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For the first time in thirty years, the Supreme Court of Canada has ruled on the fair comment defence in Canada. The Court's ruling in Simpson v. Mair 2008 SCC 40 broadens the scope of the fair comment defence and brings it in line with modern freedom of expression values protected by the Canadian Charter of Rights and Freedoms.
The facts, very briefly, are that in the course of a radio broadcast the defendant Mair, a well-known broadcaster in British Columbia made disparaging statements about the plaintiff Simpson, a social activist who opposed positive portrayals of homosexual lifestyles. Mair likened Simpson to various extreme ideologues of the far right. Simpson commenced a defamation suit against Mair, who sought to rely on the defence of fair comment. He was successful at trial, but the British Columbia Court of Appeal overturned the trial judge.
The case is significant because it resolves two problems frequently encountered by defendants seeking to rely on the fair comment defence.
The first is a growing number of cases stating that in order to succeed on a fair comment defence the comment in question must be "fair". As Justice Binnie, who wrote the decision for the majority in Mair stated, this approach is flawed because: "'Fair-mindedness" often lies in the eye of the beholder". In other words, it should not be up to the courts to determine whether an opinion on a matter of public interest is fair and therefore protected by the fair comment defence. The very point of the fair comment defence, after all, is to protect diverse opinions. Removing the fairness component of the defence brings Canadian jurisprudence in line with English authorities which have held for some time that the courts should not consider whether an opinion is fair. Following Mair, courts will not be able to find liability merely because they disagree with (or think unfair) a particular comment. This is a significant development.
A second problem for defendants advancing the fair comment defence prior to Mair was the requirement - solidified the last time the Supreme Court of Canada defence in the case of Cherneskey v. Armdale Publishers [1979] 1 S.C.R. 1067 - that the opinion had to be "honestly believed" by the person expressing the opinion. The Mair case provides a perfect illustration of the problem with the subjective honest belief requirement. The trial judge found that the words complained of bore a meaning - that the plaintiff would condone violence - that Mair did not intend to convey. Since Mair did not believe that the plaintiff would condone violence, on application of the subjective belief test, the majority of the British Columbia Court of Appeal found that Mair could not succeed with a fair comment defence. The result of the subjective belief requirement is that the viability of a fair comment defence rested entirely on the sometimes technical determination by the trial judge of what the words meant.
The Supreme Court of Canada has now (as the dissenting judge in Cherneskey would have done thirty years ago), done away with the requirement that the opinion be subjectively believed. The subjective test is replaced with the following objective test: could any person honestly believe the opinion on the proved facts? As Justice Binnie goes on to note, this is not a high threshold for defendants to meet. The practical result is that many cases in which the defence might have failed because of the subjective belief requirement will now be defensible.
The Supreme Court could have gone further, by removing any requirement of belief (subjective or objective) - as suggested in the concurring judgment of Justice Lebel, or by reversing the onus of proof in defamation actions (following Mair the onus remains with defendants to prove a defence such as truth or fair comment). These quibbles aside, however, the Mair decision is a clear and welcome victory for freedom of expression.
3 Comments
The author's comment about Mr. Mair likening Ms. Simpson to ideologues of the far right is semantically incorrect. Hitler and the KKK, which are the groups entwined in Mr. Mair's comments about Ms. Simpson, are not groups from the 'far right' as the author states. Right and left are political terms from revolutionary France and relate respectively to those who defended the interests of the possessing and working classes of that era in the legislature.
Hitler was not from the 'right' or 'left' but was an extremist of his own making. The NSDAP started out as a workers party, not a party one would associate with the right. Hitler did not care about the workers, as history shows with his crushing of the unions, he cared about himself and the acquisition of power so he could implement his ideology. He crushed anybody, right, left or any other persuasion that got in his way. So let's leave the political bias out of this.
I can't see that the standard of: "could any person honestly believe the opinion on the proved facts" is going to move the issue of fair comment along. There are many people out there with various levels of knowledge, intelligence, and gullibility: I'm quite sure there is someone out there who will believe just about any statement.
Would any honest person believe Mr. Mair's likening of Ms. Simpson to those who gassed and incinerated millions of innocent jews or those who hung black people from trees, shot them, or burned them alive? I would not believe this. If no honest person would believe Mr. Mair's statement then why did he win his case?
Mr. Mair said: "I really hate to give Kari Simpson any more publicity, something she soaks up like a blotter, but she's become such a menace I really think something must be said. Now I'm not suggesting that Kari was proposing or supporting any kind of holocaust or violence but neither really in the speeches, when you think about it and look back neither did Hitler or Governor Wallace. Whether she realizes it or not, Kari has by her actions placed herself alongside skinheads and the Klu Klux Klan. Kari Simpson is thank God permitted in our society to say exactly what she wishes, but the other side of the free speech coin is a public decent enough to know a mean-spirited, power mad, rabble rousing and, yes, dangerous bigot when they see one."
I don't know whether I'm missing something but I thought that there had been a very significant narrowing of the Cherneskey test through amendments to provincial Libel and Slander Acts, in the year following the decision, where Dickson J.'s dissent was substituted for Martland J.'s majority test.
Libel and Slander Acts shouldn't be overlooked as purely procedural.
The BC Act for example reads:
Fair comment
6.1 (1) If a defendant published alleged defamatory matter that is an opinion expressed by another person, a defence of fair comment must not fail merely because the defendant did not hold the opinion if
(a) the defendant did not know that the person expressing the opinion did not hold the opinion, and
(b) a person could honestly hold the opinion.
(2) For the purposes of this section, a defendant referred to in subsection (1) has no duty, before or after publication of an opinion referred to in that subsection, to inquire into whether the person expressing the opinion does or does not hold the opinion.
This was to get round the problem in Cherneskey where the Saskatoon paper couldn't find the law students who wrote the letter about Alderman Cherneskey to verify that the opinion was actually reflective of the author's views.
Simpson v. Mair is an important decision. But the suggestion that the Canadian creative community has been labouring under the Martland majority for thirty years is a bit misplaced.
Provisions such as 6(1) of the B.C. Act do not legislate the dissent in Cherneskey. They serve to protect newspapers or broadcasters when they publish the opinion of a third party. It is to address the problem that would otherwise arise when a newspaper published a third party opinion given, as an example, in the course of an interview. Were it not for this provision, newspapers and broadcasters would never have been able to invoke a fair comment defence where they published opinions of third parties, which they often do of course.