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when the toronto police union hired lawyer Tim Danson to push its $2.16-billion libel suit against the Star over racial profiling, the choice was telling for what it seemed to say about the union’s mindset.Here’s a lawyer known for his defence of victims of crime, brought in to defend a force and its members who are now feeling victimized by charges that they treat blacks more harshly than whites.
But if this was a subtle attempt at PR spin, it’s not impressing policing observers and legal experts who say the threatened suit has zero chance of success in court.
Famed libel lawyer Julian Porter says the union has overlooked some basic points of law.
Problem number one: the courts very rarely recognize libel suits filed by groups, and haven’t for at least a century. Defamation is always something an individual suffers.
This understanding has been in place since 1904, says Porter. It was reaffirmed in an Ontario Court of Appeal decision handed down in 1996 in a case resembling this one that was brought by second world war Air Force veterans against the CBC.
Porter says, “A group cannot sue effectively for libel unless it’s a corporation, (and) the police union is not incorporated. It’s a loose association. That’s basic law.”
He elaborates: “If you said, “All cops are racial profilers,’ and you inferred from that that all cops are racist, there’s no doubt that’s hurtful. It’s just the way the law is structured — it doesn’t give you group-action libels as a policy. Otherwise, any time someone stands up in a religious debate and says “the fuckin’ Protestants,’ there’d be a lawsuit.”
Danson’s five-page letter to the Star last week demanding “a clear and unqualified apology” for its series, or else, does not divulge what points of libel law the union will rely on to make its case. Some legal observers suggest Danson will seek to have the suit certified as a class action.
Problem number two: for the suit to proceed as a class action, a judge must find that the libel alleged would affect each member of the force equally.
A daunting task. Danson’s suit is being brought on behalf of 7,200 members of the force. It’s made more difficult by the fact that the Star articles did not libel any police officer in particular but had to do with police behaviour patterns in general.
Problem number three: proving actual damages. For a libel action to succeed, the union must prove “real damages” like loss of income. There are no real damages in this case, the legal experts NOW interviewed say.
Problem number four: although libel law will place the onus of proof on the Star, the paper has a very compelling defence — namely, that the conclusions drawn from its investigation are based on facts provided by the police themselves.
“Fair comment on accurate facts is a very important doctrine in our libel law,” says civil rights lawyer Clay Ruby. “You can be wrong-headed. You can be outrageous in your comments. We allow for full expression of opinion. Our opinions don’t have to be right in our libel law, provided the facts are correct.”
Even if the methodology the Star used to arrive at its conclusions is found to be flawed, Ruby says that “because the raw facts came from the police themselves, I think they (the Star) have a good case.”
Danson doesn’t disagree with Ruby’s take, but he’s unfazed. His comments suggest he’ll rely less on the law than on the general impression given by the Star’s stories to make his case.
He argues that “any reasonable person would take from this series that the police are engaged in racial profiling at large and that there’s racism at large, and that’s defamation. There’s no way you could ever find in law that that could be a fair comment if it’s untruthful.”
It’s the union’s position, says Danson, that the Star series was about “sensational allegations, ratings, increasing circulation and profits for shareholders.”
Fighting words.
And while some in legal circles take issue with Danson’s legal reasoning (“There’s nothing Tim Danson knows about the law that these other people don’t know,” says another libel lawyer, who asked not to be named), the police union has enough money to play with legal subtleties for some time.
Indeed, Danson suggests at one point during our interview that the matter could end up before the Supreme Court.
The union has been very aggressive when it comes to pursuing lawsuits against its critics.
Chief Julian Fantino at first signalled his support for the union’s suit against the Star, but now appears to be backtracking — at least behind closed doors.
One black community leader at a meeting called by the chief Monday night says Fantino stood up before the session began to say he was misquoted by the press on this issue. Then he proceeded to set out all the things the force has done over the years to improve race relations.
Fantino has yet to respond to police union head Craig Bromell’s latest threat not to police the black community at all if they continue to allege that racial profiling is going on.
In police circles these days, there seems to be a lot of sucking and blowing going on at the same time. enzom@nowtoronto.com
