Andrew Weaver has been taking a victory lap following the recent decision in his favor by rookie judge Emily Burke. In previous commentary about Mann v Steyn, I’ve made some snide remarks about the competence of D.C. trial court judge Combs-Greene, either implying or stating that Canadian courts have higher standards. I take it all back. As a Canadian, it’s embarrassing to discuss Judge Burke’s disorganized and muddled decision with readers from other countries. Unsurprisingly, beneath the muddled prose, there are (what appear to me) some bright-line legal errors over and above quixotic and often grossly incorrect findings of fact.
In fairness to Judge Burke, she was astonishingly inexperienced to have been assigned a relatively complicated libel case. She had been appointed as a judge on May 13, 2014 (h/t Hilary Ostrov) and the Weaver v National Post trial began in the first week of June 2014, only a few weeks after Burke’s appointment. Her resume shows that her professional experience over the previous 20 years had been as a labour arbitrator, with no apparent evidence of previous experience in libel law. It was very unfortunate that she was assigned this case.
If Burke’s decision accurately reflects Canadian libel law, then for opinion writing in Canada (including Climate Audit), it is more of a polar vortex than mere libel “chill”. To borrow a phrase, it would be a travesty if National Post did not appeal this decision.
In today’s post, I’ll set out an overview of the main issues. As CA readers are aware, I am not a lawyer and my article does not contain legal advice. However, I know the factual context very well and have familiarized myself with the relevant case law. I plan to re-review the “facts” with the legal context in mind, but will also comment on the legal implications. Readers should keep in mind that I also commented at the time (e.g. here) on some of the same events as National Post and that, at the time, I , like the National Post opinion columnists, believed that Weaver believed that the fossil fuel industry was responsible for the UVic break-ins that Weaver had asked the national and international community to be interested in.
The Canadian Libel “Dialect”
Canadian courts have not adopted the actual malice test of New York Times v Sullivan, which set U.S. libel law on a different direction from Canada, Australia and the U.K., which previously had much in common with the libel law of many states, including occasional exchange of precedents.
Like the U.S., Canadian courts have also modified libel law over the past few decades towards freer speech, but through modification of traditional common law techniques, rather than the blunt force of the constitutional argument of NYT v Sullivan. In my reading, it seems to me that there are (at least) three main techniques, all of which are discussed in recent B.C. libel cases (see Shavluk v the Green Party and Elizabeth May 2010; Lund v Black Press Group 2009– both vastly more readable than Weaver):
- the fair comment defence was expanded by the Supreme Court in 2008 (WIC Radio v Simpson) by formal recognition of an honest belief test: could any person honestly express that opinion on the proved facts? Previously this test had been a dissent (Cherneskey v Armadale 1979).
- the categories of “qualified privilege”, traditionally defined very narrowly, have been expanded in some jurisdictions, to include comment on matters of public interest. It was considered in an important U.K. case in 1999: Reynolds v Times Newspapers (House of Lords), which argued that it was sufficient “elastic” to meet EU standards of free speech. It was recognized by B.C. trial courts in Shavluk v Green Party and Elizabeth May, which, though not a decision by a senior court, was written clearly and has extra local colour because of Weaver’s close association with both Elizabeth May and the Green Party.
- B.C. courts have also recently accepted the argument: Lund v Black Press Group; also discussed in Shavluk but distinguished on facts, that comments about a person in their public capacity are not defamatory in law, unless malice is present. This technique is not structured as a defence, but as an argument that one of the essential elements of the pleading is absent. The precedents in Lund recalled an older line of cases. Lund is only a trial court decision, but it has additional interest because Weaver’s lawyer, Roger McConchie, acted for the defence in Lund, lending a certain interest to how McConchie purported to distinguish the two cases.
On the other hand, many aspects of Canadian libel law correspond to U.S. libel law. In both jurisdictions, plaintiffs are entitled to plead both the “literal meaning” and innuendo (in Canada, “inferential meaning”) of the disputed words. In a jury trial, judges are supposed to first determine whether the words are capable “in law” of a defamatory meaning, with the jury then deciding whether the words “in fact” have that objective meaning for an “ordinary” (in some sense) reader. In Canada, judges in libel cases typically also act as finders of fact, but the two-stage test still applies.
