Cherry Could Benefit from Blowhard Exemption

Toronto Star, October 13, 2011
By Vit Wagner, Staff Reporter

Don Cherry can’t just say whatever he wants about anyone from his pulpit on Hockey Night in Canada, but the fiercely opinionated commentator’s reputation for outrageous bluster might prove a useful defence in any future defamation suit against him.

Chris Nilan, Jim Thomson and Stu Grimson, the three retired National Hockey League enforcers maligned by Cherry last week on Coach’s Corner, have not formally launched suit against the longtime CBC commentator. But, frustrated by their inability to extract an apology for being slammed as “pukes”, “hypocrites” and “turncoats,” they did issue a statement through a Nashville law office suggesting they might take “further recourse.”

Cherry’s rant was fuelled by his perception that after enjoying successful careers as hockey pugilists, the three were now hypocritically opposed to fighting in the NHL.

Both personality and precedent would seem to tilt the odds in Cherry’s defence, according to experts in the field of Canadian libel law.

While Cherry’s condemnation of the trio isn’t as generalized as his infamously disparaging remarks against Europeans and French Canadians, his unhinged temperament might give him some cover.

“He’s got a bit of flexibility because he’s Don Cherry,” said leading libel expert Julian Porter. “There is a certain tendency in the law that if you’re an outrageous speaker, it’s recognized that there’s hurly-burly in what you say and it’s taken accordingly.

“It doesn’t mean you can’t sue. But in the end, a judge might say that people know that Cherry’s always popping off and they wouldn’t take what he says as a considered attack.”

More crucially, the Supreme Court of Canada implicitly granted greater licence to blowhards in 2008 when it redefined the concept of “fair comment” by overturning a conviction against a B.C. “shock jock” who compared a family values activist to Adolf Hitler.

“As long as you are talking about a matter of public interest — and there is no question that what Don Cherry was talking about was a matter of public interest — and it’s an opinion, then pretty well you’re away to the races,” said media lawyer Brian Rogers.

There is also a question of whether a different standard might pertain in the world of sports, where opinion, conjecture and insinuation are commonplace.

“The textbooks don’t identify sports as a separate category, but from what I’ve observed it’s much more polemical than other reporting,” Porter said. “People are constantly being called ‘failures’ and ‘chokers’.”
That is not to say that anyone in Cherry’s position is free to misrepresent the facts about another person.

“It may be that if Cherry got his facts wrong, his defence of fair comment would be undermined,” said Rogers.. “But again, there’s a fair leeway in the way he described the positions that these guys took. You don’t want to get lost in the verbiage.”