Ross_v._New_Brunswick_Teachers__Assn.,_[2001

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Print Request: Current Document: 5 Time Of Request: Monday, March 03, 2008 20:42:28 Send To: Craig Alcock UNIVERSITY OF CALGARY LAW LIBRARY 2500 UNIVERSITY DR. N.W. Terms: holocaust Narrow Search: (denial) Source: All LexisNexis Canadian Judgments Client ID: None

Page 1 Indexed as: Ross v. New Brunswick Teachers' Assn. Between Josh Beutel (defendant), appellant/respondent by cross-appeal, and Malcolm Ross (plaintiff), respondent/appellant by cross-appeal, and Canadian Newspaper Association, Association of Canadian Editorial Cartoonists, Canadian Jewish Congress, League of Human Rights of B'nai Brith Canada and Canadian Civil Liberties Association, interveners [2001] N.B.J. No. 198 2001 NBCA 62 No. 97/98/CA New Brunswick Court of Appeal Daigle C.J.N.B., Turnbull and Larlee JJ.A. Heard: January 20 and 21, 2000. Judgment: May 31, 2001. (121 paras.) Libel and slander -- The statement -- What constitutes defamatory statements -- From cartoon -- Defences -- Fair comment -- Elements of fair comment, truth -- What constitutes fair comment -- Malice -- What constitutes malice. Appeal by the defendant, Beutel, from a decision finding him liable for defamation of the plaintiff, Ross. Ross was removed from classroom teaching after he published anti-Semitic writings about an alleged Jewish international conspiracy and other Holocaust issues. He had a reputation as an anti- Semite and racist. Beutel presented a workshop to an audience of teachers in which he imputed, through editorial cartoons, that Ross was a Nazi. Ross brought an action against Beutel and the Teachers Association for damages for defamation. The trial judge held that there was a single impu- tation which was defamatory, although it was not malicious, and it was not defensible as fair com- ment. Beutel was ordered to pay damages. The action was dismissed against the Association. Beutel

Page 2 appealed the finding of defamation and the dismissal of his defence of fair comment. Ross cross-ap- pealed the failure to find malice and multiple defamations. HELD: Appeal allowed and cross-appeal dismissed. The main cartoon was defamatory. However, the defamatory imputation was not a statement of fact, but was only a comment or opinion. Beutel established a sufficient factual basis to warrant his comment. The defence of fair comment only re - quired Beutel to prove the truth of the underlying facts upon which he relied in making his com - ment, and not the truth of his comment itself. Beutel was not required to prove that Ross was a Nazi or that Ross's views were false, as would be required for a defence of justification. The cartoon was an honest expression of Beutel's view. As there was no malice, the comment was defensible as fair comment and the action should have been dismissed. With respect to the cross-appeal, the addi- tional cartoons which Ross alleged were defamatory were also defensible as fair comment, because they were comments based on true facts, those being that Ross was a racist and an anti-Semite. The truth of the comments was not required to be proven. Beutel was not predominantly motivated by a desire to injure Ross, and accordingly there was no malice. Statutes, Regulations and Rules Cited: Human Rights Act, R.S.N.B. 1985, c. H-11. Rules of Court, Rule 62.21. Appeal from: Appeal from judgment of the New Brunswick Court of Queen's Bench, P.S. Creaghan J., April 17, 1998. Counsel: David M. Lutz, Q.C. and Adrian Gratwick, for the appellant. Douglas H. Christie, and John D. Hughes, for the respondent. Paul Schabas, for the intervener, Canadian Newspaper Association and Association of Canadian Ed- itorial Cartoonists. Joel Richler, for the intervener, Canadian Jewish Congress. Marvin Kurz, for the intervener, League for Human Rights of B'Nai Brith Canada. Thomas S. Kuttner, for the intervener, Canadian Civil Liberties Association. THE COURT: The appeal is allowed, the trial judge's order for damages is set aside and the cross-appeal is dismissed with costs throughout of $5,000 payable by the respondent Ross to the ap- pellant Beutel. Reasons for judgment by: Daigle C.J.N.B. Concurred in by: Turnbull and Larlee JJ.A. 1 DAIGLE C.J.N.B.:-- This appeal is from a decision of Justice Paul S. Creaghan of the Court of Queen's Bench of New Brunswick sitting without a jury in an action for defamation in which he found that the appellant, Josh Beutel, had defamed the respondent, Malcolm Ross (Ross v. New Brunswick Teachers' Association et al. (1998), 199 N.B.R. (2d) 245).

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Page 3 2 The trial judge found that, in the course of a workshop presentation that Beutel made to an au- dience of teachers on the subject of Jewish history and the Holocaust, Beutel had imputed that Ross was a Nazi. He held that such imputation was actionable defamation, although not malicious, and it was not defensible as fair comment. He awarded damages in the sum of $7,500. 3 Beutel now appeals the findings of the trial judge alleging that he erred in two respects: finding that Beutel's presentation was defamatory of Ross, and if it was defamatory, finding that the defence of fair comment did not avail. In his cross-appeal, Ross submits that the trial judge erred in finding that a "good deal" of the Beutel presentation was fair comment, in finding only one defamation while there were multiple defamations made by Beutel during his presentation and in failing to award general damages for each separate defamation, and lastly in finding that Beutel acted without malice. FACTUAL BACKGROUND 4 For reasons that will become apparent later, it is important to give a fairly detailed account of the events which gave rise to the present libel action by Ross. In the spring of 1993, the Social Stud- ies Council of the New Brunswick Teachers' Association (NBTA) organized four workshop sessions as part of the professional development seminar that had been ongoing for many years. The subject chosen for the Social Studies Council workshop was Jewish history, traditions and culture, with a focus on the Holocaust and anti-Semitism. It was decided that the workshop would be held on May 6, 1993 at the facilities of the Saint John Synagogue and Jewish Historical Museum. Among others, Josh Beutel, a freelance cartoonist who has contributed cartoons to several newspapers for many years, was invited to make a presentation which he entitled "An Editorial Cartoonist Confronts Holocaust Issues." It is interesting to note the other speakers also invited to address this workshop, as well as the subjects of their presentations. In the morning, there was a presentation entitled "The Anti-Racist Agenda in the 90's" by Frank Bialystok, and another by Herman Norman entitled "Re- flections of a Holocaust Survivor." As the luncheon speaker, Reverend Jim Leland spoke on "Jew- ish-Christian Relations and Holocaust Denial, " followed later that afternoon by Beutel's presenta- tion. 5 At the time of the workshop in May 1993, Malcolm Ross was employed in a non-teaching posi- tion by a New Brunswick school board. He was still a member of the New Brunswick Teachers' As- sociation. Prior to that, Ross had worked as a modified resource teacher for remedial reading in schools of New Brunswick from September 1976 to September 1991. Throughout this period, he published three books and one pamphlet: Web of Deceit, 1978; The Real Holocaust, 1983; Spectre of Power, 1987; and Christianity vs. Judeo-Christianity. He also authored several letters to the news- papers and made other public statements, including a television interview, about an alleged Jewish international conspiracy, Holocaust issues or anti-Semitism, all of which contributed greatly to his views gaining notoriety and being the subject of much controversy throughout the province. Be- cause of his published views, Ross was removed from teaching in the classroom by the district school board which acted upon direction of a Board of Inquiry established pursuant to the New Brunswick Human Rights Act, R.S.N.B. 1985, c. H-11. The order of the Board of Inquiry was judi- cially reviewed by the courts of this province and was eventually upheld by the Supreme Court of Canada. (See Attis v. Board of Education of District No. 15 et al. (1996), 171 N.B.R. (2d) 321 (SCC).) On the evidence it is clear that at the time Beutel made his presentation, Ross had a reputa- tion as an anti-Semite and racist and, as found by the trial judge, was a public figure.

Page 4 6 In his reasons for judgment, the trial judge considered the whole of Beutel's presentation before concluding that Beutel had defamed Ross. He specifically refers to the "cartoons and collateral dia- logue", to the fact that "a fair-minded person would find the presentation to the discredit of Mal- colm Ross", and to "Beutel's presentation, as it related to Ross in its entirety." In order to better per- ceive the tenor of the presentation and the overall impression created by the combination of words and images, it is necessary, because of the complexity of the factual issues raised in this appeal, to describe in some detail the various components of the presentation. 7 As already noted, the topic of Beutel's presentation was "An Editorial Cartoonist Confronts Holocaust Issues." It essentially consisted of the display of cartoons, photographs and slides by means of an overhead projection screen and an accompanying narrative read by Beutel from pre- pared notes, as well as some extemporaneous remarks (see Exhibits C-1-15 to C-1-53). Most of the cartoons have substantial captions which were read out by Beutel. 8 The presentation was divided into four parts. In the first part, Beutel dealt with "cartooning and racism." Selected cartoons drawn on a variety of topics by various cartoonists from across this country and elsewhere were displayed. None of the 23 cartoons shown in this first segment relate to Ross. The second part of the presentation was entitled "Stereotyping". Seventeen cartoons were shown to illustrate this topic, specifically how cartooning uses imagery, allegory and symbolism to convey its message. Two of the cartoons relate to Ross. The third part dealt with hate literature vs. free speech. Thirty cartoons were shown to illustrate this topic, ten of which relate to Ross (Exhibits C-1-14 A to M). Finally, the fourth part involved showing approximately 35 slides, including photo- graphs and cartoons, six of which relate to Ross. In total during the presentation about 105 cartoons and slides were shown, eighteen of those referenced Ross and all but the "Goebbels cartoon" had previously been published. Ross was present during most of Beutel's presentation. He tape recorded and later transcribed Beutel's presentation which he entered in evidence. 9 In the two years that followed, Ross sued in separate actions the NBTA and Beutel for defama- tion. Both actions were tried together before Justice Creaghan. The trial, which did not take place until February 1998, lasted three weeks. Justice Creaghan held that Beutel had defamed Ross but dismissed the action against the NBTA holding that it was not vicariously liable for Beutel's defam- atory action. In exercising his discretion in relation to the award of costs, the trial judge not only de- nied NBTA costs on its successful defence, but ordered that NBTA pay the costs awarded to Ross rather than ordering the defendant Beutel to pay costs. Although the issues of vicarious liability and costs were peripherally mentioned by counsel in their submission on damages, these two matters are not in issue on this appeal. 10 In his Amended Statement of Claim dated February 2, 1998 against Beutel, Ross alleges that the presentation was "defamatory of, and insulting, degrading and humiliating to the plaintiff." He alleges further that Beutel's presentation "directly, personally and deliberately insulted the plaintiff and his religious faith, and held him up to contempt and ridicule and abuse in front of his fellow teachers at a meeting of the NBTA." Lastly, Ross alleges that Beutel acted with malice. 11 While it is clear from the above pleadings that the entire presentation is impugned, Ross refers to nine specific cartoons which were shown during the third segment of Beutel's presentation at the workshop. He claims that the meaning of each of those cartoons along with the words in the cap- tions are defamatory of him. These cartoons are identified by the letters A, B, C, D, E, G, I, L and M in Exhibit C-1-14. In addition, Ross cites two brief excerpts gleaned from the related commentary made by Beutel during his presentation of the cartoons. Those are the only averments of defamatory

