2005BCSC0499

Before: The Honourable Mr. Justice Stewart

Reasons for Judgment

Counsel for the Plaintiff	H. Rubin
Counsel for the Defendants	B.T. Quayle
Date and Place of Trial:	December 6, 7, 8, 9, 10, 13, 14, 15, 16, 17, 2004 and February 10, 11, 16, 2005
	Vancouver, B.C.

[1] The litigation in the case at bar arises out of events that occurred here in the City of Vancouver over a period of five months, September, 2002 to February, 2003.

[2] The litigation has its head and source in two societal issues.

[3] The first issue is: What to do about the homeless? This is an apparently intractable problem. It came to ground in the Vancouver Downtown Eastside in 2002 with the “Woodwards Squat” as it became known.

[4] The plaintiff’s action for wrongful arrest in the case at bar arises out of events that occurred hard by the Woodwards Squat on September 22, 2002. On that date, and at that location, the City, through its municipal workers, moved to clean up the health hazard created by the “Squat”, all the while protected by the Vancouver City Police. Interaction between the plaintiff and members of the Vancouver City Police at the intersection of Abbott and Hastings resulted in the plaintiff’s being arrested by the defendant, Constable Harris. It is that arrest that gives rise to the plaintiff’s action for wrongful arrest.

[5] The plaintiff’s action for libel in the case at bar arises out of events that are grounded in a problem that bedevils any free and democratic society, i.e., who will police the police? More particularly it arises out of the push and shove in the Vancouver Downtown Eastside between the Pivot Legal Society – which, as of 2002, was the new kid on the block and a self-appointed monitor of police conduct – and the Vancouver City Police.

[6] The tension inherent in the situation just noted resulted in the publishing on October 29, 2002 by the Pivot Legal Society of Exhibit 7, an indictment of the conduct of the Vancouver City Police in the Downtown Eastside. The plaintiff was, and is, a lawyer and the executive director of the Society.

[7] The Pivot Legal Society, and, more particularly the plaintiff, believed that the anonymous allegations of police misconduct contained in Exhibit 7 would be taken as gospel and that the powers that be would move directly to the question of systemic change. Shortly put, I accept the plaintiff’s evidence on that point. The world needs committed, naïve people. And true believers often convince themselves of the most amazing things. Here, as just noted, the plaintiff did just that. The Society and the plaintiff did not ignore the question of investigation of the individual allegations contained in Exhibit 7, even at the outset. One need only read Exhibit 7 to know that. But, as at October 29, 2002, acceptance of Exhibit 7’s allegations as gospel and immediate consideration of appropriate remedies was at the forefront of the plaintiff’s thinking. That came through loud and clear as the plaintiff was confronted on this point more than once during cross-examination.

[8] Those who could institute systemic change – the Vancouver Police Board and the Vancouver City Police, amongst others – were not of the same mind as the Pivot Legal Society and the plaintiff. Not at all.

[9] Investigation of the individual anonymous allegations that are at the core of Exhibit 7 was the starting point in their analysis. As time went on the Pivot Legal Society, and the plaintiff, shifted their focus towards making an investigation of Exhibit 7’s anonymous allegations against members of the Vancouver Police Department by an investigator other than the Vancouver Police Department the chief objective of what they were about rather than a secondary objective as it had been as of October 29, 2002 when Exhibit 7 was published.

[10] But the legislation that mattered – the Police Act, R.S.B.C. 1996, c. 367 – gave the power to decide who would investigate the anonymous allegations contained in Exhibit 7 to the Police Complaint Commissioner.

[11] And, as luck would have it, during the relevant time period the office of the Police Complaint Commissioner was in a state of flux.

[12] In the result on November 6, 2002 (Exhibit 22) the then Acting Police Complaint Commissioner, in effect, told the plaintiff that the default position created by the Police Act would obtain. In other words, if the anonymous allegations contained in Exhibit 7 were converted into formal complaints about the Vancouver City Police that named names, those complaints would be investigated by the Vancouver Police Department.

[13] The plaintiff dug in his heels and waited for the arrival of a new Police Complaint Commissioner.

[14] Eventually a new Police Complaint Commissioner was appointed. In the result on June 9, 2003 formal complaints under the Police Act were filed with the office of the Police Complaint Commissioner and the Police Complaint Commissioner ordered that they be investigated by the RCMP.

[15] But, back in February of 2003, the defendant Graham, the Chief of the Vancouver City Police, had reacted to the content of Exhibit 7 and the refusal of the plaintiff to name the complainants, and, if possible, the officers attacked in Exhibit 7, in two ways.

