Craig vs Slater: MacGregor vindicated

The judgment is out and everyone can read what Justice Toogood has to say but Colin Craig sued me because he wanted to clear his name. The exact opposite has occurred and Justice Toogood has made some key findings.

Just like Oscar Wilde, Colin Craig’s legal strategy has backfired.

This post is about those key paragraphs. Quote:

[17] For the reasons set out below, I have found that:

(a) It is not established that Mr Craig was guilty of sexual harassment of Ms MacGregor up to and including the incident on election night 2011 when there was intimacy between them, because I am not satisfied that Mr Craig?s behaviour was unwanted by Ms MacGregor at that time.
(b) It is true that Mr Craig was guilty of moderately serious sexual harassment of Ms MacGregor, on multiple occasions from early 2012 to 2014 by telling her that he remained romantically inclined and sexually attracted to her, and that those expressions of his views were not welcomed by Ms MacGregor at the time they were communicated to her. Ms MacGregor chose not to complain about the harassment because of her concern about the effect of a complaint on her employment.
(c) The imputation that MrCraig sent ?dirty text messages? to Ms MacGregor is not strictly true, but it is materially true in substance in that he sexually harassed Ms MacGregor by communicating to her sexually oriented written messages between early 2012 and 2014 that were unwelcome.
(d) The imputation that Mr Craig sexually harassed Ms MacGregor so seriously that he settled the sexual harassment claim by paying her a six-figure sum of money is not strictly true, but it is materially true in substance in that he provided MsMacGregor with a substantial financial benefit in exchange for her agreeing she would not pursue a justifiable claim that Mr Craig had been guilty of moderately serious sexual harassment.
(e) The imputation that Mr Craig lied to the board of the Conservative Party by claiming he had paid Ms MacGregor substantially less than six figures to settle the employment matters when in fact he paid her a six-figure sum to settle her sexual harassment claim is not strictly true. It is materially true in substance, however, in that Mr Craig misled the board intentionally about the true nature of his behaviour with and towards Ms MacGregor, the foundation and merits of Ms MacGregor?s allegations against him, and the true nature of the settlement with her.

[71] While I accept that Ms MacGregor was never sexually attracted to Mr Craig in the sense of contemplating having an affair with him, I have concluded from seeing and hearing Ms MacGregor give evidence; from reading many text messages she sent to Mr Craig and from hearing the evidence of other Conservative Party employees,8 that Ms MacGregor quickly became and remained for a considerable time infatuated by her position. Starting her career with relatively modest prior roles in the news media, she had become a trusted advisor and close confidante of the leader of a political party that had serious prospects of winning seats in Parliament. She considered Mr Craig to be someone who understood and, at least purportedly, shared her Christian values and interest in Christian music; who appeared to hold her experience and ability in high regard and who was apparently motivated to encourage her career development. Ms MacGregor had joined the Conservative Party in what would inevitably become a high profile and senior role in terms of her dealings with her former colleagues in the news media. So long as Mr Craig continued to demonstrate reliance upon her professional opinion and advice and to praise her performance, she could rely on earning a good income. Most importantly to Ms MacGregor, in my perception, the political success of Mr Craig and the Conservative Party in reaching the five per cent threshold of general election party votes to secure seats in Parliament would confer significant kudos on her and greatly enhance her career prospects.

[72] I am satisfied also that Mr Craig was flattered and encouraged by the ministration he received from a much younger woman who plainly admired him and to whom he was sexually attracted, as his letters to her reflect.

[75] Mr Craig was in control of the situation from the time he elected to drive Ms MacGregor back to the Conservative Party offices to collect her car. There was no need for him to go upstairs to the apartment, whether at Ms MacGregor?s invitation or otherwise. Given my conclusion that Mr Craig had a significant sexual interest in Ms MacGregor at that time, I do not accept his assertion that Ms MacGregor was the sole initiator of their intimate activity or that he alone brought it to an end. It is more likely, in my view, that he orchestrated or, at least, exploited the situation. Given my view that Ms MacGregor?s personal engagement with Mr Craig was more emotional than sexual, I find it to be unlikely that she invited him to resume their intimacy the following morning, even though she may have decided to stay the night in the apartment rather than return to her flat.

[80] Although Ms MacGregor and Mr Craig talked about setting boundaries for their personal relationship, I am satisfied that Mr Craig did not take any practical step in that regard at that time, other than to resolve there should be no intimacy of the kind?that occurred on 26 November 2011. If Mr Craig had thought that he had put up a genuine boundary or barrier against other forms of inappropriate conduct by the discussions he had with Ms MacGregor, the terms of a letter he sent her in February 2012 indicate that he cannot have thought there was any impediment to harbouring sexually-oriented thoughts and expressing to Ms MacGregor his continuing interest in a sexual relationship with her.

