Activist accused of defaming police officer
Judge won’t order injunction to remove posts about his alleged conduct at rally
Allegedly defamatory posts by Calgary activist Taylor Mcnallie can stay online pending a civil trial between her and a city police officer, a judge has ruled.
In a written decision posted online, Justice Colin Feasby declined to issue an injunction against the woman ordering her to remove posts and preventing her from posting other comments in future. Constable Kyle Peterson is suing Mcnallie for defamation in connection with comments she made on social media about his conduct at a Nov. 19 “Free Palestine” rally.
“Const. Paterson says that the statements are untrue and bring him into disrepute,” Feasby said in his decision. “He has commenced an action for defamation against Taylor Mcnallie and the unnamed defendants.”
Along with the social justice activist, Peterson names Jane and John Doe as defendants in his statement of claim.
Feasby said despite Peterson’s assertions the posts are false, Mcnallie “stands by her statements and asserts they are true. She had also pleaded that her statements are fair comment and responsible communications on a subject of public interest.” The Court of King’s Bench judge also said the test for granting an injunction in defamation cases is more stringent than in other civil litigation matters because it deals with a person’s right to freedom of expression.
Feasby said a party seeking an injunction against an individual in such a case would need to establish the published comments are “clearly defamatory” and an applicant “must establish that there is no sustainable defence of justification ... absolute or qualified privilege, or fair comment.”
He noted Mcnallie “describes herself as an educator on racial and social justice issues who opposes police violence.”
Peterson claimed that four posts by Mcnallie were defamatory, but Feasby said two could be found to be general comments about police conduct and a third, naming Peterson, was “cryptic and does not appear to state any facts.” But he said the fourth comment made by Mcnallie, in which she alleges he kicked a pregnant woman and ripped off her hijab, if proved to be false, would be “manifestly defamatory.” Peterson not only denied the accusation, but said he was “stationed in a vehicle several blocks away from the protests and was not involved in any of the arrests that day.”
Feasby said to grant the injunction on that post he would have to believe Peterson and disbelieve Mcnallie. “The high value placed on freedom of expression dictates that in the early stages of a defamation action, an interlocutory injunction restraining expression should not be granted except in clear cases,” he said.
But the judge added activists aren’t immune from having damages ordered against them. “Freedom of expression will not excuse a promoter of false statements from liability,” Feasby said.