R. v. Clarke, 2008 ONCJ 230 (CanLII)
Date:
2008-05-13
File number:
998 06 10556
Citation:
R. v. Clarke, 2008 ONCJ 230 (CanLII), <http://canlii.ca/t/1wx6v>, retrieved on 2020-03-26
COURT FILE No.: Durham Region 998 06 10556
DATE: 2008-05-13
Citation: R. v. Clarke, 2008 ONCJ 230
ONTARIO COURT OF JUSTICE
BETWEEN:
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HER MAJESTY THE QUEEN
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— AND —
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Alan Clarke
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Before Justice Joseph De Filippis
Heard on March 31 & April 1- 3, 2008
Reasons for Judgment released on May 13, 2008
Mr. Alan Brass and Mr. Joseph Selvaratnam............................................................... for the Crown
Mr. Alan Risen and Ms Kathy Inch ......................................................................... for Alan Clarke
De Filippis, J.:
[1] In early 2006, Canadians voted in the 39th general election. Mr. Sid Ryan was the candidate for the New Democratic Party (NDP) in Oshawa Riding. He was also the President of the Canadian Union of Public Employees (CUPE). The defendant, Mr. Alan Clarke, was an employee at General Motors (GM) and a member of the Canadian Auto Workers (CAW). He is also one of the founding members of a workplace organization known as “Members Against Political Affiliation” (MAPA). The members of CAW Local 222 voted in favour of a MAPA resolution prohibiting the union from supporting any political party or candidate. Nevertheless, the President of Local 222 and others on the executive publicly supported Mr. Ryan. During the 39th general election, the defendant distributed a leaflet that asserted Mr. Ryan associated with criminals and terrorists and criticized Local 222 for supporting him. Mr. Ryan called a press conference to complain about the leaflet and the defendant subsequently responded in a television interview. The election was won in Oshawa Riding by Mr. Collin Carrie for the Conservative Party. In a previous general election, the defendant had worked for Mr. Carrie. Mr. Ryan subsequently commenced civil proceedings against Mr. Clarke, claiming damages for defamation. At about the same time, Elections Canada laid criminal charges against the defendant.
[2] The defendant is charged with two counts pursuant to section 91 of the Elections Act: That during the 39th federal general election, he knowingly made or published a false statement of fact in relation to the personal character or conduct of Mr. Sid Ryan, a candidate in the said election, for the electoral district of Oshawa, with the intention of affecting the results of the election by; (1) distributing a leaflet entitled “What do you really know about Sid Ryan?” in which it was falsely stated that Mr. Ryan had links to a terrorist organization and associates with criminals and terrorists, and (2) participating in a televised local news network interview, broadcast on Rogers TV, on 20 January 2006, and making the false statement that Mr. Ryan associates with a man who had belonged to a terrorist and criminal organization.
[3] The Act makes it an offence to knowingly make false statements about the personal character or conduct of a candidate for the purpose of affecting a general election. In this regard, it is the person’s intent that matters; the Crown need not prove that the impugned conduct did, in fact, affect the general election. It follows that a person is not guilty of violating the Act in any of these circumstances; (1) if the statement is true, (2) if the person did not know the statement was false, or (3) if the person knowingly made the false statement for a purpose other than affecting the general election.
[4] It is not surprising that the defendant’s actions upset Mr. Ryan and attracted the attention of Elections Canada. Nevertheless, whatever else may be said about his statements, I find that the Crown has not proven the defendant intended to affect the general election. That being an essential element of the offence, the defendant is found not guilty. These are my reasons.
[5] The Crown and Defence filed an agreed statement of facts, with exhibits; the statement and exhibits are admitted for the truth of the contents and as part of the case without the necessity of either side calling viva voce evidence. The agreed statement, with minor editing, is as follows:
1. Mr. Sid Ryan, who was president of C.U.P.E. Ontario and not a member of the C.A.W. union, was the NDP candidate for the 39th federal general election of January 23, 2006 in the Oshawa riding (Electoral District – 35061). The Writ of Election (Exhibit A) for the election was issued on November 29, 2005, with the date for the election vote set for January 23, 2006. The federal election campaign period was between November 29, 2005 and January 23, 2006.
