Date: 20100708
Docket: T-1646-08
Citation: 2010 FC 734
Ottawa, Ontario, July 8, 2010
PRESENT: The Honourable Madam Justice Tremblay-Lamer
BETWEEN:
GARY
SAUVÉ
Plaintiff
and
HER MAJESTY THE QUEEN
IN RIGHT OF CANADA
Defendant
REASONS FOR
JUDGMENT AND JUDGMENT
[1]
This is an action brought by Mr. Gary
Sauvé (the plaintiff) against Her Majesty the Queen in Right of Canada (the
defendant) seeking damages for defamation.
[2]
In his
statement of claim, the plaintiff alleges that the RCMP is responsible for
defamatory statements posted on a website entitled RCMP Vets Net (Vets Net). In
her statement of defence, the defendant denies that the RCMP is responsible for
Vets
Net or its
contents.
SUMMARY OF THE EVIDENCE
[3]
The
plaintiff called two witnesses at trial; a friend, Mr. Brian Kelly, and himself.
[4]
The
plaintiff testified that he joined the RCMP in 1986 and became an investigator
with the narcotics section in Ottawa in approximately 2000.
[5]
In
cross-examination and from the documentary evidence filed (exhibit D-1), it is
established that in October 2004 the plaintiff was arrested and charged with
uttering death threats and harassment. He was detained at the Ottawa detention centre, denied bail,
and convicted on March 7, 2005, of two counts of criminal harassment. This
information is on public record.
[6]
In cross-examination,
the plaintiff confirmed that in October 2006, the RCMP suspended him with pay and
launched a public investigation.
[7]
On October
16, 2004, the Ottawa Citizen published an article reporting the charges and the
bail hearing, entitled “Mountie denied bail in death threats case”. The Ottawa
Citizen article did not come to the plaintiff’s attention at the time; he
testified not remembering when it did. Mr Kelly, for his part, testified seeing
it in 2004.
[8]
Mr. Kelly
testified that on August 19, 2008, he was browsing the internet when he came
across the following statement on a “profile” of the plaintiff on a website
entitled “Zoominfo” (the Zoominfo article):
Gary John Sauve, 45, was charged in July
and again earlier this month over issues that stem from a paternity dispute
that made its way from Quebec family court to the Supreme
Court of Canada.
Evidence presented in Thursday’s bail
hearing is protected under a publication ban. Before taken into custody, Cst.
Sauve, an 18 year member of the force, was employed as an investigator with the
RCMP’s drug section in Ottawa, which primarily investigates
narcotic offences in Eastern Ontario and Quebec.
He testified that he did not link this statement with
the Ottawa Citizen article, which he had read almost four years earlier.
[9]
On August
21, 2008, Mr Kelly met with the plaintiff. Together, they accessed the Zoominfo
article. The plaintiff was upset upon reading it, because it did not specify
the year when he was charged. Thus, a person reading it could think that he had
been charged in 2008. Furthermore, as it did not specify the charges against the
plaintiff, a reader could imagine that he was charged with anything from
jaywalking to murder.
[10]
The
plaintiff and Mr. Kelly then decided to investigate the source of Zoominfo
article. It was linked to a “Web Reference”; when the plaintiff clicked on the
hyperlink, he was taken to the Vets Net “courtesy page” containing various
articles and postings including a newsletter published by a Frank Richter, a
retired RCMP member. However, they could not find any text similar to the
Zoominfo article. In cross-examination, the plaintiff acknowledged not having
seen a disclaimer which appeared in small print on the Zoominfo “profile,” just
above the article, stating that “[t]his profile was automatically generated
using 1 reference found on the internet. This information has not been
verified” (emphasis in the original). The plaintiff further admitted that other
information contained on the profile was, in fact, inaccurate. (Mr Sauvé’s
employer was said to be “RCMP Vets,”while his address and phone number were
given as being in Regina, where he never worked.)
[11]
The plaintiff
also admitted in cross-examination that he never contacted the owner of the
website, Mr. James Forsyth, before commencing this action. He also never
contacted Zoominfo to ask its owners or operators to remove the Zoominfo
article or issue a retraction.