Page 5 words or imputations made by Ross in his pleadings since no specific imputations or extended meanings by way of innuendo are pleaded. It is clear that Ross relies only on the natural and ordi- nary meaning of the cartoons and words to make the case that he has been defamed. 12 By way of defence, Beutel denied in his Statement of Defence that the cartoons shown in his presentation or his words and accompanying dialogue bore, or were understood to bear, any mean- ing defamatory of Ross. If they were defamatory, he pleaded the defences of fair comment, qualified privilege and the classic comprehensive defence of a "rolled-up" plea of fair comment. In support of the defence of fair comment, Beutel pleads and relies on 45 particulars of facts to warrant the com- ments conveyed in the cartoons and presentation. The facts specifically pleaded are mainly the pub- lished views and beliefs of Ross and are further particularized and referenced in the Statement of Further and Better Particulars delivered as part of the pleadings. 13 The five interveners granted leave to intervene in this appeal have all made written and oral submissions to this Court in support of Beutel's position. Some of the specific arguments presented will be considered below. ISSUES 14 The following are the central issues to be determined for the disposition of this appeal and cross-appeal: On appeal (1) Did the trial judge err in interpreting the Goebbels car- toon literally and finding it defamatory? 1) If the Goebbels cartoon is found to be defamatory, did the trial judge err in dismissing the defence of fair comment? On cross-appeal 1) Did the trial judge err in finding that a "good deal" of the Beutel presentation was fair comment? 2) Did the trial judge err in finding that there was only one defamation made during Beutel's presentation, whereas there were in fact multiple defamations made with respect to five specific cartoons and in failing to award general damages for each separate defamation? 1) Did the trial judge err in finding that Beutel acted with- out malice? ANALYSIS Did the trial judge err in interpreting the Goebbels cartoon literally and find- ing it defamatory? Interpretation of the Goebbels Cartoon and Related Commentary

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Page 6 15 The first matter to be considered is the defence that the Goebbels cartoon was not defamatory. Deciding what the cartoon means is the obvious first step. 16 Since the cartoon contains drawings that speak best for themselves, I reproduce it below. [Quick- law note: The cartoon could not be reproduced online. Please see paper copy.] It may be helpful nevertheless to describe its salient features. The cartoon is composed of two frames or panels, side by side. The right frame de- picts Ross, identified with a nametag on his necktie with the letters MR inscribed, clutching in each hand his books identified as "Web of Deceit" and "Spectre of Power." The left frame depicts under the word "Goebbels" a stone wall topped with barbed-wire, and an arch with the words "ARBEIT MACHT FREI" above it, obviously the depiction of a concentration camp. A group of Nazi soldiers are portrayed in front of the camp, including what looks like a Hitler caricature. Scrawled across both the right and left side of the cartoon in large bold letters is the word "CONSPIRACY". As to the caption, it reads: "What's the Difference Between the Views of ... Josef Goebbels and Malcolm Ross?" This appears on top of the two panels of the cartoon. At the bottom, below Ross' caricature, in the right panel, appear the words, "This one writes in English", and in the left panel below the de- piction of the Nazi soldiers, "This one wrote in German". 17 Prior to showing the Goebbels cartoon, Beutel read the following quotes, reading the first two quotes before identifying their authors, Adolf Hitler and Malcolm Ross, then the last two before identifying again their authors, Joseph Goebbels and Malcolm Ross: So I believe that I act in the spirit of the almighty God. By defending myself against the Jew I am fighting for the work of the Lord. (Adolf Hitler, Mein Kampf p. 65 as translated by Mannehim 1971) This book is my defence against accusations of hate-mongering, but it is much more. It tells how an overwhelming majority of the population is allowing a well-financed and dedicated minority to use fear, guilt and greed to undermine our Christian heritage and Faith, and to destroy our children's birthright ... Spec- tre of Power ... pleads with Christians everywhere to work together to throw off this yoke of mental and spiritual slavery, and to establish, by God's Grace, the Kingship of Christ in Society. (Malcolm Ross, Spectre of Power, p. III of Preface) By reason of their birth and race, all Jews are part of an international conspir- acy against National Socialist Germany ... The treatment we give them does them no wrong, they have more than deserved it. (Joseph Goebbels, Editorial in Das Reich, Nov. 16, 1941) As we look at the Conspiracy in the component parts - International Commu- nism, International Finance, International Zionism - we also see three unclean spirits which are working in unison and are actually three heads of one body, an evil organization now working to destroy Christian civilization.

Page 7 (Malcolm Ross, Web of Deceit, 1978, p. 11) 18 After reading the above quotations, Beutel showed the cartoon on the overhead screen and read the caption which appears above. 19 As stated earlier, the trial judge's first task was to ascertain the meaning of the Goebbels car- toon and to decide whether it was defamatory. While he does not refer specifically to the Goebbels cartoon anywhere in his reasons for judgment (except in para. 42 where he refers to "the cartoon that goes to equate Ross to Gobbels(sic)"), the trial judge finds that "Mr. Beutel's presentation in- cluded cartoons and collateral dialogue that, by any reasonable interpretation, a right-thinking per- son would find depicted Malcolm Ross as an anti-Semite, a racist and a Nazi" (para. 11). After re- ferring to a definition of defamation (para. 13), he finds, applying the proper test, that "a fair- minded person would find the presentation to the discredit of Malcolm Ross." He then concludes that "a prima facie case of defamation is apparent on the facts of this case" (para. 16). Next, he con- siders the defence of fair comment pleaded by Beutel. 20 It is plain from the above passages that the trial judge concludes that Beutel's presentation is defamatory, but he does not specify which of the alleged nine cartoons or which of the other alleged defamatory words in the accompanying narrative actually depicts Ross as a Nazi. It is common ground, however, especially on the basis of the trial judge's discussion of fair comment that the meaning he attributes to the Goebbels cartoon is that Ross is depicted as a Nazi. 21 The defamatory imputation on which the trial judge relies as arising from the Goebbels car- toon is more clearly set out later in his reasons for judgment where he specifically deals with the defamation found and his reasoning for rejecting the defence of fair comment. While the core of his reasoning as to fair comment will be examined below, it is necessary to consider now the following paragraphs which are relevant to the defamatory sense conveyed in the cartoon: [37] However, Mr. Beutel's presentation goes further than to comment on Mr. Ross' views as anti-Semitic and racist. In my assessment of the cartoons and col- lateral dialogue, in his emotional response to Ross' views, Beutel comments upon and criticizes Ross as a person who is a Nazi and should be characterized as such. He comments on the fact that Mr. Ross' views are substantially the same as those held by Hitler, Gobbels [sic] and other leaders of Nazi Germany. [38] On my assessment of the testimony and material presented at trial, the evidence does not support that as a true fact. ... [41] I find, on the evidence before me, that Mr. Ross' views are founded in his personal religious beliefs and not in any substantive way on Nazism. He may have unknowingly, or even knowingly, picked up some ideas from current Nazi sympathizers, but to take as a fact that Malcolm Ross is a Nazi goes too far. To suggest that Mr. Ross would advocate a policy of extermination as a solution to what he perceives as a spiritual battle against Judaism has not been established as fact. ...

Page 8 [43] I am not satisfied that the defendants have shown that at the time in question Malcolm Ross should be characterized as a Nazi as a matter of fact to allow Mr. Beutel freedom to comment upon and criticize Ross' views as a Nazi. [44] To do so, as I find that he did, was not fair comment, and in this regard the defence fails and the claim of actionable defamation must succeed. 22 In the present case, Beutel disputes the trial judge's interpretation of the Goebbels cartoon and accompanying commentary. He submits that the cartoon cannot reasonably be construed to bear the defamatory meaning as found by the trial judge, namely that Ross is a Nazi who would advocate a policy of extermination of the Jewish people. He contends that the trial judge erred in subjecting the cartoon to a literal interpretation and concluding that it was defamatory. In so doing, it is argued, the trial judge ignored the very nature and essence of editorial cartoons and the fact that they are based on allegory, caricature, analogy and ludicrous juxtaposition. On the other hand, Ross argues that the trial judge was correct in finding that the imputation arising from the Goebbels cartoon is that Ross is a Nazi who would advocate a policy of extermination. He argues strongly that the context in which the defamation took place involving a lengthy presentation of cartoons and collateral dia- logue during which Ross' opinions and beliefs were compared to those of Hitler and Goebbels clearly supports the defamatory meaning which the trial judge attributes to the cartoons. 23 The general principle and approach to the question of construction of alleged defamatory words are succinctly set out by R.E. Brown in The Law of Defamation in Canada, 2nd ed., loose- leaf, (Carswell, 1999) at pp. 5.2 to 5.3: Words, in order to be actionable, must be understood in a defamatory sense. In construing the language used, a court will avoid any forced or unreasonable interpretation. Words will generally be given their ordinary meaning unless they have some special, technical or colloquial meaning and would be understood in that sense by those to whom they were published . The defamatory meaning must be one which would be understood by reference to an ordinary and reasonable person, and not a meaning by someone who may be naturally inclined either to attribute the best or worst meaning to words published about the plaintiff. In de- termining the meaning to be attributed to the words, the court will take into con- sideration all the circumstances of the case including any reasonable implication the words may bear, the context in which the words were spoken, the audience to whom they were published and the manner in which they were presented. . ... [Emphasis added] 24 What must be determined therefore is the natural and ordinary meaning of the words com- plained of. In this case, it is the meaning which arises from the words appearing in the Goebbels cartoon and the narrative along with the message conveyed by the cartoon itself. The sense in which the words were intended by Beutel is irrelevant for the purpose of determining their natural and or- dinary meaning. Also irrelevant is the sense in which they were in fact understood by Ross. What is relevant is the meaning in which the words would be reasonably understood by ordinary reasonable people using their knowledge and common sense (See Baxter v. C.B.C. (1979), 28 N.B.R. (2d) 114, at paras. 23-24).

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Page 9 25 Of obvious importance in this case is the notion that the natural and ordinary meaning in- cludes inferences to be drawn from the words in addition to their literal meanings. This is more so in cases of interpretation of cartoons like the present case where the message or meaning would have to be translated into words often drawn from natural and ordinary implications or inferences themselves emerging from depictions in the cartoons. The question of inferences as part of the natu- ral and ordinary meaning was considered by Lord Reid in Lewis v. Daily Telegraph Ltd., [1964] A.C. 234 (H.L.) at p. 258: ... There is no doubt that in actions for libel the question is what the words would convey to the ordinary man: It is not one of construction in the legal sense. The ordinary man does not live in an ivory tower and he is not inhibited by a knowledge of the rules of construction. So he can and does read between the lines in the light of his general knowledge and experience of worldly affairs. ... What the ordinary man would infer without special knowledge has generally been called the natural and ordinary meaning of the words . But that expression is rather misleading in that it conceals the fact that there are two elements in it. Sometimes it is not necessary to go beyond the words themselves, as where the plaintiff has been called a thief or a murderer. But more often the sting is not so much in the words themselves as in what the ordinary man will infer from them, and that is also regarded as part of their natural and ordinary meaning . ... [Emphasis added] 26 As stated earlier, Beutel's presentation was comprised of a combination of cartoons displayed to the workshop of teachers and a related commentary narrated by Beutel. Because of the nature of cartoons, the difficulty of ascertaining the meaning of each cartoon and its related commentary is compounded. This is recognized by the trial judge when he adverted to the fact that a "special diffi- culty of interpretation may arise and care must be taken to draw a meaning from cartoons as might be taken by an ordinary fair-minded person". 27 The question of the nature and interpretation of a cartoon is discussed by the British Columbia Court of Appeal in Vander Zalm v. Times Publishers et al. (1980), 109 D.L.R. (3d) 531. In that case, the cartoon giving rise to the defamatory action depicted a former cabinet minister of government pulling the wings off a fly. The trial judge found that the cartoon imputed that the plaintiff was a cruel man. He found the cartoon would be understood as meaning that the plaintiff is "a person of a cruel and sadistic nature who enjoys inflicting suffering on a helpless person." He found the cartoon defamatory and the defence of fair comment not available. On appeal, the decision of the trial judge was unanimously reversed by five judges who held that the judge had erred in rejecting the defence of fair comment. Justice Aikins stated that the reasonable man would not take the cartoon as con- veying the meaning attributed to it by the trial judge (p. 558). As a general observation on the nature of a cartoon, before giving a definition of a cartoon, Justice Aikins, at p. 556, said: I wish to say, by way of preface to what follows, that, in my view, the ordi - nary rules of law relating to defamation apply to a cartoon as they do to other forms of communication . A cartoon does not raise any special issue which at-