[16] On February 4, 2003 he sent a letter (Exhibit 14) to the Law Society of B.C. outlining his view of the plaintiff’s conduct. He sent copies of that letter to the Vancouver Police Board and to the office of the Police Complaint Commissioner. And on February 13, 2003 (Exhibits 9/10) the Chief of Police appeared on the Bill Good show on CKNW radio. He responded to the form, shape and content of Exhibit 7 and its anonymous allegations. He expressed his frustration with the fact that three months after the publishing of Exhibit 7 meaningful details as to who alleged what with respect to whom were still not forthcoming from the Pivot Legal Society. In other words, from the plaintiff.

[17] The plaintiff’s action for libel arises out of what the defendant Graham said in the letter dated February 4, 2003 (above) and in the radio broadcast on February 13, 2003 (above).

[18] It is against that background and in that context that I descend to the detail of the plaintiff’s actions in the case at bar.

[19] I deal with the case as it was left to me at the end of the submissions of counsel.

[20] On the night of Sunday, September 22, 2002 the plaintiff was arrested by the defendant Constable Jeffrey Harris.

[21] Then Constable Harris (now Sergeant Harris) was a member of the Vancouver Police Department.

[22] The upshot of the Police Act, R.S.B.C. 1996, c. 367, ss. 20 and 21 is that Constable Harris was an employee of the Vancouver Police Board (properly not named as a defendant s. 20(2)) and that his liability for a tort committed by him while “in the performance or intended performance of his duty or in the exercise of his power” was curtailed by the adding of a requirement that dishonesty, gross negligence, or malicious or wilful misconduct be made out before he could be found personally liable. But, by statute, liability is driven back to the City of Vancouver (a named defendant) for a tort simpliciter committed by Constable Harris while “in the performance etc.”.

[23] To clear away some underbrush I state an obvious point here. There is no basis for a finding against Constable Harris of “dishonesty, gross negligence, or malicious or wilful misconduct”.

[24] The issue becomes whether the plaintiff can drive liability home to the defendant, the City of Vancouver, by establishing that Constable Harris committed a tort, simpliciter.

[25] I clear away more of the underbrush by stating that at the end of the case there was no platform for a discussion of the possibility of Constable Harris’s having committed any civil wrong against the plaintiff other than wrongful arrest.

[26] The Statement of Claim sacrifices brevity and clarity on the altar of creating a shopping list of possible causes of action. (Amended Trial Record pages 2-10). But by the end of the case it was obvious that the plaintiff either had a case that established wrongful arrest against Harris, or he had nothing. The plaintiff failed to name as a party the individual or organization that took control of the plaintiff once he reached the jail on the night in question. The plaintiff asserts that because the system provided for a member of the Vancouver Police Department to fulfill the functions of an “officer in charge” at the jail (Criminal Code Part 16 s. 493 and following) the fact the plaintiff remained in custody overnight – combined with shards of evidence about what occurred at the jail and, separately, what occurred during the preparation that night of an omnibus police report about the night’s activities – provides a platform for discussion of a discreet civil wrong having been committed against the plaintiff by someone whose wrongful act is driven back by statute to the defendant the City of Vancouver. That, with respect, is fanciful. It amounts to an invitation to the court to grasp fog. (Murrell v. SFU BCCA June 29, 1998 para. 17). I decline the invitation.

[27] So I turn to the only issue worthy of discussion: whether the plaintiff has established the tort of wrongful arrest.

[28] It is common ground that Constable Harris did arrest the plaintiff. In the result the onus switches to the defendant to establish that the arrest was justified in law.

[29] I find that the defendant has established on a balance of probabilities that the arrest of the plaintiff by the defendant Constable Harris was justified in law.

[30] Briefly put the situation is this:

(1) The case is one of a police officer being of the belief that he has found a person – the plaintiff – committing a criminal offence.

(2) Regardless of whatever else might be engaged, the fact is Criminal Code s. 495(1)(b) was engaged.

(3) Section 495(1)(b) reads:

(1) A peace officer may arrest without warrant

(b) a person whom he finds committing a criminal offence.

(4) Case law that is binding upon me demands that I make findings of fact as to whether Constable Harris found himself in a situation in which he believed the plaintiff was apparently committing a criminal offence and a reasonable person placed in the same circumstances as Constable Harris would agree.

