Canadian defamation law

Canadian defamation law refers to defamation law as it stands in both common law and civil law jurisdictions in Canada. As with most Commonwealth jurisdictions, Canada follows English law on defamation issues (except in the province of Quebec where private law is derived from French civil law).

Common-law provinces

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] 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 unless explicitly stated as such.^[2] Intent is always presumed, and it is not necessary to prove that the defendant intended to defame. 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.^[3]

Broadly, Canadians can be held liable by English-Canadian courts for comments on public affairs, about public figures, which are factually true, and which are broadly believed. They cannot be held liable for opinion, inference, hyperlinking without explicit agreement with the content, reportage when this is based on honest research and journalistic ethics. Plaintiffs need not prove falsity, malice or damages. Politicians can, and do,^[4] sue including during elections for political advantage ^[5] or to silence critics or accusers. Evidence can be gathered by spies representing themselves falsely in private conversations. Defendants, once accused, are prima facie liable until they prove themselves innocent (reverse onus). Anonymous persons can be exposed for political comment, even if they are vulnerable and reside in jurisdictions where retribution is likely.^[6] People may be sued from remote jurisdictions if publication can be proven in that remote jurisdiction, which can mean as few as one person seeing the words. By contrast, under English law, a substantial publication is required before a plaintiff can sue a defendant in an English court. Unlike Canada, the UK is also considering substantial reforms in order to ensure that judgements remain enforceable in the US ^[7][8][9]

The parameters of English-Canadian defamation law have been described as arbitrary, capricious, absurd and otherwise illogical. Radical reforms to the common law of libel and tort of defamation were initiated in the United States and elsewhere in the Commonwealth after major court rulings expanded the definitions of qualified privilege, reportage, and outlined the public interest value of criticism of politicians and corporations. Calls to reform Canada's "antiquated libel laws"^[10] began to appear in the 1990s, continuing to the present.

In a 2006 commentary comparing Canadian laws with US and Commonwealth laws at that time, the situation was described thus:

Accordingly, most pre-2006 commentary on defenses and tactics remains valid, although the more recent case law and constantly changing standards require defamation lawyers (on both sides) to study almost every recent case.

Recent developments in jurisprudence

In stark contrast to the US, Canadian libel law has been slow to change. In Hill v. Church of Scientology of Toronto the Supreme Court of Canada reviewed the relationship of the common law of defamation and the Charter. The Court rejected the actual malice test outlined in the U.S. Supreme Court decision New York Times Co. v. Sullivan, citing criticism of it not only in the United States but in other countries as well. The Court held that the Charter guarantee of freedom of expression did not require any significant changes to the common law of libel. Very controversially, it was held that there was no evidence of libel chill in Canada.

2006-2011 saw significant developments in Canadian jurisprudence, with many important issues being clarified and the law changing generally in the direction of that occurring in the US and elsewhere in the Commonwealth:

• In Crookes v. Newton,^[11] the Supreme Court of Canada reiterated its own opinions in these recent cases, citing the application of fair comment^[12] and of responsible communication on matters of public interest.^[13]
• In Grant v. Torstar, the Court, quoting Jameel & Ors v. Wall Street Journal Europe Sprl,^[14] made the latter defence available “to anyone who publishes material of public interest in any medium”.^[15] Moreover, it defined the concept of “public interest” expansively:

Public interest is not confined to publications on government and political matters, as it is in Australia and New Zealand. Nor is it necessary that the plaintiff be a “public figure”, as in the American jurisprudence since Sullivan. Both qualifications cast the public interest too narrowly. The public has a genuine stake in knowing about many matters, ranging from science and the arts to the environment, religion, and morality. The democratic interest in such wide-ranging public debate must be reflected in the jurisprudence.^[16]

Most commentators took this as a sign that the Supreme Court would continue to expand latitude for political and public affairs comment, and that judges were encouraged to interpret common law defenses and process abuse broadly enough to ensure that comment on public interest matters was not inhibited unduly by looming lawsuits. However, these more recent developments did not specifically exempt all provably true factual statements from liability, nor did they exempt forums or figures on the basis of public activities. Canadian law is still generally the most "plaintiff-friendly" libel law in the English-speaking world.

