SUPERIOR COURT OF THE STATE OF RIDGEWAY
CITATION: BattalionGavin v. GlenMcDeer,
2022 RSC 743
DATE OF JUDGEMENT:
December 17, 2022
BETWEEN:
BattalionGavin
Plaintiff
and
GlenMcDeer
Defendant
REASONS FOR JUDGEMENT
OF THE
HONOURABLE JUDGE KOALAMEDVEDEVA
I. Background
[1] Plaintiff BattalionGavin issued defamation proceedings against defendant
GlenMcDeer. The proceedings relate to a publication made by the defendant through a
third-party, RidgeAds, though the third-party is not a party to this action.
[2] In total, there was one publication: a billboard that stated that BattalionGavin,
among others, was a “sugarcane-regulating official”.
[3] The allegation is that GlenMcDeer acted with actual malice in publishing false
statements which damaged BattalionGavin’s reputation.
[4] GlenMcDeer admits that he is responsible for the publication, denies that the
publication was made with actual malice, denies that the publication was false, denies
that any damages to reputation resulted, and further asserts fair comment.
II. Findings of fact
[5] At all relevant times, BattalionGavin was a candidate in the election for senator
and in no capacity an “official”, as stated in the publication, with the powers to vote on
proposed legislation.
[6] GlenMcDeer’s publication was made available to a wide audience during the
electoral campaign for the election in which BattalionGavin was a candidate. The
publication appeared both in the form of a physical poster and as a post on the social
media platform Discord.
[7] GlenMcDeer chiefly argues that the words alleged to be defamatory do not bear
the meanings pleaded. While it is likely that the purpose of the publication was to
communicate that BattalionGavin intended to regulate sugar cane if he were to be
elected, the publication nevertheless produced the perception that BattalionGavin had
the capacity to immediately regulate sugar cane, which was not true.
[8] The harm that resulted from this publication is hard to quantify, but I generally
find that the publication made likely had the potential to injure the reputation of
BattalionGavin, not only due to the content of the text itself, but also because the
publication contained graphics which produced an insinuating effect on the viewer.
[9] I also accept that the nature of the discussion surrounding sugar cane has the
potential to be divisive, and harm to BattalionGavin’s reputation likely inevitably
resulted due to the publication, though any alleged backlash was not established at trial.
[10] At trial, the principal and seemingly sole focus of the plaintiff was on
establishing the untruth in the content of the publication and its resulting harm. To that
extent, they are successful; I am convinced that the publication contained partially false
statements and that some form of unquantifiable harm resulted hence despite
GlenMcDeer’s intentions. Their success on this front, however, appeared to have been
to their detriment in establishing any actual malice on the part of the defendant.
[11] I am equally convinced that there was close to no malice in GlenMcDeer’s
course and conduct of publishing the billboard. While I accept that the publication was
likely intended to influence the decision of electors in favour of GlenMcDeer’s position
with respect to regulation the sugar cane in the upcoming election in which
BattalionGavin was a candidate, I am not convinced by plaintiff’s evidence that
GlenMcDeer acted with malice in doing so, nor am I able to infer any malice on his
part. On the contrary, I find that the publication was a representation of GlenMcDeer’s
genuine belief that BattalionGavin was a “sugarcane-regulating official”, despite the
objective truth that BattalionGavin was not an official capable of “regulating” sugar
cane to any extent, including but not limited to criminalising its production, possession,
and transport.
III. Legal standard
[12] As previously stated, the defence of justification (or truth) must be rejected in
this action as the publication partially contained objectively false information.
[13] The defence of fair comment was then raised, and it involves a three-part
analysis. If a defence of fair comment has been established, it can still be defeated with
a finding that the defamatory material was motivated by malice, which is to say an
ingenuine opinion.
[14] First, the comment must be on a matter of public interest. That is, the subject
matter must be shown to be one inviting public attention, or about which the public has
some substantial concern because it affects the welfare of citizens, or one in which
considerable public controversy exists. Some portion of the public must also have a
genuine stake in knowing about the matter published. Public interest is not confined to
publications on government and political matters, nor or is it necessary that the plaintiff
be a public figure. In my view, the publication read as a whole relates to a matter of
public interest.
[15] Second, the comment must be based on fact. It is necessary that the comment
explicitly or implicitly indicates, at least in general terms, what are the facts on which
the comment is being made. Facts must be sufficiently stated or otherwise be known to
the viewers so that they are able to make up their own minds on the merits of the
comment. If the factual foundation is unstated or unknown, or turns out to be false, the
fair comment defence is not available. In this case, GlenMcDeer made no effort to
provide such facts explicitly on the publication. I am satisfied that the implied fact that
BattalionGavin would likely move to regulate sugar cane if he were to be elected was
true at all relevant times, but I cannot find that such belief was appropriately or
sufficiently communicated to the viewers by GlenMcDeer.
[16] Of course, it is true that the comment must have a basis in the facts, but to say
that the comment must be supported by the facts is thought to set the bar so high as to
create the potential for judicial censorship of public opinion. An assessment of
“relevance” has in the past misled courts into asking whether the facts “warranted” the
comment, or whether the comment “fairly” arose out of the facts. I will avoid that
assessment. Instead, I would look to whether a defamer professed an honest belief in
his or her defamatory comment. If the speaker, however misguided, spoke with
integrity, the law would give effect to freedom of expression on matters of public
interest.
[17] Common law gives little weight to the reasonableness or proportionality of the
comment in relation to the facts in contrast to weight given to whether the comment
reflected honest belief; it considers the latter the gravamen of the defence of fair
comment. This approach represents a balance between free expression on matters of
public interest and the appropriate protection of reputation against damage that exceeds
what is required to fulfil free expression requirements.
[18] To this final and essential requirement for the defence of fair comment: the
comment must be an honest expression of the author’s opinion, relevant to the facts to
which it is addressed. Perhaps what is more helpful, though, is to say that the comment
cannot be used as a cloak for mere foolish or offensive insults. In my view,
GlenMcDeer’s publication represents genuine opinion if not responsible discourse on
a matter of public interest.
[19] Having found that the defendant is entitled to a defence of fair comment, the
inquiry turns to malice. The defence is defeated if the comments were actuated by
malice in the sense of improper motive, proof of which lay on the plaintiff.
[20] I must note that the plaintiff alleged extensively as to the presence of “actual
malice” in defendant’s conduct, yet he referred to defendant’s conduct as a “reckless
leasing of a billboard containing false and defamatory statements” in his Complaint. A
reckless act and a malicious act are inherently mutually exclusive, but this disparity is
negligible, seeing that malice was hardly ever referred to during examination, despite
the argument resurfacing during summation. Accordingly, I must conclude that there
was no actual malice to defeat the defence of fair comment.
[21] The laws of defamation have been so construed to provide greater protection
for communications on matters of public interest and to give sufficient weight to the
constitutional value of free expression, particularly that of statements important to
public debate made in honest belief. McLachlin C.J. described it as crucial to “the
proper functioning of democratic governance and getting at the truth”.
IV. Disposition
[22] Judgement is to the defendant.
[23] Defendant is awarded its costs.
Dated at the City of Palmer, in the State of Ridgeway this 17th day of December, 2022.
“koalaMedvedeva”
Judge koalaMedvedeva
Counsel for the plaintiff BattalionGavin: stickza, Ridgeway.
Counsel for the defendant GlenMcDeer: HolyRomanRyan, Ridgeway.