The lawsuit contested four National Post opinion columns – all clearly marked as opinion – published between December 8, 2009 and February 2, 2010. The original articles are now difficult to locate online, but are mostly preserved in the decision here:
- December 8, 2009 – Weaver’s Web by Peter Foster;
- December 9, 2009 – Weaver’s Web II by Terry Corcoran;
- January 26, 2010 – Climate Agency in Flames by Terry Corcoran; and
- Feb 2, 2010 – So Much for Pure Science by Kevin Libin.
Curiously, what the judge described as the “main” area of factual disagreement did not turn on facts originally reported in any of these opinion columns, but on two prior news articles that were not named in Weaver’s complaint. Neither of these news articles is quoted in full in the decision and neither remain online in their original location.
- Dec 3, 2009 – Megan O’Toole, National Post: “Attempted breaches show larger effort to discredit climate science: researcher” (see archive here) and the near identical Dec 4 “People are ‘trying to find anything’ – Security breaches” (see archive here) . O’Toole had reported that Weaver had said that break-in incidents at the University of Victoria were “evidence of a larger effort to discredit climate science”, that the “key thing” was to “find something that you can … take out of context”, that the “the timing of the alleged attempts to breach security is linked to the coming Copenhagen summit”, that the “real story in this is, who are these people and why are they doing it?”, not the “minutiae” of the Climategate emails, that the Jones controvesy was not the result of a “lucky hack” and that Weaver “believe[d] the campaign is driven by the fossil-fuel industry”
- Jan 26, 2010 – Richard Foot, Canwest (the parent of National Post): Canadian scientist says UN’s global warming panel ‘crossing the line’ (see archive here). Foot had reported that “A senior Canadian climate scientist [Weaver] says the United Nations’ panel on global warming has become tainted by political advocacy, that its chairman should resign, and that its approach to science should be overhauled.
The four opinion columns relied on the two news articles, though, in both cases, there was a great deal of related contemporary material that was not reviewed in Judge Burke’s decision.
Within the four disputed opinion columns, there are four main issues (or issue threads):
1. the opinion columns are, in part, premised on the understanding that Weaver believed that the fossil fuel industry was responsible for the UVic break-ins and alleged hack attempts. Weaver later denied that he held such beliefs. Principally through examination of O’Toole’s interview notes, the judge found that National Post failed to “establish” that Weaver held this belief. (In the statement of claim, it’s not clear to me that Weaver explicitly denied holding such beliefs, as opposed to denying that he had told the National Post that he held such beliefs – I intend to parse these matters closely in a future post).
2. Corcoran’s opinion column of January 26 was, again in part, premised on the understanding from the Foot article that Weaver had called for reform and a “change in leadership” at IPCC. The judge found that this was a factual error, because Weaver had “at most” called for Pachauri to “move on” as opposed to calling on him to “resign” – distinctions that seem both murky, to say the least, and grossly insufficient to trigger the subsquent chain of dominos of J Burke’s decision.
3. a third issue, arising in Weaver’s Web, the first column, concerns Peter Foster’s criticism of a December 4, 2009 article by Weaver and Thomas Homer-Dixon, in which Weaver and HD had dismissed skeptic concerns over the growing discrepancy between models and 21st century temperature observations as nothing more than “cherry-picking” 1998 as a start date for trend calculations. Weaver and HD claimed that the selection of 1998 was “misleading at best and dishonest at worst.” (AR5 subsequently also used 1998 as the start date for trend comparisons in its discussion of the hiatus – a decision that would seem to somewhat vindicating for National Post, though not mentioned in the decision.) National Post’s retort in Weaver’s Web seems (to me) easily within legitimate comment, quite aside from any vindication by AR5’s handling of 1998 trend starts. However, Weaver argued that the “inferential meaning” of the seemingly routine challenge was the imputation that he had “engaged in willful manipulation and distortion of scientific data for the purpose of deceiving the public in order to promote a political agenda” and “is untrustworthy, unscientific, and incompetent”, claims that the judge accepted.
4. a fourth important issue was whether Corcoran had “changed [a Weaver] quote for his own purposes”, a finding that appears to have influenced the following very severe and (in my opinion) totally unwarranted characterization by J Burke:
the defendants altered the complexion of the facts and omitted facts sufficiently fundamental that they undermine the accuracy of the facts expressed in the commentary to the extent the facts cannot be properly regarded as a true statement of the facts.