2. Mr. Alan Clarke was an employee of the GM plant and a member of the Canadian Auto Workers union (CAW). Mr. Alan Clarke along with Mr. Tony Vincent, in September 1992 created an organization called MAPA – Members Against Political Affiliation. The purpose of MAPA was to oppose the CAW Local 222 from supporting any political party at any time. Following a vote, 86% of the membership agreed to this proposal. However, during the January 23, 2006 election campaign, Chris Buckley, the union president, and some other members of the executive publicly supported Sid Ryan’s campaign.
3. On January 13, 2006, Mr. Clarke created and distributed exclusively within the Oshawa General Motors car plant, which is located within the Oshawa riding, 500 copies of a leaflet entitled “What Do You Really Know About Sid Ryan?” (Exhibit B). The top picture of the leaflet shows Mr. Sid Ryan accompanied by Mr. Alex Maskey and Mr. Allan McConnell, President of the “Friends of Sinn Fein Canada”. Underneath the photo is listed the web location of the source of this picture, namely http://www.fosfc.com/Photos/AlexMaskey_March2004.html, which is the website for the “Friends of Sinn Fein”. The text at the bottom of the photo reads as follows:
“At a “Friends of Sinn Fein” fundraiser Sid Ryan, left, with Alex Maskey, centre, a twice imprisoned member of the Irish Republican Army and now a member of the Sinn Fein leadership. Sinn Fein is the political arm of the IRA, a terrorist organization that has killed over 2500 men, women and children in Ireland and England”
At the bottom of the document, the following text is added:
“This is the kind of person that Chris Buckley and other members of the Executive have “not so privately” decided to support. When the next Executive election comes up remember how they have used the good name of our Local to further their own political agenda by supporting someone who associates with criminals and terrorist.”
The last line of text reads: MAPA – Members Against Political Affiliation. Colour copies of the photographs depicted in the above-noted leaflet have been copied from the internet. The picture showing Sid Ryan with Alex Maskey and Alan McConnell was copied from the “Friends of Sinn Fein” website (Exhibit C).
4. Susan Storey would state that the picture referred to in paragraph three was, in fact, taken at a fundraising event on March 12, 2004 for a charitable non-partisan organization called the Ireland Fund of Canada. However, this picture was copied from the “Friends of Sinn Fein Canada” website.
5. Alan McConnell, President of “Friends of Sinn Fein Canada”, would indicate; “Alex Maskey is a proud member of Sinn Fein and an elected representative. Mr. Ryan is not a member of “Friends of Sinn Fein”. To my knowledge, he (Mr. Ryan) has never been a member of Sinn Fein”.
6. Sid Ryan would indicate that he is not a member of “Friends of Sinn Fein”, Sinn Fein, the Irish Republican Army (IRA) or any terrorist organization. He would further indicate that he has met Alex Maskey on four occasions, one of which was at the Ireland Fund of Canada luncheon in 2004 where his picture was taken with Mr. Maskey as well as Alan McConnell, president of “Friends of Sinn Fein Canada” as depicted in the leaflet. He was introduced to Mr. Maskey by Alan McConnell at that function.
7. Mr. Ryan called a press conference to respond to the leaflet prior to the federal election of 2006 after Tim Eye, a worker at the General Motors plant and a worker for the Sid Ryan campaign, brought it to his attention after picking it up at the General Motors car plant.
8. Mr. Clarke agreed to be interviewed by a news journalist with Rogers TV Durham, the local Rogers TV station in Oshawa, on January 20, 2006. Mr. Clarke gave the interview upon invitation by Rogers after Mr. Ryan raised the issue of the leaflet with the media at his press conference the previous day. Debra Hutchison, the news producer for Rogers T.V., would indicate that they decided to “pursue Mr. Clarke to get both sides of the story.”
