Case Law: Canada, Awan v Levant, Judge finds that allegations by right wing commentator were baseless and made maliciously

29 11 2014

awan-levantOn 27 November 2014, the Ontario Superior Court of Justice handed down judgment in the much discussed case of Awan v. Levant [pdf]. Justice Wendy Matheson awarded damages of Can$80,000 to the plaintiff, lawyer Khurrum Awan, against the conservative political commentator, journalist and blogger Ezra Levant.

Background

The background to his case is complex and controversial – involving issues of freedom of speech and alleged incitement to religious hatred.

In October 2006, Maclean’s magazine published an article entitled “The future belongs to Islam“.  The article was an extract from a book by Mark Steyn called America Alone. The plaintiff, who was then a law student was concerned by the article which he believed treated Muslims as an undifferentiated group with an agenda for a bloody takeover of Western societies.

The plaintiff and three other students discussed the article and found about 20 other articles in Macleans.  They asked the magazine to publish a response.  They canvassed supported from the Canadian Islamic Congress (“CIC”).  The students had a meeting with the editor of the magazine who refused to publish a response.

The students decided to pursue their concerns through human rights legislation.  Their complaint to the British Columbia Human Rights Tribunal (“BCHRT”) proceeded to a hearing.

At the time of the hearing the defendant was pursuing a campaign against human rights commission.  He described the BCHRT as a “third rate troika of radical activists”. He was a friend of Mark Steyn and had strong negative views about Dr Elmasry of the CIC, who was one of the complainants.

The BCHRT hearing took place in June 2008.  The plaintiff gave evidence and expert evidence was called.  The defendant “live-blogged” from the hearing.  The plaintiff was not, at the time of the hearing, a qualified lawyer.

During the hearing the defendant posted a series of seven blogs on his blog, Ezralevant.com,  These were the subject of complaint in the action.  The first was entitled “Khurrun Awan is a serial liar” and the others “Awan the liar”, parts 2 to 7.

The BCHRT decision was issued on 10 October 2008 (Elmasry and Habib v. Roger’s Publishing and MacQueen (No. 4)2008 BCHRT 378 [pdf]).  The complaints were dismissed.  The Tribunal concluded many people were offended by the article which contained numerous factual, historical and religious inaccuracies about Islam and Muslims. However, it found that the complainants had not met their burden of demonstrating that the article rose to thelevel of “detestation, calumny and vilification” necessary to breach s. 7 (1 )(b) of the Human Rights Code, R.S.B.C. 1996, c. 210.

The plaintiff did not sue over the blog posts in 2008.  However, in June 2009, the plaintiff sent a letter to the editor of the Toronto Star in response to an article by the defendant.  In response, the defendant post a blog entitled “Awan the liar, part 8”.

After the commencement of the action, the defendant published a blog posted entitled “Mark Steyn’s would-be censor sues me — and I’m going to fight back”.

Judgment

After setting out the factual background [1] to [75] the judge first considered the question as to whether the words were defamatory of the plaintiff.

The words alleged that the plaintiff was a liar, incompetent and an anti-semite.  The judge noted that such words would ordinarily carry defamatory meanings.  She rejected an argument based on Le Bel J’s minority view in WJC Radio Ltd. v. Simpson, 2008 SCC 40, that the defendants words would not have been taken at face value ([84] to [90]).

The judge then went on to consider the defences of justification, fair comment and qualified privilege in relation each of the nine blog posts complained of ([115] to [177]).

In relation to the central allegation that the plaintiff was a “liar”, the main defence was fair comment.  The judge rejected this in the following terms:

I conclude that the reasonable reader of this blog post would regard the use of the words “liar” and “lie” as statements of fact. Quite simply, they are stated as fact. They are stated as fact in a purported report of an ongoing hearing. Those words are not recognizable as comment in the blog post, readily distinguishable from facts, as would be required to assert that they are comment. [124]

Furthermore, the defendant could not establish that the plaintiff had made any deliberately false statements [127].

In the ninth post the defendant described the plaintiff as part of a group of “illiberal islamic fascists”.  At trial it was submitted that this was simply vulgar abuse. However, the judge concluded that

Taken in the context of the entire blog post, … the words “illiberal Islamic fascists” were used in the defamatory sense. They meant or were understood to mean that the plaintiff had extreme, intolerant views. The necessary factual basis for this comment was not proved at trial, nor is the honest belief requirement met. It cannot therefore be defended as fair [176]

The Judge accepted that some of the imputations in the blogposts were fair comment.  However, she went on to find that the defendant’s dominant motive in these blogs posts was “ill-will” and that his repeated failure to take even basic steps to check his facts showed a “reckless disregard for the truth” [188].

In relation to damages, the defamatory statements were extremely serious although there was no clear evidence as to the extent of publication [198].  The judge rejected the defendant’s argument that the damage to the plaintiff’s reputation was caused by his own actions in being identified as a complainant in the case against Maclean’s. She awarded general damages of Can$50,000 ([203].

In addition, the judge awarded aggravated damages of Can$30,000 ([204] to [211]). The defendant’s malice, the headlines and the failure to address errors were aggravating features.

The judge ordered that the defendant should take the blog posts down, or should take steps to fairly remove the defamatory material [214].

Comment

Mr Levant is a controversial figure in Canada and the case has been widely discussed in the media.  The Globe and Mail described the judgment as a “stinging rebuke” to Mr Levant. In a piece in the National Post, journalist Jonathan Kay commented that “The weirdest thing about Ezra Levant is he still thinks he’s right”.

Mr Levant says he will appeal. He told the Huffington Post

“This is a shocking case of libel chill that should concern any Canadian who is worried about radical Islam, and the right to call out anti-Semitism in the public square. If this judgment stands, anyone who dares to challenge members of Muslim extremist groups on the basis of their affiliation with such groups is at risk of costly lawsuits.”

He explains his position on a website called “Stand with Ezra” and is seeking to crowd fund his costs.

It seems highly unlikely that any appeal would succeed.  The judgment is a clear and careful analysis of the factual background and the legal issues.  It convincingly demonstrates the poor quality of Mr Levant’s journalism and the baselessness of his allegations.  Mr Awan’s reputation has clearly been vindicated.  This might be thought to be a good example of the law of libel being used for its proper purpose of restoring the reputation of person who has been the subject of unfounded attack.


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