Page 10 tracts the application of some principle outside the existing law. The particular difficulty in the present case, which may well apply to most cases involving car- toons, is to ascertain the meaning conveyed. It is in the nature of a cartoon not to speak directly. This needs little elaboration, but it is worth giving a definition. I borrow the definition of cartoon from the Encyclopaedia Britannica (1961), given in the reasons for judgment of the Chief Justice, as follows: ... a pictorial parody which by devices of caricature, analogy and ludi- crous juxtaposition sharpens the public view of a contemporary event, folkway, or political of [sic] social trend. It is normally humorous but may be positively savage. [Emphasis added] 28 Justices Seaton and Hinkson both pointed out that for the purposes of defamation cartoons are not to be interpreted literally. At p. 539, Justice Seaton said: Nor do cartoonists have special rights. The law is the same for them as it is for the rest of us. A cartoon is but a particular means of communicating and it is subject to the same law as other means. It does not follow that for the purposes of defamation cartoons are to be interpreted literally. That is not how they are seen by ordinary persons or by the law. [Emphasis added] 29 Justice Hinkson, at p. 541, expressed the same view: In my view, it was not intended that the cartoon be taken literally by the read- ers of the newspaper nor do I believe that the average reader would do so. Politi - cal cartoons are familiar to readers of newspapers and are known to employ both caricature and symbolism to convey their message. [Emphasis added] 30 Finally, the Court of Appeal recognized that a reasonable person of ordinary intelligence un- derstood a cartoon is to be considered as rhetorically making a point by symbolism, allegory, satire and exaggeration. 31 Similarly, Chief Justice Rehnquist of the United States Supreme Court provides the following definition of a political cartoon or caricature, at pp. 53-54 in Hustler Magazine v. Falwell, 485 U.S. 46: Webster's defines a caricature as "the deliberately distorted picturing or imi - tating of a person, literary style, etc. by exaggerating features or mannerisms for satirical effect ." Webster's New Unabridged Twentieth Century Dictionary of the English Language 275 (2d ed. 1979). The appeal of the political cartoon or cari- cature is often based on exploitation of unfortunate physical traits or politically embarrassing events - an exploitation often calculated to injure the feelings of the

Page 11 subject of the portrayal. The art of the cartoonist is often not reasoned or even - handed, but slashing and one-sided. One cartoonist expressed the nature of the art in these words: The political cartoon is a weapon of attack, of scorn and ridicule and satire; it is least effective when it tries to pat some politician on the back. It is usually as welcome as a bee sting and is always controversial in some quarters. Long, The Political Cartoon: Journalism's Strongest Weapon, The Quill, 56, 57 (Nov. 1962). [Emphasis added] 32 In order to determine the natural and ordinary meaning of the Goebbels cartoon and the words complained of, it is necessary that the trial judge consider the totality of the circumstances sur- rounding Beutel's presentation including time, place, context, and the mode of publication as well as the audience to whom it was addressed (Baxter v. C.B.C., supra, at para. 30). 33 There are two significant factors to be considered in the present case: the medium in which the Goebbels cartoon was published and the audience to whom the presentation was addressed. 34 A series of cartoons, including the Goebbels cartoon, forms the visual presentation. A reason- able viewer would perceive this visual element as conveying the message. In addition to the words expressed in the captions, a lengthy commentary on the depictions shown in the cartoons and on the subject of cartooning accompanied the cartoon presentation with the real potential for emphasizing, altering or even distorting the message conveyed in the cartoons. This is why the actual words used in the commentary must be taken into account to ascertain the thrust of the presentation and the overall impression left with reasonable viewers and listeners. (See Color Your World Corp. v. Cana- dian Broadcasting Corp. (1998), 156 D.L.R. (4th) 27, at paras. 17 to 19.) In Vander Zalm, supra, the impugned defamatory cartoon had been published in a newspaper as the focal point of opinion and commentary. Editorial cartoons have historically played a prominent role in public and political de- bate. The context of the presentation of cartoons with an accompanying commentary is quite differ- ent from editorial cartoons which appear in newspapers. I think, however, that the type of considera- tions set out in Vander Zalm, supra, concerning the nature of editorial cartoons would still apply to the determination of the message conveyed in the cartoons displayed by Beutel. In my view, the teachers attending the workshop, as reasonable and right-thinking members of society, would be fa- miliar with cartoons and their nature and would be aware that they are not to be taken or read liter- ally. 35 Another relevant factor in the present case is the character of the audience to whom the Beutel presentation was made. It is authoritatively recognized that the sort of people to whom the remarks are addressed can affect the way in which words or cartoons are perceived and understood (Brown, The Law of Defamation in Canada, supra, at p. 5-3). There is evidence in this case that Ross' views, for many years prior to the workshop, attracted the attention of the media, the public and the courts. Thus, the teachers in attendance at the workshop would have been familiar with Ross' writings and views and would have known that he was removed from the classroom in 1991 because of his racist and anti-Semitic writings. 36 With respect, I am unable to agree with the trial judge that the Goebbels cartoon and related commentary would be understood by an ordinary and reasonable viewer and listener as meaning

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Page 12 that Ross is a Nazi who would advocate the extermination of Jewish people. I think that the teachers at the workshop to whom the Goebbels cartoon and related commentary were presented would un- derstand, as reasonable viewers and listeners, that the message or inference to be drawn from the natural and ordinary meaning of the cartoon and words was that Malcolm Ross and Josef Goebbels hold substantially the same views on the issue of conspiracy. Looking at the cartoon itself, the sub- ject matter of the message is clearly indicated by the rhetorical question written at the top: What's the difference between the views of Josef Goebbels and Malcolm Ross? The word CONSPIRACY conspicuously written across the whole width of the cartoon is significant and would be seen as par- ticularizing that the views put in issue are those Ross and Goebbels hold on the conspiracy theory. The fact that the purpose of the cartoon is to make the conspiracy views of the persons depicted in the cartoon questionable to the audience is further supported by the depiction of Ross clutching his books in his hands - his published views. The answer to the question about the difference between the views saying allegorically that language is the difference ("This one writes in English -- This one wrote in German") is not to be taken in a literal sense. Rather, it points to no significant differ- ence and can only lead to the inference that their views on the conspiracy theory are substantially similar. The only clear inference to be drawn from the cartoon is the statement about the similarity of views between Ross and Goebbels on the conspiracy theory. Whether that statement is an asser- tion of fact or comment will be examined in the consideration of fair comment that follows. 37 It should be noted that the word "Nazi" does not appear in the Goebbels cartoon and that Ross is not depicted in a Nazi uniform. The soldiers depicted as stereotyped Nazis in the left frame below the word "Goebbels" identify Goebbels as a Nazi. It is also evident that the trial judge failed to con- sider the effect the word "Conspiracy" would have on the message conveyed in the cartoon. 38 Similarly, the oral component of the cartoon presentation emphasizes the fact that the views of Ross and Goebbels are the subject matter of the cartoon and the presentation. Four quotations from the published views of Hitler, Goebbels and Ross were read in juxtaposition, two of which were from Ross' books shown in the cartoon, namely "Spectre of Power" and "Web of Deceit." These quotes form an intricate part of the cartoon presentation and their meaning would be undoubtedly understood by the teachers as saying that both Ross and Goebbels believe in the existence of an in- ternational Jewish conspiracy. These quotes refer only to conspiracy and not to a policy of extermi- nation and do not distort or contradict in any way the imputation conveyed in the cartoon that Ross and Goebbels hold substantially similar views on the question of conspiracy. Again, as stated earlier, Beutel's collateral commentary rather reinforces the overall impression that the views of Ross and Goebbels are the subject matter of the cartoon and the inference to be drawn is that those views are substantially similar. 39 I make two final observations on the trial judge's reasoning for concluding that the Goebbels cartoon depicted Ross as a Nazi who would advocate a policy of extermination. In interpreting the cartoon, the trial judge seems to have erroneously given undue weight to the following two factors. First, he refers (para. 40) to the fact that "Ross strongly denies that he is a Nazi and objects strongly to being painted with the same brush to the detriment of his reputation". As pointed out earlier, the natural and ordinary meaning of the cartoon should be determined on the basis of what a reasonable ordinary viewer would infer. According to the weight of authorities the trial judge should not have considered Ross' evidence and opinion in interpreting the message of the cartoon. (See Fairfax & Sons v. Hook (1983), 47 A.L.R. 477.)

Page 13 40 Second, the trial judge notes in para. 42 that the Goebbels cartoon was never published prior to Beutel's presentation at the NBTA workshop "even in his own publication 'Too Hot to Handle'." He seems to imply that Beutel may have had reservations about the defamatory nature of the car- toon. However, the evidence shows that the booklet "Too Hot to Handle" was published in 1989 and the Goebbels cartoon was created in December 1990. 41 In summary, I think that the teachers at the workshop, as ordinary and reasonable viewers and listeners in the context of their general knowledge of Ross' published views, would understand that the Goebbels cartoon and related commentary referred to the views of Ross and Goebbels about the conspiracy theory. They would understand that the message conveyed is a statement on those views, and would know that cartoons are not to be literally construed but are to be considered as rhetori- cally making a point by symbolism, allegory, satire and exaggeration. These teachers would not take the cartoons as conveying the meaning attributed to them by the trial judge. Having in mind the general principles and observations set out in the authorities previously cited, it is my respectful view that the trial judge erred in finding the particular meaning he attributed to the Goebbels car- toon. I think that the meaning found is too close to the literal meaning, namely, that Ross is a Nazi or a member of the Nazi party whose only difference with Goebbels is that he writes in English while Goebbels wrote in German. To accept this as the natural and ordinary meaning of the cartoon is to ignore the very nature and essence of editorial cartoons and the fact that they are based on alle- gory, caricature, analogy and ludicrous juxtaposition. 42 Lastly, it is arguable that drawing a distinction in the mind of a reasonable viewer or listener between a person's character and his or her views is always difficult, and in the case of cartoons, al- most impossible. For example, if the clear imputation in a cartoon is that a person holds racist views, can the imputation be interpreted otherwise than as calling that person a racist? I think that Beutel's effort to make the distinction between Ross' views and personal character in the Goebbels cartoon is successful. In my view, a reasonable viewer would understand that the imputation in the cartoon only refers to the similarity of views between Ross and Goebbels with respect to conspiracy theories, not to a similarity of characters, in an historical sense, with Goebbels or other Nazis. The idea of support or advocacy of the extermination of Jewish people as being part of the imputation, as found by the trial judge, does not relate to the conspiracy theories expounded by either Ross or Goebbels or their respective views on that issue. Such notion of advocacy is not alleged in Beutel's pleadings nor does it appear in his defence. Nowhere is it alleged to be the view of Ross and nowhere is it to be found in his writings. It appears to be an inference from an inference, that is a pointless and implausible inference drawn from the reasonable inference already drawn from the cartoon that Ross and Goebbels share some similarity of views on the conspiracy theory. As such, in my view, the inference that Ross is a Nazi who would advocate a policy of extermination of Jewish people reads more into the Goebbels cartoon than a reasonable ordinary viewer would understand the natural and ordinary meaning of the cartoon to convey. 43 In reaching the above conclusion, I am conscious of the fact that I am overruling the trial judge on a question of fact. In a libel action, the question of whether words or cartoons are capable of bearing defamatory meanings is a question of law for the judge. However, the decision as to the particular defamatory meaning which words complained of do bear is a question of fact reserved to the trier of fact; in this case, the trial judge sitting alone. 44 I am also aware of the long settled principle that appellate courts must treat a trial judge's find- ings of fact with great deference. The applicable test for the standard of appellate review of findings