In a 2007 interview, commenting on then newly released estimates of 2007 annual (global) temperature data, Weaver said:
When you see these numbers, it’s screaming out at you, “This is global warming.”
In one of the opinion columns, Corcoran transcribed the quotation as follows:
When you see these [temperature] numbers, it’s screaming out at you: ‘This is global warming!”
The numbers in the quote Dr. Weaver was referring to in his article were “the global average surface temperatures” and not weather and/or temperature events. It was also clear from Mr. Corcoran’s testimony that he knew the difference between these two concepts; he knew Dr. Weaver was referring to global average surface temperatures but changed the quote for his own purposes.
In a debate over climate, the 2007 global annual temperature is a “temperature event”. It is deranged to say that Corcoran’s insertion of the explanatory “[temperature]” means that he “changed the quote for his own purposes”. It is hard to be sufficiently vehement about this sort of nonsense.
Although Judge Burke made some bewildering and unjustified findings of fact, findings of fact by a trial judge are notoriously hard to appeal (though some of Judge Burke’s findings are so contrary to the record that they may meet even that high hurdle). For appeal purposes, errors of law are of more practical concern. In my opinion, Judge Burke made some important legal errors that, in my opinion, not only warrant appeal, but National Post would be blameworthy not to appeal.
1) Fair Comment
National Post’s primary defence was fair comment. In 2008, the Supreme Court established the following test for fair comment as a defence in WIC Radio v Simpson 2008:
the comment must satisfy the following objective test: could any person honestly express that opinion on the proved facts?
In Weaver, in respect to the two main factual issues, Judge Burke found that the interview notes of NP reporter Megan O’Toole did not “establish” the belief attributed to Weaver in her December 3 news article and that Canwest reporter Richard Foot’s notes only showed that Weaver had agreed that Pachauri should “move on”, but did not say that he should “resign”. Rather than proceeding with the WIC Radio test on the remaining “proved facts” – which are considerable, Judge Burke dispensed with the WIC Radio test altogether as follows:
 I have concluded fair comment does not protect the defamatory statements about Dr. Weaver. The facts upon which they rely are not true. As such, I do not need to address whether any person could honestly express those opinions on the proven facts.
Though not a lawyer, I’ve read enough case law to recognize this as an absolutely extraordinary statement for a lower court judge. I can’t imagine any court of appeal being very comfortable with something like this.
Further, the issue is fundamental and not just wordplay. Even if one stipulates Burke’s quixotic findings of fact in respect to the fossil fuel industry and Pachauri resignation claims, there are many remaining “proved facts” that, in my opinion, permit a person to have honestly held the contested opinions.
2) “Capable of” the Inferential Meaning
A second large legal issue is whether the actual words are “capable” “in law” of bearing the extravagant inferential meanings claimed by Weaver and accepted by J Burke.
In Hodgson v Canadian Newspapers (1998 ON SC, cited in B.C. decisions), also a complicated Canadian libel case with multiple alleged defamatory phrases, each with claimed inferential meaning, decided by an experienced judge acting alone, the judge pedantically parsed each of the numerous allegations, first deciding in law whether the phrase was capable in law of bearing the claimed defamatory meaning and, only then, deciding as a finder of fact whether they would bear such meaning to an ordinary person (the objective test). However, once again, J Burke decided that she could dispense with this test:
In Mainstream Canada v. Staniford, 2013 BCCA 341 at para. 15 [Mainstream (C.A.)], the BC Court of Appeal observed in a defamation action tried by a judge alone, it is not necessary for the judge to first determine whether the words in question were capable of having a defamatory meaning. Rather, it is only necessary for the judge to determine whether the words did in fact have a defamatory meaning.
While there are cases noting that judges acting alone sometimes merge the two tests in practice, my take is that, in specific cases, appeals courts were content that the trial court judge, even if a bit sloppy, had not done any injustice in the case at hand, but the decisions did not overturn the requirement for judges to determine that the words were capable in law of the claimed defamatory meaning.
Because some of the inferential meanings claimed by Weaver and accepted by J Burke are so far fetched, it seems to me that challenging whether the words are “capable in law” of bearing the claimed inferential meaning is also a topic that is important and relevant to an appeal.
