Nov. 10, 1986 Page 10

 

 

 

_ For almost two years, Donna
Smyth was silenced, but now she
has a story to tell.

Her story is about many things. It
is about a citizen speaking out for a
cause and facing a grueling trial as a
result. It is about two professors,
nearly as opposite as it is possible to
be in their lives and beliets. It is
about the Canadain nuclear  in-
dustry and Canada libel laws. And
it even has a happy ending.-

On January 18, four men and
three women walked into a Halifax
courtroom after five hours’ of
deliberation and read their verdict.
With broad grins on some of their
facesy-they marched through the
varieties of libel in Canada, through
every possible way that damages
could have been awarded, and one
by one found Acadia University
professor Donna Smyth not guilty.
As her friends and __ supporters
released their pent-up emotions
into the crowded wooden chamber,
’ the little-publicized case of. Yaffe vs
Smyth came to a close.

Sitting in her small home in EI-
lershouse, Nova Scotia, Donna
Smyth acts most unlike the victor in
a nasty legal battle. The jubilation in
her voice is measured, the release
tempered by hard lessons learned
during the judicial ordeal. “For
once,” she says with a wane smile,
”I guess we can thank heaven for
small victories.” If the victory was
small; it is because the case is not
completely closed for her.

Despite her legal innocence and
the jury’s instruction of McGill
Chemistry professor Leo Yaffe to
pay her court costs, she still owes
a legal bill of approximately $20,000
above what court costs will cover.
She spent 2 years with the loss of all
she owns hanging on the jury’s
verdict. And all for writing a com-
mentary in the Feb. 15, 1982 Halifax
Chronicle-Herald criticizing a pro-
nuclear energy speach given by
Yaffe in Wolfville, N.S. weeks
earlier.

The offending sentence: “He is
only one of many ‘experts’ the
nuclear industry will parade in front
of us in their desperate attempt to
sell ‘nuclear’ to Nova Scotia.”

The Legalities:

What sets this case apart from any
other squabble between two
Canadians conducted through. the
legal system? Just this: instead of
charging both Smyth and _ the
newspaper, which distributed over
100,000 copies of what he called
“diatribe” and a “smear”, Yaffe
singled out Smyth in his suit, cut-
ting her off from sharing a defence
and legal costs with the much grea-
ter resources of the newspaper. It
was possibly the ffirst time in
Canada a writer had been sued
without also naming the publication
which printed the allegedly libel-
lous article, paragraph or word.

The reasons a libel- suit usually in-
cludes both author and _ publisher
haven’t changed much over the
years. While the writer creates the
supposedly libellous wording, the
nature of the libel is that it is damag-
ing words distributed to and read by
others. Without the publishing and
distribution, no real harm can be

said to have occured. Also, in most

cases, publications have a_ greater
_ability to actually pay damages than
an individual. As a result, grouping

The Other Press

the two together always made
sense.

The dangers arise when
Canadian laws protect the media
companies better than the  in-

dividuals who write for them.The
Nova Scotia Defamation Act is such
an example, placing a three month
statute of limitations on _ serving
notice to publishers, whil alowing a
year for the litigation-minded to sue
authors not employed by the pub-
lisher. Yaffe’s lawyers served notice
of his suit a scant two weeks before
the one-year limit was up.

The implications can be stagger-
ing. With similar law, nobody writ-
ing in the public forum of letters to
the editor or commentaries can be
sure a contentious letter won’t cost
them thousands in lawyers fees. To
an individual, the costs of success-
fully defending a libel suit can be
more financially deadly than losing
a $100,000 settlement is to a
newspaper. A_ guilty verdict would
almost ensure bankruptcy.

This leaves the floodgates open
for the use of libel as revenge. When
a plaintiff financially outweighs the
defendant and can afford to dump
money into a trial that’s likely
to fail, the resulting harassment can
be very cost effective. But this isn’t
exactly new to professional jour-
nalists. j

“Libel proceedings are a form of
intimidation,’: said CBS “Ideas”
producer, Mac Allen in a magazine
article. When working “As, it Hap-
pens”, Allen fell victim to a contro-
versial lawsuit. “They’re not out to
collect a lot of money, and small
journalists view them just as such.”