Page 14 of fact is that the judge's decision should not be set aside unless it is established that there was a pal - pable and overriding error which affected the judge's assessment of the facts. The principle of defer- ence applies more strictly when the credibility of witnesses is at issue. But even when credibility is not at issue, reasons of policy concerns suggest that the autonomy and integrity of the trial process be preserved. (See Schwartz v. Canada, [1996] 1 S.C.R. 254, at paras. 32 to 35; Effendi v. Beaulieu (1992), 125 N.B.R. (2d) 425 (C.A.); Gallant v. Thibodeau (1998), 206 N.B.R. (2d) 336 at para. 12; and Brunswick Data Inc. v. New Brunswick, [2001] N.B.J. No. 181, online: Quicklaw (NBJ).) 45 In the present case, the finding of fact which is of concern is not one which depended in any way on the trial judge's assessment of the credibility of witnesses or the evidence they gave. It is merely an inference which he drew on facts which were proven and undisputed, that is, the particu - lar meaning inferred from the depiction in the Goebbels cartoon and from the words in the related commentary. In this situation, the appellate court is in as good a position as the trial judge to draw the proper inference from the evidence. In my view, the trial judge erred in this case in drawing the inference from the evidence that the Goebbels cartoon and commentary depicted Ross as a Nazi who would advocate a policy of extermination of Jewish people. Thus, this Court is free to inter - vene, and indeed has a duty to do so, where the inference is improperly drawn and is unreasonable. (See Vander Zalm, supra, at p. 536 per Nemetz C.J., and pp. 558-59 per Aikins J., Jengle v. Keetch (1992), 7 O.R. (3d) 187 (C.A.); and Slim v. Daily Telegraph Ltd., [1968] 1 All E.R. 497 (C.A.), at pp. 186-87 per Salmon L.J.) Are the Goebbels cartoon and collateral commentary defamatory? 46 Although I disagree with the trial judge as to the meaning to be attributed to the Goebbels car- toon, I agree with his finding that Beutel's presentation at the workshop, including the Goebbels car- toon, was defamatory of Ross. The trial judge made his finding on the basis of the meaning he at- tributed to the Goebbels cartoon, but I have no doubt that a similar finding would be made on the basis that the inference to be drawn from the Goebbels cartoon is that Ross and Goebbels hold sub- stantially the same views on the issue of the Jewish conspiracy. 47 In dealing with the nature of a defamatory statement in Vander Zalm, supra, at p. 535, Chief Justice Nemetz referred to the well-known test as set out at pp. 139-140 in R.F.V. Heuston, Salmond on The Law of Torts, 17 ed. (London: Sweet & Maxwell, 1977): A defamatory statement is one which has a tendency to injure the reputation of the person to whom it refers; which tends, that is to say, to lower him [or her] in the estimation of right-thinking members of society generally and in particular to cause him [or her] to be regarded with feelings of hatred, contempt, ridicule, fear, dislike, or disesteem. The statement is judged by the standard of an ordinary, right-thinking member of society. Hence the test is an objective one. . [Emphasis added] (See also Color Your World Corp. v. Canadian Broadcasting Corp., supra, at para. 14.) 48 The question therefore to be determined is whether the Goebbels cartoon and the accompany- ing commentary conveying the meaning I just attributed to it, considered in the context of the entire presentation, tended to lower Ross in the estimation of right-thinking members of society generally and exposed him to hatred, contempt or ridicule. In my opinion, the Goebbels cartoon would in-

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Page 15 evitably have the effect of conveying to the teachers at the workshop that Ross held comparable views to those of Goebbels on the Jewish conspiracy theory. That would certainly adversely reflect on his reputation among his fellow members of NBTA and in the eyes of right-thinking members of his community. I have no doubt that the Goebbels cartoon was defamatory of Ross. Did the trial judge err in dismissing the defence of fair comment? 49 The defence of fair comment protects defamatory statements if they are comments based on true facts made honestly without malice on a matter of public interest. In Cherneskey v. Armadale Publishers Ltd., [1979] 1 S.C.R. 1067, Justice Dickson adopted the statement of the main principles relating to the defence of fair comment from the authors Duncan and Neill on Defamation (1978), at pp. 1099-1100, setting out the requirements to satisfy that defence: 1a) the comment must be on a matter of public interest; 1b) the comment must be based on fact; 1c) the comment, though it can include inferences of fact, must be recog - nisable as comment; 1d) the comment must satisfy the following objective test: could any man honestly express that opinion on the proved facts? 1e) even though the comment satisfies the objective test the defence can be defeated if the plaintiff proves that the defendant was actuated by ex - press malice. 50 Although Beutel never entered a plea of justification in this case, it is important to draw a clear distinction between a plea of fair comment and a plea of justification of the libel on the ground of truth. The distinction between those two defences is succinctly explained by Viscount Finlay in Sutherland v. Stopes, [1925] A.C. 47 (H.L.) at p. 62: It is clear that the truth of a libel affords a complete answer to civil proceed- ings. This defence is raised by plea of justification on the ground that the words are true in substance and in fact. Such a plea in justification means that the libel is true not only in its allegations of fact but also in any comments made therein. The defence of fair comment on matters of public interest is totally different. The defendant who raises this defence does not take upon himself the burden of showing that the comments are true. If the facts are truly stated with regard to a matter of public interest, the defendant will succeed in his defence to an action of libel if the jury are satisfied that the comments are fairly and honestly made. To raise this defence there must, of course, be a basis of fact on which the comment is made. 51 Before considering the elements of the defence of fair comment, I wish to consider briefly how highly our society regards the common law values of free speech through judicial pronounce- ments recognizing a wide scope of application for the common law defence of fair comment and its critical importance in a free and democratic society. As Lord Denning said in Slim v. Daily Tele- graph Ltd., supra, at p. 503:

Page 16 ... the right of fair comment is one of the essential elements which go to make up our freedom of speech. We must ever maintain this right intact. It must not be whittled down by legal refinements. ... 52 In a recent decision by the House of Lords in Reynolds v. Times Newspapers, [1999] 4 All E.R. 609 in which the court discussed at great length the interaction and state of two fundamental rights, freedom of expression and right to reputation, Lord Nicholls of Birkenhead reviewed briefly the defence of fair comment and discussed its scope and importance in the overall setting of the law of defamation. Dealing with the defence of justification, he continued, at pp. 614-615: The common law has long recognised the 'chilling' effect of this rigorous, reputation - protective principle. There must be exceptions. At times people must be able to speak and write freely, uninhibited by the prospect of being sued for damages should they be mistaken or misinformed . In the wider public interest, protection of reputation must then give way to a higher priority. Honest comment on a matter of public interest One established exception is the defence of comment on a matter of public interest. This defence is available to everyone, and is of particular importance to the media. The freedom of expression protected by this defence has long been re - garded by the common law as a basic right, long before the emergence of human rights conventions. In 1863 Crompton J. observed in Campbell v. Spottiswoode 3 B & S 769 at 779, 122 ER 288 at 291: 'It is the right of all the Queen's subjects to discuss public matters...' The defence is wide in its scope. Public interest has never been defined, but in London Artists Ltd v Littler [1969] 2 All ER 193 at 198, [1969] 2 QB 375 at 391. Lord Denning MR rightly said that it is not to be confined within narrow limits. He continued: 'Whenever a matter is such as to affect people at large, so that they may be legitimately interested in, or concerned at, what is going on; or what may happen to them or others; then it is a matter of public interest on which everyone is entitled to make fair comment.' Traditionally one of the ingredients of this defence is that the comment must be fair, fairness being judged by the objective standard of whether any fair- minded person could honestly express the opinion in question. Judges have em - phasised the latitude to be applied in interpreting this standard. So much so, that the time has come to recognise that in this context the epithet 'fair' is now mean - ingless and misleading. Comment must be relevant to the facts to which it is ad - dressed . It cannot be used as a cloak for mere invective. But the basis of our pub- lic life is that the crank, the enthusiast, may say what he honestly thinks as much as the reasonable person who sits on a jury. The true test is whether the opinion, however exaggerated, obstinate or prejudiced, was honestly held by the person expressing it: see Diplock J. in Silkin v Beaverbrook Newspapers Ltd [1958] 2 All ER 516 at 518, [1958] 1 W.L.R. 743 at 747.

Page 17 It is important to keep in mind that this defence is concerned with the protec - tion of comment, not imputations of fact. If the imputation is one of fact, a ground of defence must be sought elsewhere. Further, to be within this defence the comment must be recognisable as comment, as distinct from an imputation of fact. The comment must explicitly or implicitly indicate, at least in general terms, what are the facts on which the comment is being made: see the discussion in Duncan and Neill on Defamation (2nd ed. 1983) pp 58-62. One constraint does exist upon this defence. The comment must represent the honest belief of its author. If the plaintiff proves he was actuated by malice, this ground of defence will fail. [Emphasis added] 53 Finally, Professor Brown referred to the importance of the defence of fair comment as follows: ... It is one of the means by which the law protects expressions of opinion on public matters . To comment on a matter of public interest is one of the necessary freedoms of the media. It is essential to every person and a fundamental right of free speech . The law will not permit actions for defamation to "be used to intimi- date public opinion or restrict freedom of thought." Open and public discussion is the very foundation of a free and responsible government. "[I]t has been the pol- icy of the law to establish the right of free debate within lawful limits as superior to the right of the individual to preserve his reputation free from attack where matters of public interest are involved. [Emphasis added] (Brown, The Law of Defamation in Canada, supra at 15-7 to 15-8). 54 I turn now to the consideration of the requirements of the defence of fair comment. Fact or comment? 55 In order to determine whether a defamatory imputation can be protected as fair comment, it must be initially determined whether it is comment upon given facts or a statement of facts. The dis- tinction is fundamental and must absolutely be made because an assertion of facts can never be de- fended as fair comment. 56 A comment has been defined as "the subjective expression of opinion in the form of a deduc - tion, inference, conclusion, criticism, judgment, remark or observation which is generally incapable of proof." (Law of Defamation in Canada, supra, at p. 15-2). Another description of comment or opinion which has been appearing in more recent judgments and which, in my view, accurately de- scribes what constitutes comment is "value judgment" (see Reynolds v. Times Newspapers, supra). 57 The significance of the distinction between fact and comment is clearly explained in Brown, The Law of Defamation in Canada, supra, at p. 15-14: What is protected is freedom of discussion and not freedom of statement. "Fair comment cannot be made a cloak for defamatory misstatements of fact." If

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Page 18 the defendant "passes beyond what can fairly be deemed comment or criticism, he puts himself outside of the rule." Therefore, "it is necessary to distinguish statements of fact from conclusions or inferences based upon other facts which are truly stated ." If the facts stated are defamatory, there is no defence of fair comment. Statements of defamatory fact, no matter how fair, are not protected by this defence. A statement of libellous facts "is not comment or criticism on any- thing." Therefore, the defendant must demonstrate that the words spoken are ex - pressions of defendants subjective opinion and not assertions of an objective fact . If they are defamatory facts, they must be justified. [Emphasis added] 58 As to the difficulty of distinguishing comment on facts from statement of facts and the test to be applied, Professor Brown continues at pp. 15-14.1 and 15-15: Sorting out fact from opinion is a difficult and, occasionally, an impossible thing to do. They are not readily distinguishable. "The point at which criticism ends and accusation begins is not always easy to distinguish and the line between them can be, and frequently is, very tenuous." However, in order for the defen - dant to succeed on this plea it must be shown, with reasonable clarity, that the words are comment and not statements of fact . In distinguishing between the two, the test is whether the matter would "be recognizable to the ordinary reason - able man as a comment upon true facts, and not as a bare statement of fact." It is said that a comment is "essentially a statement of opinion as to the esti- mate to be formed of a person's writings or actions." It 'is a statement of opinion about the facts.' ... [Emphasis added] 59 In the present case the trial judge did not explicitly say that the Goebbels cartoon is comment and not statement of fact. He did correctly state however (para. 31) that "the defendants must show that the cartoons and collateral dialogue objected to were comment and not statements of fact." Again, in para. 33, referring to comment, "the defendants must show it with clarity." In his analysis of fair comment which I have previously reproduced, the trial judge concluded that the defamatory imputation in the Goebbels cartoon should be considered comment. At para. 37, he writes: ... Beutel comments upon and criticizes Ross as a person who is a Nazi and should be characterized as such. He comments on the fact that Mr. Ross' views are substantially the same as those held by Hitler, Gobbels [sic] and other leaders of Nazi Germany. [Emphasis added] 60 Similarly with respect to imputations of racism and anti-Semitism, the trial judge, at para. 35 and 36, concludes that Beutel is free to "comment upon and criticize Ross' views" as anti-Semitic and as a racist.

