B.C. man secretly taped in own home, then sued over comments
Private detective hired by plaintiff poses as would-be-neighbour
Last Updated: Tuesday, December 2, 2008 | 1:55 PM PT
By Kathy Tomlinson, CBC News
Jack and Judy Aasen say a visitor to their house in February 2005 turned out to be a private detective who taped their conversation. (CBC) A retired justice of the peace from Vernon, B.C., was secretly recorded by a private detective during a casual conversation in his own home and his words were then successfully used against him in a B.C. court.
"We were tape-recorded in our own home expressing our own opinions," said Jack Aasen.
"[After that] we started whispering in our own home because we didn't know if the house was bugged," added his wife, Judy. "We would go out on the back deck to talk rather than stay in the house."
The Aasens said they had no idea they were being recorded while they were complaining — to a visitor in their own home — about Brad Chapman, a local developer whose companies provide private sewer and water services to their neighbourhood.
The visitor, who turned out to be a private detective, showed up unexpectedly at their house in February 2005, at a time when the Aasens and several other neighbours were involved in a dispute with Chapman over utility rates.
Court records show Wayne Farr, a private detective hired by Chapman to gather evidence for a defamation case, told Mr. Aasen he was from out of town, and that he and his wife were thinking of buying a home in the area. He wanted to know more about Canadian Lakeview Estates, where the Aasens live. The couple invited him in to show him the view and had a friendly chat.
P.I. gathered evidence
"This fellow came to our house and asked us questions," said Mr. Aasen. "I thought I was helping him — but I was actually talking to a private detective who was there to create evidence against us. To create this case."
"We just thought this is absolutely crazy," said his wife. "It makes you very careful about who you talk to."
Chapman didn't return calls from CBC News requesting an interview. However, in affidavits submitted in the court case, he said what was written and said about him in the community hurt his family, particularly his children.
"I am extremely concerned that this continued pattern of harassment and attempts to cause me irreparable harm … has caused and will cause me … irreparable harm and damage," wrote Chapman.
In court affidavits, Brad Chapman says what was written and said about him in the Vernon community hurt his family, particularly his children. (CHBC) Court records show Farr visited the Aasens twice, and tape-recorded their conversations both times. According to the Aasens, one of those visits occurred immediately after Chapman sent surveyors to their house, to prepare to dig up the sewer line under their lawn.
"He's going to dig up our sewer, curtail our sewer service and this is the only service in town for us," said Mr. Aasen. "And he sends somebody in to our home to talk about him."
The couple had paid only part of the $1,200 sewer fee for 2005, as a protest over rates they say were close to double those charged by publicly-owned utilities in nearby B.C. municipalities.
Aasen said Chapman responded by telling him to pay the full amount, or face having his sewage line dug up.
The Aasens joined with other neighbours to write letters, sign petitions and complain to the City of Vernon, about their water and sewer rates.
Chapman and his companies responded by suing four of the residents for defamation. A transcript of the conversations the Aasens had with the private detective were used as evidence in the case.
The transcript submitted to court says Mr. Aasen told Farr, "The only problem with living here is … the guy that owns the utility is a prick, quite frankly."
Later, Aasen said, "I mean you got to laugh, and it is, it's hilarious. You know … he [Chapman] kind of … rides around on his horse and kind of makes the suggestion that he's got the mayor in his pocket."
Tape never played for court
The actual tape recording was never produced and the court relied on an unsigned transcript, with no testimony from the private detective.
Justice Eric Rice of the B.C. Supreme Court in Kelowna threw out the case, ruling that most of what was written and said about Chapman was fair comment.
But Chapman appealed.
Michael Vonn, a spokeswoman for the B.C. Civil Liberties Association, says the Aasen case shows the need for law reform. (CBC) The B.C. Court of Appeal in Vancouver disagreed with the lower court and this past July threw out the case against the others, but ruled that some of what Mr. Aasen said to the private detective was defamatory.
"It appears to me that Mr. Aasen was asserting to Mr. Farr that because of an allegedly corrupt relationship between Mr. Chapman and the then-mayor of Vernon, Mr. Chapman was able to exert a malign influence on city officials," wrote Justice John Hall, in a unanimous three-member appeal panel decision.
"I consider the statements suggesting a corrupt influence on the mayor by the personal appellant purported to be factual and were defamatory of Mr. Chapman," the panel concluded.
Aasen said he was shocked at the decision.
"I was led into that — and entrapped by the private detective. The court of appeal of this province has said it's OK for a private detective to come into your home and secretly tape-record you asking leading questions.
"It's an awful way to live," added his wife.
"Everybody in the community is afraid that they will be the next one sued," said Mr. Aasen.
Sean Harvey, a former mayor of Vernon, resigned in 2005, the same year the Aasens were complaining about him and Chapman. His resignation came after he was accused of conflict of interest over his ties with another area businessman.
Harvey went on to plead guilty to several criminal charges for using a city credit card to cover personal expenses.
'Shocking' case of libel chill, says civil liberties group
Michael Vonn, policy director for the B.C. Civil Liberties Association (BCCLA), said the defamation suits Chapman laid against the Vernon residents should have been thrown out.
"It's shocking. It's completely shocking," said Vonn. "You should be able to speak your opinion and you should be able to speak about issues of public importance anywhere.
B.C. Attorney General Wally Oppal tells reporter Kathy Tomlinson that no new law is required to protect citizens from libel chill. (CBC) "What could chill public participation more than trying to sue somebody for defamation for making a complaint to the government?"
Vonn said the case against the Aasens is a classic example of what's known as a Strategic Lawsuit Against Public Participation, or SLAPP.
"Some powerful interest will sue someone who is complaining about them or making public statements about them," said Vonn. "It's to shut people up."
B.C.'s previous NDP government brought in anti-SLAPP legislation in 2001, in an attempt to put limits on what constitutes defamation when citizens speak out on matters of public interest. The Liberal government repealed the bill months later, saying it's up to the courts to judge lawsuits on their merits.
That's not enough protection, according to the BCCLA, which notes that even frivolous cases take months or years to get to court and often cost ordinary citizens thousands of dollars in legal bills.
"When people are afraid of being sued in the first place, that is obviously going to have a huge impact on democratic process," said Vonn. "We are very familiar with what this looks like and that is why we have called for reform for the law."
Law reform not on the table, says AG
Attorney General Wally Oppal said the government has no plans to bring in new legislation.
"I don't know if there is a better law," said Oppal. "There is no easy solution to this and there are no easy answers to that because there are competing interests involved. On the one hand, a person has the right to get involved in a public issue and a public endeavour openly and on the other hand we have to ensure that someone is not harmed or defamed."
The Aasens don't have a large legal bill to contend with, because, as a retired justice of the peace, Mr. Aasen was able to represent himself and his wife during most of the three and-a-half year ordeal. But the Aasens now face the possibility of having to pay Chapman, based on the appeal court ruling, if he decides to pursue damages.
"I'd like to see legislation here passed to screen out these kinds of cases so that this doesn't happen to other people," said Aasen.
