Canadian defamation law
Encyclopedia
Canadian defamation law refers to defamation law as it stands in both common law
and civil law
jurisdictions in Canada. The law is different depending on the jurisdiction.
similar to the US's own First Amendment.
The law of defamation changed rapidly in Canada 2006-2011. Many important issues were clarified and the law changed generally in the direction of US and Commonwealth law. However Canadian law is still generally the most "plaintiff-friendly" libel law in the English-speaking world.
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 http://www.lawyersweekly.ca/index.php?section=article&articleid=1437, sue including during elections for political advantage http://www.cyberlibel.com/repman.html or to silence critics or accusers (notably Stephen Harper
). This tactic is also used in Singapore http://www.singapore-window.org/80217can.htm - see political libel
Evidence can be gathered by spies representing themselves falsely in private conversations.Defendants, once accused, are guilty 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. http://thetrialwarrior.com/2009/08/24/naming-names-online-defamation-and-compelling-isps-to-disclose-identities-of-anonymous-subscribers/. 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 http://thetrialwarrior.com/2011/03/20/uk-libel-reform-and-the-us-speech-act-a-view-from-canada/http://www.editorsweblog.org/newsrooms_and_journalism/2010/07/the_us_speech_act_puts_pressure_on_uk_li.php http://www.legallanguage.com/legal-articles/libel-tourism/ - see also libel tourism
and SLAPP.
In Dan Burnett's detailed comparison of Canadian laws with US and Commonwealth laws prior to the 2006-2011 reforms http://www.lawyersweekly.ca/index.php?section=article&articleid=371, he summarizes the situation:
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.
jurisdictions, Canada
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. 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 (as of TorStar v. Grant, WIC Radio v. Simpson http://www.torys.com/Publications/Documents/Publication%20PDFs/LDR2008-5.pdf) explicitly stated as such. Intent is always presumed, and it is not necessary to prove that the defendant intended to defame.
The parameters of English common law are among the most widely criticized and repudiated in English law. They 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 UK, NZ, AU, IN and (especially) the US after major court rulings expanded the definitions of qualified privelege, reportage, and outlined the public interest value of criticism of politicians and corporations. Calls to reform Canada's "antiquated libel laws" http://www.lawyersweekly.ca/index.php?section=article&articleid=371 began to appear in the 1990s and continue to present. See the coverage of strategic lawsuit against public participation
issues in Canada.
In stark contrast to the US, Canadian libel law was effectively unchanged for over a decade. 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 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 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. Very controversially, Justice Peter Cory held that there was no evidence of libel chill in Canada at that time (1995). But there is virtually no legal commentator that holds that view as of 2011, and a number of cases decided 2006-2011 effectively excluded all opinion and inference (TorStar v. Grant, WIC Radio v. Simpson), and all hyperlinks without explicit statements of support or agreement (Crookes v. Newton).
As of November 2011, several cases before the Supreme Court of Canada
sought to challenge Cory's opinion, carve out an explicit exemption for expression on matters of public interest, or prevent public figures and/or government bodies from suing. In Crookes v. Newton, 2011, http://scc.lexum.org/en/2011/2011scc47/2011scc47.html the Supreme Court of Canada reiterated its own opinions in these recent cases, citing the application "of fair comment (WIC) and of responsible communication on matters of public interest (Grant)."
In Grant, the Court, quoting Jameel v. Wall Street Journal Europe SPRL, [2006] UKHL 44, [2007] 1 A.C. 359, at para. 54, made the latter defence available “to anyone who publishes material of public interest in any medium” (at para. 96). Moreover, it defined the concept of “public interest” expansively (at para. 106):
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.
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.
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
.