R. v. Roberge, [1983] 1 S.C.R. 312 (S.C.C.)

R. v. Biron (1975), 59 D.L.R. (3d) 409 (S.C.C.)

(5) To discharge my duty I must begin by deciding what Constable Harris perceived at the material time and what conclusions he drew from it.

(6) At this stage or level of the analysis I must confront the question of Constable Harris’s credibility as a witness.

(7) I found nothing in Constable Harris’s testimony or in the way he testified that caused me concern about his credibility as a witness. I found nothing that caused concern about his credibility as a witness when I looked at his evidence in the context of all of the other evidence, always keeping in mind that what was afoot at Abbott and Hastings on September 22, 2002 was, inherently, a fragmented, unstable situation which admitted of multiple equally valid, yet differing, recollections of what had gone on. In such a situation a witness’s vantage point, responsibilities, interest and focus at any given moment affect everything. The precision imposed upon their recollection of events by witnesses such as Harris and the plaintiff is, I am convinced, just a trick of the human mind. The context, “currently existing conditions”, practicalities, weaknesses of “perfectly honest people” and the common sense and experience of the trier of fact (me) loom large: Dawes v. Jajcaj 66 B.C.L.R. (3d) 31 (BCCA 1999); Robertson v. Weavexx Corporation (BCCA February 3, 1997 CA021748); R. v. Moody (BCCA March 4, 1996 CA019676).

(8) I find that the plaintiff’s attack on Constable Harris’s credibility is based on the one hand on an illogical assumption and, on the other, on a non sequitur.

(9) I will explain.

(10) Exhibit 19 is a recording made by the plaintiff on the night of September 22. The plaintiff had the recording device on his person. The microphone was a form of lapel microphone. Exhibit 3 – which is simply an aid to the trier of fact – is a transcript of some of what Exhibit 19 reveals. There is real need to focus on the fact that Exhibit 19 is the evidence, not Exhibit 3. It became clear that things could be heard on Exhibit 19 that did not appear on Exhibit 3.

(11) The illogical assumption the plaintiff makes in his attack on Constable Harris’s testimonial reliability relates to Exhibit 19.

(12) The plaintiff’s premise is that I should treat the recording device that produced Exhibit 19 as omniscient.

(13) I say that is utterly illogical.

(14) The plaintiff placed no evidence before me about the capacity of the device in question to record what was said or the capacity of the microphone to capture something said at a given distance or at a particular angle to the microphone. That kind of evidence was not placed before me. Considering the position the plaintiff was going to take about Exhibit 19 and the significance of things that do not appear on it, that kind of evidence should have been called by the plaintiff. It wasn’t.

(15) The experience that I as the trier of fact had in listening to Exhibit 19 put paid to the plaintiff’s assumption anyway. What the technological reason is I don’t know – it doesn’t matter – the fact is that Exhibit 19, the recording, reveals its weakness as a starting point for the analysis time and time again. To be blunt, in mid-sentence or mid-word the device’s capturing of what is going on ends abruptly. Whether the problem is with the distance at which the microphone can capture sound or the overwhelming significance of the turning of the microphone as the plaintiff moves about – or something at which I cannot even guess – does not matter. Facts are stubborn things. The fact is Exhibit 19 is the exact opposite of something I should take as gospel not only for what can be heard on it but for the significance of what is not heard on it.

(16) The “non sequitur” referred to in sub-paragraph (8), supra, is this. The plaintiff would have me take as a given that he could not “apparently” have been breaching a police line in the eyes of Constable Harris at the intersection of Hastings and Abbott if Inspector McKay thought that night that to cross Hastings in the east crosswalk from south to north was to walk outside the police line and the plaintiff’s case is that that is exactly where he did walk. Enough said. The non sequitur is, in my respectful view, obvious.

(17) I return to my task of finding the facts as to what was “apparent” to Constable Harris on the night in question. In doing so I have not limited myself to Constable Harris’s testimony. (If that was not obvious from what I said in paragraph 30(7) of these reasons, it is now.)

(18) I find as a fact that Constable Harris was a police officer whose duty was to form part of a multilayered line of police officers and at the same time supervise other officers who formed part of the same line, a line directed at keeping to the south and east of an area in which city workers were clearing up the mess on city property created by an unlawful “Squat”, such people as the police were not confident would not put in jeopardy the peaceful carrying out of their lawful task by the municipal employees.