[81] Mr Craig acknowledged as much when he gave evidence about the inner conflict he experienced between his romantic and sexually oriented thoughts about Ms MacGregor and the feelings he had for her, and his acceptance that he could not give them tangible expression through physical intimacy with her. The problem, as I perceive it, is that Mr Craig believed he was entitled to convey his thoughts and feelings verbally to Ms MacGregor, and that she would understand and accept his expression of such sentiments, because she reciprocated his feelings.

[142] I accept Ms MacGregor?s evidence that, although she did not say so at the time, she regarded much of Mr Craig?s letter of 24 December 2013 as inappropriate and offensive. Regarding the third poem with the second section headed “Beautiful”, Mr Craig initially suggested that the letter had been misread and that it merely listed Ms MacGregor’s positive attributes. As he perceived Ms MacGregor to be someone who had struggled with her own self-image and worth, Mr Craig said he was always trying to be encouraging and that the letter expressed the hope that it would make her feel “precious and valued”. Under cross-examination, however, he acknowledged that the way in which he ended the third poem was inappropriate. I consider the three poems to have been intended to reinforce in Ms MacGregor?s mind that, over two years after the single intimate encounter in 2011, Mr Craig continued to be romantically interested in and sexually attracted to her. I accept she did not welcome that information and that the third poem was particularly offensive for her.

[143] There is no evidence that, apart from the text acknowledging the Christmas gift, Ms MacGregor did or said anything to indicate that Mr Craig?s obvious feelings for her were reciprocated.

[170] Ms MacGregor became a pawn in the political manoeuvring by Mr Williams, Mr Stringer and others in circumstances where she had nothing to gain and everything to lose from the continued public speculation about her relationship with Mr Craig.
Not only was she forced into personal litigation over Mr Craig’s breach of the May 2015 settlement agreement but, by the time she gave evidence in this proceeding, she had previously been dragged into litigation between Mr Craig and his political enemies in which her evidence played a prominent part. It takes little imagination to understand how distressing it was for her to be required to give evidence before a jury at the trial of Mr Williams’s defamation action against Mr Craig in 2016, and then to be subjected to further public questioning in this case ? another proceeding in which she had no stake in the outcome ? on very personal matters she wished only to put behind her. Mr Craig has represented himself in this proceeding. Although his conduct in the hearing was entirely proper, I understand that Ms MacGregor?s experience in the witness box was made more distasteful because she was required to answer questions put to her by Mr Craig himself.

[172] I accept Ms MacGregor?s evidence about Mr Craig’s unwanted intrusions upon her personal time and space, such as making excessive demands on her availability for debriefing, receiving late-night phone calls, walking into her motel room unannounced and attending social gatherings which did not appeal to her. She made at least some of those points in her discussions and correspondence with him in June 2014 when she referred to his having made selfish decisions. I find that the circumstances that caused Ms MacGregor?s stress and confusion, and a sense of being locked into a working relationship about which she had real misgivings, occurred not in 2012 but in the latter part of 2013 and, particularly, in 2014, not earlier.

[177] I conclude that by mid-2014, if not earlier, Ms MacGregor had become disaffected. The emails Ms MacGregor sent to Mr Craig from time to time about giving him massages indicate that she was willing to offer and provide those services, at least in 2011 and 2012. I accept that towards the end of 2013 and into 2014 Ms MacGregor became less tolerant of that type of personal contact with Mr Craig. I accept also that, in 2014, Ms MacGregor was less able to simply ignore his reminding her of their brief intimate encounter and of his continuing sexual interest in her. By that stage, however, Ms MacGregor was in no position to simply walk away from her roles with the Conservative Party and find work elsewhere.

