Sunday, February 10, 2008


Defamation, Libel, Slander, Libel Chill


On this winter Sunday, there's something I'd like to talk about. Tell me what you think. It started when I was rummaging through some old files and found this excerpt. It's from a Tyee story by Monte Paulsen dated December 10, 2007 entitled Mayor Sam Says He Was Defamed. Halfway into the story, here's what caught my attention:

"I have been asked to write on behalf of Mayor Sam Sullivan," begins the Nov. 21 letter from William S. Berardino, Q.C., of Hunter Litigation Chambers .

Berardino states that he reviewed "materials" ... and that "There are in those materials a number of statements which are not only untrue but are defamatory of Mayor Sam Sullivan," Berardino asserts.

The "materials" cited contain more than 6,000 words, and are generally critical of Mayor Sullivan's fundraising practices. Berardino's letter does not specify which statements he regards as untrue or defamatory.

"I have been instructed to advise that although Mayor Sullivan does not propose to commence a court action at this time, nor does he even seek an apology, although one certainly should be forthcoming, his position on this matters [sic] is as follows," Bernardino continues.

"Criticism and constructive debate on issues of public importance should be encouraged," Berardino continues. "Defamatory and untrue statements should have no part in such legitimate debate. The Mayor hopes and trusts in the coming months you will not only share these views but will also be cognizant of them."

'Public ought to be concerned'

"It does look like a shot across the bow," said Gratl, who had seen the letter.

"The chilling effect that a letter such as this would have on freedom of expression should be a very real concern for the public," Gratl said.

"Lawsuits cost money to defend. Much time and effort can be spent dealing with the distraction of a lawsuit. Elected representatives might reasonably be inclined to remain silent on important matters, rather than deal with the hassles and expense of a lawsuit. The public ought to be concerned about that," Gratl said.

Gratl said tactics like these are rare.

"Because it is so ill-advised and so clearly undemocratic, it's rare to see moves of this type," Gratl said. "The civil litigation system should not be used to undermine the ability of elected representatives to speak in the public interest."

Gratl predicted that Sullivan would back away from the letter.

"The nature of the letter is ambiguous enough that the mayor could step away from any suggestion of a threat and still save face," Gratl said. [B.C. Civil Liberties Association president Jason Gratl]

"Sending letters of this type is an unfortunate attempt to stifle public debate on an issue of public interest," Gratl said.

The reason I had saved the excerpt was because it's about Bill Berardino, our Special Crown Prosecutor on the Basi-Virk-Basi / BC Rail trial.

But perhaps the reason why this caught my attention today is that Rafe Mair, former Cabinet Minister in a Social Credit government of B.C., who writes a regular weekly column for The Tyee, is being sued. Rafe does a heap of other public comment, too. He's a good read, always socially conscientious, and is trained up as a lawyer. But lawyers are human and we all -- animal, vegetable, or mineral -- we all make mistakes.

Most of us read that column of Rafe's without batting an eye. All except CanWest which launched a lawsuit demanding an apology and that the story be removed. Go to The Tyee for the details.

But there's another reason, which comes closer to me, to you, and to the trial of Basi-Virk. I have noticed the chill even around The Legislature Raids. It's a self-inflicted chill and I hate it.

"You must be cautious in what you say," people have started to tell me. Well, I know that. I have always known that. But here's the thing: in my view, people are really saying "Shhhhh. Sit still and be quiet. Put that brown paper bag over your head." In my view, people have guessed what's wanted of them and are trying to oblige: to Be good. Be quiet. Be obedient.

Anyone with an ounce of backbone knows that to keep on shushing one another and urging caution means that we'll become paralyzed. Worse, it conveys the idea that we're incapable of serious thought, unable to function fairly. That's simply not true.

Rafe made an error of fact. Rafe apologized. Tyee apologized. But people aren't saying "Be sure your facts are correct." No. This blanket of terror is thrown over us all: be cautious, watch out.

If we succumb to terror, we give up. We must not give up -- especially now -- when it is becoming abundantly clear that it's up to ordinary citizens to safeguard the public things we hold dear.

Tomorrow I will post some law text about Defamation, Libel, Slander and the steps to take for safeguarding free speech in a democratic society. It's really quite beautiful. It will lift your heart, as it did mine.

So we must not give up. We must be persistent. Be fair. Be polite. But keep watching, keep asking the questions, keep doing whatever we can to make our constructive opinions heard. And please, we must encourage others to speak up, too ... we can't turn against them by saying "Ssshhhh" which, come to think of it, sounds way too much like a death rattle.

[To be continued ... - BC Mary.]


