Sunday, 30 September 2012

Don Staniford Acquitted of Defaming Mainstream Canada, Sept 30, 2012

Judge Adair released her ruling in Mainstream Canada's case accusing Don Staniford of defamation. She found that he had defamed Mainstream, but dismissed the case as she reasoned that he truly believed what he was saying. The last five pages are a quite involved argument.

Find her 71 page ruling here:

Here are some of the most relevant sections for those who do not have the time to read the entire ruling:

Mainstream Canada vs Don Staniford - Summary
[10] Mainstream claims that, in their natural and ordinary meaning, Mr. Staniford’s statements, in context, meant and were understood to mean that Mainstream’s business and products kill people, and that Mainstream is knowingly marketing a carcinogenic product that causes illness, death and harm. Mainstream says that the “sting” arising from Mr. Staniford’s publications is that farmed salmon – like smoking – causes cancer, and that the salmon farming industry is as odious and dishonest as the tobacco industry.
[11] Mainstream seeks substantial

[57] Mainstream pleads over fifty particulars of defamatory words contained in the publications. These include the following, many of which appear on mock-cigarette packages (page references indicate the page(s) in the Schedules to the Amended Claim):
Mainstream Canada v. Staniford Page 19 a) from the “Salmon Farming Kills” campaign: “Salmon Farming Kills” (p. 1); “Salmon Farming Seriously Damages Health” (p. 1, p. 27); “Salmon Farming Licenced to Kill” (p. 3); “Salmon Farming Kills Around the World and Should Carry a Global Health Warning” (p. 7); “Salmon Farming Seriously Damages Human Health, the Health of our Global Ocean, and the Health of Wild Fish” (p. 7); “Salmon Farming is Toxic and Poison” (p. 3); “Salmon Farming is Toxic” (p. 4); “Fish Farmers are playing ‘the same game as the cigarette manufacturers did for many years’” (p. 1);
(b) from the “Silent Spring

57, c Put a copy of ‘Smoke on the Water, Cancer in the Coast’ in your pipe and smoke it” (p. 26); “Salmon Farming Kills Like Smoking” (p. 27); “Salmon Farming . . .

Clause 58: reasonable person as a comment upon true facts, and not as a bare statement of fact: see Ross, at para. 58 (quoting from Brown, The Law of Defamation in Canada). In other words, the comment, though it can include inferences of fact, must be recognizable as comment.
though the comment satisfies the objective test, the defence can be defeated if the plaintiff proves that the defendant was actuated by express malice. See WIC, at para. 28.

[59] The “Salmon Farming Kills” pages contained several mock cigarette packages with the statement “92% Norwegian Owned.”
[60] Under the heading “Salmon Farming is Toxic and Poison”, Mr. Staniford repeats a quote from an article in the Toronto Star (hyperlink underlined):
“I would never feed a child farmed salmon,” said Canadian scientist David Suzuki (as quoted in The Toronto Star). “It’s poison!”

Clause 74 and 75 about cancer causing chemicals in farmed and wild salmon

Mainstream’s defamation claim clause 99 Mainstreams claims 101, 103

[115] In a number of places in the publications in issue, Mr. Staniford states “Salmon Farming Kills,” and also that “Salmon Farming Kills Like Smoking.” Mr. Staniford also says that “Salmon Farming Seriously Damages Health.” These are among the many statements that Mainstream asserts are defamatory. Moreover, in the “sting” alleged, Mainstream’s focus is on humans and human health.

[118] I conclude therefore that Mr. Staniford’s words are capable of bearing a defamatory meaning, as pleaded in para. 22(a), that “Mainstream’s business and products kill people.”