[189] If I had accepted that Ms MacGregor implied to Mr Craig that she was interested in a romantic or sexual liaison with him in September 2014, it would have had some effect on my assessment of whether she welcomed Mr Craig?s expressions of sexual desire for her in letters given to her in February 2012 and December 2013, and in conversation with her in 2014. I found Mr Craig?s evidence about the mid- flight conversation to be unconvincing, however, and I doubt that it is true. First, the proposition alleged to have been made by Ms MacGregor is not consistent with what I have determined to be her lack of any romantic interest in Mr Craig and her disaffection with her role by that time. Second, it is improbable that she would have such a conversation with Mr Craig, a prominent public figure, on a small commercial aircraft with other passengers in very close proximity. Third, the alleged gruff rejection, ?not in my lifetime?, would be out of character for Mr Craig and inconsistent with his continuing romantic interest in Ms MacGregor. Fourth, Mr Craig?s evidence that Ms MacGregor had made a proposal that he considered to be ?a breach of the agreement that required her to work in the best interests of his marriage? was contrived and not credible, given his references in the February 2012 and December 2013 letters about how much he would like to have a physical relationship with her. Fifth, bearing in mind the way Mr Craig thought about Ms MacGregor and his apparent view that there was no impediment to his expressing the same kind of sentiment to her, his evidence that his friendship and working relationship with Ms MacGregor was ?greatly damaged? by her alleged proposition is also not believable.

[212] The financial settlement between Mr Craig and Ms MacGregor also addressed Ms MacGregor’s indebtedness to Mr and Mrs Craig arising from the February 2014 loan of almost $19,000 by which she reduced her credit card debt. Ms MacGregor’s evidence was that the arrangements were discussed and agreed in during the mediation on 4 May 2015. Mr Craig said that, although the issue of Ms MacGregor’s unpaid fees was resolved at the mediation, the forgiveness of the debt was not agreed until after the mediation when Mrs Craig and he were satisfied that Ms MacGregor could not afford to make the repayment. I do not accept Mr Craig’s evidence on that point. It is contrary to Ms MacGregor?s evidence, which I accept as understandable and credible, that she would not agree to any settlement of the sexual harassment complaint without also agreeing on a settlement of the financial matters; that is, her pay claim and Mr Craig?s claim that she should repay the advance.

[213] While the settlement of the pay claim had been treated separately in the correspondence between Mr Craig and Ms MacGregor and their legal advisers prior to the mediation, I am satisfied that it was agreed in the mediation that an exchange of letters would follow the mediation to record the arrangements for forgiveness of the loan which had been reached. There was no reason for Mr Craig to insist on that course other than to attempt to distance the withdrawal of Ms MacGregor?s harassment complaint from any financial payment resulting from the mediation.

[216] This attempt by Mr Craig to demonstrate that Mrs Craig and he did not forgive the debt as part of the mediation, but were awaiting evidence of Ms MacGregor’s financial position before considering that course, was an elaborate and disingenuous subterfuge. Leaving aside the phoney reference to Mr and Mrs Craig having ?considered? the contents of a letter drafted by their own solicitors on their instructions, Mr Craig knew Ms MacGregor was in difficult financial circumstances in 2013 and throughout 2014. He had placed her under considerable pressure when he demanded repayment of the loan shortly after her resignation, and he would have known that her position had not improved materially by the time of the mediation in May 2015. There cannot be any doubt that the situation gave Mr Craig significant leverage in the mediated negotiations.

[217] When challenged by others about the financial aspects of the settlement with Ms MacGregor in 2015, and again in evidence in this proceeding, Mr Craig endeavoured to portray the agreement reached on the outstanding loan as unrelated to the withdrawal of the sexual harassment claim. I am satisfied that that is not correct.

[290] Ms MacGregor’s claims were heard by the Human Rights Review Tribunal in December 2015. The Tribunal delivered a comprehensive decision on 2 March 2016.20 The Tribunal’s findings are not binding on this Court and do not provide admissible evidence in this proceeding of what occurred between Mr Craig and Ms MacGregor, but the views expressed largely coincide with the views I formed after considering similar evidence to that which was before the Tribunal. The findings are relevant to an assessment of Mr Craig?s reputation and the extent to which he is entitled to damages for any remediable defamation I have held to be proved. As well, they aid an understanding of the hostility Ms MacGregor displayed towards Mr Craig during her evidence. In summary, the Tribunal held that:

(a) Mr Craig had breached the confidentiality of the settlement agreement with Ms MacGregor in a manner described variously as deliberate, systematic, egregious and repeated.
(b) Mr Craig released carefully selected information not to avoid breaching confidentiality as little as possible, but to paint himself as a person who had been falsely accused by a woman who was clearly incapable of managing her money?and to make an inference that she was seeking money through the sexual harassment complaint. His actions were deliberate, sustained and calculated.
(c) Mr Craig’s breaches were choreographed in such a way as to attract maximum publicity and attention at a national, not local, level. The result was that Ms MacGregor was stigmatised as having engaged in sexually inappropriate behaviour and as being a person who could not manage or control her own finances.

