By Jamil Jivani, November 14, 2022
It’s easy to feel like free speech is on the decline in Canada. The number of reasonable opinions now considered cancellable offences is growing by the day.
But a recent decision from the Ontario Superior Court of Justice is good news for defenders of free speech. A moment of optimism was granted from the Ottawa small claims court on Nov. 10 when the court dismissed a lawsuit filed by Richard Warman, a lawyer and board member of the Canadian Anti-Hate Network (CAHN).
Warman sued journalists Jonathan Kay and Barbara Kay for defamation and loss of reputation over tweets that connected CAHN to Antifa, a far-left political movement that’s primarily active in the United States but has also made its presence known in Canada.
Some of the tweets in question shared an article with the headline “Anti-hate Southern Poverty Law Center Partner Funds Violent Canadian Antifa.” Another tweet from Jonathan Kay stated CAHN “scares its donors with exaggerated fearmongering [and] pushes censorship” and accuses Antifa of being “a street gang & dox shop that exudes the same hate CAHN claims to fight.”
This is far from the first time that Warman has filed a lawsuit. He also sued Jonathan Kay for libel in 2008. Warman has a litigious reputation based on his past use of the now-repealed section 13 of the Canadian Human Rights Act. A Maclean’s profile from 2008 asked if Warman is a “righteous crusader or civil rights menace” due to concerns that Warman’s attempts to fight hate were actually undermining free speech.
In dismissing Warman’s lawsuit against the Kays, Deputy Judge David Dwoskin acknowledged that Warman “is well known as a righteous crusader against white supremacy and right-wing racist hate” but ultimately explained, “I accept the evidence of the Kays that [Warman] has used litigation to silence or intimidate those he sees as his critics, or who oppose his methods of prosecuting hate groups.”
Judge Dwoskin’s ruling affirmed that the Kays can use legally-protected free speech to criticize CAHN, and that these tweets did not refer to Warman in particular. Judge Dwoskin also affirmed the legitimacy of the Kays’ point about CAHN and Antifa.
The court’s decision concludes: “The evidence disclosed that CAHN did in fact assist Antifa and that the movement has been violent. The Kays submission, which I accept, is that a human rights network like CAHN arguably (except in the most extreme circumstances) should not support a violent movement, and to do so, to most reasonable observers, would not be a ‘good look’.”
The Kays were represented by Asher Honickman, founding partner at Jordan Honickman Barristers, who noted the significance of the case in comments to the Toronto Sun.
“The Court agreed that the tweets in question by Jonathan Kay and Barbara Kay did not refer to Mr. Warman at all,” said Honickman. “His Honour also found that the tweets were protected by the defences of fair comment and justification in any event. Overall, this is an important victory for free expression and the pursuit of truth.”
Jamil Jivani is a Senior Fellow at the Macdonald-Laurier Institute and President of the Canada Strong & Free Network.