Day 43

Note:  I am a poor note-taker and these summaries will contain errors and omissions which will reflect my limitations.  My intention is to report on the facts as accurately as possible although a subconscious bias may creep in.  I can only provide glimpses into what I see as relevant and interesting events. My goal is to capture the essence of the day’s events rather than be comprehensive.

Read the reference documents: The Legal Case and Events Leading to Trial to obtain an understanding of the case and its history.  Names and terms are abbreviated and defined in  Glossary.

Day 43

The Toronto Star evidence concluded with the testimony of Ms. McIntosh, and the defence of Mr. Nanda commenced on Day 43.

The Defendant Avnish Nanda

Is an Edmonton lawyer and part-time Professor at the U of A.  He was recently appointed by Prime Minster Carney to the Ministerial Advisory Council on Rights, Equality and Inclusion.  That appointment was objected to by Pierre Poilievre and B’nai B’rith on the basis that someone with his background should not be appointed to a council investigating antisemitism.

Mr. Nanda was a human rights advocate and had represented pro-Palestinian campus activists in a complaint against the U of A.  The University had dismantled an anti-Israel protest encampment on the University campus.  Mr. Nanda alleged that the University had violated the freedom of expression and assembly rights of the activists who had been demanding that the University divest from companies with relations with Israel.

In 2019 he published 77 tweets and an op-ed in the Edmonton Journal alleging or inferring that Caylan was a believer in dangerous racist conspiracy theories and was espousing extreme White Nationalist rhetoric.  He had never  met or spoken with Caylan.

Opening Statement of Mr. Franken, Counsel for Mr. Nanda

In his opening statement, Mr. Franken advanced the following propositions:

• This lawsuit constitutes an attack on freedom of speech and public participation in an election.

• Caylan made statements that echoed white supremacist rhetoric.

• The statements attributed to Caylan raised legitimate questions about her suitability as a political candidate.

• Those statements generated national media attention that persisted for several days.

• Mr. Nanda did not enter the public conversation until March 23.

• The Plaintiff cannot establish that anything said or done by Mr. Nanda lowered Caylan’s reputation.

• The Court must balance the protection of reputation against the constitutional value of free expression.

• Mr. Franken identified the witnesses he intended to call and summarized the essence of their anticipated testimony.

• He also identified the publications made by Mr. Nanda that were at issue.

• Finally, he stated that the following legal defences were available to Mr. Nanda:

  • a limitation defence regarding one impugned publication;

  • a notice defence under the Defamation Act;

  • qualified privilege;

  • justification;

  • fair comment; and

  • responsible communication.

Mr. Franken then called Dr. Sarah Bracke as the first witness for the defence.

Dr. Bracke is a highly-educated professor from the Netherlands.  She testified on behalf of Mr. Nanda and provided her written report providing the historical and social context of the so-called Great Replacement Theory.  She had no knowledge of the facts of this case and expressed no opinions regarding the conduct of any of the parties to this litigation.

Her evidence was called to rebut the evidence of Dr. Kaufman, who testified on Caylan’s behalf regarding the same general subject matter.

Direct Examination of Dr. Sarah Bracke by Mr. Franken (Counsel for Mr. Nanda)

Dr. Bracke holds a B.Sc., B.A., M.Sc., and Ph.D., along with two additional postgraduate degrees. She is a Full Professor of Sociology and Gender and Sexuality at the University of Amsterdam. She testified regarding her extensive academic background, including her education, academic appointments, publications, books, peer‑reviewed articles, awards, research, teaching experience, and fluency in six languages, all as recorded in her 17‑page curriculum vitae.

Her testimony included the following points:

• She has expertise in the Great Replacement Theory.

• She has no knowledge of Mr. Nanda or Caylan.

• She was not provided with any materials relating to this case.

• She does not know what issues are in dispute in this litigation.

• She was asked only to prepare a report outlining the historical and social context of the so‑called Great Replacement Theory.

Mr. Franken sought to have the Court qualify Dr. Bracke as an expert in sociology, with a focus on racial and white nationalism, Islamophobia, and the nature and history of population‑replacement ideology and associated political and public discourse, including the iteration known as the Great Replacement Theory.

Dr. Bracke’s Substantive Testimony

Dr. Bracke identified the central features of the Great Replacement Theory:

• A fear of loss of power, control, or demographic supremacy by a majority population;

• A fear of replacement of the majority by a minority;

• The belief that replacement occurs through immigration and differential birth rates;

• The belief that “elites” are enabling or orchestrating these processes;

• Two core elements: racial supremacy and nationalism.

She then outlined the historical development of population‑replacement ideology. She noted that the term “Great Replacement” originates from Le grand remplacement, a book by Renaud Camus published in 2011.

Dr. Bracke’s Conclusions

• Population‑replacement ideology has existed in the Western world for more than a century, appearing in various formulations and terminologies across different national and political contexts.

• This ideology is characterized by a racialized form of nationalism and racial superiority, centred on the belief that the racialized nation is threatened with decline (“repopulation,” “substitution,” “replacement”) or even extinction (“race suicide,” “genocide”) through immigration and differential birth rates.

• Since the 1970s, the ideology has re‑emerged globally, first through the discourse of “white genocide” (United States, South Africa), and later through discourses of “Islamization” and “Eurabia” (Europe).

• Building on anti‑Muslim replacement discourses, Camus articulated the modern formulation of the Great Replacement Theory in 2011.

• The Great Replacement Theory is not a novel concept; it is the latest iteration of longstanding population‑replacement ideology. Its terminology is less inflammatory than earlier formulations, which has contributed to its broader political and cultural uptake.

• As a result, the Great Replacement Theory has played a significant role in mainstreaming population‑replacement ideology, both through political normalization and increased public awareness via media attention. Its language allows an ideology grounded in nationalism and racial superiority to “re‑brand” itself in a manner that appears superficially divorced from explicit racial terminology.

Cross-Examination of Dr. Bracke by Mr. Harrison (Caylan’s Counsel)

·      Dr. Bracke has never before been qualified as an expert witness.

·      Dr. Kaufmann uses quantitative research and analysis.

·      Quantitative research focuses on factual data – it seeks to prove facts using data.

·      Dr. Bracke uses qualitative research and analysis.

·      Qualitative research is more abstract – focuses on questions of meaning, context analysis, and subjective experience.

·      Dr. Bracke does not do data research – she relies on data provided by others.

·      Dr. Kaufmann does his data research.

·      Qualitative analysis could involve interviewing people to find out what they believe and what meanings they attach to their beliefs.

Comment

Doctors Bracke and Kaufman each provided evidence regarding similar subject matter, but their approach was quite different.

·      Dr. Bracke outlined the historical and social context of the Great Replacement Theory.

·      Hers was an academic treatise.

·      Dr. Kaufmann defined his terms, specifically “white supremacy”, “white nationalism”, “racism”, “demographic/population replacement” and the “Great Replacement Theory”.

·      Dr. Kaufmann identified the elements of each the terms he defined, to provide certainty to the meanings of the terms.

·      Dr. Kaufmann also identified problems arising from the “fallacy of association” and “concept creep”.

·      Dr. Kaufmann provided a test to ascertain if Caylan’s quotes white supremacist, white nationalist, racist, or statements of the Great Replacement Theory.

·      Dr. Bracke’s testimony was barely relevant to the issues in this litigation.