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Case comment: WIC Radio v. Simpson.

Abstract

The law of defamation is the mechanism through which people protect and vindicate their reputations. Where an impugned statement is an expression of opinion, the main defence is that of fair comment. In WIC Radio Ltd. v. Simpson the Supreme Court of Canada considered the defence of fair comment for the first time since the advent of the Canadian Charter of Rights and Freedoms. In WIC Radio, the Court revisited its own decision in Cherneskey v. Armadale Publishers Ltd., which established more than 30 years ago that the defence of fair comment is available only where the defendant demonstrates that, inter alia, the statement is an honest expression of his or her opinion. At issue in WIC Radio was whether this subjective honest belief requirement should be retained. The Court held that it should not be, ruling instead that an "'objective" formulation of the "honest belief" test better conforms to the requirements of free expression endorsed as a fundamental value of our society by s. 2(b) of the [Charter]".

This comment argues that the majority judgment in WIC Radio represents an improvement over Cherneskey, which skewed the balance between protecting a person's reputation and protecting the value of freedom of expression in favour of reputation. However, although the decision in WIC Radio gives a wider berth to freedom of expression, the majority judgment does not go far enough. Specifically, the honest belief requirement should have been abandoned altogether, as LeBel J. argues in a concurring opinion in WIC Radio. Moreover, the majority missed an opportunity to raise the threshold for establishing prima facie defamation.

Resume

La loi de la diffamation est le mecanisme par lequel quelqu'un protege et justifie sa reputation. Dans la situation ou une declaration contestee est une declaration d'opinion, la defense principale est celle du commentaire juste. Dans WIC Radio Ltd. c. Simpson, la Cour Supreme du Canada a reflechi a la defense du commentaire adequat pour la premiere fois depuis l'avenement de la Charte canadienne des droits et libertes. Dans WIC Radio, la Cour a revisite le jugement de Cherneskey c. Armadale Publishers Ltd., qui avait etahli, il y a plus de 30 ans, que la defense de commentaire juste est disponible uniquement lorsque le defendeur prouve, inter alia, que sa declaration est une croyance honnete. La question principale dans WIC Radio dtait de savoir si la formulation subjective de l'exigence d'une croyance honnete devrait etre retenue. La Cour a rejete cette idee; elle a decide qu'une "formulation << objective >> du critere de la << croyance honnete >> ... est plus conforme aux exigences de la liberte d'expression consacree comme valeur fondamentale de notre societe par l'article 2b) de la [Charte]". Ce commentaire soutien que l'opinion de la majorite des juges dans WIC Radio constitue une amelioration sur celui dans Cherneskey, qui avait fausse le rapport entre la protection de la reputation personnelle et la protection de la liberte d'expression a l'avantage de la reputation. Toutefois, meme si la decision dans WIC Radio donne plus d'emphase a la liberte d'expression, elle ne va pas assez loin. L'exigence de la croyance honnete aurait du etre abandonne entierement, comme l'a soutenue Lebel J. dans son opinion concordante dans WIC Radio. De plus, la majorite de la Cour n'a pas saisi l'opportunite d'elever le seuil pour etablir une diffamation de base.
I    INTRODUCTION

II   CHERNESKEY V. ARMADALE PUBLISHERS LTD.

Cherneskey: Facts and Decision
Implications
Legislative Response

III  WIC RADIO: FACTS

IV   JUDICIAL HISTORY

Supreme Court of British Columbia (Koenigsberg J.)
British Columbia Court of Appeal
Supreme Court of Canada
     The majority judgment
     Justice LeBel (concurring in the result)

V   ELIMINATING HONEST BELIEF

VI  RAISING THE BURDEN ON THE PLAINTIFF

VII CONCLUSION


I INTRODUCTION

According to the private law scholar Thomas Atkins Street, "[N]o system of civil law can fail to take some account of the right to have one's reputation remain untarnished by defamation." (1) The law of defamation is the mechanism through which people protect and vindicate their reputations. (2) A publication or statement is defamatory if it "[tends] to lower the plaintiff in the estimation of rightthinking members of society generally". (3) In addition to proving that the impugned statement is defamatory, the plaintiff must establish that the statement referred to the plaintiff and that it was published to a third party. (4) Together these three elements will be referred to as "prima facie defamation". Once the plaintiff has established that the impugned statement was prima facie defamatory, the onus shifts to the defendant to make out one of the defences to the tort of defamation, which include justification, qualified privilege, and fair comment. If the defendant is unable to make out any of the defences, he or she will be found liable.

