Canadian Defamation Law - Common Law Jurisdictions

Common Law Jurisdictions

As with most Commonwealth 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 ) 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 privilege, reportage, and outlined the public interest value of criticism of politicians and corporations. Calls to reform Canada's "antiquated libel laws" 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, 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, UKHL 44, 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 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.