3) Burke’s Rejection of Public Sphere Comment ‘Defence’
As noted above, even harsh criticism of someone in their public capacity without imputation on private character has been held in B.C. recently to not meet the definition of “defamatory”: Lund v Black Press Group 2009, a case where Weaver’s lawyer, Roger McConchie, acted for the defence. National Post pleaded this line of argument, but it was rejected by J Burke, but without distinguishing (or even discussing) Lund. It seems to me that the criticism in Lund was just as or more harsh than the criticism in the National Post articles and it would be interesting to see how McConchie distinguished the two cases and/or if there was any call on McConchie to offer a distinction.
As I read the decision in Weaver, the only way in which J Burke purports to remove the comments from the “public sphere” exception is by invoking a common law obligation of special deference to a “scientist or professor”:
“ While at first blush the articles may appear to be associated with actions such as commenting on various theories associated with climate warming in the media or the associated organizations, the reality is the combination and cumulative effect of these articles is such as to adversely impact on Dr. Weaver’s reputation and integrity as a scientist. Imputations of dishonest behaviour on the part of a scientist or professor in that role can constitute defamation.
It seems to me that J Burke’s finding on this point has echoes of J Combs-Greene’s remarkable decision that it was a tort in D.C. to question Mann’s “intellect and reasoning”:
To call his [Mann’s] work a sham or to question his intellect and reasoning is tantamount to an accusation of fraud.
J Burke seems to arrived at a similar place. However, it seems to me that once Weaver entered into the rough-and-tumble of public controversy – as he had done repeatedly over the years and as he had done in the events commented on in the National Post opinion columns – he was entitled to no special deference as “scientist or professor”. I think that the court of appeal should be asked to consider whether Canadian defamation law recognizes an obligation of deference to “professors” when they are engaged in the public sphere.
4) Qualified Privilege
Although defendants Elizabeth May and the Green Party had succeeded in Shavluk on their defence of qualified privilege (but not fair comment), this defence was not discussed in Burke’s decision and does not seem to have been presented by National Post. I don’t know why, as it seems to me that it would have been worth arguing in light of its success in Shavluk.
5) Gross Errors of Fact
In some cases, Burke’s findings of fact can be proven to be based on errors. For example, in respect of one of her two “main” factual findings, she wrote:
 With respect to Climate Agency Going up in Flames, I find Dr. Weaver did not call for the resignation of Mr. Pachauri, but rather as noted indicated he should “move on”. I conclude this on the basis of the emails sent by Dr. Weaver to Nature, which said something completely different, and those immediately sent to Mr. Foot, which indicated he was surprised by this comment. Mr. Foot had the Nature article and, in my view, simply referenced that opinion when writing the article, as reflected in his email in response to Dr. Weaver’s correction.
The Nature article mentioned here was not published until Feb 2 and was therefore not the article reflected in Foot’s email responding to Weaver. The article actually referenced by Foot in the email was the Der Speigel editorial of Jan 25, which explicitly and unequivocally called for Pachauri’s resignation. If the correct article is considered, Burke’s finding makes no sense whatsoever.
I’m not sure whether her decision on “[temperature]” is an error of fact or law, but it is ludicrous whatever it is. There’s not a doubt in my mind that “[temperature]” was explanatory and legitimately explanatory and any contrary finding ought not be upheld.
She makes a false and even defamatory mention of Climate Audit in her decision:
 Copies of the downloaded publications contain reader comments, an example of which is Heatwave, referencing Climate Agency Going up in Flames and posted January 25, 2010:
Andrew Weaver was a willing participant in the AGW fraud and his “jumping ship” at this time will not save his sorry ass.
 A review of the material demonstrates further reader comments, including many reader comments on the Climate Audit site of the article. In my view, this evidence is sufficient to establish the fact of re-publication.
There was no “Climate Audit site of the article” nor was the above reader comment ever made here. Nor would the posting of the above comment comply with CA policies. Unsurprisingly, the above false comment was immediately republished by John Mashey at William Connolley’s. It’s annoying to be incidentally defamed by false comments by a judge.
It’s hard to list all the errors of fact. I plan to do follow-up posts, setting out chronologies of fact for the main threads listed above.