By J-Source Law editor Thomas Rose

By J-Source Law editor Thomas Rose

So why hasn’t Toronto Mayor Rob Ford filed a defamation suit against the Toronto Star and/or the Gawker news site, which incidentally lives by the motto ‘today’s gossip is tomorrow’s news?' Alan Shanoff over at the Winnipeg Sun poses that very question in a recent article that ultimately  fails to provide any answer but does seems to actively encourage Ford to proceed with a suit, suggesting that it would in fact be an ‘easy task’. I disagree.

Ordinarily in a libel case, the burden of proof lies with the defendant, in this case that would be the Star, to prove the allegations made were true.  That might be difficult under the circumstances as the original allegations were made by individuals thought to be connected to Toronto’s underworld who secretly taped what appears to be a fun filled and as yet unexplained encounter with the mayor.

Without the testimony of those individuals, whose credibility would be suspect from the get-go, and certainly without the video itself, the Star would have a hard time establishing the truth of the matter, that is, did the mayor smoke crack cocaine?  

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The likely response to a libel suit would therefore be the defense of responsible communication, which provides inter alia that the information published does not necessarily need to be true, provided that it is in the public interest.

Certainly it can be argued that the existence of strong circumstantial evidence showing the mayor of Canada's largest city mixing socially with self-proclaimed criminals and holding what looks like a typical crack pipe is in the public interest.  The video, if authentic, and the allegations of the individual claiming to have made the video raise questions the citizens of Toronto deserve to have answered.

If drugs aren’t being consumed, why is the mayor allegedly seen warming the bottom of the glass pipe with a lighter and then inhaling?  Why are the mayor’s words slurred?  Why is he allegedly even in the room holding such paraphernalia?  Why is he apparently consorting with possible drug dealers?  The answers to these questions would allow the public to better gauge whether this is the person they want representing their city and their interests.

For a responsible communication defence to succeed the Star would need to meet other criteria, but at present there is a high probability it would prevail.  There are those who feel that the Star acted out of malice, that as an institution it has repeatedly and consistently demonstrated a desire to ‘get’ Mayor Ford, and that this latest scandal is just one more example of the lengths to which the venerable publishing house will go to achieve its goal.

Malice of course is one thing the courts will not tolerate.  Which is why allegations of malice would most certainly be raised in a law suit.  To this end the Star would need to show that it not only acted in the public interest, but that it did so fairly.  Did the Star’s reporters for example, diligently seek out the Mayor’s side of the story, and were those efforts accurately reported? 

It has been suggested that the Star did not seek out the mayor’s response in this case.  If that is true, the Star might argue that since the American- based information site Gawker   had already published the story, it was in the public interest to first provide Torontonians with the benefit of the information gathered by its reporters, and then later seek a response from the mayor.  In this way Torontonians would be provided with a Canadian context for the story and not have to rely solely on Gawker.  In support of such a claim, the Star would likely need to demonstrate that it has consistently sought out the mayor’s response whenever it was about to publish other stories critical of Ford. 

To date, the mayor has not provided anyone with a full response to any of the allegations, apart from dismissing them as ‘ridiculous’ and yet another example of the Star ‘going after’ him. 

The mayor’s silence may indicate his lawyers are busy preparing a law suit, but it is not sitting well with the people of Toronto.  As of today, all four major dailies serving the city are demanding that Ford answer the charges.

So, why hasn’t the mayor filed a lawsuit, or at least freed his legal team to imply such action is being contemplated?  One reason might be that Ford knows that by going after the Star the issue would stay on the public agenda longer than he might wish.  Another reason could be that barring the discovery of new information, there is a good chance he would lose his case.

Then again, the mayor may be holding off because the primary target of a libel suit may not be the Toronto Star but  Gawker, which has published the most salacious comments about the mayor and his behaviour.  But slapping that organization with a libel suit could prove tricky because it is based solely in the U.S. and the issue of whether Canadian law can be applied extraterritorially has not fully been developed.

In 2012, the Supreme Court reaffirmed that defamation occurs where the defamatory comment is published, even when publication takes place on the internet in another country.  In other words, if a defamatory statement is published on the internet and accessed in Canada, as the allegations of crack smoking were, the defamed party, in this case the mayor, may be able to sue in Canada.  Still, that’s a big gamble, especially if representatives of Gawker refuse to appear in Canada.

In the end, Mayor Ford may decide to wait out the storm, allowing his supporters more time to solidify a narrative that paints him as a victim, a bumbling and mistake prone victim to be sure, but a victim nonetheless.  If there is no law suit, if the video never surfaces, and if Ford chooses to offer only selected and limited explanations of his behaviour, the matter could well be left not to a court of law but to the court of public opinion.  Toronto's next mayoral election is on Monday, October 27, 2014.