Certainly, thoughts of defamation are not far from Galloway's mind. "I have been defamed in a way which is scarcely possible to exaggerate," the former British Member of Parliament told the Toronto Star upon his arrival at Pearson Airport yesterday.
Reading between the lines of the Star's first news brief about Galloway's visit to Canada -- his first since March 2009 when Kenney absurdly declared him to pose a threat to national security -- the outline of a defamation strategy can be seen.
The Star reported Galloway "would consult with his Canadian legal team to see what actions might be taken against his political nemesis, Immigration Minister Jason Kenney. He said Kenney put him in danger and hurt his reputation by falsely branding him a terrorist."
The hint about the legal strategy Galloway might adopt was found later in the story: "Galloway also has said the terrorist allegations cost him his seat in the British House of Commons."
This is the traditional double-whammy trotted out when a writ is dropped in the tort of libel, generally referred to as defamation in the laws of Canada's provinces, both here and the United Kingdom.
First the plaintiff complains of the defamatory nature of the words published about him. "He said Kenney … hurt his reputation by falsely branding him a terrorist."
Thus, according to Gatley on Libel and Slander, the defamation lawyer's bible, "a defamatory imputation is one to a man’s discredit, or which tends to lower him in the estimation of others, or to expose him to hatred, contempt or ridicule, or to injure his reputation in his office, trade or profession…"
That done, the plaintiff tries to establish the defamation cost him money -- money he expects the court to force the defendant to make up to him.
Now, if you're a retired gentleman of a certain means, a defendant might argue you had nothing to lose. But if you could prove you had lost a job and the income that went with it, well, that would be pure gold. Thus, perhaps, Galloway's argument the allegations "cost him his seat in the British House of Commons."
If you are ever sued for defamation, it is the second part that really hurts when it slams into you -- not merely because you have just picked yourself up from the first blow, but because it is the part of the suit designed to really cost you money.
Many Canadians felt in March 2009 that the immigration minister's effort to ban Galloway from Canada was motivated not by a sincere desire to protect our national security but by the fact Kenney disagreed with views on the Middle East Galloway articulately expresses.
Now that supposition has been confirmed by a ruling of the Federal Court of Canada: "The main reason why the respondents sought to prevent Mr. Galloway from entering Canada was that they disagreed with his political views," Justice Richard Mosley said last month in a case brought by Galloway's Canadian supporters. Elsewhere in his ruling, the judge noted the Canadian Security and Intelligence Service told the Canadian Border Services Agency that CSIS "had no concerns with Mr. Galloway's visit from a security perspective."
The judge tossed the case, by the way, on a technicality, but not before having harsh words for Kenney and his media aide that led even the far-right National Post to conclude it was obvious "that the decision was political from the get-go, and Kenney and his director of communications … just tried to hide it by cloaking it in terms of national security."
In other words, just as most of us thought at the time, the case against Galloway was a trumped-up load of politically motivated baloney originating in the ideology and immaturity of our callow immigration minister.
On the face of it, too, it was clearly defamatory. It held Galloway up to hatred, contempt and ridicule, and injured his reputation in his office.
Of course, if it were to come to a lawsuit, Kenney and his aide would have the traditional defences available to defamation defendants in Canada and the United Kingdom. (Since the words most likely to be complained of were published in both countries, an action could proceed in either.)
They could argue, for example, that their views were the truth, or a fair comment based upon truth. This would present difficulties, however, since it is the reasoned opinion of a Canadian court this was not the case.
They could argue their remarks were somehow privileged, although this too would seem a bit of a stretch, since they appear to have made their comments in telephone interviews with journalists.
In this country, one supposes, they could even try the new "responsible communication" defence created by the Supreme Court in 2009 -- although this might require them to prove they used due diligence in the research that led to their conclusions, and that they posted them on a blog.
In Canada and the U.K., defamation law is still biased heavily in favour of plaintiffs and profoundly unconcerned about the rights of citizens to freely express their views. So Kenney would face the same hurdles to a successful defence as any Canadian caught in the web of defamation law.
Perhaps this could do some good. Many have thought for a long time that we will be stuck with this horrible law until it begins to afflict the powerful as it has the rest of us who wish to exercise our right to free expression.
Under those circumstances, a defamation suit by Galloway would possibly be useful, certainly instructive and surely a source of political entertainment of the most elevated sort.
This post also appears on David Climenhaga's blog, Alberta Diary.
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