[120] Mr. Staniford’s words “Fish Farmers are playing the same game as the cigarette manufacturers did for many years” are, given the notoriety of the harmful effects of smoking and of the conduct of “Big Tobacco,” capable of bearing the meanings pleaded in paras. 22(d) (“Mainstream has actively misled, deceived, and lied to the public”), (e) (“Mainstream is knowingly marketing a carcinogenic product that causes illness, death, and harm”) and (j) (“Mainstream engages in corrupt and
Mainstream Canada v. Staniford Page 36
immoral behaviour”). Labelling someone as a liar, and asserting the person is knowingly acting in a way that causes illness and death, and otherwise is engaging in corrupt and immoral behaviour, is defamatory.

(iii) Do the words [the defamatory words] in fact refer to Mainstream?


[141] For these reasons, I find, therefore, that Mr. Staniford’s words in fact refer to Mainstream.

[142] In summary, I conclude that Mainstream has proved the essential elements of a defamation claim, namely that: Mr. Staniford’s words are defamatory, in the sense that they would tend to lower Mainstream’s reputation in the eyes of a reasonable person; the words in fact referred to Mainstream; and the words were communicated to at least one person other than Mainstream.
(b) Mr. Staniford’s defence of fair comment

[144] Statements of opinion – a category which has been described as including any deduction, inference, conclusion, criticism, judgment, remark or observation which is generally incapable of proof – may attract the defence of fair comment: see Grant, at para. 31. A defendant claiming fair comment must satisfy the following test: (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?; and (e) even
Mainstream Canada v. Staniford Page 42

[146] “Honest belief” requires the existence of a relationship between the comment and underlying facts.

(f) if Mr. Staniford was an honest man expressing his genuine opinion on a subject of public interest then, no matter that his words conveyed derogatory imputations, no matter that his opinion was wrong or exaggerated or prejudiced and no matter that it was badly expressed so that people read all sorts of innuendo into it, nevertheless he has a good defence of fair comment.
[154] However, words that may appear to be statements of fact may be properly construed as comment. Binnie J. wrote in WIC, at para. 26:

Mainstream Canada v. Staniford Page 47
mark the path towards superior understanding of the world around us."
Mr. Sutherland argues that there is a direct parallel in this case, and that what Mainstream is attempting to do by bringing this action is to silence a critic in the face of scientific controversies.

[166] This is essentially the argument advanced by Mainstream: that Mr. Staniford’s statements are verifiable and capable of proof, and therefore must be found to be statements of fact.
[167] The EWCA did not agree with Eady J. The court explained the flaw in Eady J’s reasoning, and thus also a flaw in Mainstream’s argument, in this way (underlining added):

[168] In order for Mr. Staniford to succeed on his defence of fair comment, it must be shown, with reasonably clarity, that the words are comment and not statement of fact. The test is whether the matter would be recognizable to the ordinary
Mainstream Canada v. Staniford Page 49

[170] However, I have concluded that the statements are comment, not fact. They reflect Mr. Staniford’s value judgments – as prejudiced, exaggerated and obstinate as they are – based on what he has read in the literature and how he has interpreted that literature.

[171] Mr. Staniford’s statements, such as “Salmon farming kills” and “Salmon farming kills like smoking,” although they look like statements of fact, can only be – and must be found to be – statements of opinion. The unexpressed – or not completely expressed – premise is: “based on this peer-reviewed scientific evidence.” They must be statements of opinion because there is scientific controversy about the effect on, and the benefits to, human health from consumption of farmed salmon. The point is illustrated, and, for my purposes, confirmed by the fact that different scientists have reached different conclusions, and by Dr. Gallo’s evidence.

[173] The existence in the flesh of farmed (and wild) salmon of contaminants that can cause cancer has been verified as a fact. However, the consequences and effect on human health of consumption of salmon given that fact is still the subject of debate. In

From 174:
Mr. Staniford’s judgments have no balance because balance does not exist in Mr. Staniford’s world when it comes to salmon farming. He has dedicated himself to eradicating it.
(d) since 2000, scientists have tested farmed and wild salmon and found in the flesh of the fish contaminants that are capable of causing cancer. The existence of the contaminants has been established to be true. Dr. Gallo, for example, accepted and did not disagree with the data used for the Hites Papers;

Mainstream Canada v. Staniford Page 54
(iv) Could any person honestly express Mr. Staniford’s opinions based on the proven facts?
[184] I have concluded the answer to this question must be yes. Mr. Staniford (at least) believes what he says. He expresses his beliefs in the March 23, 2011 letter to the King of Norway, and in “Smoke on the Water, Cancer on the Coast.”