This reality has raised many social
activists’ fears about the dangers of
daring to speak out against  in-
dividuals or companies with vast
legal resources. “There’s been a
general worry about what you can
say,” says Susan Holtz, an em-
ployee at Halifax’s Ecology Action
Centre. ““We’ve been trying to win a
place at the table of expertise, and
when you see the gains you’ve
made by being right eroded by fear
of speaking out, it’s really dis-
appointing.”

The fear. also has tremendous
potential to affect news coverage -
and news ‘blackouts.’ “Obviously
media people can’t afford to cover
issues theyll have to worry about
law suits with,” says Holtz. She saw
the beginings of this when she
become involved with the Nuclear
Critic’s Defense Fund, a group rais-
ing money for Smyth and monitor-
ing other potential cases. “When we
had a press conference on the form-
ation of the fund, it was reported to
me that the CBC had their short
piece on it checked by the media
lawyers,” she says.

One specific example
blackout occured when Southam
News columnist Allan Fotherin-
gham was sued by _ then-powerful
Liberal advisor Jim Coutts. Under
lawyers’ advice, the name of Coutts
did not appear in a Fotheringham

of a

column until Coutts ran in a
Toronto by-election.
Fotheringham printed _ nothing

for the same reason Donna Smyth
was unable to publicly comment on
her suit for a full two years before it

- The Perils of

came to court - under Canadian
libel law, comments made after a
legal writ is issued can be used
against the defendant to increase a
settlement or as proof of guilt. This
informal, inescapable gag _ rule
frustrated Smyth when interviewed
before the trial.

“I really am deeply angry,” she
said, tapping her foot as if in inpati-
ence. “I can’t directly express my
feeling about what is happening to
me because it could lead to aggrava-
tion of damages. It’s a very fustrat-
ing position to be in.

f

WN NOU) /

 

   

 

    
  
   
  
  
    
 
 
  
  
   
  
   
  
 

The Setting:

The road both to and fro
trial stops at the small village
lershouse, Hants County,
Scotia. Near the University tq
Wolfville where Smyth teachy
glish, Ellerhouse is on the e
the Annapolis Valley and sé

the richest farmland in (
Around the village, the
becomes to hilly for larg

farming, but the moist, fer
ture of the lands shows thro’
lush green terrain seen fro
train ride in.

 

i
So) |
Pdr (APS

   

  

ri

     
     

    
 

LS

Ly)

Be

Y
=

    

 

 

“People should realize, not only
does this go on for along time,” says
Smyth, “but it also becomes more
expensive as it goes on - besides the
psychological drain.

“Nobody who gets involved in a
libel suit comes off cheaply. It just is
a very expensive procedure,” she
says.

Anybody wondering how all
these libel cases can get to court and
why people are worried if they are
right, can take little comfort in the
following fact. The truth, or “fair
comment,” isn’t always an effective
defence in- Canada, as Max Allen
found out in 1977 when an exposé
he produced on the Canada Metal
Company cost the CBC enough to
be accurate; the truth of an article’s
Statements has to be _ well
known to the public or explicitly
proven within the article to prevent
a suit from sticking. Many times
what’s ‘proven’ or not is an area
grey enough to land a writer in
court.

  
   
  

The view passing from Hal
Ellershouse has a lot to sa
than most train trips. As t
car VIA express clacks thro
surrounding area, hill and d
plainly visible, but so are the
which: connect them like a.
system -- the lakes, marshg
rivers running through the la
the on rushing window
lakes rimmed with marshé
streams winding down the
of valleys they carved out o
centuries, . it’s . clear ho
terconnected the area really
something the people whi
there can’t forget.

So when they caught wi
several companies were e
the area with an eye toward
up an uranium mining of
the locals, including Donna
were concerned...to put it ligh

While the very mention of tk