Page 19 61 Furthermore, the trial judge evidently considered the Goebbels cartoon to be comment on facts rather than a statement of fact or he would not otherwise have stated that the principal issue before him is the defence of fair comment (para. 18) and would not have considered it. 62 What is comment and what is fact must be determined from the perspective of a "reasonable viewer or reader." As I understand the argument advanced in the written and the oral submission by Ross' counsel, it is that the defamatory imputation conveyed in the Goebbels cartoon and related commentary, namely that Ross is a Nazi who would advocate a policy of extermination, is a state- ment of fact, or in his words, "a blatant misstatement of fact". His position that the trial judge was correct in rejecting the defence of fair comment is founded on the trial judge's conclusion that Beu- tel failed to prove as a fact that Ross is a Nazi. He nonetheless continued to vigorously defend the position before us, as he had at trial, that the defamatory imputation is a statement of fact. For the reasons that follow, I disagree with that proposition. I agree with the trial judge's conclusion that the defamatory imputation is comment. 63 With respect to the Goebbels cartoon, I have already concluded that the subject matter of the imputation is Ross' views and the defamatory inference to be drawn from the cartoon is that Ross and Goebbels hold substantially similar views on the conspiracy theory. That inference, in my opin- ion, is comment. It is not a bare assertion of fact that Ross and Goebbels share similar views on the conspiracy theory. It is Beutel's value judgment based on the facts clearly indicated in the cartoon, namely the reference to the published views of Ross in the two books identified in Ross' hands, "Web of Deceit" and "Spectre of Power". The factual information on which Beutel bases his com- ment is identified with sufficient clarity in the cartoon to permit the reasonable ordinary viewers to whom it was addressed to recognize the cartoon as a comment and to evaluate the merits of the comment. Thus, the viewer could decide for himself or herself if it is founded or unfounded (see Baxter v. C.B.C., supra, at p. 160; and Hunt v. Star Newspaper Co., [1908] 2 K.B. 309, at p. 319 per Fletcher Moulton L.J.) 64 Clearly in this case Beutel sets out the facts on which the inference from his rhetorical ques- tion and answer expressed in the captions must be drawn. The inference does not stand naked but relates directly to Ross' published views. The inference as comment does not imply or introduce any new or independent fact like a policy of extermination. In my opinion, the inference of similarity of views is recognizable as comment. 65 In a cartoon, it is not always practical to set out all the facts upon which the cartoonist relies in support of the comment made in the cartoon. Facts that are in the public arena, that have gained public notoriety so as to become matters of common knowledge do not have to be stated so long as they are clearly identified (see The Law of Defamation in Canada, supra, at 15.18.1 to 15.22). On the evidence in this case, it is clear that Ross' views are controversial and the teachers' reaction to- ward Ross was generally negative. There was concern that Ross' reputation would bring discredit to all teachers. The teachers would no doubt have had general knowledge of Ross' published views, the subject matter of the comment. 66 Lastly, cartoons, by their very nature, contain statements of opinion rather than statements of fact. Relying, as they do on the devices of allegory, caricature and analogy, cartoons contain subjec- tive expressions of opinion. In Vander Zalm, supra, at p. 538, Chief Justice Nemetz made the fol- lowing observation which is naturally apposite to this case:

Page 20 Ordinary and reasonable persons in this country are well acquainted with the allegorical nature of political cartoons and, in my opinion, would have little diffi- culty in recognizing this cartoon as a comment upon such facts. Are Beutel's Comments Based on True Facts? 67 In London Artists Ltd. v. Littler, [1969] 2 Q.B. 375, Lord Denning discussed the requirement that a comment be based on true facts in the following passage, at pp. 391-92: ... In order to be fair, the commentator must get his basic facts right. The ba - sic facts are those which go to the pith and substance of the matter: see Cunning - ham-Howie v. Dimbleby [1951] 1 K.B. 360, 364. They are the facts on which the comments are based or from which the inferences are drawn - as distinct from the comments or inferences themselves. The commentator need not set out in his original article all the basic facts: see Kemsley v. Foot [1952] A.C. 345; but he must get them right and be ready to prove them to be true. He must indeed after- wards in legal proceedings, when asked, give particulars of the basic facts: see Burton v. Board [1929] 1 K.B. 301; but he need not give particulars of the com- ments or the inferences to be drawn from those facts. ... It is indeed the whole difference between a plea of fair comment and a plea of justification. In fair comment he need only prove the basic facts to be true . In jus - tification he must prove also that the comments and inferences are true also. [Emphasis added] 68 Later, at pp. 392-93, he continued: ... I take it to be settled law that, in order for the defence of fair comment to be left to the jury, there must at least be a sufficient basis of fact to warrant the comment, in this sense, that a fair minded man might on those facts honestly hold that opinion. ... [Emphasis added] 69 The expression of opinion or comment will be protected as fair comment if it is based on facts either stated in the communication or generally known and if those facts are proven to be substan- tially true. There must therefore be a sufficient substratum of fact to warrant the comment in the sense, in the words of Lord Denning in the above cited case, "that a fair minded man might on those facts honestly hold that opinion." It is not necessary to prove that the comment is true, or that a cor- rect inference has been drawn. As stated in The Law of Defamation in Canada, supra, at pp. 15-22 to 15-23: "The question is not whether it is a right opinion, but whether it is a genuine one". Fairness, not truth, is the concern of a court in a defence of fair comment.

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Page 21 The truth of the comment is not in issue, and evidence of its falsity by the plain - tiff is inadmissible. (See also Barltrop v. Canadian Broadcasting Corp. (1978), 86 D.L.R. (3d) 61 at p. 73 per MacK- eigan, C.J.N.S.; Price v. Chicoutimi Pulp Co. (1915), 51 S.C.R. 179 at p. 201 per Duff, J.; and Kem- sley v. Foot, [1952] 1 All E.R. 501, at p. 505 per Lord Porter.) 70 In oral argument before this Court, Beutel relied on three sets of underlying facts in support of his plea of fair comment: first, the facts set out in the cartoon itself by the specific reference to Ross' writings, Web of Deceit and Spectre of Power; second, the quotations read by Beutel as commentary accompanying the presentation of the Goebbels cartoon; third, the approximately 45 particulars pleaded in para. 8 of the Statement of Defence as the basic facts upon which the comment was made as they are specifically referenced in the Amended Statement of Better and Further Particulars. These facts consist mainly of specific views on and beliefs in the conspiracy theory expressed in Ross' writings, views on or criticism of Ross' views by other authors, as well as Ross' association with other notorious anti-Semites from across this country and elsewhere. 71 As to the quotations from Goebbels and Ross contained in Beutel's narrative, I concluded ear- lier that a reasonable listener would understand them as establishing that both Ross and Goebbels believe in the existence of an international Jewish conspiracy. I do not propose to review all of Ross' views and beliefs identified in the long list of particulars which Beutel submits provide sufficient factual basis to warrant his comment. However, I find it necessary to reproduce, by way of example only, some expressions of Ross' views on the conspiracy theory as found in his writings. Spectre of Power Most disturbing of all, this "conspiracy" seemed to be headed by those that many Christians held to be God's "Chosen People," the Jews. (Page 159) I believe there is an international conspiracy in which the leaders of Jewry are prominent. I believe its purpose is the destruction of our Western Christian Civi- lization and the establishment of a world socialist state which will be subject to Jewish control. (Page 161) Above all, the Church sought and prayed for the conversion of Jews even though she was well aware that many of those who converted did not genuinely embrace the Christian Faith, but remained secret Jews and continued the practice of their religion in private. In fact, as Benjamin Disraeli pointed out in a previ- ously quoted passage, many of these secret Jews entered the church and worked to change it from within. (Page 73) However, the most treacherous enemies are those secret Jews and their fol- lowers who have already infiltrated the Christian Church, and posing as true Christians, are intent upon destroying her from within. (Page 161) Web of Deceit

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Page 22 Young Canadians: Those of us born after the war are the real soldiers in this battle, for whereas our fathers fought against flesh and blood, we must fight against "spiritual wickedness in high places". The Conspiracy has offered us all the pleasures of the world and unless we see them as poisons designed to destroy our culture and our Race, we will succumb to the emasculating efforts of the en- emy. (Page 104) This is not an attempt to attack or defend the teaching methods of educators today. There is plenty of information on that subject. What I hope to do is to show that in many ways schools are acting as tools of the Conspiracy, and that your children are in the front line of battle, unprepared and unwary, and unable to defend themselves against the barrage of false information hurled at them. (Page 75) The Conspiracy has attacked the Church in two ways. In those Churches where intellectual speculation was appreciated, it has placed its agents to under- mine the doctrines of historic Christianity. In other Churches, where the historic Faith was prized, it imposed Zionism. In this way the Conspiracy entered into practically every Christian Church. Either we hear the historic Faith attacked, or else we hear the Zionist occupation of Israel expounded upon. (Page 66-67) By this time Hitler was in power in Germany, and evidence suggests he was financed there by the Conspiracy in order to destroy the nationalistic Stalin, who was not playing along with the Conspiracy's game. (If the reader finds this hard to believe, be patient, for with the Conspiracy this would not be out of question. Later, under Education, the source book for this idea will be mentioned), Hitler himself apparently double-crossed the Conspiracy and after von Ribbentrop told Stalin of the plot whereby Germany was to attack Russia, these countries shocked the world by announcing a Soviet-German Alliance. (Page 13) This is the type of person who is promoting sex education in Canadian schools. (...) There is sufficient evidence, I believe, to warrant some serious thought about the wisdom of providing this kind of education in Canada. It is but another means the Conspiracy is using to destroy Western Christian civilization and to reduce the youth to little more than conditioned animals. (Page 84-85) James P. Warburg, a leading Khazar-Jewish Banker, proclaimed before the US Senate on 17th February, 1950, "We shall have world government whether or not we like it. The only question is whether world government will be achieved by conquest or consent." The United Nations is working towards that end now. It is an agency to destroy Christian Civilization and in order to do this they must destroy the white race, and this is also a Zionist aim. (Page 57) 72 In summary, the above quotations from Ross' published views are fairly representative of the type of underlying facts on which Beutel relied to make his comment. Beutel testified that at the time of his cartoon presentation at the teachers' workshop in May 1993, he had read Ross' publi- cized works and was familiar with his views and beliefs. It is not disputed that Ross' quotations con-

