Justice reform: imagining a world without nails

Most justice reform is incremental.  Take even a report as thoughtful and ambitious as Geoff Cowper’s recent BC Justice Reform Initiative report. Most of its many excellent recommendations propose relatively minor adjustments to existing institutions and processes; if the whole report was implemented (and I hope it is), the result would be very significant, but not, I respectfully submit, transformational.  Our legal institutions would be somewhat repaired, perhaps, but most certainly not re-invented.  And of course the lawyers and judges – the folks who in large measure created the problems – would still be in charge.

Some think that incremental reform goes far enough.  I do not.  I think that sooner or later the legal system will have to reinvent itself profoundly, or else re-invention will be imposed on it.  

I hold this view not just because of long experience watching how tenaciously the status quo is defended, even as public confidence in the justice system and law work continues to erode, but also because I have seen how much re-invention is underway in other parts of our lives.  

Gillian Hadfield, a professor of both law and economics at the University of Southern California, is much better at articulating these ideas than I am.  Professor Hadfield is one of a small but growing chorus of academic voices discussing and in some cases calling for the de-regulation of the legal profession, an idea that would be regarded as profoundly heretical here in British Columbia.  In a recent article in the Stanford Law Review entitled “Legal Barriers to Innovation: The Growing Economic Cost of Professional Control over Corporate Legal Markets.”  (60 Stan. L. Rev. 1689 2007-2008) Professor Hadfield analyzes the extent to which the self-regulation of the legal profession stifles innovation in the delivery of legal services in the business sphere.  I like the way she puts things:

 “Innovators have long been imagined as disaffected or isolated iconoclasts tinkering away in the garage, on the periphery of the markets that their inventions might transform.  Where are the “garage guys” in law?”

In her view they are blocked by professional regulation that ensures that only those who have gone through “extensive induction into the conventional practice of law may participate in legal markets.”  

And then she finds another wonderful way to make the point:

"This regulatory structure is akin to requiring that anyone with a “mission to make the world’s information universally accessible and useful” complete a degree in library science and maintain standing in the professional association of librarians before embarking on the mission."

This of course is the mission of Google.  Her point is that Google’s founders, Larry Page and Sergey Brin, did not need to go to librarian school to reinvent access to information.  And that’s my point.  What Page and Brin want to do is make information accessible.  They’ve found a way to do that which completely bypasses the traditional structures of libraries and librarians, and instead puts a whole world of information directly and literally into our hands. 

That’s the kind of thinking that is needed for law and justice.  Discarding the self-orienting perspective of those who can only see the legal system from their traditional vantage point inside it.  Remembering that our real objectives are, say, access to legal products and outcomes without requiring that we pay someone who has eight years of post-secondary education.   To take Professor Hadfield’s analogy, it’s not the librarian we should care about, it’s the information.

Why is it more likely that transforming innovation will come from outside the world of lawyers and judges? Well, Professor Hadfield has one more beautiful little insight:

"The cliché often applied to the legal profession is the notion that “when all you have is a hammer, everything looks like a nail.”  But this captures only a part of why the homogeneity of those who can supply legal products and services has results in such stagnation in the nature of legal products and services.   Apparently when everyone has a hammer, nobody can even imagine a world without nails."

There's a lot of hurt caused in the name of free speech

I

Our reputations are both incalculably precious and yet exquisitely fragile.  A lifetime’s reputation for integrity, honesty, and fair dealing can be crushed to nothing in a moment.  All the more so, of course, in the Internet age.  The schoolyard plea that “sticks and stones may break my bones, but names will never hurt me” is just bravado.  All personal attacks hurt.  Public attacks do more than hurt, they cause harm.  It’s hard to hold your head high when the world around you is full of nasty gossip about you. 

The law has long respected this reality by providing the victims of false attacks with recourse in the form of the tort of defamation.  However, the law also protects our right to vigorous debate when we are speaking about important public issues.  Freedom of expression and debate are said to be the “very life blood of our freedom and free institutions.”