Maybe that's why Berardino will only make off the record statements to the press? As a litigation lawyer, he doesn't want to be quoted saying anything he might get sued for.
In that case, Anonymous 12:27, don't you wonder why we have a Litigation lawyer as our Special Crown Prosecutor in the Basi-Virk / BC Rail case?

The most puzzling thing about Bill Berardino, in my view, is his unexplained absences from court.

I wish some clever journalist would do an interview with him and ask him how that happens. Surely the public could be told, don't you think? Knowing why our Prosecutor is missing couldn't affect the trial, could it?

Here's another question I've asked this before: does anyone know how to get cameras set up in Courtroom 54 for TV broadcast?

Most people in BC are unable to attend the sessions. It would be a highly democratic gesture if the court allowed the government TV channel to carry the proceedings.

I believe that the presiding judge has to give the go-ahead.

Anybody know how that works? Where to begin?

Powers out here and I'm running on Batteries so I'll be breif. I just read the other day in the supreme court act (or rules) that broadcasts from court can be requested by those involved in the case. And you're right Mary the judge would rule on it. I'll check again later on it unless someone else finds it first.
I wish some clever journalist would do an interview with him and ask him how that happens. Surely the public could be told, don't you think? Knowing why our Prosecutor is missing couldn't affect the trial, could it?"

Careful there Mary, asking Wild Bill such questions could lead to him having to impugn his own character by casting doubt on the quality of his punctuality and willingness/ability to follow through on commitments freely (?) undertaken.

In the current environment, Wild Bill bears no responsibility or liability for such failure to honor obligations, but the questioner may be guilty of "forcing Mr. Berardino to damage his own reputation or tell less than the truth."

The Canned Waste motto seems to be, don't spread any real/important news and have no mercy on anyone else that should try to take up the slack.

We ain't gonna share information with the public and we'll make life hell for anyone who tries.

I like to think it is part of the last gasps of a bloated and useless organism enroute to extinction

Who is Gratl? I assume that is someone's last name, but it is common to introduce new characters or explain who/what they are. Excuse me if "Gratl" is a household word on everyone's lips down thar in the big smoke.
Koot, it's a good thing we aren't next-door neighbours or I'd be over at your house right now, chasing you around the kitchen table, trying to whap you over the head with a frying pan. Jeez ...

"Gratl" is mentioned in full in the first half of the story ... and I've been busy digging up Libel and Slander stuff for you to read ...but intended to go back and search for the given name (Bob or Bill or something important like that, y'know) so I had kinda hoped that you might look up the link to the rest of that story. Sheeesh ...

Koot - you better keep moving *S* - however, just to add a couple more examples of suites, take the one of Richard Vollo, sued by IHA for standing up for Long term Care citizens in Williams Lake, cause they didn't like what he said even though true. Another, Judy Sellin, Kamloops, again sued by IHA for trying to protect her Father in a Long Term Care facility and by the way, this is our MONEY IHA is using to file these suites, as it is with those politicos Jo5ey
I have read many of Vollo's excellent and courageous pieces on the state of elder care in this province.

I wonder who are the ones really being libelled here? I would suggest that both Vollo and Sellin counter-sue.

During the last election campaign, Corky Evans, my MLA, emphasized how shameful was the way the IHA (and ultimately this government) was treating the elderly of the province. Should the Inferior Health Atrocity be launching a suit against our MLA for saying bad (though true) things?

I think it is criminal that the IHA is even allowed to persecute the people it is supposed to serve for being concerned about the way they are treated. Justice has been turned on its head and evil and greed has been turned into virtue.
BC Government website
Supreme Court of BC
Revised draft guidlines for television coverage of court proceedings

This section also has the original guidlines in it. Sorry I didn't have time to copy it.
This guidline is so restricting that I wonder if anyone (including the MSM) could get a camera broadcasting from court.
I lost interest after about 2 years of evidence gathering in the Picton case. So I don't know if it was broadcast. If it was we should look to whomever broadcast it and find out how it was done.
As far as I know the Pickton case wasn't broadcast (televised). However it was in the paper EVERYDAY, even during recesses, unlike another trial I can think of that may, or may not be going on in the Vancouver Courthouse currently or someday.
Hello everyone,

Google was kind enough to bring this blog to my attention. Many thanks to those who have expressed kind words regarding my continuing fight to improve seniors care and housing in BC. The government has little sympathy for social advocates and the result is a very hostile environment that only a courageous few will enter. To correct a few inaccuracies:

I was the subject of a Strategic Lawsuit Against Public Participation. The suit was launched by Retirement Concepts Limited not the IHA. The fact that such a suit can be launched against an advocate is one of the products of privatization.

The Sellin's were/are the subject of a SLAPP launched and funded by the Interior Health Authority. The status of the suit is unknown at this time.


Richard Vollo
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