Common tactics in defamation cases

Once a claim has been made out the defendant may avail him or herself to a defense of justification (the truth), fair comment, responsible communication, 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.

Another common tactic in political libel cases is the filing of a strategic lawsuit against public participation ("SLAPP"). Analyses of SLAPP tactics and suggested reforms to civil procedures and legislation have been released by the Ontario Attorney-General,^[17] the Uniform Law Conference of Canada,^[18] individual academics ^[19][20] and the British Columbia Civil Liberties Association.^[21][22][23]

An approach increasingly common in Canadian courts is to contest jurisdiction or publication, as the courts^[11] have consistently required affidavits of proof of publication within the province where the libel is alleged. In Éditions Écosociété Inc. v. Banro Corp.,^[24] interveners made extensive argument^[22] against assuming jurisdiction even when there were very clearly copies distributed and read, on the grounds that this imposed too much of a defense burden.

Also commonly employed are extra-legal approaches including the so-called "scorched earth" defense wherein, by way of justification, every embarrassing fact in the plaintiff's entire history is publicly exposed, along with those of personal friends and associates, in an attempt to counter libel chill with a similar fear of being totally exposed. Such tactics can backfire seriously however if a powerful defendant such as a mass media organization is perceived as abusing its access to the public, sometimes resulting in large awards.^[25] Such tactics are also sometimes employed in other kinds of suits.

While few defamation cases go to trial, because of the deterrence value of threatened litigation,^[26] there can be negative consequences arising from the trial itself. Canadian defamation law permits broad latitude in argument and exempts, with absolute privilege, comment made by way of argument, even if the arguments or positions advanced are noxious, intimidating or astonishing, or amusing enough to be quoted widely in the press (true or not). Some noted Canadian lawyers have advised that every possible alternative to litigation should be employed by a client genuinely fearful of reputation loss, before filing suit, simply because the "scorched earth" tactic has become so common.^[26] If defendants have a reason to resist, such as preserving freedom of political speech, the likelihood of negative publicity is magnified. The infamous McLibel case is often cited as a warning against spending vast sums and ending up with bad publicity and an uncollectible judgment.^[26]

Quebec

The Civil Code of Quebec has different parameters for liability which the Supreme Court of Canada applies in appeals from 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.^[27]

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:^[28]

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.^[29]

In the case of Bou Malhab v. Diffusion Métromédia CMR inc.,^[30] the Court ruled that Quebec law exempted broadly racist comments by someone with a reputation for making same, and that accordingly MP-and-radio-host André Arthur had no liability for comments against Quebec City cabdrivers.^[31] It stated flatly that racism was not a matter to be debated or decided in courts, at least not in Quebec. Quebec's anti-SLAPP law further exempts political and public issue comment almost entirely from liability, an approach that is broadly advocated (see SLAPP studies above) to be emulated in common law jurisdictions.

In 1994, the Court of Appeal of Quebec 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.^[11] However, in upholding the "responsible communication" defense in Torstar v. Grant, the Supreme Court of Canada also flatly rejected the strict liability standard in common law jurisdictions as well.

Criminal defamation

Defamation as a tort does not infringe the freedom of expression guarantee under the Canadian Charter of Rights and Freedoms.^[32][33] Defamatory libel is equally valid as a criminal offence under the Criminal Code.^[34]

Enforceability of judgments in US courts

In general Canadian defamation judgements against Americans are not collectible in the United States under the SPEECH Act, and have to be re-proven in an American court in the state where the defendant resides. The exception may be Quebec which has broad protections for political comment and respects international laws (such as the International Covenant on Civil and Political Rights) similar to the US's own First Amendment.

References

Further reading

• Raymond E. Brown (1994). The Law of Defamation in Canada (2nd ed.). Scarborough: Carswell. ISBN 0-459-55861-7. 
• Robert Martin; Gordon Stuart Adam (1994). A Sourcebook of Canadian Media Law (2nd ed.). Ottawa: Carleton University Press. ISBN 0-88629-231-X. 

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