An Ontario judge said this week he would not dismiss a defamation suit brought by a Middle Eastern restaurant — a decision that clarifies the limits of a law protecting public expression, the plaintiff’s counsel says.
The case, Paramount v. Johnston 2018 ONSC 3711, centres around two men that made videos during a protest outside a Mississauga Middle Eastern restaurant. One of the men, Ranendra Banerjee, submitted that the case against him should be dismissed, in part because his expression related to a matter of public interest.
The case explores the limits of freedom of expression governed by public interest laws, commonly referred to as anti-SLAPP laws (Strategic Lawsuits Against Public Participation.)
Jonathan Lisus, who represented Paramount Fine Foods and its owner, Mohamad Fakih, says the decision “draws a bright line” for the public interest requirement of anti-SLAPP regulations by “making it clear that there is no public interest in hate speech.”
“[T]he court makes it clear that it will not allow defamatory speech to be placed beyond the court’s reach by embedding it within a public interest narrative, contrived or real,” Lisus says.
Crucial to the case is whether Banerjee’s statements constitute hate speech, Justice Shaun Nakatsuru wrote, which “raises no subject matter that is related to the public interest, regardless of its other features.”
“[A]lthough a number of cases dealing with this provision have been argued before the Ontario Court of Appeal, no appellate direction has yet been forthcoming on its interpretation,” Nakatsuru said.
In this case, Banerjee participated in several videos outside Paramount Fine Foods, where a fundraiser was being organized for Prime Minister Justin Trudeau. A crowd had gathered near the restaurant to protest the government’s settlement with Omar Khadr, a Canadian who was captured as a teenager in Afghanistan and served time for war crimes in U.S. detention centre Guantanamo Bay. Khadr’s detention was subject to a lengthy and controversial intervention by the Canadian government.
In one of the videos, Banerjee says that you “gotta be a jihadist” to enter the restaurant and that “you need to have raped your wife at least a few times to be allowed in there,” according to court documents. Banerjee testified that as Khadr was a convicted terrorist, his comments referred to Islamic extremism.
Banerjee’s counsel was not available to comment before deadline.
“This law, like many other laws, attempts to strike a balance,” Nakatsuru said. “The legislature did not define ‘public interest’ as it is used in [the anti-SLAPP rule]. . . . To be of public interest, some segment of the public must have a genuine stake in knowing about the expression.”
At least some of Banerjee’s statements, Nakatsuru said, are focused on the restaurant and its owners, not on Khadr’s settlement. While the protest can be viewed as a subject of public interest, Nakatsuru said, the protest was “simply the setting or the occasion” for Banerjee’s statements, not the subject.
“In this case, Mr. Banerjee’s comments go beyond offensive or hurtful expression. They involve hallmarks of hate,” Nakatsuru said. “Bluntly put, if I were to allow Mr. Banerjee to justify his as an expression related to a matter of public interest, I would be undermining and trivializing the laudable objectives of this anti-SLAPP provision.”