(19) That the “Squat” was, on the face of it, contrary to law is manifest. (Vancouver Charter sections 289/290; Street and Traffic Bylaw sections 86, 71(1), 73(1)). That the owner of the street – the City of Vancouver (Vancouver Charter section 289) – can clean up a mess left by others is both obvious and the law. (Street and Traffic Bylaw section 72(4)). The submission by counsel for the plaintiff that in defending this action for wrongful arrest the defendants must prove that the workers who were removing the mess had the express authority of the City Engineer to do so is not based on law. It is rejected. That police officers assigned by their superiors to keep such workers safe and preserve the peace are acting squarely within the scope of their duty is clear from both case law (Knowlton v. The Queen (1973), 10 C.C.C. (2d) 377 (S.C.C.)) and statute law: Police Act ss. 15, 26, 34.

(20) I find as a fact that what Constable Harris saw and heard insofar as the plaintiff is concerned is this: the police line of uniformed officers, of which Constable Harris was a part, was obvious and shifting as the need arose; at the material time the police line was between where the city workers were cleaning up the mess and where a group of people on the sidewalk on the southeast corner of Abbott and Hastings were standing; obviously the police, including Constable Harris, had the city workers to their backs and were watching the group of people in front of them; a man who was not known to Constable Harris was yelling, claiming that he was a lawyer, and yelling louder than most or all of the other people in the group; that man was yelling at the police and demanding to be told the legal basis for the officers’ taking control of the intersection; at least once the man who had thus distinguished himself moved toward the police officers with the apparent intention of making his way through the police line; at least once, and after being told he would not be allowed through the police line, the man returned to the sidewalk; whatever number of times it was that the man had thus moved toward the police lines, there came a final time when it was Constable Harris who took the man by the arm and put him on the sidewalk; the man was told that if he repeated what he had just done he would be arrested for “obstruction”; the man did repeat what he had just done and, as Constable Harris saw it, this time he made his way partially through the multi-layered line of police officers with Constable Harris in hot pursuit; Constable Harris took the man by the arm and told him he was under arrest for obstruction; what followed was the usual and the ordinary involving the man’s being taken to a police car, handcuffed, told again why he was being arrested, warned, searched and eventually put in a police wagon. The plaintiff was the man in question.

(21) I find that my findings of fact, supra, put paid to the plaintiff’s case. I take s. 129(a) of the Criminal Code as read and say as the trier of fact that the defendant has convinced me that Constable Harris’s perception of what was going on amounted to the viewing of an apparent wilful obstruction of the execution by the peace officers in the line or wall, including Constable Harris, of their lawful duty to maintain the peace as city workers cleaned up city property and police officers to the rear of the police line or wall kept close watch and took such action as reasonably necessary to protect the workers and maintain the peace as the city workers went about their business. I say as the trier of fact that the plaintiff has convinced me that that perception, objectively viewed, was what would have been apparent to a reasonable person placed in Constable Harris’s circumstances.

(22) I find that the plaintiff’s entire case is misconceived.

(23) The plaintiff would have me do what I am not permitted to do, i.e., turn away from Constable Harris’s perception and the reasonableness of that perception, to the plaintiff’s position as, in fact, a lawyer who believed that one or more of his clients was within the blocked off area and being dealt with unlawfully by the police. That I refuse to do. In my respectful view it is not permitted by law. If he could get me to look at things from the plaintiff’s point of view the plaintiff then urges me to find he was in fact a lawyer who asked to speak to a supervising officer, was ignored by a female officer, was told to get back on the sidewalk by an officer other than Constable Harris or be arrested for jaywalking and then walked on the street while the “white walking signal” was operative. He takes the position that he was not actually committing the offence for which he was arrested because of the effect of case law such as R. v. Long (1969), 69 W.W.R. 187 (B.C.C.A.), which gets at the reach of the word “obstruction” in a situation which I say is chalk to the present case’s cheese. And, beyond that, we circle back to the fact that the law says that findings as to what the officer perceived was apparently afoot, and the reasonableness of that perception, are Alpha and Omega in a case such as this. That is the law pursuant to authority which is binding upon me (R. v. Roberge, supra; R. v. Biron, supra). It overwhelms the bits and pieces placed before me by the plaintiff as he turns to cases that are not binding upon me such as Sandison v. Rybiak (1973) 1 O.R. (2d) 74 (O.H.C.) and inapt authority which is binding upon me such as Sharma v. The Queen et al (1993), 79 C.C.C. (3d) 142 (S.C.C.) and Godoy v. The Queen (1998), 131 C.C.C. (3d) 129 (S.C.C.).

(24) The defendant has established that Constable Harris’s arresting the plaintiff on September 22, 2002 was justified in law.