[291] The Tribunal placed the case in the most serious category of breaches of the confidentiality obligations which participants owe under the Human Rights Act, and regarded it as justifying an award of compensation to Ms MacGregor of $120,000 for humiliation, loss of dignity and injury to her feelings. End quote.

His honour then sets about looking very closely at whether or not Colin Craig sexually harassed Rachel MacGregor: Quote:

[392] Because it is central to the case and relevant to the other pleaded defamatory statements, I address first the statement that Mr Craig had sexually harassed Ms MacGregor or was guilty of “harassment of a sexual nature”.

[393] While this judgment was being prepared, I indicated to the parties my view that their submissions on legal matters had not addressed directly the meaning of the term “sexual harassment” or of the phrase “sexually harass” where the concept of sexual harassment arises out of the publications forming the basis for Mr Craig’s claim and the defences advanced by Mr Slater and SMCL. There appeared to have been an assumption that the statutory ingredients of sexual harassment set out in the Human Rights Act apply.103 I have had the assistance of additional submissions on the issue.

[394] The Court is required to adopt the natural and ordinary meanings of the expressions “sexual harassment” and “harassment of a sexual nature”. Although ?harassment? per se is defined in terms of repeated acts or pestering,104 sexual harassment is not confined, in ordinary usage, to repeated acts. ?Sexual harassment? is defined variously as ?harassment, esp. of a woman, in a workplace etc. involving the making of unwanted sexual advances, obscene remarks, etc? 105 and ?harassment (typically of a woman by a man) in a workplace or other professional or social situation, involving the making of unwanted sexual advances, obscene remarks, etc.? 106 The distress or discomfort that is the likely consequence of other forms of harassment involving pestering or repetition will commonly be experienced by the victim of a single incident of sexual harassment in a workplace, professional or social setting. It would be illogical and inconsistent with contemporary usage to hold, for example, that a request for sexual favours in return for a job promotion or a role in a film would not ordinarily be regarded as sexual harassment unless it was repeated. Even an isolated incident of sexual harassment in a workplace or professional setting, depending on its severity, could have long-term implications for a continuing work relationship.

[398] I am satisfied that, on every occasion on which there was a reference to sexual harassment in the publications with which this case is concerned, the intended meaning and the meaning that would have been understood by any reader was that the allegation amounted to conduct or language related to intimate physical contact.

[399] The statutory definitions of sexual harassment include three common and essential elements: first, conduct, words or behaviour of a sexual nature; second, the behaviour is of an unwanted or unwelcome nature; and third, the behaviour has a detrimental effect on the recipient in a prescribed manner. Sexual harassment by both words and conduct forms part of the ordinary meaning of the term and the inclusion in the statutory definitions of an isolated incident of behaviour reflects ordinary usage.

[401] An issue to be resolved is whether, to prove the truth of a statement that Ms MacGregor was sexually harassed, the defendants must prove not only that she experienced the sexually oriented language or conduct that was unwanted or unwelcome but also that, as a result, she suffered detriment or harm. Proof of the statutory requirement that the language used or the behaviour had a detrimental effect on the victim in certain defined respects, such as in the areas prescribed in the Human Rights Act or the Employment Relations Act, is a qualifying element for the application of the statutory procedures. When the statutory procedures are invoked, the claimant is seeking a remedy. It is necessary, therefore, to prove detriment as the basis for determining the amount of monetary compensation or other remedy that is appropriate in the circumstances. Detriment, however, does not appear as a separate element in any of the dictionary definitions. In a workplace, professional or social setting, detriment, disadvantage or harm to a person subjected to an intentional sexually oriented act or remark is inherent in the unwelcome, unwanted or offensive nature of the language or behaviour employed. At the very least, there will detriment for the complainant in having to work in the strained, tense or demeaning atmosphere inevitably created by unwelcome sexual conduct or language.

[405] In my view, therefore, where a complaint of sexual harassment has been made alleging intentional sexual conduct or language, and there is a power imbalance favouring the perpetrator over the complainant, it is reasonable to draw a rebuttable inference that the sexual conduct or language was unwelcome, whether the complainant objected at the time of the alleged harassment or not. And in cases of power imbalance, the inevitability of detriment justifies treating the imbalance as an aggravating factor in assessing the seriousness of the harassment.

