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1. Awan v Levant
Ontario Court of Appeal
16 May 2016

Rebellion as a lifestyle was out in full force today as Ezra Levant defied staid Conservatism by boldly digging out his finest dungarees and jettisoning the tie so fashionable among those appearing as a party before the Court of Appeal. For Levant, staying past lunch for your own appeal hearing also went out the bourgeois window.

What follows is an admittedly impressionistic short hand summary of the hearing where Ezra Levant seeks to overturn a libel judgement and costs of $153,000 against him in favour of Khurrum Awan. Justice Matheson found at trial that Levant had defamed Awan by accusing him, among other things, of being a liar and having engaged in a conflict of interest as part of a group of law students who raised concerns about perceived anti-Muslim articles in Macleans magazine in 2005-2006.

The fact that Ezra Levant sued 253 people in his own Reform Party in 2003 for libel over these same and other allegations make some of the appeal arguments appear like an inconsistent ‘ode to free speech’, but I digress. Seriously though, suing 253 people in one fell law-swoop? The uncharitable would question whether this makes Ezra Levant Canada’s most litigious person.
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Justices Simmons/Feldman/Rouleau
Shorthand references by initials are as follows:
IM= Iain MacKinnon – counsel for Ezra Levant
JS= Justice Simmons
JF= Justice Feldman
JR= Justice Rouleau
JM= Justice Matheson who rendered the trial judgement against Levant
BS= Brian Shiller – counsel for Khurrum Awan

– 10h30 opening – IM suggesting error in JM’s findings that Levant’s statements regarding Awan were fact rather than comment – feels JM misunderstood nature of what Levant was doing at the BCHRT
JR – is context finding of fact?
IM says they concede meaning of allegations was as alleged in Awan’s claim
IM acknowledges that the burden they have to meet for the Ct of Appeal to overturn findings of fact by JM as trial judge is ‘palpable and overriding error’ which is an extremely high threshold
IM seems to search for answer when asked by panel on issue of whether JM’s findings that Levant statements equal fact vs opinion are questions of law or fact on the part of the trial judge
IM recounting their perception of factual context to Levant’s writings
– reader of blog posts would have had lead up to ‘context’ of blog posts and would therefore be an informed reader from 6-month prior history due to “a firestorm of media coverage”
readers of Levant’s BC hearing coverage would be a “very informed” reader
JR – querying why this is important
JF – asking to be taken to the documents IM believes show ‘context’
11h00 – IM walking Justices through documents – Awan wrote 7 letters to editor or op-ed pieces in 5-month lead-up to BC hearing
IM says Levant has what amounts to an ‘unfiltered’ writing style and that was what he was doing at the BCHRT – “a colourful analysis”
JR – why is this relevant?
IM answers that you can tell from the context that Levant was not acting as a normal journalist – it doesn’t specifically deal with what the reader will interpret – the nature of the blog posts themselves provide the context – he’s a commentator/pundit
11h20 – JF – is it that the nature of Levant’s blog post and his background as a legal commentator form the context of Levant’s blog posts? – but for Levant, how does this background context support the conclusion that the nomenclature of Levant’s allegation that Awan is a “liar” is an opinion vs statement of fact?
JF – could be an opinion, could be statement of fact – why do you say the trial judge got it wrong?
IM see our factum where we reference a case dealing with allegation that a person was “deluded” [which seems different from claiming someone is “a liar” 8 times in sequence – esp referring to a law student]
IM suggests calling someone a liar is automatically a statement of opinion
JF – aren’t you running up against the finding by the trial judge of malice against Levant?
IM – there was insufficient justification for finding of malice – went to Elmasry and not Awan – IM acknowledges A’s testimony was in relation to a “very important fact”
IM if L can’t allege that A is a liar in these circumstances, then ‘there’s something seriously wrong with the state of the law’
JS – what if you’ve got incorrect statements of fact by the defendant?
IM – ‘it’s substantially correct…’
11h35 – JS – he’s inserting material that was inaccurate – referring to JM’s reasons for judgement at paras 115-119
JR – are you saying that b/c students wanted reply article from recognized member of the Muslim community, that means it must be of CIC’s choice? “I’m having trouble seeing the link.”
IM – yes
JR – Levant claiming that Awan insisted response article had to come from person of their choosing – that looks to me like a significant error at a minimum and attempting to mislead at worst
IM – have to look at all blog posts as a whole – Levant is doing the best that he can, to be as accurate as he can in live-blogging the trial
JS noting that Levant’s blogging on the trial seemed to focus on alleged facts that supported the libels to the exclusion of anything that would suggest an innocent explanation – “it sounds like there’s an attempt to deceive there”