- a form of process abuse and exploitation of a lack of equity of arms that results in unfair trials or intimidated settlements. Analyses of SLAPP, current approaches and suggested reforms to civil procedures and legislation were generated by the Ontario Attorney-General http://www.attorneygeneral.jus.gov.on.ca/english/anti_slapp/anti_slapp_final_report_en.pdf, Uniform Law Conference of Canada http://www.ulcc.ca/en/poam2/SLAPP%20Report.pdf, and less officially by individual academics http://www.adidem.org/images/a/a7/Wullum_AntiSLAPP.pdf http://www.elc.uvic.ca/publications/documents/Reciel-2010-SLAPP-BC-Tollefson-Scott.pdf and the BCCLA both in summary http://www.bccla.org/positions/political/11BC_Slapp.pdf in various interventions in specific cases that it asserts to be SLAPPs that employ defamation law to intimidate http://www.bccla.org/othercontent/Ecosociete_BCCLA_argument.pdfhttp://www.bccla.org/othercontent/09Canwest_Intervener_application.pdf.
The SLAPP argument has become standard in political libel
cases, as all common law jurisdictions outside English Canada and England have sharply restricted any use of civil lawsuits to intimidate political speech.
As of November 15, 2011, this case was pending, having been heard in March 2011.
Strictly speaking, the SLAPP, publication and jurisdiction arguments are not common law defenses but are so widely employed, and so successfully, that any discussion of common law defenses without them is incomplete.
"The CMPA has also been criticized for defending medical malpractice suits extremely vigorously and turning down reasonable offers to settle claims to discourage other lawsuits on a number of occasions.[10] One judge reportedly referred to the CMPA as pursuing a “scorched earth policy.” http://loc.gov/law/help/medical-malpractice-liability/canada.php
Canadian defamation law permits broad latitude in argument and exempts, with absolute privelege, 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. For instance, William McDowell?, a partner in the defamation and public law area at Toronto firm McCarthy Tétrault LLP, noted that only 25 of 500 libel suits filed in Toronto may move to trial in a given year. He suggests these threats have deterrent value for some parties, but that the irresponsible, the indigent, and "those who live and work in jurisdictions far from Canada," may not be dissuaded. 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. They'd been warned: defendants had promised, if the case went against them, to take the case to the European Court of Human Rights. They did, and won, causing vast reputation harm to the winning plaintiff. http://www.itbusiness.ca/it/client/en/EDGE/News.asp?id=4606&bSearch=True
Most experts advise ignoring so-called "cybersmears", especially from anonymous trolls on the Internet. Again, McDowell suggests that "If there is an anonymous posting and there is no reason to think that information comes with an inside track, it is just graffiti. If you go to trial, you put your character at issue," he says. He notes that the scorched-earth defense, the claim that the plaintiff has no reputation worth protecting, has become a standard defense against libel. This can be invoked as justification, or in damages assessment, in which very much more latitude exists to include damning and reputation-harming facts about the plaintiff(s), again with absolute privelege.
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.
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.
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.
In the case of Andre Arthur
et al. v. Robert Gillet (SCC Docket 30769) http://www.scc-csc.gc.ca/case-dossier/cms-sgd/dock-regi-eng.aspx?cas=30769, the Court ruled that Quebec's law exempted broadly racist comments by someone with a reputation for making same, and that accordingly MP-and-radio-host Arthur had no liability for comments against Quebec City cabdrivers. http://www.cbc.ca/news/canada/montreal/story/2011/02/17/cabbie-comments-scoc.html
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 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.
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.
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 offence under the Criminal Code, according to the Supreme Court of Canada
in R. v. Lucas
.
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
and civil law
Civil law (legal system)
Civil law is a legal system inspired by Roman law and whose primary feature is that laws are codified into collections, as compared to common law systems that gives great precedential weight to common law on the principle that it is unfair to treat similar facts differently on different...
jurisdictions in Canada. The law is different depending on the jurisdiction.
versus US and UK law
In general Canadian defamation judgements against Americans are not collectible in the United States under the SPEECH Act of 2010, 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 RightsInternational Covenant on Civil and Political Rights
The International Covenant on Civil and Political Rights is a multilateral treaty adopted by the United Nations General Assembly on December 16, 1966, and in force from March 23, 1976...
similar to the US's own First Amendment.