It is a truism that the idea of free speech only becomes interesting when someone says something we disagree with.  We all know the famous statement (usually attributed to Voltaire) “I do not agree with what you say, but I will defend to the death your right to say it,” but it’s easier to say this than to live it.  How many of us are truly willing to suffer the blows of a vicious, unwarranted verbal attack and yet defend the speaker’s right to attack us?

I have been thinking about this issue, and not just because bullying is back in the news this week.  Three of my friends have recently announced their candidacy for federal and provincial public office.  They are all fine people: Murray Rankin, the NDP candidate in the upcoming Victoria federal by-election, is one of Canada’s leading environmental lawyers and a recognized expert on information and privacy law.  Suzanne Anton and Andrew Wilkinson, both candidates for the BC Liberal nomination in Vancouver Quilchena, already have fine records of public service in municipal and provincial government.   Each of them would be a credit to elected office.  And yet it is only a matter of time before the most hurtful things will be said about them. 

I can remember the first time I was accused of being a Nazi.  It was in my constituency office.  It was whispered in my ear.  I will never forget it.   I lost track of the number of times that the impact of the spending reductions we made during my term as a Cabinet Minister was compared to the Holocaust.

All in the name of free speech.

II

A recent decision of the BC Supreme Court provides a powerful illustration of how vulnerable we are to public criticism, no matter how vicious, and how little there is that the law will do to stop it.  The case is called Mainstream Canada v. Staniford, 2012 BCSC 1433. The key issue in the case is the defence of fair comment in defamation cases.   The application of that defence in this case shows just how far the law will go to allow us to say hurtful things about each other. 

The plaintiff in the case was Mainstream Canada, one of three companies that dominate salmon farming in B.C.  The defendant Don Staniford has for many years campaigned against salmon farming around the world.  The trial judge described him as an “activist, author and environmental campaigner” who is “extremely proud” of the work he has done to attack the salmon farming industry. 

Mr. Staniford’s attacks are virulent, to say the least.  In January 2011 he issued a press release in Vancouver, launching a campaign under the slogan “Salmon Farming Kills.”  The gist of his attack was that farmed salmon causes cancer, akin to smoking, and that the salmon farming industry is as odious and dishonest as the tobacco industry.  Mainstream sued for defamation.

Mr. Staniford responded by blogposting personal insults about opposing witnesses during the trial.

The judge summarized her extensive analysis of Mr. Staniford’s statements in the following passage (at para. 198):

… Mr. Staniford does not in fact do anything to conceal the spite, ill-will and contempt he holds for industrial aquaculture and salmon farming in general, and Mainstream … in particular. I think the evidence is overwhelming in this regard. Mr. Staniford’s Internet postings are filled with insulting and demeaning comments and cruel caricatures. He ignores and disdainfully dismisses peer-reviewed science (…) when the conclusions conflict with his own views. The language in his publications – including the mock cigarette packages in particular – is extreme, inflammatory, sensationalized, extravagant and violent. The word “kills” is everywhere.

The judge held that Mainstream had established the requirements for defamation.  That is: (1) Mr. Staniford’s words would, in the language of the law, “tend to lower Mainstream’s reputation in the eyes of a reasonable person”; (2) they referred in fact to Mainstream; and (3) they were communicated to others.

These are all the elements of the tort of defamation, a species of civil wrong that is intended to protect our reputations from falsehoods spoken by others.

There are two familiar defences in defamation cases.  One is justification.  A defendant can “justify” his statements by proving that they were in fact true.  It’s okay to shout out in a public square that someone is a horse thief if he is.  Mr. Staniford did not offer this defence.  That is, he did not seek to prove that farmed salmon actually kills people.

Instead Mr. Staniford relied upon the defence of fair comment.

In essence the defence of fair comment is intended to allow us to express strong, critical opinions even if the words used would otherwise be defamatory, provided that we are speaking about a matter of public interest.  Justice Binnie of the Supreme Court of Canada in a 2008 case called WIC Radio Ltd. v. Simpson, 2008 SCC 40, said (at para. 1) that the defence of fair comment “helps hold the balance in the law of defamation between two fundamental values, namely the respect for individuals and protection of their reputation from unjustified harm on the one hand, and on the other hand, the freedom of expression and debate that is said to be the “very life blood of our freedom and free institutions”.