9. Prior to the leaflet referred to in paragraph three, Mr. Clarke had also prepared and distributed another leaflet on January 6, 2006, called “Have you seen the Local lately?” This leaflet did not make any reference to Mr. Ryan being associated with Sinn Fein or terrorists and criminals. (Exhibit D)
10. Mr. Clarke also engaged in e-mail correspondence regarding Mr. Ryan to Michael Coren a journalist (Exhibit F) and to Bruce Wood, a retired Ontario Power plant worker (Exhibit G).
11. Mr. Ryan made a complaint to Elections Canada. Mr. Clarke provided two voluntary statements on September 27, 2006 and November 21, 2006 to the investigators. Mr. Ryan also initiated a million dollar lawsuit for defamation which is being defended by Mr. Clarke. This matter is currently at the discovery stage, at the Ontario Superior Court of Justice in Whitby, Ontario.
[6] The layout of the leaflet is instructive: The font size of the text at the bottom of the document, with respect to the union executive supporting Mr. Ryan, is slightly smaller than in the rest of the document. Moreover, in addition to the photograph of Mr. Ryan and Mr. Maskey, the flyer includes one of a hooded man holding a firearm and another depicting a bombed building. Thus, the leaflet draws immediate and graphic attention to Mr. Ryan with others described as criminals and terrorists. On closer examination, the reader also learns of the plea by “MAPA - Members Against Political Affiliation” that the executive’s public endorsement of Mr. Ryan be remembered at the next union election.
[7] Mr. Tim Eye has been employed at GM for 28 years and is an active member of CAW; he has been involved in workplace safety, workman’s compensation, and pension matters. He is now the President of the NDP riding association in Oshawa. He knows the defendant as a fellow worker and for his role in MAPA. There is also a personal connection; the defendant’s brother stood as best man at Mr. Eye’s wedding. Mr. Eye lamented the actions of the defendant. He testified that “a family connection has suffered, Mr. Ryan, the NDP, and the people of Oshawa have suffered. We shouldn’t be here today”.
[8] According to Mr. Eye, about one month before the federal general election, the defendant asked him “about Mr. Ryan’s connection with the IRA”. They discussed the election and the defendant stated that “voters had a right to know the truth”. Mr. Eye disputed any impropriety on Mr. Ryan’s part and warned the defendant to be careful what he said or “Mr. Ryan will be living in your house”. Sometime later, Mr. Eye picked up the leaflet in question near the gate at the GM Plant. He was surprised that the defendant “went ahead and did it”. He brought the flyer to the attention of Mr. Ryan.
[9] In cross-examination Mr. Eye was shown pictures of union offices which depict numerous Ryan/NDP election signs on union property. Mr. Eye testified that other political parties also posted signs on the property but conceded that none are evident in the pictures put to him with respect to the 2006 election. In any event, Mr. Eye also acknowledged that this upset the defendant and it was “a safe assumption” that this is what he meant in stating “the voters had a right to know”.
[10] Mr. Ryan called a press conference to express his outrage over the leaflet distributed by the defendant. The defendant was pressed for a reply by a local television station. The videotape of the defendant’s interview on Rogers TV was played to the Court. A transcript of that interview is as follows:
Opening comments by the reporter:
Yesterday, First Local brought you reaction from NDP Candidate Sid Ryan regarding a flyer stating he supports terrorism. The flyer pictured Ryan with a high ranking member of Sinn Fein; the political arm of the Irish Republican Army.
The emotional candidate said he promotes peace in his homeland and has no affiliation with any terrorist group.
Today we bring you reaction from the alleged author of the flyer Alan Clarke. Ryan named Clarke as the man behind the smear campaign in a press conference yesterday.
Alan Clarke is shown on the screen
Comments by the reporter:
Allan Clarke, founding member of MAPA (Members Against Political Affiliation) says his intent was not to imply Sid Ryan was affiliated with any terrorist organization.