The law of defamation changed rapidly in Canada 2006-2011. Many important issues were clarified and the law changed generally in the direction of US and Commonwealth law. However Canadian law is still generally the most "plaintiff-friendly" libel law in the English-speaking world.
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 http://www.lawyersweekly.ca/index.php?section=article&articleid=1437, sue including during elections for political advantage http://www.cyberlibel.com/repman.html or to silence critics or accusers (notably Stephen Harper
Stephen Harper
Stephen Joseph Harper is the 22nd and current Prime Minister of Canada and leader of the Conservative Party. Harper became prime minister when his party formed a minority government after the 2006 federal election...
). This tactic is also used in Singapore http://www.singapore-window.org/80217can.htm - see political libel
Political libel
The criminal statutes protecting nobility from criticism in 16th and 17th century England eventually evolved into various categories of political libel . Cases of political libel and eventually damages actions were handled by the infamous Star Chamber until its abolition in 1641...
Evidence can be gathered by spies representing themselves falsely in private conversations.Defendants, once accused, are guilty until they prove themselves innocent (reverse onus
Reverse onus
A reverse onus clause is a provision within a statute that shifts the burden of proof on to the individual specified to disprove an element of the information. Typically, this provision concerns a shift in burden onto a defendant in either a criminal offence or tort claim...
). Anonymous persons can be exposed for political comment, even if they are vulnerable and reside in jurisdictions where retribution is likely. http://thetrialwarrior.com/2009/08/24/naming-names-online-defamation-and-compelling-isps-to-disclose-identities-of-anonymous-subscribers/. 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 http://thetrialwarrior.com/2011/03/20/uk-libel-reform-and-the-us-speech-act-a-view-from-canada/http://www.editorsweblog.org/newsrooms_and_journalism/2010/07/the_us_speech_act_puts_pressure_on_uk_li.php http://www.legallanguage.com/legal-articles/libel-tourism/ - see also libel tourism
Libel tourism
Libel tourism is a term first coined by Geoffrey Robertson to describe forum shopping for libel suits. It particularly refers to the practice of pursuing a case in England and Wales, in preference to other jurisdictions, such as the United States, which provide more extensive defences for those...
and SLAPP.
In Dan Burnett's detailed comparison of Canadian laws with US and Commonwealth laws prior to the 2006-2011 reforms http://www.lawyersweekly.ca/index.php?section=article&articleid=371, he summarizes the situation:
- For all the lofty quotes about free speech in Canadian jurisprudence, the reality is that our libel laws are the least protective of free speech in the English-speaking world.
- Libel law developed in an ancient era which we would today consider backward, tyrannical and repressive. It is rooted in 16th and 17th century criminal statutes protecting nobility from criticism. Cases of political libel and eventually damages actions were handled by the infamous Star Chamber until its abolition in 1641. By the end of that century, many elements of the common law of libel we would recognize today had been established. In Law of Defamation in Canada, Professor Brown notes that the common law of defamation has been described by scholars and judges as “artificial and archaic” and characterized by “absurdities”, “irrationality”, and “minute and barren distinctions” (p. 1-3).
- While social values and legal concepts have evolved dramatically of the past 200 years, the common law of libel in Canada remains startlingly unchanged.
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.
Common law jurisdictions
As with most CommonwealthCommonwealth of Nations
The Commonwealth of Nations, normally referred to as the Commonwealth and formerly known as the British Commonwealth, is an intergovernmental organisation of fifty-four independent member states...
jurisdictions, Canada
Canada
Canada is a North American country consisting of ten provinces and three territories. Located in the northern part of the continent, it extends from the Atlantic Ocean in the east to the Pacific Ocean in the west, and northward into the Arctic Ocean...
follows English law on defamation issues (although the law in the province of Quebec
Quebec
Quebec or is a province in east-central Canada. It is the only Canadian province with a predominantly French-speaking population and the only one whose sole official language is French at the provincial level....