The elements of the fair comment defence (as modified in the WIC case) are the following: 

1. The comment must be on a matter of public interest;
2. The comment must be based on fact;
3. The comment, though it can include inferences of fact, must be recognizable as comment;
4. The comment must satisfy the following objective test: could any man honestly express that opinion on the proved facts?
5. Lastly, even if these requirements are satisfied, the defence is not available if the defendant was “actuated by express malice.”

The application of these requirements in practice is often difficult.  For example, lawyers are readily able to argue that although their client said that Mr. X was a horse thief, what he really meant was “In my opinion, anyone capable of doing such things as Mr. X has done is no better than a horse thief.”

This is more or less what happened in the Staniford case.  Although Mr. Staniford’s statements are very clear and, in form, very factual – he says without qualification that salmon farming kills people - the judge accepted that Mr. Staniford’s statements were expressions of opinion.

Here is how the trial judge expressed the submission of Mr. Staniford’s lawyer on this issue:

“if Mr. Staniford was an honest man expressing his genuine opinion on a subject of public interest then, no matter that his words conveyed derogatory imputations, no matter that his opinion was wrong or exaggerated or prejudiced and no matter that it was badly expressed so that people read all sorts of innuendo into it, nevertheless he has a good defence of fair comment.”

The judge agreed.  She held that all of the elements of the defence were established: the safety of fish farming is a matter of public interest; Mr. Staniford’s opinions were based on some facts (although the supposed “facts” are wholly discredited – there is no scientific evidence that eating a farmed fish is harmful to your health); that the comments, although stated in a form which appears to be factual, were just comments, and, in respect of the last element (at para. 184), that “Mr. Staniford (at least) believes what he says.”

It is impossible to read this judgement without concluding that what the law calls the defence of fair comment should really be called the defence of unfair comment.  The judge in this case concluded that Mr. Staniford was a closed minded, deeply prejudiced and “unreliable reporter of facts” who would “say almost anything to further his own agenda.”  He “believes his own press, even when contradicted by other, contemporaneous documents.”  (para. 188)  He “cruelly and publicly mocks people who have a different point of view,” and aims to “ridicule and humiliate people who do not agree with his views.”  In the judge’s view, the evidence was “overwhelming” that Mr. Staniford does nothing to “conceal the spite, ill-will and contempt he holds for industrial aquaculture and salmon farming in general.”  In short, nothing about his attack on farmed salmon is in any sense fair. 

There is, however, one more element to the defence of fair comment. The defendant cannot rely upon that defence if it can be shown that he was “actuated by express malice.”

On this point, the judgement is very interesting.  The judge has no hesitation in finding that the publications in issue were actuated by Mr. Staniford’s express malice towards Mainstream.  But, she goes on to say, that this was not Mr. Staniford’s dominant purpose.  His main goal, in her view, is to end industrial aquaculture.  Accordingly, she holds, he is entitled to rely upon the defence.

We will see what the Court of Appeal makes of this conclusion.  In the first place, the way the test is usually expressed does not require that malice be a dominant purpose.  Arguably, any finding of malice ought to deprive a defendant of the benefit of the fair comment defence, simply because the point of the defence is to permit debate on matters of public interest, not to licence personal attacks.  Secondly, it is hard to see how any plaintiff in circumstances similar to Mainstream could ever prove a case of defamation in any situation where the attacks in question relate both to a public issue as well as personal reputation. 

But apart from the question whether there is a good appeal here, I am interested in what this body of law says about our values as a society.

III

Reflect again on Mr. Staniford’s statements, and ask yourself what it would be like to be an employee of Mainstream and its parent company, carrying on lawful businesses, companies which the trial judge said, “model the behavior of a responsible corporate citizen”.  Mr. Staniford launches a highly public campaign. Its message, shouted from the rooftops, is that the product you make kills people.  You are personally demeaned and ridiculed for appearing as a witness in court on behalf of your employer.   What you learn is this: in our democracy, free speech is more valued than decency, fairness, self-respect, self-restraint, intellectual integrity, or responsibility.  And when it comes to public debate, the law rewards the most outrageous and hurtful among us.  It’s a harsh lesson, I think.