(25) The plaintiff’s case falls to the ground.

[31] I turn to the plaintiff’s claim for damages for defamation. I note here that it is common ground that each of the publications in question in the case at bar would bottom a finding of libel, not merely of slander, if the plaintiff’s case succeeds.

[32] I deal with the case as left to me at the end of the case.

[33] The plaintiff’s case is grounded on what was said by the defendant Jamie H. Graham, Chief of the Vancouver City Police, on February 13, 2003 on the Bill Good show on radio station CKNW and in a letter dated February 4, 2003. The letter dated February 4, 2003 (Exhibit 14) was addressed to “Law Society of British Columbia”. The letter was “cc”d to “Vancouver Police Board” and the “Police Complaints Commissioner, OPCC”. The combined effect of ss. 20 and 21 of the Police Act, supra, is that an action for libel or slander lies against the defendant Graham and, in the circumstances that obtain here, any such liability would be driven back to the defendant, the City of Vancouver.

[34] The publication to the Law Society of the contents of the February 4, 2003 letter cannot bottom an action for defamation or, indeed, ground any other form of action known to the law including, but not limited to: abuse of process, malicious prosecution and abuse of public office. This is unassailable law in British Columbia: Hung v. Gardiner (2003), 13 B.C.L.R. (4th) 298 (B.C.C.A.); Hamouth v. Edwards & Angell 2005 BCCA 172 (March 30, 2005).

[35] The plaintiff’s case devolves therefore to a claim of defamation by publication to the world by radio on February 13, 2003 and to two entities in February, 2003 by sending them copies of the February 4, 2003 letter, as above.

[36] What was said on February 13, 2003 on the radio?

[37] Exhibit 9, a form of recording, is the evidence. Exhibit 10, a transcript, is nothing in law more than an aid to the trier of fact. But I find Exhibit 10 sufficient for the purposes of explication.

[38] Exhibit 10 reads as follows:

TRANSCRIPT

CKNW NEWS – FEBRUARY 13, 2003

BILL GOOD SHOW – EXCERPT

Jamie Graham: Let me just talk a sec about there was one allegation that one of the people threw at me on Friday, that there about a, there is some guy in town that did a very nice glossy report, uh, the Pivot report

Bill Good: An organization called Pivot.

Jamie Graham: Yeah, Pivot. And they did a nice, high-end glossy report with a series of innuendo and criticism of us in a wide variety of cases, and actually went as far as without any naming anybody simply threw out there the fact that we kidnap and we injure and we torture people. I’ve never heard anything so preposterous in my life. So, but its out there. And I can’t fight it when there are no names attached to it. So what do I do? I haven’t got enough evidence to execute a search warrant and go get the material from him. So I wrote him a letter, and I said you give me the facts you’ve got. You give me every affidavit, give me your tapes, give me your affidavits, all the names and addresses you have of everybody I’ll assign an officer to every one of those cases and he just says no, he just wants to keep it in house. And in fact one of the verbal comments that went to him before the election was he was doing this for an election ploy, he told that to one of my investigators. So we’re wide open, but now he’s saying that he wants to wait until the new public complaints commissioner is in town well he has a letter from the existing public complaints commissioner saying that’s not the way we do business. We have a process, and if you feel you’ve been aggrieved or harmed by the police, you come forward. My job and my reputation depends on how thorough a job I do and I’m going to do a thorough job.

Bill Good: I’lll break for the news headlines, and when we come back...

[39] I say as the judge of the law and the trier of fact combined in one person that upon calm reflection there are only two statements contained in that broadcast that could possibly be labelled defamatory in law: “..he just says no he wants to keep it in house..” and “..And in fact one of the verbal comments that went to him before the election was he was doing this for an election ploy, he told that to one of my investigators”. All other bits in Exhibit 9 referred to by counsel for the plaintiff are so far from being what is contemplated by the law as “defamatory”, as to be unworthy of further discussion.

[40] I turn to the February 4, 2003 letter.

[41] What was said?

[42] The letter is Exhibit 14 and it reads as follows:

February 4th, 2003

The Law Society of British Columbia

845 Cambie Street

Vancouver, British Columbia

V6B 4Z9

Dear Sir or Madam:

Re: John Richardson & Pivot Legal Society

In October last year, I received a glossy report authored by the Pivot Legal Society under a covering letter from Barrister and Solicitor, John Richardson, the Society’s Executive Director. The report purports to contain approximately fifty examples of serious police criminal misconduct based on affidavits taken by Mr. Richardson and his associates. The report was distributed with a detailed media campaign.