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. 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 (as of TorStar v. Grant, WIC Radio v. Simpson http://www.torys.com/Publications/Documents/Publication%20PDFs/LDR2008-5.pdf) explicitly stated as such. Intent is always presumed, and it is not necessary to prove that the defendant intended to defame.
The parameters of English common law are among the most widely criticized and repudiated in English law. They 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 UK, NZ, AU, IN and (especially) the US after major court rulings expanded the definitions of qualified privelege, reportage, and outlined the public interest value of criticism of politicians and corporations. Calls to reform Canada's "antiquated libel laws" http://www.lawyersweekly.ca/index.php?section=article&articleid=371 began to appear in the 1990s and continue to present. See the coverage of strategic lawsuit against public participation
Strategic lawsuit against public participation
A strategic lawsuit against public participation is a lawsuit that is intended to censor, intimidate, and silence critics by burdening them with the cost of a legal defense until they abandon their criticism or opposition....
issues in Canada.
In stark contrast to the US, Canadian libel law was effectively unchanged for over a decade. In the Supreme Court of Canada
Supreme Court of Canada
The Supreme Court of Canada is the highest court of Canada and is the final court of appeals in the Canadian justice system. The court grants permission to between 40 and 75 litigants each year to appeal decisions rendered by provincial, territorial and federal appellate courts, and its decisions...
decision of Hill v. Church of Scientology of Toronto
Hill v. Church of Scientology of Toronto
Hill v. Church of Scientology of Toronto [1995] 2 S.C.R. 1130 was a libel case against the Church of Scientology, in which the Supreme Court of Canada interpreted Ontario's libel law in relation to the Canadian Charter of Rights and Freedoms....
(1995) the Court reviewed the relationship of the common law
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
of defamation and the Charter
Canadian Charter of Rights and Freedoms
The Canadian Charter of Rights and Freedoms is a bill of rights entrenched in the Constitution of Canada. It forms the first part of the Constitution Act, 1982...
. The Court rejected the actual malice test outlined in the U.S. Supreme Court
Supreme Court of the United States
The Supreme Court of the United States is the highest court in the United States. It has ultimate appellate jurisdiction over all state and federal courts, and original jurisdiction over a small range of cases...
decision New York Times Co. v. Sullivan
New York Times Co. v. Sullivan
New York Times Co. v. Sullivan, 376 U.S. 254 , was a United States Supreme Court case which established the actual malice standard which has to be met before press reports about public officials or public figures can be considered to be defamation and libel; and hence allowed free reporting of the...
, citing criticism of it not only in the United States but in other countries as well. The Court 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. Very controversially, Justice Peter Cory held that there was no evidence of libel chill in Canada at that time (1995). But there is virtually no legal commentator that holds that view as of 2011, and a number of cases decided 2006-2011 effectively excluded all opinion and inference (TorStar v. Grant, WIC Radio v. Simpson), and all hyperlinks without explicit statements of support or agreement (Crookes v. Newton).
As of November 2011, several cases before the Supreme Court of Canada
Supreme Court of Canada
The Supreme Court of Canada is the highest court of Canada and is the final court of appeals in the Canadian justice system. The court grants permission to between 40 and 75 litigants each year to appeal decisions rendered by provincial, territorial and federal appellate courts, and its decisions...
sought to challenge Cory's opinion, carve out an explicit exemption for expression on matters of public interest, or prevent public figures and/or government bodies from suing. In Crookes v. Newton, 2011, http://scc.lexum.org/en/2011/2011scc47/2011scc47.html the Supreme Court of Canada reiterated its own opinions in these recent cases, citing the application "of fair comment (WIC) and of responsible communication on matters of public interest (Grant)."