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Page 23 tained in Beutel's narrative or the numerous quotations pleaded and relied on as basic facts in the particulars do represent accurately Ross' views on the conspiracy theory. Ross has never denied be- ing the author of the books from which the quotes are borrowed nor has he claimed to have been misquoted. 73 It is important to remember that Beutel does not have to prove that his comment was true but only to establish a sufficient factual basis to warrant his comment. This is done by establishing a substratum of facts on which he relied and the truth of those facts. In this case, Beutel had relied on Ross' published views on conspiracy and he has demonstrated the existence and authorship of those views. Was Beutel's comment "fair comment"? 74 With respect to this last ingredient of the defence of fair comment, the trial judge made two relevant findings of fact. First, he found that the cartoons and collateral dialogue represent "an hon- est expression of the real view of Mr. Beutel with respect to Malcolm Ross." Second, he found no "malice in that Beutel's presentation was based on honest belief." 75 Honesty in expressing one's real view has been found to be the bedrock foundation for a good defence of fair comment. Regardless of the formulation of the test, honest expression is the con - stant. In Cherneskey, supra, Justice Martland said at p. 1073 that a comment must be "fair" in that it must "represent an honest expression of the real view of the person making the comment." 76 In Silkin v. Beaverbrook Newspapers Ltd., [1958] 1 W.L.R. 743, Diplock, J. in charging the jury explained at p. 747 the test for fair comment in the following passage which has become a for- mulation of the test widely accepted in the authorities and sometimes described as the "cardinal test": But the expression "fair comment" is a little misleading. It may give you the impression that you, the jury, have to decide whether you agree with the com- ment, whether you think it is fair ... applying the true test: was this an opinion, however exaggerated, obstinate or prejudiced which was honestly held by the writer? 77 Lastly, Lord Nicholls in Reynolds v. Times Newspapers, supra, in a passage which I previ- ously quoted in these reasons but I think should be highlighted endorses (p. 615) the test formulated by Lord Diplock in the Silkin case as the true test for fair comment. He reiterates Lord Diplock's ob- servation that the expression "fair comment" is misleading and suggests that the epithet "fair" be re- placed by the expression "relevant comment": Traditionally one of the ingredients of this defence is that the comment must be fair, fairness being judged by the objective standard of whether any fair- minded person could honestly express the opinion in question. Judges have em- phasised the latitude to be applied in interpreting this standard. So much so, that the time has come to recognize that in this context the epithet "fair" is now mean- ingless and misleading. Comment must be relevant to the facts to which it is ad - dressed . [Emphasis added]

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Page 24 78 Therefore, for a comment to be protected by a plea of fair comment, the comment must be rel- evant to the facts to which it is addressed, but it need not be reasonable nor one with which the trier of fact agrees. It need only be proven to be "fair" or "relevant" in the sense that the comment relates to the proven underlying facts on which the commentator relies and represents an honest expression of the real view of the person making the comment. To be protected, comment need not be proven to be true. 79 Applying the principles and the test for fair comment set out in the above authorities to the present case, I am respectfully of the view that the trial judge misapplied the defence of fair com- ment in rejecting that defence. Therein lies the crux of this appeal. The core of the trial judge's rea- soning on the plea of fair comment emerges from the passages of his reasons for judgment quoted earlier but can essentially be stated thus: Beutel comments upon and criticizes Ross as a person who is a Nazi and should be characterized as such ... The evidence does not support that as a true fact. (paras. 37 and 38) ... But to take as a fact that Malcolm Ross is a Nazi goes too far. (para. 41). I am not satisfied that [Beutel has shown] that Malcolm Ross should be characterized as a Nazi as a matter of fact to allow Mr. Beutel freedom to comment upon and criticize Ross' views as a Nazi (para. 43). [Emphasis added] 80 Clearly the trial judge held that Beutel had to prove Ross was a Nazi to be free to comment on it. This, he said, Beutel failed to do. Having accepted the Goebbels cartoon as comment and con - cluded its meaning to be that Ross was a Nazi, the trial judge is, in effect, holding that the comment itself must be proven true. By requiring Beutel to prove that Ross is a Nazi, the trial judge has ap - plied the wrong test and has essentially obliterated the difference between fact and comment. If Beutel had to prove that Ross is a Nazi, he would not have had to rely on the defence of fair com- ment to refer to him as a Nazi. Clearly, if Beutel were able to prove as a fact that Ross is a Nazi, he would succeed on the defence of justification, having proven the truth of such statement, truth being a complete defence. There would be no need for the plea of fair comment. In my view, the trial judge erred by requiring that Beutel prove the comment made in the Goebbels cartoon to be true rather than the facts upon which he relied in making the comment . The law is well settled that Beu - tel need only prove the truth of the facts on which he relied in making his comment: that is, a suffi - cient substratum of fact to warrant his comment in the sense that a fair-minded person might on those facts honestly hold that opinion. In this case, the trial judge did not find these basic facts not to be true, only that they did not prove that Ross was a Nazi. Therefore had the proper test been ap- plied, the question should have been whether Beutel honestly held the view which he expressed in the cartoon on the facts indicated in the cartoon or facts pleaded and relied on at trial. The question was not whether Beutel had proved as a true fact that Ross was a Nazi. The trial judge, having found as a fact that the Goebbels cartoon and collateral dialogue represented "an honest expression of the real view of Mr. Beutel with respect to Malcolm Ross" (para. 25) he should have found that the defence of fair comment prevailed and found Beutel's comment not actionable. In that regard, the trial judge also found that Beutel's presentation concerned a matter of public interest and was made without malice, both findings being, in my view, wholly supported by the evidence adduced at trial.

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Page 25 81 It appears that the trial judge fell into error in applying the defence of fair comment partly be- cause of the meaning he attributed to the Goebbels cartoon, that Beutel's comment depicted Ross as a Nazi. Throughout the trial as well as in argument before this Court, counsel for Ross strongly as- serted that the characterization of Ross as a Nazi was the only proper inference to draw from the Goebbels cartoon and that it was a statement of fact. Although the trial judge accepted that the car- toon meant that Ross was a Nazi, he rejected the contention that it was a statement of fact and found it to be comment. There was therefore no need to prove the truth of that assertion to establish Beu- tel's defence of fair comment. In fact, the truth of that assertion was never in issue at trial since Beu- tel had never entered a plea of justification. In that light, the trial seems to have taken a curious course with its focus on counsel attempting to establish, during examination and cross-examination of witnesses, similarities or differences and inconsistencies between Ross' and Goebbels' views. Counsel for Ross also contends that Beutel had to prove Ross' views false if they were to be the fac- tual basis for fair comment. I see no merit in that argument. The trial judge found as a fact that Ross' views are founded in his personal religious beliefs and not in any substantive way on Nazism. He also refers to Ross pointing out the Nazi philosophy as being anti-religious and as such the antithe- sis of his position. In my opinion, these findings are not relevant to the issues at trial. The truth or falsity of Ross' views are not in issue on this appeal, as they were not at trial. Nor was the issue whether Ross' views have a basis in traditional Christianity. Courts should not sit in judgment of Ross' Christian faith or his religious views unless these matters are clearly put in issue. In my view, they are not relevant to the determination of the plea of fair comment in this case. Thus, they are not issues before this Court. 82 To illustrate the circumstances where it is necessary to evaluate and determine the truth or fal- sity of a writer's or commentator's views, I wish to refer briefly to a recent well-publicized trial in England in the case of Irving v. Penguin Books Ltd., [2000] E.W.J. No. 1897, online: Quicklaw (EWJ). In that case the claimant, David Irving, maintained that he had been libelled in a book enti- tled "Denying the Holocaust - The Growing Assault on Truth and Memory", which was written by Professor Deborah Lipstadt and published by Penguin Books Ltd., who were both defendants in the action. Irving, who is the author of over 30 books, complained that certain passages, in all totaling roughly five pages in the book, accuse him of being a Nazi apologist and an admirer of Hitler who resorted to the distortion of facts and manipulation of documents in support of his contention that the Holocaust did not take place. He contended that there was a concerted attempt to ruin his reputa- tion as an historian. The defendants asserted that it was true that Irving was discredited as an histo- rian by reason of his denial of the Holocaust and of his persistent distortion of the historical record so as to depict Hitler in a favourable light. Thus, the only defence asserted by the defendants was the plea of justification. To establish their defence and prove the substantial truth of the defamatory imputations published about Mr. Irving, the main corpus of evidence for the defendants consisted of the written or oral evidence of five academic historians whose evidence was by consent admitted as expert evidence. The reports submitted by these experts ran to a total of more than 2,000 pages. In response, Mr. Irving summoned two other historians to give evidence on his behalf. In his reasons for judgment, the trial judge assessed the justification or explanation offered by Mr. Irving for his disputed views about the Holocaust and his comments about Jews in light of the substantial expert evidence relied on by the defendants before concluding that, on the basis of the plea of justification, the imputations published about Mr. Irving were substantially justified. The defence of justification therefore succeeded. The point of referring to the Irving case is to emphasize the essential difference between the plea of justification, as entered in the Irving case, and the plea of fair comment entered in the case at bar. As illustrated in that case, the plea of justification entails the tendering of substan-

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Page 26 tial expert evidence and an in-depth analysis of the truth or falsity of one's disputed views. Unless asserted as an underlying fact to support comment, there is no such requirement in the plea of fair comment. There is no sensible reason to determine the truth or falsity of Ross' religious views in this case. 83 This last observation on the true issues raised on this appeal concerning the plea of fair com- ment is intended partly as a response to the several substantial arguments submitted by counsel for the interveners, in part I suspect, in support of the truth of Beutel's presentation in the event that cer- tain statements were held to be statements of fact . In short, having concluded that Beutel's statement in the Goebbels cartoon about the similarity of views between Ross and Goebbels is comment and not statement of fact, there is no need to prove the truth of the comment but only to prove a suffi - cient substratum of true facts on which Beutel based his comment and that those facts warrant his comment. For those reasons I have not considered the argument advanced that the term "Nazi" has in this day and age been watered down and is now often used euphemistically and should be disre- garded as mere rhetorical hyperbole. Nor have I considered the meaning of that term. Neither have I seen it necessary to consider the argument that Ross, having been found by the trial judge to be a racist and an anti-Semite, would by itself afford a sufficient basis for the comment that Ross is a Nazi. On that point, the broader question of the relative importance of racism and anti-Semitism to Nazi ideology, as submitted by counsel for the Canadian Jewish Congress, raises a most interesting subject but is not an issue in this appeal. 84 Similarly, counsel for the intervener, Canadian Civil Liberties Association, presented to this Court a highly clear-sighted submission on the desirability of modulating the common law of defamation to accord with Charter values. Academic commentators in Canada and England have long recognized and lamented the archaic character of the law of defamation. Lord Diplock has rec- ommended that the law of defamation is a fit topic for the attention of the Law Commission as "it has passed beyond redemption by the courts". (Slim v. Daily Telegraph Ltd., supra, at p. 508.) The submission advocates re-evaluation of the law in the areas of the defence of fair comment and of the award of damages for defamation. Its main thesis is that in achieving the delicate balance between freedom of expression and protection of reputation, the application of Charter values, to the extent that the law is inconsistent with the underlying values of the Charter, should inform the develop- ment of the law. This, it is argued, is consistent with the traditional approach of incremental changes that reflect societal values. In this case, I have not found that the law of defamation conflicts with or derogates from the underlying values of the Charter. Therefore, there is no need to consider changes to the guiding principles of the common law of defamation applicable to the issues raised in this ap- peal. 85 As to the alternative defence of qualified privilege forcefully argued by counsel for the inter- vener, League for Human Rights of B'Nai Brith Canada, I decline to rule on this matter principally because it was not argued at trial nor was it considered by the trial judge, and secondly in light of the decision I have reached with regard to Beutel's liability. 86 In summary, I conclude on the defence of fair comment that the workshop teachers as reason- able ordinary viewers and listeners would readily understand that the inference to be drawn from the Goebbels cartoon and related commentary about the similarity between the views of Ross and Goebbels on the conspiracy question is a comment on the facts indicated in the cartoon, Ross' pub- lished views. Since it is comment, Beutel does not have to prove a substantial similarity between the views of Ross and Goebbels. Whether Beutel's comment or value judgment on Ross' published