One of the members of our Internal Investigation Unit contacted Mr. Richardson by phone and was told that he had no intention of releasing names. Mr. Richardson also said that the release of the report was specifically timed to coincide with the Vancouver civic election. Having received nothing from Mr. Richardson, I wrote him and explained that it is both my duty and responsibility to investigate all allegations of police misconduct. A copy of my letter is attached. The Pivot report contains allegations of serious criminal offences by members of the Vancouver Police Department. The VPD was categorized in Mr. Richardson’s report as committing acts of torture and assault against innocent citizens. My letter explained that in order to conduct thorough investigations, the timely collection of trace evidence to prevent contamination, obtaining witness statements while memories were clear, providing victim support and the pursuit of offenders, would be crucial. He was clearly told that any delay in actively investigating these cases could jeopardize the chances of successfully “clearing” any of them.

Mr. Richardson’s rationale in not supplying the alleged victims’ full particulars was apparently based on his views regarding the inadequacy of the current legislation governing the investigation of allegations of police conduct. He is aware of the process for citizens to register their complaints against police officers, but he does not agree with it. Mr. Richardson received a letter dated November 5th, 2002, from the Acting Police Complaint Commissioner, H. Benjamin Casson, Q.C. (AB), Office of the Police Complaint Commissioner, explaining the process for initiating a complaint, but once again no information was forthcoming. In late January, Mr. Richardson told the assembled Vancouver media that it was his intention to supply the details to the new Police Complaints Commissioner some time in February.

I am writing this as I have concerns with regard to Mr. Richardson’s legal behaviour as a barrister and solicitor and an officer of the court. His obstruction may seriously hamper any chance of a successful conclusion to some of the allegations he has quoted and I am doubly troubled as to his real motives.

If you require any assistance, please contact my Executive Officer, Inspector Andy Hobbs, at 604-717-3498.

Yours truly,

Jamie H. Graham

Chief Constable

cc: Vancouver Police Board

Police Complaints Commissioner, OPCC

[43] I say as the judge of the law and the trier of fact combined in one person that upon calm reflection only the following bits in the February 4, 2003 letter could possibly be labelled defamatory in law: “..Mr. Richardson also said that the release of the report was specifically timed to coincide with the Vancouver civic election” and “His obstruction may seriously hamper any chance of a successful conclusion to some of the allegations he has quoted and I am doubly troubled as to his real motives”.

[44] I pause to clear away some underbrush.

[45] Counsel for the defendant raised the issue of whether the plaintiff has established on a balance of probabilities that there was a publication in the February 13, 2003 radio broadcast “of and concerning the plaintiff”. During the submissions of counsel for the defendant I made it clear I was against him on this point. I will explain.

[46] The case law brought to my attention by counsel throws up Booth et al v. B.C. Television Broadcasting System Ltd. et al 139 D.L.R. (3d) 88 (B.C.C.A. 1982) as the governing authority in this province on the issue in question.

[47] In my respectful opinion what appears on the face of the Court of Appeal’s reasons for judgment drives the reader back to the trial judgment of Mr. Justice Hinkson, as he then was, for a complete statement of the law adopted as correct by the Court of Appeal.

[48] Mr. Justice Hinkson’s reasons for judgment – Booth et al v. B.C. Television Broadcasting System Ltd. et al – December 19, 1975, No. 28735-74, B.C.S.C. – repay repeated reading.

[49] For my purposes now what matters is that I take from Mr. Justice Hinkson’s reasons that absence of evidence that reasonable people with special knowledge of the plaintiff, or the organization of the Pivot Legal Society, did hear the broadcast and concluded that the publication was of and concerning the plaintiff is determinative of nothing.

[50] What matters when I apply the law as stated at length by Mr. Justice Hinkson to what is thrown up by the evidence in the case at bar is that: (1) as the judge of the law I am convinced that the CKNW broadcast – having regard to its language – was capable of referring to the plaintiff; and (2) as the trier of fact I am convinced that the words refer in fact to the plaintiff, that is to say, a reasonable person with knowledge of the plaintiff, on hearing the broadcast, would think it was “of and concerning” the plaintiff.

[51] As to point No. 1, I go to the words of the broadcast, and, more particularly the words “..some guy in town that did a very nice glossy report, uh, the Pivot report”...“Yeah Pivot. And they did...from him...wrote him a letter...he just says no he just wants...verbal comments that went to him...he was doing this...he’s saying.”