11h45-12h00 – break

IM suggests that JM’s finding that Levant’s statement that Awan is an anti-semite is defamatory “has to be wrong”, Levant has to be able to call Awan an anti-semite based on Awan’s perceived affiliations with Elmasry/CIC, otherwise it will place an enormous chill on freedom of expression
IM says JM acknowledged that Awan has connections with CIC, but failed to note extent of what they believe are links
12h20 – IM reminded of time and given extra 5 minutes
addressing alleged conflict of interest issue – attacking JM findings of fact based on evaluation of evidence
damages – IM states that Awan’s reputation was already poor as result of complaints and hostile media reaction – claims JM didn’t mention this in judgement
12h30 still going – now moving onto malice – one sentence summary from factum
that aggravated damages were inappropriate – Levant’s conduct was already taken into account in general damages
fin

12h35 – Brian Shiller Esq opening – trial involved 7 days of testimony – 7 witnesses, extensive evidence resulting in findings of fact, all supported by evidence in decision
– trial judge is best suited to making findings of fact
judgement didn’t need to make determinations btwn conflicting testimony, the evidence was largely non-contradictory in terms of what happened at the BC human rights tribunal hearing and the decision took them all into consideration
JF – isn’t it open to Levant to make comment re Awan given even Macleans’ counsel Julian Porter thought he was acting as counsel?
BS – indicating that Porter’s evidence became more vague wrt to role of Awan – Faisal Joseph as lawyer for CIC indicated that Awan was not co-counsel – at best, Levant saw Awan seated at counsel table at some point? – but Levant was there when counsel were introduced – do we elevate stapling a few documents to co-counsel? does that justify Levant’s incorrect statements about Awan?
JF – distinction btwn no-affiliation vice no substantive connection
JF – can you address issue of Levant argument that JM erred in finding that statement of Awan as liar = statement of fact vs opinion
BS – JM found calling Awan a liar = statement of fact – also, accusation of liar must include intention to deceive and that didn’t exist on part of Awan
13h00-14h00 lunch break

Levant not in attendance throughout afternoon hearing
JF – asking BS to focus on legal issues
JS – argument re: fair comment not raised in pleadings – if you didn’t object at trial when they made oral submission on fair comment, are you constrained in raising it here?
14h40 – BS moves to malice – Levant is attempting to argue that JM could not find that Levant’s ill will towards Elmasry could be extended to Awan to make finding of malice against Levant – BS saying Levant definitely had ill will towards Elmasry and then extended that ill-will to Awan directly as well
– citing earlier Vigna v Levant libel decision against Levant where there was a finding of malice because Levant used Vigna as proxy target in order to attack human rights commissions – same here where malice to Elmasry visited on Awan
issue of recklessness – citing Botiuk case – lawyers defaming others in relation to legal issues may be held to higher degree of scrutiny – Levant refused to correct record when served with libel notice and instead engaged in additional ridicule of plaintiff
JM directly addressed issue of Awan’s existing reputation in calculating damages – BS points to JM reasons where she considered Levant’s attacks and says they were different in nature from media articles critical of law student complaints against Macleans – also considered Levant’s status as “provocateur” in assessment
aggravated damages – see Hill v Scientology where there will inevitably be some crossover between factors examined in calculating both general and aggravated damages

14h35 – IM reply – says defence included rolled up plea of fair comment and justification

Costs submissions? Counsel have agreed that appropriate costs would be $15,000 in the event that either party is wholly successful
14h50 – fin

2. I have today filed a federal human rights complaint against Canada Post and the Government of Canada for regularly and knowingly delivering misogynist, racist, anti-Jewish, anti-Muslim, and homophobic hate propaganda into Toronto-area homes in the form of a tabloid newspaper entitled Your Ward News.

I believe the complaint and the inaction on the part of Canada Post and the Government of Canada speak for themselves, but out of the many possible observations I note the following:

a) Justin Trudeau says that he is a feminist, so why is Canada Post regularly delivering a newspaper that calls women “cunts”?

b) In WWII, over 45,000 Canadian men and women died fighting the Nazis. Today, Canada Post and the Government of Canada appear to have gone into business with them.