Comments by Alan Clarke:
To show the membership, this is the kind of man and the people that he associates – I mean there is the picture with him having a beer with this man who had been in the IRA, a man who had belonged to a terrorist and criminal organization – and there he is standing having a beer with him, on a public website, that people can go to. That picture has been up for ages. He never had it taken down – and now he is running for MP. I – I just can’t believe that he would allow that picture to stay there.
Comments by the reporter:
Clarke says MAPA members made up of CAW workers voted 86% in favour of not endorsing any political party back in 1993.
Comments by Alan Clarke (showing a paper document, pointing to a highlighted portion):
Supporting an orange Sid Ryan button, Mr. Buckley was one of the first to praise the plan and stress that the CA - CAW membership is firmly behind the NDP.
In no way is he supposed to say something like that. We are not to support or affiliate with any party. He has a clear mandate and, I believe that himself and the executive have broken the trust of the membership of our Local.
Comments by the reporter:
In published reports, CAW president Chris Buckley says:
I personally support the NDP as the Local President but as a Union, we are not affiliated with any party.
Clarke admitted working on Colin Carrie’s campaign back in 2004 but not during the current election campaign.
Comments from Alan Clarke
I mean, he knew, he knew why I was doing this, to show what kind of person he was and to stop the support from the Local. And for him, to accuse Colin Carrie and his campaign, I think it’s just absolutely atrocious.
[11] In addition to the agreed statement of facts already referred to, the Crown and Defence also agree about evidence that would have been given by two individuals; Mr. Lutcyk and Mr. Woods. However, the parties dispute the admissibility of that evidence. Accordingly, it was tendered subject to a ruling by me. Having considered the matter, I am of the view that the items of evidence are admissible; both are relevant to the question of the defendant’s intent in distributing the leaflet.
[12] Mr. Lutcyk is a Councillor for the City of Oshawa. He found the leaflet in question in the public area of Oshawa City Hall. He cannot say how it got there. Mr. Wood is a retired member of another union. He and the defendant engaged in a private discussion, by email, about the NDP, Mr. Ryan, and the role of the union in elections. During this exchange, the defendant brought the leaflet to the attention of Mr. Wood. It is not necessary to deal in detail with this email exchange. It will suffice to point out that the defendant expressed strong opinions about the NDP and Mr. Ryan’s suitability as a candidate. These views are also evident in an email sent to talk show host, Mr. Michael Coren.
[13] Several months after the election, the defendant wrote to Mr. Coren as follows: “I read your article on Friday June 2nd with great interest. Poor Sid [Ryan] just doesn’t get it. I would think that he got his twisted sense of the Isreali (sic)/Palestinian issue from his friends in the IRA”. The defendant also commented on Mr. Maskey’s role in the IRA as well as that of Mr. McGuinness who, it is said, was caught with explosives. The defendant stated,
“In the pictures Sid is down right fawning over them….In the last federal election when Sid ran for the NDP in Oshawa he tried to mislead the public into thinking that the CAW local 222 supported him. This could not be the case as the local voted in 1992 by an 86% majority not to support any political party. Here he is, the president of a large labour union, trying to falsely use another labour union for his own personal and political beliefs. When I pointed this out to local members along with the fact he associates with criminals and terrorists he tried to muzzle me by threatening legal action”.
[14] On 31 October 2006, the defendant filed a Statement of Defence and Counterclaim to an action launched by Mr. Ryan. In that document, he pleads that the comments about Mr. Ryan, in the leaflet and in the email to Mr. Coren, “are fair comment, without malice, on a matter of public interest, being the fitness of the Plaintiff as a candidate in the Federal Election Campaign of 2006”. The defendant also pleads that his intent was “to demonstrate to the local that it should not support any candidate, by demonstrating the type of people he [Mr. Ryan] associates with…The words were only published to the CAW Local at the GM plant in Oshawa”.
[15] In autumn 2006, before and after the filing of the statement of Defence, the defendant was interviewed by investigators with Elections Canada. The defendant had previously requested a meeting with the agency to determine if it was investigating him. The transcripts of the interviews were filed with the court as “unchallenged evidence”.