Where the impugned statement is an expression of opinion on a matter of public interest--as opposed to an allegedly factual assertion--the main defence is that of fair comment. The defence of fair comment is particularly important given that free and open debate on matters of public importance is central to democratic society. As Lord Denning stated in Slim v. Daily Telegraph, Ltd., (5) "[T]he right of fair comment is one of the essential elements which go to make up our freedom of speech. We must ever maintain this right intact. It must not be whittled down by legal refinements." (6) On June 27th, 2008, the Supreme Court of Canada released its decision in WIC Radio Ltd. v. Simpson. (7) This decision marked the first time that the Court had weighed in on the defence of fair comment since the advent of the Canadian Charter of Rights and Freedoms. (8) In WIC Radio, the Court revisited its own decision in Cherneskey v. Armadale Publishers Ltd., (9) which for nearly 30 years had been the last word on the common law of fair comment. In Cherneskey, the majority of the Court held that the defence of fair comment is available only where the defendant establishes that, inter alia, the opinion or comment is an honest expression of the defendant's view. (10) This subjective standard made it harder for writers and their publishers to defend themselves in defamation actions--especially when statements were misconstrued. At issue in WIC Radio was whether this subjective honest belief requirement should be retained. The Court decided that it should not. Instead, the Court adopted an objective test: whether any person could honestly believe the defendant's opinion based on the facts proven in the case. In fact, Binnie J., writing for the majority in WIC Radio, endorsed the entire test for fair comment that was articulated in Dickson J.'s dissent in Cherneskey:

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

(2 the comment must be based on fact;

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

(4) the comment must satisfy the objective test stated above: could any person honestly express that opinion on the proven facts?

(5) 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. (11)

Specifically, the majority held that "experience has shown that Dickson J.'s 'objective' formulation of the 'honest belief' test better conforms to the requirements of free expression endorsed as a fundamental value of our society by s. 2(b) of the [Charter]". (12)

In Hill v. Church of Scientology of Toronto, (13) Cory J., writing for the majority of the Supreme Court, held that "[the] protection of a person's reputation is indeed worthy of protection in our democratic society and must be carefully balanced against the equally important right of freedom of expression". (14) The Court affirmed this view in WIC Radio. (15) This comment argues that the majority judgment in WIC Radio is an improvement on Cherneskey, which skewed the balance too far in favour of protecting a person's reputation. Nonetheless, though the decision in WIC Radio gives a wider berth to the right of freedom of expression, the majority judgment does not go far enough. Specifically, this comment agrees with LeBel J., who in his concurring opinion argued for the complete elimination of the honest belief requirement, rather than the adoption of an objective test. The objective test may lead to an impermissible inquiry into the reasonableness of the impugned opinion. Moreover, the majority missed an opportunity to raise the threshold for establishing prima facie defamation. A low threshold gives the plaintiff a significant and unwarranted advantage in the litigation, especially considering that the defendant's freedom of expression is at stake.

In Part II of this comment, I discuss Cherneskey, its effect on freedom of expression, and the legislative response to the decision. Part III summarizes the facts of WIC Radio and Part IV will provide a brief judicial history of the case.

In Part V, I will argue that the Supreme Court should have done away with the honest belief requirement altogether. Following that, in Part VI, I suggest that the burden on the plaintiff in a defamation action is too low and should be raised.

II CHERNESKEY V. ARMADALE PUBLISHERS LTD.

This comment argues that the majority judgment in WIC Radio is a significant improvement on Cherneskey. By replacing the subjective honest belief requirement with an objective test, the Court has expanded the sphere of protected expressive activity. To understand why that is, it is necessary to explain Cherneskey. This Part of the comment briefly discusses the facts and decision in that case, the implications of the holding, and the legislative response.

Cherneskey: Facts and Decision

In Cherneskey, the plaintiff, who was a city alderman, sued the publisher and editor of The StarPhoenix, a Saskatoon newspaper, after the newspaper published a letter to the editor that the plaintiff claimed was defamatory of him. The writers of the letter were not joined as defendants and were not available to testify as they were no longer in the jurisdiction. As a result, there was no evidence as to whether the writers honestly held the opinions expressed in the letter. The evidence of the newspaper's publisher and editor, on the other hand, was that they did not honestly believe the defamatory imputation of the letter. (16) In fact, the opinion of the editor of the newspaper was that the plaintiff "had a reputation for honesty and integrity as a lawyer and an alderman". (17) The Supreme Court of Canada held that because the defendants did not honestly believe, and could not prove that the writers honestly believed, the defamatory imputation of the letter, the defence of fair comment was not available. (18) Furthermore, according to Ritchie J., it was not sufficient that the defendants honestly believed that the writers were honestly expressing their views. (19)

Implications

The effect of the decision was to restrict the ability of newspapers to publish letters and opinion pieces with which they do not agree. In practical terms, the decision meant that in order to publish such material while avoiding liability, newspapers and the broadcast media (20) would have to verify the identity of the writers and make sure that the views expressed represented the actual opinion of the writers. In fact, certain passages in the plurality judgment (21) suggested that even where the writer honestly believes the opinions that he or she is expressing, the defence of fair comment is not available to the publisher of the comment unless the letter or editorial also represents the honest opinion of the publisher. (22) If this were correct, then newspapers and other media would never be able to publish defamatory comments with which they disagree. Note that while Ritchie J. expressly denied that his judgment stood for any such proposition, (23) this did not stop the plaintiff in WIC Radio from relying on such an interpretation of Ritchie J.'s judgment. (24) The trial judge rightly rejected this argument. (25) In any event, there is no question that Cherneskey had an immediate chilling effect; according to Prof. Robert Martin, "[a] survey conducted by the Ontario Press Council in 1979 revealed that, of 28 Ontario daily newspapers contacted, 19 had been influenced in the way they handled letters to the editor by the Cherneskey decision". (26) Vigorous public debate on issues of public interest and importance is vital to a free and democratic society: such debate should be encouraged, not curtailed. As Dickson J. put it in his dissenting opinion, "[I]t is not only the right but the duty of the press, in pursuit of its legitimate objectives, to act as a sounding board for the free flow of new and different ideas. It is one of the few means of getting the heterodox and controversial before the public." (27)