[52] As to point No. 2 I find as a fact that those who knew of the Pivot Legal Society and the plaintiff knew that the Society took executive action through the plaintiff, its executive director. That fact overwhelms the defendant’s point to the effect that the plaintiff was not named in the broadcast and was but one of six people who authored Exhibit 7, the Pivot report.

[53] I return to where I was before I dealt with the issue the defendant raised about whether the plaintiff has established on a balance of probabilities that there was a publication in the February 13, 2003 radio broadcast “of and concerning the plaintiff”.

[54] Should this court make a pronouncement as to whether one, some or all of the possibly defamatory statements isolated above in paragraphs 39 and 43 was in fact defamatory?

[55] I say no.

[56] The qualified privilege that applies when one who is responding to an attack publishes what he has to say to only the audience chosen by his attacker so obviously has application to the situation that confronts the court in the case at bar that in my respectful opinion the better way for me to explain the final result in the case at bar is to assume that all of the statements isolated above were defamatory and then move to whether the plaintiff, on whom the onus lies in this connection, has established malice on the part of the defendant, Graham, thus defeating the defence of qualified privilege.

[57] I pause here to note that the February 13, 2003 publication by the defendant Graham on the Bill Good radio show was a publication to the world which was published in response to the publication on October 29, 2002 to the world through the press by the Pivot Legal Society and the plaintiff of Exhibit 7 a “report” which indicts the Vancouver City Police Department and specifies that serious crimes were committed by individual members of the Vancouver Police Department but offers no detail as to the identity of alleged perpetrators or victims.

[58] I also note here that the publication of the defendant Graham’s February 4, 2003 letter to the Vancouver Police Board and the Police Complaint Commissioner was publication to the exact same audience chosen by the plaintiff for special treatment in connection with the publication of Exhibit 7 on October 29, 2002. The plaintiff told me that copies of Exhibit 7 were sent by Pivot – that means by the plaintiff – to the Law Society, the Police Complaint Commissioner and the Vancouver Police Board. On February 4, 2003 the defendant Graham simply tracked what the plaintiff had done in October, 2002.

[59] The law in this province that codifies the common sense proposition that one can respond to an attack if one publishes the response to an audience no wider than the audience chosen by the attacker – and fear nothing absent proof of malice – was settled by the Court of Appeal of this province in Ward v. Clark 95 B.C.L.R. (3d) 209 (2001).

[60] There Mr. Justice Esson works his way through what was thrown up by the evidence in the Ward v. Clark case, the difference between the situation encountered there and what confronted the courts in the Jones v. Bennett litigation (1966 to 1968) and the need to treat the decision of the House of Lords in Adams v. Ward, [1917] A.C. 309 as the sheet anchor of this area of law. The upshot, for my purposes, is the statement as law of the common sense proposition set out by me in paragraph 59.

[61] The issue in the case at bar becomes just this: has the plaintiff, on whom the onus lies, established on a balance of probabilities that as to either or both of the publications by the defendant on February 13, 2003 and February 4, 2003 (as above) the presence of malice defeats the defence of qualified privilege?

[62] The short answer is no.

[63] I am satisfied that when the defendant Graham said on the radio on the Bill Good show on February 13, 2003 “he just wants to keep it in house” he did not speak the literal truth. He knew before February 13 (see Exhibit 6) that the plaintiff was willing to hand the affidavits in question over to a new Police Complaint Commissioner – not yet in office – for investigation by an investigator other than the Vancouver Police Department. But I find that what the defendant was driving at – but expressed badly – was that the plaintiff was making the decision as to when circumstances would be ripe to reveal what he had.

[64] In this context the plaintiff refers me to the cross-examination of the defendant Graham and says that of interest on the issue of malice is that before going on the air on the Bill Good show on February 13, 2003 the defendant had received information of some kind – the detail is lacking – about the relationship between a lawyer and his client and took from whatever he was told that the plaintiff’s obtaining of permission from the unidentified affiants whose stories lie at the heart of Exhibit 7 to reveal their identities could be an issue. (Trial Transcript December 15, 2004).