In Grant, the Court, quoting Jameel v. Wall Street Journal Europe SPRL, [2006] UKHL 44, [2007] 1 A.C. 359, at para. 54, made the latter defence available “to anyone who publishes material of public interest in any medium” (at para. 96). Moreover, it defined the concept of “public interest” expansively (at para. 106):
- "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."
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.
Where a communication is expressing a fact, it can still be found defamatory through innuendo
Innuendo
An innuendo is a baseless invention of thoughts or ideas. It can also be a remark or question, typically disparaging , that works obliquely by allusion...
suggested by the juxtaposition of the text or picture next to other pictures and words.
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
Negligence
Negligence is a failure to exercise the care that a reasonably prudent person would exercise in like circumstances. The area of tort law known as negligence involves harm caused by carelessness, not intentional harm.According to Jay M...
.
SLAPP
Another common defamation defense is that the suit is a strategic lawsuit against public participationStrategic lawsuit against public participation
A strategic lawsuit against public participation is a lawsuit that is intended to censor, intimidate, and silence critics by burdening them with the cost of a legal defense until they abandon their criticism or opposition....
- a form of process abuse and exploitation of a lack of equity of arms that results in unfair trials or intimidated settlements. Analyses of SLAPP, current approaches and suggested reforms to civil procedures and legislation were generated by the Ontario Attorney-General http://www.attorneygeneral.jus.gov.on.ca/english/anti_slapp/anti_slapp_final_report_en.pdf, Uniform Law Conference of Canada http://www.ulcc.ca/en/poam2/SLAPP%20Report.pdf, and less officially by individual academics http://www.adidem.org/images/a/a7/Wullum_AntiSLAPP.pdf http://www.elc.uvic.ca/publications/documents/Reciel-2010-SLAPP-BC-Tollefson-Scott.pdf and the BCCLA both in summary http://www.bccla.org/positions/political/11BC_Slapp.pdf in various interventions in specific cases that it asserts to be SLAPPs that employ defamation law to intimidate http://www.bccla.org/othercontent/Ecosociete_BCCLA_argument.pdfhttp://www.bccla.org/othercontent/09Canwest_Intervener_application.pdf.
The SLAPP argument has become standard in political libel
Political libel
The criminal statutes protecting nobility from criticism in 16th and 17th century England eventually evolved into various categories of political libel . Cases of political libel and eventually damages actions were handled by the infamous Star Chamber until its abolition in 1641...
cases, as all common law jurisdictions outside English Canada and England have sharply restricted any use of civil lawsuits to intimidate political speech.
Contesting jurisdiction and publication
An approach increasingly common in Canadian courts is to contest jurisdiction or publication, as the courts (Crookes v. Newton, Crookes v. Yahoo, Crookes v. Wikipedia, Crookes v. Google, Crookes v. Open Politics) have consistently required affidavit proof of publication within the province where the libel is alleged. In Banro v. Editions Ecosociete, interveners made extensive argument http://www.bccla.org/othercontent/Ecosociete_BCCLA_argument.pdf 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.As of November 15, 2011, this case was pending, having been heard in March 2011.
Strictly speaking, the SLAPP, publication and jurisdiction arguments are not common law defenses but are so widely employed, and so successfully, that any discussion of common law defenses without them is incomplete.