Hill and Knowlton used by tobacco firms

[186] I have concluded that Mr. Staniford is akin to a zealot. Virtually anything that conflicts with his view and vision is wrong, bad, disgraceful and worse. Individuals who work in the salmon farming industry do jobs that are “nauseating.” He is highly suspicious. Neutral facts (for example, that at one time the BCSFA used the public relations firm Hill & Knowlton to do some work for it) will lead him to jump to irrational conclusions. Because Hill & Knowlton at one time also did work for members of “Big Tobacco,” the firm must have been hired because the BCSFA and its members were engaged in a cover-up, just like Big Tobacco.

[189] I have no doubt that Mr. Staniford is severely prejudiced when it comes to salmon farming. His views are exaggerated and obstinate. I express no opinion on whether this makes him an effective campaigner: that is for others to judge. However, I have concluded that he honestly believes the opinions he has expressed.

(v) Malice
[190] The defence of fair comment will fail if the plaintiff proves that the defendant was actuated by express malice:

Apart from those exceptional cases, what is required on the part of the defamer to entitle him to the protection of the privilege is positive belief in the truth of what he published or, as it is generally though tautologously termed, ‘honest belief’. If he publishes untrue defamatory matter recklessly, without considering or caring whether it be true or not, he is in this, as in other branches of the law, treated as if he knew it to be false.


[196] On behalf of Mr. Staniford, Mr. Sutherland argues that Mr. Staniford must be afforded a very broad scope for speech because his purpose is to end industrial aquaculture. He is a campaigner attempting to influence public opinion on legitimate public issues. Therefore, so long as Mr. Staniford’s statements and publications are related predominantly or primarily to that purpose, it cannot be said that Mr.
Mainstream Canada v. Staniford Page 58
Staniford is actuated by malice. Mr. Staniford’s loathing of the aquaculture industry is not unrelated to his purpose, and therefore cannot constitute malice.

[197] I have concluded above that Mr. Staniford honestly believes what he says. This finding is inconsistent with finding that Mr. Staniford said things he knew to be false, or that he was reckless. However, has Mainstream nevertheless demonstrated that Mr. Staniford’s dominant purpose in publishing the statements in issue was to injure Mainstream because of spite or animosity?

The language in his publications – including the mock cigarette packages in particular – is extreme, inflammatory, sensationalized, extravagant and violent. The word “kills” is everywhere.

[200] I have no hesitation, therefore, in finding that the publications in issue were actuated by Mr. Staniford’s express malice towards Mainstream.
Mainstream Canada v. Staniford Page 59

[201] However, I am unable to conclude that this was Mr. Staniford’s dominant purpose in publishing the statements in issue. Mr. Staniford’s main goal is to end industrial aquaculture, and he seeks (albeit in clumsy, crude, irrational or foolish ways) to influence public opinion to that end. That (currently) is his life’s work. His commitment to that cause is illustrated by his self-published magnum opus – “Smoke on the Water, Cancer on the Coast.”

[202] Although I have concluded that Mr. Staniford’s statements are defamatory of Mainstream, I have concluded that he should succeed on his defence of fair comment. I have found that he was actuated by express malice towards Mainstream. However, I have found that he had an honest belief in the statements he made, and injuring Mainstream because of spite or animosity was not his dominant purpose in publishing the words in issue.
[203] In view of those findings, I do not intend to address damages or other remedies.
[204] The plaintiff’s action is, accordingly, dismissed.

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