[406] It is self-evident that merely harbouring sexual thoughts cannot amount to conduct capable of supporting a sexual harassment allegation. Sexual harassment occurs when unwelcome sexually oriented thoughts, wishes or intentions are conveyed to the person affected. What Ms MacGregor complains of is not that Mr Craig continued to have romantic feelings for her, or that he was interested in having some form of sexual or intimate contact, but that he expressed those feelings and thoughts to her in the context of a working relationship. That is not to disregard Ms MacGregor?s acknowledgement that, throughout most of their relationship, they had a close friendship.

[412] The complexity of the issues as they arise in this case, and the need to take a nuanced approach to these questions, demonstrate why it has been necessary, regrettably, to provide a detailed account of Mr Craig?s behaviour and communications by him to Ms MacGregor, whether in the form of physical conduct, text messages, letters sent to her by email or by what he said to her in her presence.

[413] Determining whether any sexually oriented behaviour was unwelcome or offensive to Ms MacGregor will depend on what language or conduct is said to amount to harassment and at what time during the relationship the behaviour occurred. It is apparent from its history that the relationship changed in nature over its three-year duration and that Mr Craig?s conduct towards Ms MacGregor took a variety of forms.

[417] The overtly sexual reference to wanting to kiss Ms MacGregor “a lot” is purportedly qualified by his suggesting that he would not do so because that would cross some form of boundary. The remark is typical of Mr Craig’s comments on later occasions: he would make a reference to some form of sexual activity or sexual attraction to Ms MacGregor but would then purport to resile or withdraw from the statement, indicating to Ms MacGregor that, while he harboured sexually oriented thoughts or feelings about her, he recognised they were inappropriate and would not act upon them.

[418] An example is Mr Craig?s reference to an occasion on which he had asked Ms MacGregor to dress more modestly than she had on an occasion where she was wearing a “low cut top”, and Mr Craig said that he had looked down the top she was wearing. Immediately, and without offering an excuse, he apologised and asked her to forgive him for letting his eyes go where they should not have gone. Although it was qualified by Mr Craig?s acknowledgement that his conduct was inappropriate, this was an overt reference to Mr Craig?s sexual attraction to Ms MacGregor. That was recognised by Mrs Craig who said that when Mr Craig showed her that part of the letter much later, she ?wanted to deck him.?

[419] It is not immediately clear what Mr Craig’s purpose was in making these statements in the November 2011 letter about wanting to kiss Ms MacGregor and about having looked at her cleavage. Whatever his purpose, and whether Ms MacGregor was an employee or a contractor, it was highly inappropriate, sexually- oriented conduct in the context of a work relationship in which Mr Craig exercised considerable power and influence over her. Given that Mr Craig frequently acted in this way towards Ms MacGregor over the ensuing working relationship, I conclude that this conduct was deliberately manipulative and that it was intended to exploit Mr Craig?s position of authority over her and what Mr Craig apparently viewed as Ms MacGregor’s lack of self-esteem. Nevertheless, in view of how the relationship developed during November 2011, I am unable to conclude firmly that Ms MacGregor regarded Mr Craig?s behaviour as unwelcome at that time. The comments, however, undoubtedly sent confusing messages to her.

[423] I accept, however, that up to the end of 2011 Ms MacGregor was confused and likely to have been distressed by finding herself in a position of some internal conflict because of Mr Craig’s emotional and sexual overtures. Such feelings would not be uncommon in a work relationship involving the exploitation of a power imbalance. The imbalance of status and power in Mr Craig?s favour, and the difference in the age and maturity of the parties, characterise the relationship throughout. Ms MacGregor?s evidence that she sought counselling assistance in November 2011 was not challenged by Mr Craig in cross-examination and is consistent with what I infer she was feeling around that time. Mr Craig denied that Ms MacGregor reported to him that the counsellor had warned her that she was being manipulated by a rich man; he suggested that she told him only that the counsellor had expressed concern that Mr Craig would dismiss her because of the election night incident. If Ms MacGregor did alert Mr Craig to such a concern, as he says, it should have been clear to him that the appropriate course for him to follow was not merely to reassure her that her job was safe notwithstanding what had occurred. He ought to have assured Ms MacGregor that he also recognised that it was inappropriate for him to give any form of expression to being sexually attracted to her and thereafter to refrain from any communication or conduct of that kind.

[424] Viewed in the context of the nature of the relationship at that time, and what occurred, however, the evidence falls short of establishing that writing the letter of 2 November 2011 and the intimate encounter on election night amounted to acts of sexual harassment by Mr Craig. They were sexually oriented and wholly inappropriate, but I cannot find, on the evidence, that Ms MacGregor probably found them unwelcome; her communications with Mr Craig around that time suggest otherwise. Those events, however, provide relevant background to the assessment of Mr Craig?s conduct from the beginning of 2012 to Ms MacGregor?s resignation in September 2014.