[12]
The defendant
called two witnesses, Mr. Forsyth and Mr. Christopher Power. Mr. Forsyth,
a retired RCMP member, is the founder and CEO of Vets Net. He is also
a current member of the Board of Directors of the RCMP Veterans Association. He
produced a record confirming his ownership of the domain name www.rcmpvets.net
(Exhibit D-4). This document and his testimony clearly demonstrate that he is
the sole owner of Vets Net.
[13]
He
explained that he created Vets Net in 1996, as a place where retired RCMP members
could stay in touch. Although Mr. Forsyth might have been a pioneer of social
networking before the term even came into existence, he did not go on to fame
and fortune, and still operates Vets Net alone. He stated that the RCMP neither
funds nor controls the website in any way.
[14]
While he
displays the RCMP Veterans Association’s logo on Vets Net with the
association’s permission, and the association provides a hyperlink to Vets Net from
its own website, he confirmed that he exercises complete editorial control over
his website’s contents, being the only person with the ability to post anything
on it. He acknowledged that he published a newsletter by Frank Richter and
admitted in cross-examination that the article which Messrs. Sauvé and Kelly
later read on Zoominfo might have appeared in the publication,
but he never saw it.
[15]
As for the
defendant’s other witness, Mr. Power, he is the Acting Manager of New Media
with the RCMP. I find his testimony straightforward and credible. Mr Power confirmed
that the RCMP is not responsible and does not control Vets Net directly or
indirectly; it does not even provide a hyperlink to it on the RCMP corporate
website. The only way to navigate from the latter to the former is, first, to
go from the RCMP’s website to the RCMP Veterans’ Association’s website; and
then from the association’s website to Vets Net. However, Mr. Power testified
that a disclaimer page, of which he produced a printout (exhibit D-5), warns visitors
to the RCMP website when they are about to leave it by clicking on a hyperlink
to an external website that the RCMP is not responsible for the contents of any
external websites to which it provides hyperlinks. Anyone navigating from the
RCMP website to the Veterans’ Association website would see that warning.
THE PARTIES’ SUBMISSIONS
The plaintiff
[16]
The
plaintiff submits that the Zoominfo article is defamatory, because it suggests
that he was facing new charges, in addition to those brought against him in
2004. He contends that the source of the Zoominfo article is Vets Net, and that
the same defamatory text must have appeared on that website. He argues that the
RCMP is responsible for its publication on Vets Net, which it controls via the
RCMP Veterans Association. He insists that the use of the RCMP’s name and logo
by Vets Net, and the posting on that website of internal RCMP information are
indicative of the RCMP’s support and approval of Vets Net. In the alternative,
the RCMP had a duty to supervise Vets Net, and was negligent in failing to
discharge this duty and to have a defamatory statement removed from the
website.
[17]
The
plaintiff further submits that the defamatory statement was published in
Ontario (where he accessed it), but also throughout Canada, in the United
States, and elsewhere; he reasons that since he is able to access websites from
around the world, people from around the world were able to access Vets Net. It
negatively affected his reputation and prospects for future income; and that it
caused him humiliation, embarrassment, and stress.
[18]
He claims
general, aggravated, and punitive damages.
The defendant
[19]
The defendant
denies that it is responsible for the allegedly defamatory statement or that it
is, in fact, defamatory. In order to succeed, the plaintiff has the burden of
demonstrating that it was the defendant and not some other person or entity who
published the allegedly defamatory words to a third person. However, the
plaintiff did not demonstrate that the RCMP published the impugned paragraphs.
Indeed, there is no proof of their publication except in the Ottawa Citizen and
on the Zoominfo website.
[20]
In
particular, the Zoominfo page on which the plaintiff relies is not proof of the
statement’s publication on Vets Net; that page itself contains cautions as to
its reliability, and many inaccurate statements. Furthermore, the plaintiff did
not provide any evidence as to how information is collected by Zoominfo. In any
case, even if the Zoominfo article corresponds exactly to what was published on
Vets Net, the RCMP does not control or bear any responsibility for that
website.
[21]
The defendant
further submits that the Zoominfo article is not defamatory. While it
erroneously indicates that the plaintiff was charged “in July,” an assertion
that a person has been charged with an offence is not injurious to his or her
reputation, because the public would know that one is to be considered innocent
until proven guilty.