Q: Who designed the flyers?
A: MAPA designed the flyers.
Q: What led to the creation of the flyer and why?
R: In 1992 MAPA was formed to stop monetary & political support for any political party. At that time the CAW local 222 deducted money from each member to support the NDP during elections as well as manpower & other resources from the local. The president & the members of the local would publicly support the NDP in the name of their members. After a six month campaign and a petition with 10,000 names the membership was successful in having the binding referendum question of whether to support any political party put on the ballot of the executive election in the spring of 2003. 86% of the membership, almost 13,000 members voted to not support any political party. This represented 70% of the total membership. During the last federal election the president of the local & the executive breached the trust of the membership by breaking the terms of this binding referendum by supporting Sid Ryan, Jack Layton and the NDP. They did this by having 10 Sid Ryan campaign signs across the local's front lawn, having a press conference in the union hall for Sid Ryan & stating in the media that they supported Sid Ryan & the NDP. When I contacted the president of the local, Chris Buckley. I informed him that he was in breach of the referendum, to which he said he had a right to support whoever he wanted, to which I replied that he could not do it as president of the local. Mr. Buckley & the executive continued to support Mr. Ryan after my complaint. This is when MAPA distributed the first flyer, "Have You Seen the Local Lately?" This flyer is clearly directed at the membership of the local. Mr. Buckley & the executive continued to support Mr. Ryan & the NDP after the flyer was distributed throughout the plant. MAPA then researched Mr. Ryan & found pictures of him with men of questionable character. MAPA decided to inform the membership of the type of people that Sid Ryan was having his picture taken with, who the president & the executive were publicly supporting. MAPA circulated the flyer “What do You Really Know About Sid Ryan?" in the GM assembly plant solely to inform the membership of the kind of people that Sid Ryan associated with & who the president & executive of the local were supporting. It is clear that this flyer was directed solely to the membership as evidenced by the last paragraph in the flyer which speaks to the membership to admonish Chris Buckley & the executive for supporting Sid Ryan. Only 25% of the GM employees actually live in Oshawa. Therefore less than 25% of the employees live in the riding.
Q: How many flyers were printed?
R: 500
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Q: Mr. Clarke: Did you distribute any of the flyers and, if so, the approximate number?
R: MAPA distributed them. There were 500. One sheaf of paper.
Q: Where were the flyers distributed and how many and by who?
R: There were 500 of each of the flyers distributed by MAPA only in the General Motors assembly plant.
Q: Were any of the flyers distributed at the Ontario Power Generating Plant at Pickering?
R: Not to my knowledge. MAPA did not direct distribution anywhere outside the plant. This issue was solely a local 222 labour issue & had nothing to do with the federal election.
Q: Were any of the flyers distributed at Oshawa City Hall and, if so, by who?
R: Not to my knowledge.
…………..
Q: Q: Where did you distribute flyers? Number?
R: MAPA distributed the flyers. 500 of each flyer.
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Q: The election period was from the 29th of November, 2005 until January 23, 2006. Keeping this period in mind, when did the distribution of the flyers take place?
R: I believe that MAPA distributed the first flyer on January 6, 2006 & the second flyer on or about 13th of January, 2006.
Q: How did you gain access to the various sites to distribute flyers?
R: MAPA works there. They are all local 222 members & employees of General Motors.
Q: You had to know that the distribution of the flyer would cause Mr. Ryan to lose votes. Comments?
R: I think that the statement is erroneous & can't be proven.
………….
Q: Why did you mention Chris Buckley in the flyer?
R: I think that I have gone over that one also. Chris Buckley is the president of local 222 & he openly supported Sid Ryan along with the executive which is prohibited under the terms of the referendum. He did not support Sid Ryan as an individual, rather as the president of local 222.
Q: Do you know Mr. Ryan personally and, if so, how did you get to know him?
