A recent decision by the Supreme
Court of Canada clarifies and widens the scope of what
constitutes a "fair comment" in the context of a
defamation action. The Court's decision confirms that
fair comment will apply in a defamation action even if the
person who made the defamatory comment did not honestly believe
the opinion expressed by the comment was true, but it is an
opinion that a person – however opinionated or
prejudiced – could hold.
The Court's decision in
WIC Radio Ltd. v. Simpson was the Supreme
Court's first opportunity to consider the fair comment
defence since 1979, and therefore the first since the
CanadianCharter of Rights and Freedoms came
into force. Although the Court was careful to explain that the
Charter did not apply directly to the lawsuit (because
it did not involve government action, but rather two private
parties), it once again expressed its desire to ensure that the
common law of defamation conformed with what it (once again)
referred to as "Charter values."
The case itself involved the
prominent British Columbia radio "shock jock" Rafe
Mair, who criticized a well-known anti-gay activist in B.C. and
likened her comments at a recent rally to attitudes of Nazi
Germany, the Ku Klux Klan and U.S. segregation-era southern
governors. The activist sued, arguing that (among other things)
Mair's on-air comments suggested that she condoned
violence against gay people. The trial court found that
Mair's comments, although opinion, could be understood
in this way, and therefore concluded that the comments were
Since the plaintiff proved the
elements of defamation, it fell to the defendant to establish
the defence of fair comment – that is, that the
statement was opinion, reasonably held, on the basis of true
facts and on a matter of public interest. In this case, the
second element was key: whether the opinion stated was
"reasonably held." The trial judge concluded that it
was, but, on the basis of Mair's testimony at trial,
the Court of Appeal concluded he did not actually believe that
the plaintiff condoned violence, and therefore the defence of
fair comment failed.
The Supreme Court reversed the
Court of Appeal, holding that the requirement of "honest
belief" in the opinion expressed is an objective, not a
subjective, requirement. In other words, the Court concluded
that as a matter of law, it is not necessary for a defendant to
actually believe the opinion articulated. Rather, what is
required for fair comment is that a person, however opinionated
or prejudiced, could hold that opinion on the basis of
the facts. This frees a court from any requirement to inquire
into the defendant's subjective thoughts (which unduly
constrain free expression and are largely irrelevant to the
protection of the plaintiff's reputation). Instead, the
purpose of this element of the test is to provide a (small)
constraint on the expression of defamatory opinions that have
no rational connection to the facts on which they are based.
The Court also preserved the right of a plaintiff to defeat the
defence of fair comment by proving malice (i.e., that the
defendant uttered the defamatory words with the intention of
harming the plaintiff).
This decision is a significant
victory for the media – and free expression more
generally – and continues the Supreme Court's
post-Hill v. Scientology trend toward balancing the
common law's traditional protection of reputation with
the Charter values of free expression. Practically,
the decision still requires that Canadian commentators get
their facts straight. However, the Supreme Court has made it
clear that if those facts are set out accurately (or are
otherwise expected to be known to the audience) and the
statements are obviously an expression of opinion and
are rationally connected with those facts, even
"outrageous" and "ridiculous" remarks will
be protected. The Court also reiterated that the determination
of whether a statement is "fact" or
"comment" is to be generously interpreted to ensure
that strong opinion, figurative speech or hyperbolic language
is not unduly restricted.
Interestingly, the Court also
referred in passing to the numerous strands of case law
existing in other common law jurisdictions relating to the
"responsible journalism" or media privilege defences.
Although it declined to express how the various regimes in the
United Kingdom, Australia and New Zealand applied to Canadian
law, the Court dropped an unusually strong hint that it would
be open to considering all of these regimes and whether they
are appropriate for Canadian law (although recognizing that its
role as a Court is only to change the common law
"incrementally"). The Court will get this opportunity
in the coming months, when it hears the appeal from the Ontario
Court of Appeal's decision in Cusson v. Quan,
likely in early 2009.
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