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Created by dave. Last edited by dave, 14 years and 150 days ago. Viewed 4,027 times. #2
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Lots of confusion in the comments, so here's the skinny on defamation law in Canada, taken directly from this judgment (removing citations for readability):

[28] A plaintiff in a defamation action is required to prove three things to obtain judgment and an award of damages: (1) that the impugned words were defamatory, in the sense that they would tend to lower the plaintiff's reputation in the eyes of a reasonable person; (2) that the words in fact referred to the plaintiff; and (3) that the words were published, meaning that they were communicated to at least one person other than the plaintiff. If these elements are established on a balance of probabilities, falsity and damage are presumed, though this rule has been subject to strong criticism: [citations]. (The only exception is that slander requires proof of special damages, unless the impugned words were slanderous per se: [citation].) The plaintiff is not required to show that the defendant intended to do harm, or even that the defendant was careless. The tort is thus one of strict liability.

[29] If the plaintiff proves the required elements, the onus then shifts to the defendant to advance a defence in order to escape liability.

[30] Both statements of opinion and statements of fact may attract the defence of privilege, depending on the occasion on which they were made. Some "occasions", like Parliamentary and legal proceedings, are absolutely privileged. Others, like reference letters or credit reports, enjoy "qualified" privilege, meaning that the privilege can be defeated by proof that the defendant acted with malice: [citation]. The defences of absolute and qualified privilege reflect the fact that "common convenience and welfare of society" sometimes requires untrammelled communications: [citation]. The law acknowledges through recognition of privileged occasions that false and defamatory expression may sometimes contribute to desirable social ends.

[31] In addition to privilege, statements of opinion, a category which includes any "deduction, inference, conclusion, criticism, judgment, remark or observation which is generally incapable of proof" ([citation]), may attract the defence of fair comment. As reformulated in WIC Radio, at para. 28, a defendant claiming fair comment must satisfy the following test: (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?; and (e) even though the comment satisfies the objective test the defence can be defeated if the plaintiff proves that the defendant was actuated by express malice. WIC Radio expanded the fair comment defence by changing the traditional requirement that the opinion be one that a "fairminded" person could honestly hold, to a requirement that it be one that "anyone could honestly have expressed" (paras. 49-51), which allows for robust debate. As Binnie J. put it, "[w]e live in a free country where people have as much right to express outrageous and ridiculous opinions as moderate ones" (para. 4).

[32] Where statements of fact are at issue, usually only two defences are available: the defence that the statement was substantially true (justification); and the defence that the statement was made in a protected context (privilege). The issue in this case is whether the defences to actions for defamatory statements of fact should be expanded, as has been done for statements of opinion, in recognition of the importance of freedom of expression in a free society.

Long story short: prove someone defamed you (defamatory, towards you, published), they're presumed guilty, with onus shifting. To defend themselves, they must prove either 1) the statements were absolutely privileged (from court or parliamentary testimony or documentation); 2) the statements enjoyed qualified privilege (certain other documents), though this can be defeated if malice can be shown; 3) if the statements were opinion, they are fair comment; or 4) if the statements of fact are at issue, they must be substantially true (justification).

Whether the fourth point should be expanded to include statements that are probably true was what was at issue in this decision. And the court decided that, essentially, if the trial judge determines the matter was in the public interest, and the jury is convinced the publisher was diligent in trying to verify the allegation, a defence to defamation has been established.


Excerpt from Supreme Court ruling The defence of public interest responsible communication will apply where:

  1. The publication is on a matter of public interest and:
  2. The publisher was diligent in trying to verify the allegation, having regard to:
  • The seriousness of the allegation;
  • The public importance of the matter;
  • The urgency of the matter;
  • The status and reliability of the source;
  • Whether the plaintiff's side of the story was sought and accurately reported;
  • Whether the inclusion of the defamatory statement was justifiable;
  • Whether the defamatory statement’s public interest lay in the fact that it was made rather than its truth (“reportage”); and
  • Any other relevant circumstances.
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