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Page 27 views was fair would turn on the following question: was Beutel's opinion, no matter how exagger- ated, obstinate or prejudiced it might be, honestly held by him? To a fair-minded person, the answer would be yes. Indeed, as stated earlier, the trial judge found as a fact that the answer was yes. He said, in para. 25, that the Goebbels cartoon and collateral dialogue represented "an honest expres- sion of the real view of Mr. Beutel with respect to Malcolm Ross." There being no malice found in this case, the comment is defensible as fair comment and the action should have been dismissed. CROSS-APPEAL 87 The central issue raised in this cross-appeal is whether the trial judge erred at law in failing to consider and find numerous defamatory allegations of fact, other than the Goebbels cartoon, and in failing to award general damages for each separate defamation. A second and more narrow issue is whether the trial judge erred at law in finding that Beutel acted without malice. 88 With respect to the first issue, Ross' contention addresses the following two errors allegedly made by the trial judge: first, the trial judge erred in finding that "a good deal" of Beutel's presenta- tion was fair comment while the comments were based upon facts which were not true, and second, the trial judge erred in finding only one defamation although there were in fact multiple defamations made by Beutel during his presentation which contained defamatory and false statements of fact. I shall deal with both of these alleged errors under the same heading as it is evident that these allega- tions overlap and converge to provide the main ground for Ross' claim in his cross-appeal. Five cartoons bear defamatory statements of fact against Ross 89 Ross alleges that Beutel's presentation contained five defamatory statements of fact in addition to the characterization of himself as a Nazi. He relies on five of the nine cartoons which were specifically referred to and pleaded in his Statement of Claim as being defamatory of him, namely the cartoons identified by the letters B, C, E, I and L in Exhibit C-1-14. He submits that each of these cartoons conveys a separate defamatory statement of fact relating to Ross and that there should have been a verdict on each separate alleged defamation in order for justice to be done in this case. He contends that the trial judge erred at law in neglecting to turn his mind to each defama- tory imputation specifically pleaded and in failing to make a specific finding thereon and to award damages with respect to each defamation from which liability flowed. In short, the alleged specific defamatory statements of fact for each cartoon, in the sequence followed during submission, are: 1) Cartoon "E" - Ross is involved in criminal activity in disseminating hate literature. 1) Cartoon "C" - Ross teaches his views in class. 1) Cartoon "L" - Ross' thoughts and ideas are dishonest and are used to disguise his true beliefs which are motivated by hate. 1) Cartoon "J" - Ross suffers from a mental disorder. 1) Cartoon "B" - Ross' writings were distributed to children. 90 It is Ross' contention that the five statements of fact imputed against Ross in Beutel's presenta- tion were not proven at trial to be true facts and that this Court should therefore make findings with respect to each alleged defamatory cartoon that it is defamatory of Ross and award damages accord- ingly.

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Page 28 91 In oral argument before this Court, Beutel's counsel agreed with counsel for Ross that the trial judge had failed to make specific findings of fact with respect to each of the five alleged defamatory cartoons which were the subject of Ross' cross-appeal. Beutel's position, however, is that the mean- ings which Ross ascribes to the five impugned cartoons were vigorously argued before the trial judge but were not accepted by him. The trial judge's overall finding, it is argued, is that the car- toons in question were comment about Ross being a racist and an anti-Semite and, as such, were protected as fair comment. In that regard, he submits that the trial judge's conclusion that Ross is a racist and an anti-Semite is reasonable and is fully supported by the evidence tendered at trial. 92 Since Ross' contention puts in issue the lack of findings of fact by the trial judge on matters clearly at issue before the court, it is necessary to examine the findings of fact which might be rele- vant to issues relating to each of the five impugned cartoons. 93 The first relevant finding is that Beutel's presentation included cartoons and collateral dialogue that a right-thinking person would find depicted Malcolm Ross as an anti-Semite, a racist and a Nazi (para. 11). Evidently, the trial judge does not specify which of the alleged nine cartoons depicts Ross as an anti-Semite, a racist or a Nazi as he does not attribute any particular meaning to any one of the cartoons. Similarly, his next finding that a prima facie case of defamation is apparent on the facts of this case (para. 16) does not expressly state which of the cartoons or words specifically pleaded are defamatory. The specific findings in relation to the cartoon depictions of Ross as an anti-Semite and a racist are the following: [para. 35] I am satisfied on the evidence that at the time in question the de- fendants have shown that Malcolm Ross was "anti-Semitic" in the sense ... On this finding, Beutel is free to comment upon and criticize Ross' views as anti- Semitic. [para. 36] I am also satisfied that at the time in question the defendants have shown that Malcolm Ross was "racist" in the sense ... On this finding, Beutel is free to comment upon and criticize Ross' views as a racist. 94 Lastly, the trial judge, in assessing damages for the actionable defamation in the Goebbels car- toon, made a finding of fact which is particularly problematic in light of the lack of specific findings with respect to the meaning and effect of individual cartoons now under cross-appeal. In para. 48, he said: "My finding, also, is that a good deal of Mr. Beutel's presentation was fair comment and for which the plaintiff should not be compensated." If only a "good deal" of Beutel's presentation is fair comment, what is the meaning, nature and effect of the other portion of the presentation, other than the "good deal" which is fair comment? What is the meaning of each of these alleged defamatory cartoons and words? If they are defamatory, the defence of fair comment being raised, are the impu- tations statements of fact or of opinion? If assertions of fact, they are not defensible as fair com- ment. If expressions of opinion, are they based on true facts and, if so, are they opinions honestly held by Beutel? These are all critical findings of fact which are reserved to the trial judge. In this case, the trial judge considered en bloc the specific allegations of defamation pleaded by Ross. He does not appear to have considered each alleged defamatory cartoon and defamatory words nor to have determined the essential findings of fact required by the specific averments in the pleadings. The necessary critical findings of fact with respect to each of the five cartoons raised on cross-ap- peal are wanting. Thus, this Court is left in the position of being unable to determine from the trial

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Page 29 judge's findings and reasons for judgment the meaning he attributed to each of those cartoons, as well as all of the other findings of fact required by the plea of fair comment. 95 It is an obviously sound general rule that the pleadings in an action for defamation must ade- quately define the nature of the action or defences and issues being tried. Parties will be bound by their pleadings. The plaintiff must set out the defamatory words with reasonable clarity and cer- tainty and the defendant must plead all his or her defences in the statement of defence. (See Brown, The Law of Defamation in Canada, supra, at p. 19-20.) 96 Since pleadings are of critical importance, it follows that the trial judge must rule in relation to each alleged defamation as if it were a separate cause of action. In a recent decision of the Manitoba Court of Appeal in Laufer v. Bucklaschuk (1999), 181 D.L.R. (4th) 83, it was submitted that the judge sitting with a jury in an action for defamation had failed to instruct the jury adequately. It was argued that he neglected to identify for the jury the particular meaning that each of the seven alleged defamatory statements was reasonably capable of bearing. The authorities are clear that the trial judge must determine this threshold question as a matter of law before putting to the jury the gen- eral question of fact whether the challenged statements are defamatory. The court held that the trial judge had erred in failing to make the initial determination. When confronted on appeal with a re- quest by the defendant that the court make the determinations that the trial judge had omitted rather than remit the matter for a new trial, the court declined, although dealing with a question of law rather than a question of fact, for the following reasons, at paras. 60 and 61: Counsel for the defendant submits that this Court is in as good a position as the trial judge to answer questions of law on the issue of the defamatory mean- ings. He went through a detailed analysis of those statements and the circum- stances in which they were made. He invites this Court to rule on whether any of the seven statements is capable of bearing the meanings pleaded by the plaintiff. We would decline the defendant's invitation. Given the complexity of the is- sues raised on this appeal, this Court ought not to assume any single one of the responsibilities that normally lie with the trial judge. 97 In the present case, Ross, as appellant by cross-appeal, invites this Court to relitigate on appeal the specific averments of defamation he had pleaded and placed before the trial judge. In effect, he is asking this Court to determine factual issues on its examination of the record, the Court not hav- ing heard the evidence, and to form its own opinion. In the absence of essential findings of fact by the trial judge, Ross, as plaintiff, has, in fact, been deprived of the benefit of the fact finding process with respect to the issues he now raises in his cross-appeal. 98 The difficult question that confronts this Court is whether the determination of these issues justifies ordering a new trial or ordering a reference back to the trial judge since he would be in a better position than this Court to determine these specific factual issues. In answering this question, I am guided by the general principle that a new trial should not be ordered unless the interests of justice plainly require it. I also have in mind the powers conferred on the Court of Appeal in Rule 62.21 of our Rules of Court and in the relevant jurisprudence, particularly the power to draw infer- ences of fact where appropriate. The notion of the interests of justice to be weighed is very broad and includes consideration of the costs to the parties. In this case, Ross has not asked that the issues raised on cross-appeal be remitted for a new trial or be referred back for consideration by the trial

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Page 30 judge. But foremost among those considerations is whether the failure of the trial judge to make the necessary findings of fact in this case has resulted in a substantial wrong affecting Ross. On the ba- sis of my appreciation of the evidence in the record and the necessary inferences of fact to be drawn from the evidence for the resolution of the issues raised in Ross' cross-appeal, I conclude that no substantial wrong affecting Ross has resulted from the trial judge's error and this Court is in a posi- tion to draw the required inferences of fact from the evidence with respect to each of the five chal- lenged cartoons. 99 As I have already stated, Ross' claim is that each of the five challenged cartoons which were displayed in Beutel's presentation conveys an assertion of fact that is defamatory of him. My earlier review of the principles of the law of defamation applicable to the interpretation of defamatory car- toons and words and to the essential elements of the defence of fair comment is apposite to the is- sues raised with respect to each of those cartoons. 100 It is incumbent on Ross to establish, as a matter of probability, that the ordinary reasonable viewer of the five cartoons, seen in their context and collectively, would have understood them to bear the specific defamatory meanings which he contends are borne by the individual cartoons. In my view, the fallacy of Ross' argument lies in the fact that he draws a very narrow inference from one aspect of the depiction or caption in each cartoon and credits it with a literal meaning which he analytically characterizes as a statement of fact. However, according to the jurisprudence cited ear- lier, a cartoon is not a written commentary, crafted to convey numerous viewpoints. The message is an exaggerated statement not to be taken literally. It usually makes its point by invoking an idea through a relatively simple drawing and by commenting on the limitations or other aspects of that idea through devices such as caricature, satire, exaggeration and parody. Expression through such devices, although often invidious and virulent, is not intended to be taken literally and, in my view, would not be so taken by a reasonable person. To accept the allegations of fact that Ross ascribed to each cartoon is to ignore the very nature and essence of cartoons and the message they convey. 101 It is on the basis of the above reasoning that I conclude that Ross' argument has no merit and that his claim with respect to the five impugned cartoons is unfounded. 102 In determining whether the various imputations which may be found in the five cartoons are comment based on true facts, it is important to remember the crucial finding of the trial judge that Ross is a racist and an anti-Semite. In my view, the evidence tendered at trial overwhelmingly sup- ports that finding. Several witnesses, including Ross' own witnesses, testified to Ross' reputation as a racist and anti-Semite. More importantly, Ross' own evidence in cross-examination, when ques- tioned about his published views in relation to his conspiracy theory or asked to comment on or ex- plain his views denigrating the faith or beliefs of Jews, revealed him to be a racist and an anti- Semite. To the extent that underlying facts relied on for comments made in the cartoons impute defamatory statements of fact relating to Ross' racism and anti-Semitism, these statements would accordingly have been proven true because of this finding. 103 Adopting the approach set out earlier, I shall confine myself, without summarizing the par- ties' rival contentions, to a brief examination of Ross' main contention for each cartoon. 104 In cartoon "E", the caption reads: "Malcolm Ross tests positive for hate literature." Ross' counsel contends that the assertion of fact in this cartoon is that Ross has been convicted of a crimi- nal charge relating to hate literature. In fact, the cartoon depicts three nondescript persons in two large horizontal panels, obviously parents in the respective school district of Eric Smith, a teacher