R: I had a discussion with Mr. Ryan in 1993 & discussed the referendum with him & the consequences. No contact since that time.
Q: How did you come to the conclusion that Mr. Ryan was associating with a criminal and a terrorist?
R: Here is a copy of the web page from the Friends of Sinn Fein Canada showing Mr. Ryan with Alex Maskey who MAPA researched & found him to be a member of the IRA & twice imprisoned for being a member. I have 2 documents for you. The first states that he became involved in republican activities and was twice interned for being a member of the IRA. Through MAPA’ s research it was determined that he had associated with more than one terrorist evidenced by his picture with Martin McGuinness at the third annual Friends of Sinn Fein dinner in November, 2003. Mr. McGuinness was a senior member of the IRA & has been imprisoned on a number of occasions in the Republic of Ireland on charges relating to IRA activities. Mr. McGuinness has been publicly named as a member of the IRA's army counsel by the government of the Republic of Ireland.
………….
Q: What does the acronym MAPA for?
R: Members Against Political Affiliation.
Q: Are you involved in MAPA and, if so in what capacity?
R: Yes. I am the funding member of MAPA. MAPA is a one issue organization. That issue is to stop any support from the local for any political party.
Q: Who else is involved in MAPA?
R: I am going to decline to answer.
Q: When was MAPA created and is it still active?
R: MAPA was created in the fall of 1992 & is only active when the president of the local & the executive break the terms of the referendum prohibiting the local from supporting any political party.
Q: What are the goals/objectives of MAPA?
R: n/a
Q: On January 16, 2006 you sent an email to H. Vanderveen and B.R. Wood. What was the reason? I have a copy here for your viewing.
R: I think that I was responding to an email from Bruce Wood. I don't recall what they may have sent me. What happens when the executive supports Sid Ryan or anyone? That is the pitfall.
Q: Did you send the email?
R: I believe so. Yes.
Q: Did any political party or party worker or party candidate support you, encourage you or direct you to produce and distribute the flyer or to appear on television with a copy of the flyer?
R: No. Absolutely not. No one. No one knew about it. MAPA didn't talk to anyone about it.
Q: We have looked at a video showing you with one of the flyers. Who was the interviewer and which media outlet is this person employed by?
R: It was Rogers. I don't know the interviewer. It was a guy.
Q: What impact did you expect the distribution of the flyers and the television appearance would have on the election results?
R: I didn't think of the election itself at all. It was a labour issue involving the local 222 & its members who voted 86% to not support any party in a referendum the terms of which were broken by president Chris Buckley & the executive.
Q: What else do you wish to add?
R: Christina Blizzard's article of 20 Jan. 06 shows part of the "What do You Really Know About Sid Ryan" flyer. The paper was the Toronto Sun. The bottom paragraph which clearly shows that this flyer was only intended for members of local 222 is missing. Did Christina Blizzard receive this flyer as shown in the paper with the bottom paragraph missing thereby changing the context of the flyer or was this edited out by "The Sun?" I would expect Elections Canada to investigate this & ascertain who deleted the paragraph. This is significant. If Mr. Ryan deleted the paragraph this changes the context of the flyer. The paragraph is integral to the flyer. I believe that Mr. Ryan has misrepresented the flyer with the help of his media consultant and has taken a purely local union matter and turned it into a political attack. It is clear from the flyers that they were directed at the local's membership & not the general public. In no way was this intended to influence the election & was purely informational flyers for the membership.
Addendum: The picture shown in the flyer "What do You Really Know about Sid Ryan" was taken from the "Friends of Sinn Fein" website & was not labeled as to where it (photo) was taken. MAPA assumed that it was at a Friends of Sinn Fein function & did not knowingly misrepresent the picture. If it had been labeled as an Ireland Fund of Canada function MAPA would have described it as such. The point of the flyer was not the venue it was the association of Sid Ryan with Alex Maskey.