ANALYSIS
1. The applicable law
[22]
As the
Supreme Court explains in Grant v. Torstar Corp., 2009 SCC 61, [2009] 3 S.C.R. 640 at par. 28:
[a] plaintiff in a defamation action is
required to prove three things to obtain judgment and an award of damages: (1)
that the impugned words were defamatory, in the sense that they would tend to
lower the plaintiff’s reputation in the eyes of a reasonable person; (2) that
the words in fact referred to the plaintiff; and (3) that the words were
published, meaning that they were communicated to at least one person other
than the plaintiff.
It is also evident that in order to succeed against a particular
defendant, the plaintiff must show that that defendant is in fact responsible
for the publication he complains of.
[23]
The
defendant does not dispute that the impugned statement in this case referred to
the plaintiff. I will first consider the question whether the Defendant can be
held liable for its publication, and then the question whether it is indeed
defamatory.
2. Is the RCMP Responsible for
Publishing the Impugned Statement?
[24]
A
hyperlink one finds is not always the missing link one was looking for. The
hyperlinks which the plaintiff found do not justify the inferences he asks the
Court to make.
[25]
First, I
find that the evidence does not establish that the alleged defamatory
paragraphs were reproduced anywhere but in the Ottawa Citizen and on the Zoominfo
website. The plaintiff himself testified to the unsuccessful efforts he made to
establish that this was so. While Mr. Forsyth admitted that such a text might
have been published on Vets Net as part of one of Frank Richter’s newsletters,
this is not enough to prove that it was and that if it was, it
reproduced in whole or in part the same text found on the Zoominfo website.
[26]
Second,
even if I did conclude that a text identical to the Zoominfo article was at any
time published on Vets Net, I find that the evidence clearly establishes that the
RCMP was not responsible for this publication because that it did not and does
not control Vets Net. I accept Mr. Forsyth’s testimony that he is the only
person owning and controlling Vets Net. This is corroborated by
Mr. Power’s testimony: the RCMP exercises no control over, and is not even
hyperlinked to Vets Net. The facts that the RCMP Veterans Association has given
Mr Forsyth permission to use its logo and that he is a member of its Board of
Directors (as well as of certain committees of that board) cannot on their own
justify the inference that the RCMP Veterans Association exercises control over
Mr Forsyth’s activities. On the contrary, Exhibit D-4 confirms that it he is
the sole owner and operator of Vets Net. Mr. Forsyth is not a servant of the
Crown and does not operate his website under the control of the RCMP.
3. Was the Impugned Statement
Defamatory?
[27]
It is
well-established that a statement that a person has been charged with an
offence, as opposed to a statement that a person is guilty of an
offence, is deemed not to lower that person in the estimation of a reasonable
person, because a reasonable person “would be mindful that an accused is
presumed innocent until proven guilty” (Miguna v. Toronto (City) Police Services Board,
[2004] O.J. No. 2455 at par. 6 (On. Sup. Ct. J.), aff’d Miguna v. Toronto (City) Police Services Board [2005] O.J. No. 107 (On. C.A.); see also Hakim
v. Laidlaw Transit Ltd., 156
A.C.W.S. (3d) 585, [2007] O.J. No. 1318 at par. 16 (On. Sup. Ct. J.)).
[28]
The
Zoominfo article states that Mr Sauvé has been charged, and that a bail hearing
has been held. It does not say that he has been found guilty of anything;
indeed a well-informed reader would know that a bail hearing precedes a trial
and could only conclude that no finding of guilt can have been made. Thus, as a
matter of law, I am of the opinion that the article is not a defamatory
statement.
CONCLUSION
[29]
On
consideration of the evidence adduced, I find on a balance of probability that
the plaintiff failed to establish that the defendant published the defamatory
words and that the RCMP has control over or is responsible for the RCMP Vets
net website, which is privately owned and operated. In addition, that impugned words
are not defamatory as a matter of law.
[30]
The
plaintiff’s action is accordingly dismissed, with costs to the defendant, in
accordance with Column III of Tariff B.
JUDGMENT
THIS COURT ORDERS that the action be dismissed, with costs to the defendant, in
accordance with Column III of Tariff B.
“Danièle
Tremblay-Lamer”
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