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Page 31 who tested H.I.V. positive, and of Ross, reacting negatively to the fact that Eric Smith tests positive for H.I.V. while reacting in a supportive way to the fact that Ross tests positive for hate literature. In my view, the point being made by the juxtaposition of people's reactions to these two different situa- tions is a comment on the fact that some people do not react strongly enough about matters of con- cern like public utterings amounting to hate literature. The notion of testing positive is a metaphor for having something that can be harmful to others. In my view, the ordinary reasonable viewer would understand the meaning of this cartoon to be a satirical comment on people's defensive atti- tudes toward Ross' writings. To read into this cartoon a statement of fact that Ross would have been involved in the criminal offence of distributing hate propaganda is a stretch which a reasonable per- son would not make. The notion of hate literature is commonly found in discourse about human rights. This expression does not necessarily connote the sense of criminal charges. The meaning must be ascertained in context. 105 In cartoon "C", Ross is depicted in a classroom situation. On the board, it shows "Revisionist Math" and 14 + 16 = 29". On the wall appear the words: "The Protocols of the Elders of Moncton." Ross' counsel contends that this cartoon states as a fact that Ross has taught his views in the class- room. He submits that this statement is not true. It is common ground that Ross has never been shown to express his views in the classroom. In my view, the ordinary reasonable viewer would not understand this cartoon to bear the meaning that Ross teaches his views in the classroom. Rather he or she would understand that the subject matter of the classroom construct is the revisionist views of Ross as well as his views on the conspiracy theory based on the Protocols of the Elders of Moncton, an obvious satirical reference to the Protocols of the Elders of Zion. The question whether Ross had the right to hold those views and yet continue to teach had received substantial media coverage for many years, at least since the setting up of the Board of Inquiry in 1988. The audience of teachers who viewed this cartoon would have been quite familiar with that issue. They would have known further at that time that the allegation that Ross taught his views in the classroom had never been proven and was at the time of Beutel's presentation a non-issue. For these reasons, they would not have drawn an inference from the cartoon that Ross as a fact taught his views in the classroom. 106 In Cartoon "L", the lengthy caption in the left panel reads: "For those who maintain there must be the right to free expression, no matter how stupid, obnoxious, misguided, bogus, machi- avellian, spurious or dissembling those thoughts or ideas may be." Ross is portrayed with his index finger holding up a square globe, and in his left arm books entitled "The Tidal Bore Hoax", "Mag- netic Hill Deceit", and the "Protocols of the Elders of Petitcodiac." In the background there is Goofy, a book upside down, entitled "Goofy explains Particle Physics", and a note at the side: "With profound apologies to Goofy". Ross' counsel contends that this cartoon states as a fact that Ross' views are not his sincerely held religious beliefs. Since that is not a true statement of fact, he sub- mits that it cannot be the basis of fair comment. 107 Ross' contention is without merit. The reasonable viewer would readily understand that using Goofy as a contrast to and parody of Ross' views comments on how ridiculous those views are. The message is basically a satirical look at free speech being invoked in defence of the freedom of ex- pression of Ross' racist and anti-Semitic views. 108 In cartoon "I", the caption reads: "Not all skinheads are racists" over the depiction of a skin- head, and "Not all racists are skinheads" over the portrayal of Ross kneeling over the drawing of a church labeled "Church of Paranoid Conspiracy." Two of Ross' books, "Web of Deceit" and "The Real Holocaust" are lying by him on the floor. Ross' counsel contends that the imputation of fact

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Page 32 here is that Ross' views are those of a paranoid person and that Beutel has not established that Ross suffers from such a mental disorder. Again, in my view, a reasonable viewer would understand this cartoon's depiction to mean that Ross is likened to a racist because of his views on the conspiracy theory as expressed in his writings. It is clearly a comment imputing his views as paranoid, that is the expression of an opinion on the basis of Ross' published views with which the viewer may agree or disagree. As to Ross' writings, the central tenet is that Jews are heading a conspiracy or a great Satanic movement against Christians with a view to destroying the Christian faith and civilization. Ross identifies Judaism as the enemy and calls on all Christians to join the battle. (See the finding of the Board of Inquiry previously referred to in Attis v. Board of Education of District No. 15 et al. (1991), 121 N.B.R. (2d) 361, finding upheld by the Supreme Court of Canada in Attis v. Board of Education of District No. 15 et al. (1996), 171 N.B.R. (2d) 321, at para. 58.) 109 Lastly, Ross' counsel contends that cartoon "B" is based upon the unproven fact that Ross' books were read by and in the possession of children. This is obviously a literal interpretation of the depiction of two children in the cartoon, one holding Ross' books, and saying: "Love thy neighbor ... as long as thy neighbor is white, Christian, Monarchist and English-speaking." A rea- sonable viewer would readily interpret this cartoon as a comment on Ross' racist and anti-Semitic views espoused in his writings. The evidence also shows that the Board of Inquiry that inquired into the effect of Ross' writings in School District No. 15 found that Ross' published views contributed to the creation of a poisoned environment which has greatly interfered with the educational services provided to the children. 110 In summary, I conclude that Ross has failed to establish that the five cartoons referred to in his cross-appeal convey the specific defamatory statements of fact he alleges. In my opinion, the reasonable viewer would draw the inferences that I have articulated for each of these cartoons and would find them to be comment based on true facts and to represent honestly held beliefs by Beutel. I find that the underlying facts indicated in each of the cartoons or the facts that are in the general knowledge of the teachers relied on as the basis for the comments are substantially true and that Beutel's opinions expressed in his comments are honestly held by him. Since the defamatory impu- tations are comments, the truth of these expressions of opinion need not be proven. It is my conclu- sion that the first claim raised in Ross' cross-appeal fails. Was Beutel actuated by malice? 111 The trial judge found that Beutel's presentation was not made with malice. He said, in para. 48: Although some of Mr. Beutel's presentation, including his characterization of Mr. Ross was a Nazi, is, in my opinion, extreme, I have not found malice in that Beutel's presentation was based on honest belief. 112 The trial judge had found earlier, in para. 25, that: ... the cartoons, and the collateral dialogue material to this case, does repre- sent an honest expression of the real view of Mr. Beutel with respect to Malcolm Ross. 113 Ross submits that the trial judge erred in finding no malice. He argues that honest belief is not an absolute bar to a finding of malice and that it is not sufficient in this case because Beutel

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Page 33 showed a reckless disregard for the truth. He argues further that the desire to injure was the domi- nant motive behind Beutel's defamatory presentation. Ross alleges that Beutel admitted at trial hav- ing hatred for Ross' writings, that such hatred amounts to actual malice on his part, and that the con- text in which the defamation took place, especially before an audience of his peers of the NBTA, points clearly to Beutel's improper motives. Ross finally placed special reliance, for proof of actual malice, on the fact that a very savage cartoon (cartoon "M") depicting some of the reasons for Ross' removal from the classroom was shown on that occasion along with some offensive and denigrating remarks from Beutel. 114 The defence of fair comment can be defeated if a plaintiff shows that the comment was made with malice. Malice focuses on the personal motives of the defamer. The defence is lost if he makes the comment because of some private spite or ill, or some other improper motive that belies the de - fence's intended purpose to permit comment on matters of public interest. (See Hill v. Church of Scientology of Toronto, [1995] 2 S.C.R. 1130, at para. 145) 115 In the leading decision of Horrocks v. Lowe, [1974] 1 All E.R. 662 (H.L.), Lord Diplock ar- ticulated the test of the dominant motive to determine whether the protection will be defeated. He said, at p. 669: 'Express malice' is the term of art descriptive of such a motive. Broadly speaking, it means malice in the popular sense of a desire to injure the person who is defamed and this is generally the motive which the plaintiff sets out to prove. But to destroy the privilege the desire to injure must be the dominant mo - tive for the defamatory publication ; knowledge that it will have that effect is not enough if the defendant is nevertheless acting in accordance with a sense of duty or in bona fide protection of his own legitimate interests. [Emphasis added] 116 The question whether feelings of resentment or indignation can be shown to be the dominant motive is discussed in the following passage in Brown, The Law of Defamation in Canada, supra, at pp. 16-16.4 to 16.17: It is the defendant's primary or predominant motive in publishing the defama - tory remark that is determinative. "Incidental gratification of personal feelings is irrelevant." If the predominant motive is something other than the duty or interest giving rise to the occasion, the privilege will be lost. Dislike and ill will may be present but actual malice may be entirely wanting. The fact that a defendant is annoyed, or dislikes the plaintiff, or even contemptuous of him, and takes special delight in offending or embarrassing him, and pleasure in the effect of the publi - cation, or that he was angry and rude, or indignant and resentful, and welcomed the opportunity to expose him, will not defeat a privilege if it is otherwise exer - cised for a proper purpose. 117 In summary, I have reviewed Ross' arguments that Beutel was motivated by malice in light of the above authorities and of the evidence adduced at trial relating to the context and content of Beu- tel's presentation and to Beutel's motives. I do not find Ross' arguments persuasive.

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Page 34 118 While the trial judge did not make any finding with regard to the dominant motive of Beutel's presentation, he found that Beutel's presentation was based on his honest belief that whatever he said or conveyed in his cartoons was true. He found no evidence of malice. In my opinion, that find- ing is reasonable. 119 The law is clear, as argued by Ross' counsel, that the protection of fair comment will be lost, despite Beutel's honest belief in the truth of what he said, where the dominant motive of his defama- tory presentation is not to protect the relevant public interest but to otherwise injure Ross. In my view, Ross failed to present credible evidence at the trial to establish, as a matter of probability, that Beutel was actually predominantly motivated by the desire to injure Ross. While it is true that the tone of the segment of Beutel's presentation dealing with Ross' published views may have been hos- tile, vituperative and injurious to Ross, it seems reasonable to think that Ross could hardly have been expecting a deferential choice of words or opinions on the part of Beutel in light of the strong emotions aroused by the expression of his own offensive views. 120 I conclude that the second claim in Ross' cross-appeal also fails. In light of my decision that the cross-appeal be dismissed, the issues raised concerning the quantum of damages and punitive damages need not be addressed. DISPOSITION 121 For all these reasons, I would allow the appeal, set aside the trial judge's order for damages, and dismiss the cross-appeal with costs throughout of $5,000 payable by the respondent Ross to the appellant Beutel. DAIGLE C.J.N.B. We concur: TURNBULL J.A. LARLEE J.A. cp/d/lnt/qlbfd/qlrcr/qlala

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---- End of Request ---- Print Request: Current Document: 5 Time Of Request: Monday, March 03, 2008 20:42:28

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Ross_v._New_Brunswick_Teachers__Assn.,_[2001

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