[425] Mr Craig?s letter of 7 February 2012 contains a mixture of an appraisal of MsMacGregor’s performance in her role as his assistant and advisor and an assessment of her personality and, particularly, the attributes which Mr Craig regarded as positive or praiseworthy. But it also contains prominently his expression of continuing sexual interest in and desire for her, such as this passage:

There is between us something special and wonderful. It enables us to work perfectly as a team and to do great things. It makes it fun and exciting. There is also a strong attraction to each other. We do love each other but recognize that there are boundaries in place. For my part spending more time apart has not changed what I think or feel. What about you now you have a boyfriend and we have spent time apart? It’s OK if it has – let me know.
I know you quite well now. I am glad I do, it is an honour and a privilege to know you. Seriously I mean this. I love spending time with you.
Physically I do desire you, there are sometimes I just want to kiss you and … well … go further .. I am just being honest this is how it is. I have resisted going down the kissing track and shall continue to do so. I have left the door open for you to say if you need that (and I want you to be brave and honest enough to ask if necessary), but I expect it would be infrequent and of course there are still boundaries.

I have concluded that the sexually oriented content of the letter was not welcomed by Ms MacGregor.

[431] Mr Craig exploited his clearly dominant position in the relationship and there is no evidence that he ever considered how that might affect Ms MacGregor?s ability to respond to his sexual overtures. Mr Craig did not demonstrate, at any point in his evidence in this proceeding, any understanding of the difficulties created for an employee by an employer?s expression of intense feelings of emotional engagement and sexual longing. He never acknowledged the possibility that Ms MacGregor may have felt she could not protest about, and was obliged to tolerate, sexually charged language and conduct for fear of losing her employment or failing to meet her employer?s expectations. Instead, Mr Craig attempted to justify his words and conduct on the basis Ms MacGregor and he had a ?special and wonderful? relationship, as if they were engaging in intimate exchanges on equal terms outside the workplace.

[432] Moreover, Mr Craig displayed no appreciation of the potential for Ms MacGregor to be confused by his invitation to her in the February 2012 letter to tell him whether she continued to feel a strong attraction to him and to love him (?while recognising that there are boundaries in place?) in view of their having spent time apart and Ms MacGregor having apparently acquired a boyfriend. He failed to address the inherent inconsistency in saying that, while there were “still boundaries”, he had left the door open for Ms MacGregor to say if she needed him to kiss her. In the 7 February 2012 letter, Mr Craig expressed “true love” for Ms MacGregor, telling her he cared as deeply for her as someone could ever do, and a few lines later encouraged her to be “a supporter and helper” of his wife, Helen, and to help strengthen and build his marriage. The extreme irony, if not hypocrisy, of this proposition appears never to have occurred to him. The evidence of Mr Craig?s conduct in his relationship with Ms MacGregor and his infatuated attraction to her, while professing to be happily married and a champion of family values, demonstrates that he was somewhat self-absorbed and oblivious to the impact of his behaviour on Ms MacGregor.

[438] I refer to one other example of Mr Craig making sexually oriented remarks while purporting to approve Ms MacGregor’s work performance and provide personal encouragement. The letter sent by Mr Craig to Ms MacGregor on 24 December 2013, is notable for the poem headed “Two of Me” which was photographed and inserted into Mr Slater’s Whaleoil blog at 3.15 pm on 19 June 2015. It reads:

Two of Me
There is only one of me it’s true
but I wish this were not the case because I wish that I could have you
If instead of one man, I was two that would be one for all the others And one of me, for you.

[439] Mr Craig denied in evidence that his comment in the 24 December 2013 letter, ?OK no I can?t really say what I want? [in 2014], referred to having a sexual relationship with Ms MacGregor. I find, however, that the comment was intended to convey to Ms MacGregor that, despite the ?boundaries? they had agreed to place around their relationship, he remained sexually interested in her more than two years after the election night incident. I am influenced in this view by the implied sexual references in the third of the poems included in the letter:

You are beautiful because your lips are so amazing to kiss.
You are beautiful because your skin is so soft.
You are beautiful because you have the most perfect …..
(LOL .. Ok I deleted a couple of lines and stopped this section.) Please know that you are beautiful.

