Canadian defamation law

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As with most Commonwealth jurisdictions, Canada also follows English law on defamation issues (although the law in the province of Quebec has roots in both the English and the French tradition). At common law, defamation covers any communication that tends to lower the esteem of the subject in the minds of ordinary members of the public.[1] Probably true statements are not excluded, nor are political opinions. Intent is always presumed, and it is not necessary to prove that the defendant intended to defame. In Hill v. Church of Scientology of Toronto (1995), the Supreme Court of Canada rejected the actual malice test adopted in the US case New York Times Co. v. Sullivan. Once a claim has been made out the defendant may avail him or herself to a defense of justification (the truth), fair comment, or privilege. Publishers of defamatory comments may also use the defense of innocent dissemination where they had no knowledge of the nature of the statement, it was not brought to their attention, and they were not negligent.

In Quebec, defamation was originally grounded in the law inherited from France. To establish civil liability for defamation, the plaintiff must establish, on a balance of probabilities, the existence of an injury, a wrongful act, and of a causal connection between the two. A person who has made defamatory remarks will not necessarily be civilly liable for them. The plaintiff must further demonstrate that the person who made the remarks committed a wrongful act. Defamation in Quebec is governed by a reasonableness standard, as opposed to strict liability; a defendant who made a false statement would not be held liable if it was reasonable to believe the statement was true.[2]

Contents

[edit] Common law jurisdictions

As with most Commonwealth jurisdictions, Canada also follows English law on defamation issues (although the law in the province of Quebec has roots in both the English and the French tradition). At common law, defamation covers any communication that tends to lower the esteem of the subject in the minds of ordinary members of the public.[3] The perspective measuring the esteem is highly contextual, and depends on the view of the potential audience of the communication and their degree of background knowledge. Probably true statements are not excluded, nor are political opinions. Intent is always presumed, and it is not necessary to prove that the defendant intended to defame.

In the Supreme Court of Canada decision of Hill v. Church of Scientology of Toronto (1995) the Court reviewed the relationship of the common law of defamation and the Charter. The Court rejected the actual malice test in New York Times Co. v. Sullivan, citing criticism of it not only in the United States but in other countries as well. They held that the guarantee of freedom of expression in the Canadian Charter of Rights and Freedoms did not require any significant changes to the common law of libel. This view came under extreme criticism following threats by then-Prime-Minister Paul Martin against then-Leader-of-the-Opposition Stephen Harper for calling the former's ruling Liberal Party of Canada a form of "organized crime." No suit was filed. See the separate article on political libel.

Where a communication is expressing a fact, it can still be found defamatory through innuendo suggested by the juxtaposition of the text or picture next to other pictures and words.[4]

Once a claim has been made out the defendant may avail him or herself to a defense of justification (the truth), fair comment, or privilege. Publishers of defamatory comments may also use the defense of innocent dissemination where they had no knowledge of the nature of the statement, it was not brought to their attention, and they were not negligent.

[edit] Quebec

In Quebec, defamation was originally grounded in the law inherited from France. After Quebec, then called New France, became part of the British Empire, the French civil law was preserved. However, by the mid-nineteenth century, judges in what by then had come to be called Lower Canada held that principles of freedom of expression inherent in the unwritten British Constitution over-rode French civil law in matters of public interest, and incorporated various defenses of the English common law, such as the defense of fair comment, into the local law. Such references to British law became more problematic in the Twentieth Century, with some judges and academics arguing that the basic principles of the civil law gave rise to similar defenses without need to refer to English case law or principle.[5]

The Civil Code of Quebec does not have specific provisions relating to an action in defamation. Therefore, the general rules of extra-contractual responsibility established by article 1457 of the Civil Code of Quebec apply.[6]

To establish civil liability for defamation, the plaintiff must establish, on a balance of probabilities, the existence of an injury, a wrongful act, and of a causal connection between the two. A person who has made defamatory remarks will not necessarily be civilly liable for them. The plaintiff must further demonstrate that the person who made the remarks committed a wrongful act. Therefore, communicating false information is not, in itself, a wrongful act.[7]

In 1994, the Court of Appeal of Quebec has held that defamation in Quebec must be governed by a reasonableness standard, as opposed to the strict liability standard that is applicable in the English common law; a defendant who made a false statement would not be held liable if it was reasonable to believe the statement was true.[8]

[edit] Criminal defamation

Defamation as a tort does not infringe the freedom of expression guarantee under the Canadian Charter of Rights and Freedoms, according to the Nova Scotia Supreme Court in Coates v. The Citizen (1988), 44 C.C.L.T. 286 (N.S.S.C.). Defamatory libel is equally valid as a criminal offense under the Criminal Code, according to the Supreme Court of Canada: R. v. Lucas, [1998] 1 S.C.R. 439.

[edit] References

  1. ^ Murphy v. LaMarsh (1970), 73 W.W.R. 114
  2. ^ Société Radio-Canada c. Radio Sept-Îles inc., [1994] R.J.Q. 1811 <http://www.canlii.org/fr/qc/qcca/doc/1994/1994canlii5883/1994canlii5883.html>
  3. ^ Murphy v. LaMarsh (1970), 73 W.W.R. 114
  4. ^ Brown, The Law of Defamation in Canada, 2nd ed. (Scarborough, Ont.: Carswell, 1994) vol. 1 at 201
  5. ^ Joseph Kary, "The Constitutionalization of Quebec Libel Law, 1848-2004", Osgoode Hall Law Journal, volume 42.
  6. ^ Gilles E. Néron Communication Marketing Inc. v. Chambre des notaires du Québec, 2004 SCC 53 at para. 56. <http://www.canlii.org/en/ca/scc/doc/2004/2004scc53/2004scc53.html>
  7. ^ Prud'homme v. Prud'homme, 2002 SCC 85 at para. 35 <http://www.canlii.org/en/ca/scc/doc/2002/2002scc85/2002scc85.html>
  8. ^ Société Radio-Canada c. Radio Sept-Îles inc., [1994] R.J.Q. 1811 <http://www.canlii.org/fr/qc/qcca/doc/1994/1994canlii5883/1994canlii5883.html>