Tactical use of specific defenses
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 http://www.cmaj.ca/content/162/12/1735.full.pdf. Such tactics are also sometimes employed in other kinds of suits:"The CMPA has also been criticized for defending medical malpractice suits extremely vigorously and turning down reasonable offers to settle claims to discourage other lawsuits on a number of occasions.[10] One judge reportedly referred to the CMPA as pursuing a “scorched earth policy.” http://loc.gov/law/help/medical-malpractice-liability/canada.php
Canadian defamation law permits broad latitude in argument and exempts, with absolute privelege, 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. For instance, William McDowell?, a partner in the defamation and public law area at Toronto firm McCarthy Tétrault LLP, noted that only 25 of 500 libel suits filed in Toronto may move to trial in a given year. He suggests these threats have deterrent value for some parties, but that the irresponsible, the indigent, and "those who live and work in jurisdictions far from Canada," may not be dissuaded. 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. They'd been warned: defendants had promised, if the case went against them, to take the case to the European Court of Human Rights. They did, and won, causing vast reputation harm to the winning plaintiff. http://www.itbusiness.ca/it/client/en/EDGE/News.asp?id=4606&bSearch=True
Most experts advise ignoring so-called "cybersmears", especially from anonymous trolls on the Internet. Again, McDowell suggests that "If there is an anonymous posting and there is no reason to think that information comes with an inside track, it is just graffiti. If you go to trial, you put your character at issue," he says. He notes that the scorched-earth defense, the claim that the plaintiff has no reputation worth protecting, has become a standard defense against libel. This can be invoked as justification, or in damages assessment, in which very much more latitude exists to include damning and reputation-harming facts about the plaintiff(s), again with absolute privelege.
Quebec
The civil code of Quebec has different parameters for liability which the Supreme Court of CanadaSupreme Court of Canada
The Supreme Court of Canada is the highest court of Canada and is the final court of appeals in the Canadian justice system. The court grants permission to between 40 and 75 litigants each year to appeal decisions rendered by provincial, territorial and federal appellate courts, and its decisions...
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.
The Civil Code of Quebec
Civil Code of Quebec
The Civil Code of Quebec is the civil code in force in the province of Quebec, Canada. The Civil Code of Quebec came into effect on January 1, 1994, except for certain parts of the book on Family Law which were adopted by the National Assembly in the 1980s...
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
Civil Code of Quebec
The Civil Code of Quebec is the civil code in force in the province of Quebec, Canada. The Civil Code of Quebec came into effect on January 1, 1994, except for certain parts of the book on Family Law which were adopted by the National Assembly in the 1980s...
apply.
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.
In the case of Andre Arthur
André Arthur
André Arthur is a Canadian radio host and politician. He was the independent Member of Parliament for the riding of Portneuf—Jacques-Cartier from 2006 to 2011...
et al. v. Robert Gillet (SCC Docket 30769) http://www.scc-csc.gc.ca/case-dossier/cms-sgd/dock-regi-eng.aspx?cas=30769, the Court ruled that Quebec's law exempted broadly racist comments by someone with a reputation for making same, and that accordingly MP-and-radio-host Arthur had no liability for comments against Quebec City cabdrivers. http://www.cbc.ca/news/canada/montreal/story/2011/02/17/cabbie-comments-scoc.html
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 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.
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 tortTort
A tort, in common law jurisdictions, is a wrong that involves a breach of a civil duty owed to someone else. It is differentiated from a crime, which involves a breach of a duty owed to society in general...
does not infringe the freedom of expression guarantee under the Canadian Charter of Rights and Freedoms
Canadian Charter of Rights and Freedoms
The Canadian Charter of Rights and Freedoms is a bill of rights entrenched in the Constitution of Canada. It forms the first part of the Constitution Act, 1982...
, 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 offence under the Criminal Code, according to the Supreme Court of Canada
Supreme Court of Canada
The Supreme Court of Canada is the highest court of Canada and is the final court of appeals in the Canadian justice system. The court grants permission to between 40 and 75 litigants each year to appeal decisions rendered by provincial, territorial and federal appellate courts, and its decisions...
in R. v. Lucas
R. v. Lucas
R. v. Lucas, [1998] 1 S.C.R. 439 is the leading Supreme Court of Canada decision on defamatory libel. The Court held that the freedom of expression under Section 2 of the Canadian Charter of Rights and Freedoms is subject to the "reasonable limits prescribed by law" set out in Section 1 of the...
.