[440] Mr Craig admitted to Mr Henry that the ending of the poem, which he described as “a list of affirmations”, was inappropriate. He was not pressed to say what had been deleted or left unsaid at the end of the poem, but he acknowledged in cross-examination that it was “pretty obvious where [he was] going to go with it.? He accepted that the part he said he had deleted went beyond the boundaries Ms MacGregor and he had agreed, and that it was also inappropriate because he is married and she had a boyfriend. I am satisfied that the way the poem ended was deliberately sexually suggestive and that Mr Craig intended the poem to indicate to Ms MacGregor that, at the end of 2013, he retained a romantic and sexual interest in her.

[441] Mr Craig denied that he was “working on” Ms MacGregor’s Christian beliefs to try to support the inappropriate aspects of the letter. I am satisfied, however, that his constant references to God, Christian values and beliefs and other spiritual matters was intended, at least in part, to normalise the sexual references as a legitimate element of their ?special? relationship.

[442] The sexually oriented statements included in MrCraig’s letters to Ms MacGregor of 7 February 2012 and 24 December 2013 amounted to behaviour comprising the use of language of a sexual nature. In making these statements, Mr Craig exploited his dominant position in the workplace relationship, justifying a presumption that his behaviour was unwelcome. Mr Craig?s evidence did not persuade me otherwise and, in any event, I accept Ms MacGregor?s evidence that Mr Craig?s expressions of affection and sexual interest were unwelcome to or unwanted by her at these times. Although she denied that Mr Craig had sent her ?sext? messages, Ms MacGregor complained that Mr Craig also made similar comments about his feelings for her in text messages to her and, at least occasionally in private conversations, in 2014. I am satisfied that that probably occurred, but because those allegations were vague and not supported by references to any documentary evidence, it is not possible to make any finding about the frequency and timing. It is sufficient to say that I am satisfied that Mr Craig reminded Ms MacGregor from time to time during the first half of 2014 that he continued to think about her in the manner expressed in his earlier letters.

[443] In summary, I find that Mr Craig sexually harassed Ms MacGregor on multiple occasions from early 2012 to 2014 by telling her that he remained romantically inclined and sexually attracted to her, and that those expressions of his views were not welcomed by MsMacGregor at the time they were communicated to her. Ms MacGregor chose not to complain about the harassment because of concern about the effect of a complaint on her employment.

[444] Mr Craig firmly denied that he had ever sent Ms MacGregor a “dirty” sexually explicit text message and no evidence of any such message was produced. Although Mr Slater claimed in Publication 1 that he had copies of ?dirty text messages that had been sent as well?, that was not true. For proof of sexually explicit text messages, Mr Slater relied upon the evidence of Mr Williams telling him that he had seen sexually explicit comments by Mr Craig in the written material he had received.

[445] Mr Craig claimed that large portions of his cellphone records were no longer available for disclosure. Mr Henry submitted that Mr Craig had either disposed of cell phones he used, or deliberately deleted copies of text messages from his cell phone, in an attempt to conceal damaging content. If Ms MacGregor had given evidence that she had received ?sexts? from Mr Craig, it might have been appropriate to draw adverse inferences against Mr Craig on account of his failure to produce the relevant records. But Ms MacGregor expressly denied that she had received any “sext” or sexually explicit text message from Mr Craig.

[446] It seemed to me, as I listened to Mr Slater?s evidence under cross-examination by Mr Craig, that Mr Slater had conflated a number of Mr Williams?s statements to him about conversations and text messages between Mr Craig and Ms MacGregor and some of Mr Craig?s letters. While I am prepared to accept that Mr Slater honestly believed in the existence of ?sext? messages, his view was founded on nothing more than an inference he drew from what Mr Williams had told him, and which he then misquoted as a statement of fact, claiming untruthfully that he (Mr Slater) had copies of the ?dirty text messages?. The imputation that Mr Craig sent ?dirty text messages? to Ms MacGregor was not strictly true, but only so far as the medium of communication is concerned. The medium by which the messages were communicated is immaterial to the aspect of the statement that is defamatory.

[447] The essential sting of the statement, taking the publication as a whole, is that Mr Craig sexually harassed Ms MacGregor by sending her, in writing, sexually oriented messages that were unsolicited. In all material respects, the statement is substantially true.

[456] I am satisfied, however, that the conduct amounting to sexual harassment was not the principal cause of the distress MsMacGregor experienced after her resignation, and it was not only that which caused her hostility towards Mr Craig in giving evidence in this proceeding. The factors leading to the complete breakdown of Ms MacGregor?s relationship with Mr Craig were the public speculation around the time of the election in September 2014 about the cause of her resignation; publicity given to Mr Craig?s communications with her in June 2015, as a result of Mr Williams?s misuse of the documents he was given by Ms MacGregor in confidence in November 2014; Mr Craig?s mishandling of the flow of information to the Conservative Party board and the news media in 2015; and Mr Craig?s self-serving breach of the confidential settlement with Ms MacGregor in June 2015.