[65] The plaintiff’s point is that the defendant Graham went on the Bill Good show and said what he said, and said no more. And there the plaintiff’s submission effectively ends. I find that the plaintiff’s “point” is no point. The last meaningful communication from the plaintiff to the defendant Graham before the defendant went on the Bill Good show was the plaintiff’s letter of January 23, 2003, Exhibit 6. There the plaintiff said this: “We would expect to provide full copies of all the affidavits to this investigator”. In context “this investigator” meant an investigator satisfactory to the plaintiff. What plaintiff’s counsel paints the defendant Graham with now – alleged difficulties perhaps grounded in the lawyer/client relationship – was not even worthy of specific mention by the plaintiff in his comprehensive letter of January 23, 2003, Exhibit 6.

[66] I am satisfied that when the defendant Graham said over the radio on the Bill Good show on February 13, 2003:

“And in fact one of the verbal comments that went to him before the election was he was doing this for an election ploy he told that to one of my investigators”

he believed the whole of that to be true. The sting, if any, is in the word “ploy” not in the assertion that the plaintiff spoke to “one of my investigators”.

[67] On the evidence before me the only conclusion available is that the plaintiff had not said any such thing to an “investigator”. That is so because the plaintiff testified and said he made no such statement and the defendant called no witness to put the lie to what the plaintiff said on that point. And I saw no reason not to accept the plaintiff’s evidence on that point.

[68] But, as noted, I find that the defendant believed on February 13, 2003 that he had been told just such a thing. Its not having been said by the plaintiff is now a fact. But considering the subject matter at hand – the hot button issue of the policing of the Downtown Eastside – and the timing of the release of Exhibit 7 – call it two weeks before the civic election – and the way in which it was released – a full blown press conference on October 29 with advance notice to the press (Exhibit 38) and a handout for the press on October 29 (Exhibit 39) written in terms fit only for tabloid journalism – I readily understand how a sensible assumption by the defendant Graham became a bit of his common stock of knowledge. There is no platform here for a finding of recklessness or wilful blindness as to the truth of what was being said.

[69] I am satisfied that when in the February 4, 2003 letter copied to the Vancouver Police Board and the Police Complaint Commissioner the defendant Graham said that the plaintiff said the release of Exhibit 7 was timed to coincide with the Vancouver civic election he believed that to be true. I will not repeat here what I said above in the same connection.

[70] I turn to the last item of interest i.e. the portion of the February 4, 2003 letter copied to the Vancouver Police Board and the Police Complaint Commissioner in which the defendant Graham said this: “His obstruction may seriously hamper any chance of a successful conclusion to some of the allegations he has quoted and I am doubly troubled as to his real motives”.

[71] I am satisfied that when the defendant employed the word “obstruction” rather than “conduct” he simply used less than felicitous language; that when “conduct” is substituted for “obstruction” the inherent loss of time and fading of fresh trails simply makes what follows a statement of the obvious; and that the questioning of one’s attacker’s motives is fair game if one does so honestly and without malice. (See Collier v. Postum Cereal Co. Limited 134 N.Y.Supp. 847 (Supreme Court, Appellate Division, First Department, 1912) for an application of the overarching principle.)

[72] Looked at individually or cumulatively the situation is this: in connection with the publishing by the defendant Graham of the statements that I said in paragraphs 39 and 43 of these reasons for judgment could possibly be labelled defamatory the plaintiff has failed utterly to convince me that the qualified privilege that otherwise obtains because of the law as settled in this province by Ward v. Clark, supra, was defeated by the presence of actual or express malice. I find that this is a case where the defendant Graham believed in the accuracy of what he said, was not reckless or wilfully blind as to the truth of what he was saying, had no oblique motive and said nothing not germane to the situation and falling well within the vigour the law allows to one in the defendant’s position. (Ward v. Clark, supra) And in Ward v. Clark, supra, the Court of Appeal made it clear that in the context of the form of qualified privilege under discussion here nothing less than proof of actual or express malice will avail the plaintiff.

[73] The plaintiff’s action for defamation is dismissed.

[74] I have dealt with the only two ponderable causes of action left with me at the end of the case. (Wrongful arrest and libel). The plaintiff has failed to make out his case in connection with each of those causes of action. The whole of the plaintiff’s claim and all of his causes of action are dismissed. I note here that from the outset of the trial it was common ground between counsel that the plaintiff had no case to present as against the defendant Aitken.

[75] If counsel cannot agree on the question of costs they may make written submissions. Counsel for the defendants will make a written submission within 21 days of the issuing of these reasons for judgment. Counsel for the plaintiff will have 21 days to file a response. Counsel for the defendant will have 7 days to file a reply.

“A.M. Stewart, J.”
The Honourable Mr. Justice A.M. Stewart

Citation:	*Richardson v. City of Vancouver et al,*
	2005 BCSC 499