Q: At tab B of the document entitled Statement of Claim of Mr. Sid Ryan, is a copy of an email message to Mr. Michael Coren on June 4, 2006. Your name appears at the bottom of the message. In your Defence and Counterclaim you have indicated that you prepared the document at tab B in Mr. Ryan’s Statement of Claim. Did you prepare this email and send it to Mr. Coren? (initials)
R: Yes. (initialed & dated by Mr. Alan Clarke)
Q: Why did you send the email message to Mr. Coren? Context?
R: Mr. Ryan had gotten CUPE to pass resolution 50 which censured Israel concerning their dealing with the Palestinians. I don't believe that it is within the purview of unions to become involved in political matters, especially international ones. Mr. Coren had written an article basically stating the same thoughts & I emailed him (Mr. Coren) to congratulate him on his stance against CUPE being involved in international politics.
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Q: When you and I met previously, on September 27, 2006, I asked you who had written the text for the flyers. The question is the second one on page two of your statement, a copy of which was provided to you. You responded; “MAPA, I would just say MAPA.” In the subsequent question I asked who had designed the flyers. You said; “MAPA designed the flyers.” In paragraph 2 of the document entitled Statement of Defence and Counterclaim of the Defendant, Alan Clarke, it is stated that you admit that you prepared the documents contained at tabs A and B. I will now show you the two documents. Please provide clarification. Who wrote the text for the flyers and who designed the flyers? Was it you or MAPA?
R: I am MAPA. I will expand on that. MAPA was a mass movement within the CAW local 222 to deal with one issue & that was support by the local of political parties. MAPA was formed to stop this support & political affiliation. 86% of the membership voted to not support or affiliate with any political party. When the local's executive came out in public support of Sid Ryan and the NDP I realized this was a breach of local policy and sought to rectify this by informing the membership. Mr. Ryan had personal knowledge of this local policy. Mr. Ryan and the local’s executive knowingly conspired to breach the trust of the membership concerning this policy.
Q: Have you got Mr. Tony Vinent’s address and telephone number and, if so, could I have them, please?
R: No. I do not.
Q: To the best of your knowledge is Mr. Tony Vinent still working at one of the Oshawa GM car plants?
R: I do not know. I think that he has retired.
Q: Who are the members of MAPA at the present time?
A: Just myself.
…………………
The third point that I would like to bring up is my statement of defence & counterclaim. Paragraphs 6 & 14 which state “the defendant Alan Clarke pleads that the words are fair comment without malice on a matter of public interest being the fitness of the plaintiff as a candidate in the federal election campaign of 2006.” I am going to give you two documents. The first is one of notes to myself concerning my Statement of Defence where I state "para. 6 & para. 14 have no bearing and should be struck. This note was written while the statement was being prepared. The second document is three pages of emails documenting my concerns that paragraphs six and fourteen should not be part of the statement of defence because the intent of the flyers was to show the membership of the local that their policy of non-affiliation was being broken by Mr. Ryan & the executive of the local.
[18] The Crown must prove its case beyond a reasonable doubt if the defendant is to be found guilty. This means that if the defendant has called evidence, there must be an acquittal: (i) where the testimony is believed, (ii) where the testimony is not believed, but leaves the trier of fact in reasonable doubt, (iii) where testimony is not believed and does not leave a reasonable doubt, but the remaining evidence fails to convince, beyond reasonable doubt, that the defendant is guilty: R v W.D. (1991) 1991 CanLII 93 (SCC), 63 C.C.C. (3d) 397 (S.C.C.). The application of this principle does not mean the defendant’s evidence is to be viewed in isolation, divorced from the context or other evidence in the case: F v R.D. [2004] O.J. 2086 (O.C.A.).