[457] Mr Craig?s continuing indications after 2011 that he retained a romantic interest and sexual attraction were unwanted by Ms MacGregor and wrong. I have found that Ms MacGregor chose not to complain about the harassment because of concern about the effect of a complaint on her employment. Although the manner of the harassment was not at the higher end of the scale of seriousness, it had serious consequences for Ms MacGregor in that it was an operative factor in the loss of her job, and Mr Craig?s post-resignation behaviour aggravated the harm she suffered. Moreover, as I have held, the seriousness of the harassment is aggravated by its origins in an abuse of power in a workplace relationship. I assess the sexual harassment as moderately serious.

[459] It is proper and reasonable to infer that the overall financial settlement, including the benefits that that were not related to her pay claim, influenced Ms MacGregor’s decision to withdraw her sexual harassment claim. I accept her evidence that she would not have settled the sexual harassment claim without also resolving her pay claim and the issue of her debt to Mr and Mrs Craig. That means that, although no payment directly related to the sexual harassment claim was made, Mr Craig made a substantial financial settlement with Ms MacGregor in exchange for the withdrawal of her sexual harassment claim to the Human Rights Commission. Whether the financial benefit to Ms MacGregor from the settlement might properly be described as ?large? is a matter of perspective and context. The context is provided by Mr Slater?s use of ?large? as an alternate or proxy for ?a six-figure sum?. The statement that Mr Craig paid Ms MacGregor a six-figure sum is not true, but the material element of the allegation ? the sting ? is that Mr Craig provided Ms MacGregor with a substantial financial benefit in exchange for her not pursuing a justifiable claim that he had been guilty of sexual harassment. The potentially damaging aspects were the inference that serious sexual harassment had occurred and the inference, available from his agreement to a financial settlement, that Mr Craig acknowledged the complaint was well-founded. I have found that, in fact, the harassment was moderately serious.

[460] Taking the statement as a whole, I am satisfied that it has been proved that the third imputation, in substance, was not materially different from the truth in substance in that Mr Craig provided Ms MacGregor with a substantial financial benefit in exchange for her agreeing she would not pursue a justifiable claim that he had been guilty of moderately serious sexual harassment.

[501] I have held that Mr Craig sexually harassed Ms MacGregor, telling her that he was romantically inclined and sexually attracted to her. It is an exaggeration to say that he “begged” Ms MacGregor for an affair, but I am satisfied that the allegation was materially true. It is clear from Mr Craig’s correspondence with Ms MacGregor after the election night incident in 2011 and on 7 February 2012 and 24 December 2013, that he maintained an interest in an intimate physical relationship with Ms MacGregor. He said in the quoted “You and Me” section of the 7 February 2012 letter that he desired Ms MacGregor physically, that sometimes he wanted to kiss her and “well … go further”. He said that he had resisted going down the kissing track but had left the door open for Ms MacGregor if she needed that, even though it would be infrequent and that there would still be boundaries. Notwithstanding that Mr Craig was a married man, his proposition was that he and Ms MacGregor would have an intimate physical relationship. Moreover, in his letter of 24 December 2013, Mr Craig emphasised that nothing had changed about the way he felt about her, meaning that he still hoped for some intimacy with her of the kind which had occurred on election night in 2011. I accept Ms MacGregor’s evidence that she interpreted Mr Craig’s implied reference in that letter to her “perfect” breasts to be a reminder of the intimate touching in which they engaged on that occasion. I am satisfied, therefore, that the imputation that he begged her for an affair was true in its material respects.

[528] The allegations of serious sexual harassment of Ms MacGregor by Mr Craig resulting in a large payout to her; of sexually explicit text messages; and of lies told by Mr Craig to the board about these matters have previously been addressed in dealing with the preceding causes of action. I have held those allegations to be true or materially true in substance. I have held further that, had those statements or any of them been proved to be untrue, Mr Slater would have been entitled to rely on the public interest defence on the basis that publishing the allegations amounted to responsible communications. It follows that, to the extent that the cause of action is founded on those imputations, it must fail. End quote.

There you have it. Colin Craig denied having sexually harrassing Rachel MacGregor, and now there is a High Court finding that he indeed do just that. In seeking to clear his name he has in fact made it much worse.

Listen to this post:
Voiced by Amazon Polly