Human Rights Commissions, Free Speech and Defamation In the Supreme Court

Yesterday's Supreme Court of Canada decision in WIC Radio Ltd. v. Simpson, 2008 SCC 40 is of considerable importance for defamation law. But its greater importance may be the foreshadowing it gives of the Court's view about how the litigation process can be abused to stifle otherwise valuable free speech. This last point is especially relevant in light of the ongoing issues of free speech and human rights commissions.

In this regard a passage from the case is most relevant:

[15] The function of the tort of defamation is to vindicate reputation, but many courts have concluded that the traditional elements of that tort may require modification to provide broader accommodation to the value of freedom of expression. There is concern that matters of public interest go unreported because publishers fear the ballooning cost and disruption of defending a defamation action. Investigative reports get "spiked", the Media Coalition contends, because, while true, they are based on facts that are difficult to establish according to rules of evidence. When controversies erupt, statements of claim often follow as night follows day, not only in serious claims (as here) but in actions launched simply for the purpose of intimidation. Of course "chilling" false and defamatory speech is not a bad thing in itself, but chilling debate on matters of legitimate public interest raises issues of inappropriate censorship and self-censorship. Public controversy can be a rough trade, and the law needs to accommodate its requirements.

Turning now to the legal impact decision itself the Court held that the traditional elements of the tort of defamation require modification to provide broader accommodation to the value of freedom of expression.

Accordingly the Court modified the "honest belief" element of the fair comment defence so that the test, as modified, consists of the following elements: (a) the comment must be on a matter of public interest; (b) the comment must be based on fact; (c) the comment, though it can include inferences of fact, must be recognizable as comment; (d) the comment must satisfy the following objective test: could any person honestly express that opinion on the proved facts? Even though the comment satisfies the objective test of honest belief, the defence can be defeated if the plaintiff proves that the defendant was subjectively actuated by express malice. The defendant must prove the four elements of the defence before the onus switches back to the plaintiff to establish malice.

The Court held:

[28] For ease of reference, I repeat and endorse the formulation of the test for the fair comment defence set out by Justice Dickson, dissenting, in Cherneskey [Cherneskey v. Armadale Publishers Ltd., [1979] 1 S.C.R. 1067] as follows:

(a) the comment must be on a matter of public interest;

(b) the comment must be based on fact;

(c) the comment, though it can include inferences of fact, must be recognisable as comment;

(d) the comment must satisfy the following objective test: could any [person] honestly express that opinion on the proved facts?

(e) even though the comment satisfies the objective test the defence can be defeated if the plaintiff proves that the defendant was [subjectively] actuated by express malice.