SMEARED MLA VINDICATED AFTER DAMAGING ORDEAL
False allegation during campaign prompted defamation lawsuit
The accusation against New Democrat Robin Austin in the midst of the last election campaign was outrageous, even by the roughhouse standards of political discourse in this province.
The setting was a church hall in the Skeena MLA’s Terrace hometown, two weeks before voting day. The event was well-attended by 150 locals. The candidates had made their opening statements and moved on to take questions.
Then up to the microphone stepped James Lynch, a retired insurance agent and former coroner.
“My question is for Robin Austin,” he began, but what followed was more in the nature of an indictment.
Lynch recounted how he had gotten to be “buds” with a young girl who’d previously lived in foster care at Austin’s home. She’d confided to him that she’d left because of sexual abuse.
“She was staying at your place Robin,” declared Lynch. “That is bad and sick and I feel that I am a grandfather, a great grandfather and I have daughters and I can’t put up with that kind of stuff.”
The reaction in the room, captured on tape by the local cable TV operator, combined shock with indignation — gasps, booing, protestations of disbelief. Austin’s wife and daughter, both present, left in tears. The MLA himself would later recall how if felt like “all the air was sucked out of the room.”
At the time, though badly shaken, he struggled to answer.
“I was a foster parent for 10 years,” the two-term MLA told the crowd. “I adopted one of our foster children and I can tell you this, have been in my home and know the children, so for you to bring an accusation like this, maybe we will see you in court.”
“Please do,” replied Lynch, all but daring the New Democrat to file suit for defamation.
Austin did so directly after securing re-election for a third term. And in April of this year he finally did see his accuser in court.
He also secured vindication. Last week, B.C. Supreme Court Justice Robert Punnett ordered Lynch to pay $75,000 in damages for defamation. Such was the spuriousness of the accusations that the judge felt compelled to underscore the point at the outset of his 38-page decision.
“Before proceeding any further,” he wrote, “I wish to make clear that the words spoken were unfounded, unjustified and false. There was no basis for them whatsoever. Mr. Lynch’s conduct was inexcusable.”
Court heard that Lynch had barely spoken to the girl about the allegation of abuse and then only in a brief exchange nine years previously. As a former coroner, he ought to have been familiar with the proper place to file complaints of sexual abuse and exploitation of a foster child.
Yet he never went to police, nor any social services agency. Instead he sat on his suspicions for most of a decade before airing them, at the spur of the moment, in a public meeting. In the weeks after the outburst, he did take a stab at admitting the accusation was false. But he never retracted nor apologized unequivocally until the case came to court.
One might conclude that Lynch got off lightly, the damage award being $50,000 less than what Austin sought. But the judge recognized mitigating factors, most notably Lynch’s belief that his own son had committed suicide in part because he was a victim of a child molester.
“I accept that because of his belief,” wrote the judge, “he was particularly sensitive to the issue of sexual abuse of children.
“I find that this led to blind acceptance of what (the girl) said without applying any analysis, assessment, investigation or further inquiry.”
That finding led the judge to apply Hanlon’s razor, a rule of thumb (akin to Occam’s razor) that says one should never assume bad intentions or malice when mere stupidity will account for what happened.
“I do not find that Mr. Lynch spoke out of spite or ill will nor do I find that he had an indirect or ulterior motive,” concluded the judge.
“While superficially that may appear to be the case, on the facts I find that it was an act of thoughtless stupidity.”
Bottom line: “Taking into account the position of the plaintiff, the egregious allegation, the early acknowledgment of the allegation’s falseness, the impact of the allegations on the plaintiff and their serious and damaging nature, I award general damages of $75,000.”
However, Austin failed to persuade the judge that the B.C. Conservative candidate in the riding Mike Brousseau had conspired with Lynch in the smear.
“The circumstantial evidence is suspicious,” wrote the judge, dismissing the case against Brousseau.
“However it is only that. The evidence falls far short of establishing the alleged conspiracy.”
That finding prompted a call from the Conservatives for Austin to apologize and compensate Brousseau. Not likely, given the toll on the NDP MLA these last three years.
“Mr. Austin has undoubtedly developed a thick skin given his public position,” observed the judge.
“However, I note that under cross-examination he lost his composure when asked about the defamatory statement and was obviously angry showing that indeed he has been affected to a greater degree than perhaps he has let on.”
Austin has already announced he won’t be running for re-election. The 58-year-old has his reasons for not wanting a fourth term, but his bruising experience in the political arena was surely one of them.
I wish to make clear that the words spoken were unfounded, unjustified and false ... Mr. Lynch’s conduct was inexcusable. B . C . SUPREME COURT JUSTICE ROBERT PUNNETT