, this deeply flawed bill will drastically curtail freedom of speech in Canada (which, to be fair, is not an outlier on digital crackdowns in the West. Switzerland, of all places, just passed similar legislation).
We already have hate-crime laws in the Criminal Code that address advocacy for genocide, incitement of hatred and the wilful promotion of hatred. Apart from its laudatory intentions in removing online content that sexually victimizes children, Bill C-63 seeks to curb all online hate speech through unnecessary, inadvisable and draconian measures inappropriate to a democracy.
The law would create a new transgression: an “offence motivated by hated” which
would raise the maximum penalty for advocacy of genocide from five years to life
imprisonment. What kind of mindset considers the mere expression of hateful ideas as equivalent in moral depravity to rape and murder? Such instincts call to my mind the clever aperçu by anti-Marxist pundit David Horowitz that “Inside every progressive is a totalitarian screaming to get out.”
Another red flag: The law would give new powers to the federal cabinet to pass
regulations that have the same force as legislation passed by Parliament, and that
could, say, shut down a website. Unlike legislation, regulations created by cabinet do not require debate, votes or approval of Parliament. They can be decided in secrecy and come into force without public consultation or debate.
Yet another is the restoration of the “communication of hate speech” offence to the
Canadian Human Rights Act, a provision similar to the one repealed in 2012. Frivolous or malicious complaints could be made against persons or organizations, granting complainants significant potential for financial reward at no personal cost, win or lose. Moreover, under this law, a complainant’s sense of injury from published words would trump a defence of objective truth. This is an open invitation for myriad social malcontents and grievance-mongers to swarm the system, with no regard for the inevitable harm done to those who they target.
One group experiencing alarm for their survival under Bill C-63’s proposed strictures is the Canadian Citizens for Charter Rights and Freedoms (C3RF). C3RF educates Canadians about their Charter rights and freedoms, and proposes legislation and regulatory frameworks that guard freedom of expression. They have published numerous critical articles on topics such as gender ideology, critical race theory and vaccine mandates: hot-button issues that are sure to offend some person or group, and that a human rights tribunal might well deem hateful under the online harms law, worthy of punishment sufficient to shut them down altogether.
I’m a fan of C3RF’s founder and director, Royal Canadian Air Force Major (ret’d) Russ Cooper, a decorated CF-18 combat pilot, and an expert in the field of post-9/11 civil aviation security. Cooper came to my attention in 2017, when the House of Commons passed M-103, a non-binding motion, after some controversy. M-103 called for a “whole-of-government approach to reducing or eliminating systemic racism and religious discrimination including Islamophobia.”
The government was eager to pass it quickly, but a significant number of concerned citizens balked at their unwillingness to define “Islamophobia.” Was it hatred of Muslims, or of Islam? If it was bigotry against Muslims, why wasn’t “anti-Muslim” good enough? The difference is existential.
As the Liberals’ stonewalling on the definition continued, it became clear to a significant swath of the population that if M-103’s wording was accepted in future legislation, the Trudeau government would effectively have facilitated an Islam entitlement, similar to others in Europe granted by the European Court of Human Rights to preserve “religious peace” (except it hasn’t). Cooper moved so swiftly and competently to harness their collective energy that Conservative MPs received upwards of 900,000 critical emails within a few days of the M-103 vote.
Since then, C3RF’s membership has swelled to tens of thousands embedded within a network of other like-minded freedom- and truth-seeking organizations. As Cooper told me in an email, “If there is one good thing you can say about the draconian measures foisted upon the regular folk of Canada in the days since M-103, it’s that these vexations have unified a whole new cadre of discerning citizens, tired of being pushed around and taken for granted.”
C3RF, in conjunction with allies like Veterans for Freedom and Act! for Canada, are
working on a House of Commons petition calling for the cancellation of Bill C-63. Once a parliamentary sponsor seizes that baton and sets it in motion, I will be sure to alert readers. It would be wonderful if it were signed by every one of the 32 per cent of Canadians a
[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
21
Dated at Ottawa this 9th day of November 2022. David Dwoskin Deputy Judge D. Dwoskin
Social Justice Warriors Seek the Total Ruin of
Dissidents
Discussing writer Douglas
Murray’s new book the Madness of
Crowds: Gender, Race and Identity, Barbara
Kay (National Post,
November 20, 2019) writes: “The interpretation of the world through the lens of
‘social justice,’ ‘identity group politics’ and ‘intersectionalism’ is probably
the most audacious and comprehensive effort since the Cold War at creating a new ideology.” Christianity has been
spurned, but the religious impulse is inherent and abhors a vacuum. The
‘religion’ of social justice, Murray observes, poured itself into the handy
campus vessel of Marxism with remarkable
speed. One of the hallmarks of Marxism – not a bug, but a feature – is
its ruthlessness. I was particularly struck by Murray’s quite poignant
chapter, “On Forgiveness.” Normal religions offer redemption to sinners. But
there is no forgiveness or statute of limitations for thought crimes in the
religion of social justice. A mural of Rudyard
Kipling’s “If” – voted Britain’s favourite poem – was painted over at the University of Manchester in retroactive
punishment for Kipling’s now politically incorrect views on empire. The past,
Murray says, is “hostage — like everything else — to any archeologist with a
vendetta.
This new religion
gives permission to those of ‘oppressed’ status — women, people of colour,
indigenous peoples, LGBTQ — to hate
their oppressors: heterosexual white men, racists, transphobics. (Gay himself,
Murray refuses to play the LGBTQ
card as the sole, or even most important marker of his humanity.) For many
unlucky people, a silly joke tweeted, an incorrect opinion on Facebook or an inadvertently touched
knee can be the kiss of death to career and reputation. Murray provides plenty
of examples of good people cut down without mercy — indeed with unseemly relish
— by relentlessly vigilant activists. Toby
Young, for example, once divided his time between journalism and the New Schools Network, where he worked to
help disadvantaged children get a better education. Long story short, a few
naughty references to ‘boobs’ on Twitter, excavated by the usual suspects, lost
him a government appointment and all his writing gigs in a fusillade of
opprobrium.”