[19] Much of the evidence in this case is not disputed or challenged. The latter category includes the defendant’s statements to investigators. Although the defendant did not formally present a defence, it was essentially put in through the prosecution’s case. In any event, I am free to accept or reject part or all of the unchallenged evidence. The only witness to be called was Mr. Eye. He impressed me as a truthful witness. He was both offended and saddened by what he saw as an unjustified attack on the character of Mr. Ryan. His testimony supports the defendant’s statements to investigators that he took great objection to the endorsement of Mr. Ryan by the union executive. I am suspicious of some of the statements made by the defendant to investigators. For example, in the first interview, the defendant clearly tries to conceal the fact that he and MAPA are one and same. Nevertheless, I accept the sincerity of the defendant’s protestations about the union executive’s endorsement of Mr. Ryan. Other evidence, including the exchange between the defendant and Messrs. Wood and Coren, confirms that the defendant’s strong opinion about Mr. Ryan is at least matched by those with respect to political activity by the union executive.
[20] The conflict in Ireland remains a matter of public debate and will continue to be of interest to historians for generations to come. Although it forms the background to this case, it is of no other relevance and no evidence was called about it. Accordingly, the role that may have been played in that conflict by the people mentioned by the defendant in the leaflet and television interview is not properly the subject of comment by me. Having said that, it is appropriate to point out that there is no evidence that Mr. Ryan supports or endorses criminal or terrorist activity by anybody.
[21] As already noted, there are three elements to the offence: The Crown must show that the defendant, through representations made in the leaflet and/or the television interview, (1) made false statements, (2) that he knew to be false, (3) for the purpose of affecting the general election. The defendant argues that the statements contained in the leaflet, taken separately, are true. These statements were itemized and explained. The Crown claims that assuming, without conceding, that to be the case, the message conveyed by the entire document is false. The Crown points to selective nature of the information presented, the different font sizes, and the pictures of violence. With respect to the second issue, the defendant relies on the fact that he obtained the information in good faith from an Internet search. The Crown responds that the defendant cannot be wilfully blind and had a duty to ensure accuracy. I acknowledge receiving full submissions from counsel about these matters and being directed to the numerous documents filed as exhibits. However, while the debate about these issues may have to be resolved in another forum, given my conclusion with respect to the third element of the offence, it is unnecessary for me to resolve them. Moreover, having regard to the manner in which the evidence was tendered - much of it without benefit of challenge by either side - it is prudent not to do so. This is not meant as a criticism of counsel. On the contrary, I appreciate their efforts in narrowing issues and agreements on evidence.
[22] The Crown argues that the defendant “used a union issue to get at Ryan in the federal election….this is the heart of the case”. In my opinion the Crown has properly characterized the third and key issue in this case. However, I am not persuaded this case has been proven, certainly not on the criminal law standard of proof beyond a reasonable doubt. Indeed, there is some evidence to show the reverse is true: The agreed facts, the testimony of Mr. Eye, the defendant’s comments to Mr. Wood and Mr. Coren, his statements to Elections Canada, and his civil pleadings all establish that the defendant opposed political activity by unions and had strong views about the suitability of Mr. Ryan as a candidate. This same evidence also suggests he used his assessment of Mr. Ryan as a means of attacking the union executive. Moreover, the preponderance of evidence points to the fact that the defendant intended to solicit only union members. The leaflet was limited to 500 copies and distributed solely at the workplace. In this regard, I am not troubled by the fact that one was found at Oshawa City Hall. There is nothing to suggest the defendant knew or ought to have known this would happen. The television interview was broadcast to the public at large. However, it was in response to a press conference called by Mr. Ryan and, more importantly, illustrates the theme already identified in the other evidence; namely, the defendant used comments about Mr. Ryan in an appeal to union members to criticize the union executive. The Crown submits that the defendant’s true purpose is revealed by the fact that his pleadings in the civil proceedings are inconsistent with his defence in this criminal trial. I disagree. The defendant can legitimately claim that his comments were not intended to affect a general election and, in any event, constituted fair comment about a candidate and made without malice.
[23] It has not been proven that the defendant made statements about the character or conduct of Mr. Ryan for the purpose of affecting the 39th federal general election. Accordingly, whether or not those statements are false and known as such by the defendant, the criminal charges must be dismissed.
Released: May 13, 2008
Signed: “Justice J. De Filippis”
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