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Supreme Court and Free Speech
Published in the June 2008 issue of Litigation Notes - View Article
Summary: The Supreme Court recently found a “shock jock” radio commentator not liable in defamation for controversial statements made on air. In so doing, the Supreme Court articulated a modern framework of the common law defence of “fair comment”, so as to quell the “chill” on debate on matters of public importance.
The Supreme Court of Canada recently developed the law of defamation in Canada by clarifying the defence of fair comment and its availability to protect freedom of opinion, no matter how controversial the opinion.
The Supreme Court found that controversial B.C. talk radio host Rafe Mair was not liable in defamation against Kari Simpson, a Christian-values advocate, when he criticized her for her objection to the placement of books introducing homosexuality and same sex parents in school libraries. The controversial statements included comments likening Simpson’s public persona to that of the Nazis and the Ku Klux Klan.
Writing for the majority, Justice Binnie found that the defence of fair comment provided a full defence to Mair. The defence protects opinions expressed that may be defamatory if they are on a matter of public interest and based on fact. For example, if a person opines that an individual is a “racist”, then that opinion is protected if it is based on proved facts that are either articulated or well-known, such as the fact that the individual is an active member of a white supremacist group.
To establish fair comment”, the defendant must establish: a) the comment must be on a matter of public interest; b) the comment must be based on fact; c) although the comment can include inferences of fact, the comment must be recognizable as comment; d) the comment must be capable of satisfying the question, “Could any person honestly express that opinion on the proved facts?” (“the honest belief” requirement). In an earlier Supreme Court decision, the majority had found the “honest belief” requirement was a subjective test, i.e.: was the opinion an honest expression of the speaker’s opinion? However, the majority in Mair found that an “objective” formulation of the “honest belief” requirement (as referred to above) is more appropriate since anyone can swear that they honestly believed their comment and such a subjective requirement would render defamation proceedings with a “troubling level of technicality”. However, even if this objective test can be met, if the plaintiff proves the defendant was subjectively motivated by express malice, the defence can be defeated.
The majority found that the debate about education material on homosexuality clearly engaged the public interest; the facts giving rise to the dispute between the parties were well known to Mair’s listening audience and were referred to in part of the editorial itself; the sting of the libel was a comment and it would have been understood as such by the listeners, given that Mair was a radio personality with opinions on everything, not a reporter of facts. With respect to the “honest belief” portion of the test, Simpson’s public declarations on homosexuality and use of violent images could support an honest belief on the part of at least some listeners that she would condone violence against gays, even though Mair denied that he intended to impute such a meaning. The majority found that given the content of Simpson’s speeches, the broad latitude allowed by the defence of fair comment, the defamatory imputation that while Simpson would not engage in violence herself, she “would condone violence” by others was an opinion that could honestly have been made. No malice was found.
The majority also found that although the case involved private matters which are not directly governed by the Charter of Rights and Freedoms, the evolution of the common law is to be informed and guided by Charter values. Thus, the law of fair comment must be developed in a manner consistent with the underlying values of freedom of expression but also with the values underlying the worth and dignity of each individual, including reputation. A court’s task is not to prefer one set of values over the other, but rather an attempt at reconciliation.
However, the majority was also careful to stress the importance of freedom of expression when undertaking the aforementioned balancing of values. It noted the fact that there is concern that matters of public interest go unreported because publishers fear the ballooning cost and disruption of defending a defamation action. Furthermore, the majority noted that while “chilling” false and defamatory speech is not a bad thing in itself, chilling debate on matters of “legitimate public interest” raises issues of inappropriate censorship and self-censorship.
This case signifies a much welcomed development of the law of defamation in Canada. It also vindicates the value of freedom of expression in a country, where, in the words of Justice Binnie, “people have as much right to express outrageous and ridiculous opinions as moderate ones.”
WIC Radio Ltd. v. Simpson, 2008 SCC 40