The Cherneskey decision not only restricted the freedom of the press but also limited the ability of a maker or originator--as opposed to publisher--of a defamatory comment to express his or her views without fear of civil liability. Political cartoons, satire, and comments made while acting as a devil's advocate all engage the values of freedom of expression. (28) Yet, people who make comments in those forms may well be hard-pressed to establish an honest belief in the views expressed, precisely because of the nature of those forms of comment. As such, following Cherneskey, people who made such comments faced the possibility of being denied the fair comment defence. (29)

The subjective honest belief test adopted in Cherneskey is also problematic where the reasonable meaning of a comment as found by the trier of fact differs from the meaning intended by the defendant. Using the test in Cherneskey, in such cases the defence of fair comment is not available unless the defendant establishes an honest belief in something that the defendant thinks he or she never said or wrote--a very unlikely scenario. In fact, as will be discussed, in WIC Radio the British Columbia Court of Appeal held that the primary defendant (a radio commentator) was not entitled to the defence, because he did not prove that he honestly believed the defamatory imputation that the trial judge held his editorial conveyed--namely, that the plaintiff would condone violence. The Canadian Civil Liberties Association (CCLA) summarized the problem as follows:
   A speaker whose opinion has been misunderstood will be unable to
   rely on fair comment, because he did not honestly believe a meaning
   that was erroneously imputed to his statement. This result clearly
   has dampening effects on the free exchange of opinions on matters
   which are unquestionably in the public interest. (30)


This application of Cherneskey was particularly dangerous, given how often people's statements and views are misconstrued.

Legislative Response

Most of the common law provinces and territories have enacted legislation overturning Cherneskey with respect to publishers. (31) While their precise wording--and therefore the precise degree of protection that they confer on publishers--varies, these enactments typically state that a publisher who reproduces the defamatory opinion of another party will not be denied the defence of fair comment solely because the publisher did not hold the other party's opinion, as long as someone could honestly hold that other party's opinion. (32) These provisions did not, however, solve all the problems with the holding in Cherneskey. For one, Saskatchewan and Nova Scotia have thus far not enacted such provisions. (33) Until WIC Radio, publishers in those jurisdictions still had to establish an honest belief on the part of the writer or originator of the defamatory comment in order to avoid liability. This affected not only local media outlets but also regional and national publications, which would possibly have no statutory defence if sued by a resident of one of those two provinces. (34) As we will see, the decision in WIC Radio fixed this problem by making the common law defence at least as easy to make out as the statutory defences. By replacing the subjective honest belief requirement with an objective test, the Supreme Court has extended protection to publishers in the two holdout provinces and hence has achieved uniformity in the law.

The other problem with the legislative response to Cherneskey was that the provisions apply only where the publisher and the person expressing the opinion are different parties--and even then, only to protect the publisher. Cherneskey remained the law with respect to the makers of defamatory comments; such individuals or groups still had to establish an honest belief in their opinion. As a result, the common law continued to be unduly restrictive of free speech, especially in the Charter era. By adopting an objective honest belief test in WIC Radio, the Supreme Court has given a wider berth to freedom of expression. This is because, as will be discussed, when determining whether any person could have expressed the views on the proved facts, the courts are to be generous. In Merivale v. Carson, (35) Lord Esher M.R. formulated the test as follows: "[The] question ,which the jury must consider is this--would any fair man, however prejudiced he may be, however exaggerated or obstinate his views, have said that which this criticism has said of the work which is criticised?" (36) Justice Dickson quoted that passage with approval in his dissent in Cherneskey. (37) In WIC Radio, the majority adopted Dickson J.'s test and reiterated that the objective test is a low threshold. (38) In fact, it is difficult to think of an opinion that even "silly or ridiculous people" (39) could not honestly hold. Thus, defendants--for whom under the old law, the defence of fair comment would not have been available--will now be able to rely on the defence, assuming that they satisfy the other elements of the defence. (40) The majority judgment in WIC Radio, therefore, represents a positive development in the law. That said, the majority did not go far enough. Instead of replacing the subjective honest belief test with an objective test, it should have eliminated the honest belief requirement altogether.

III WIC RADIO: FACTS

On October 25th, 1999, Rafe Mair, a well-known radio talk show host in British Columbia, delivered an on-air editorial criticizing a woman named Kari Simpson. Simpson was a prominent social activist involved in the debate over the introduction into public schools of materials dealing with the topic of homosexuality. (41) The provincial government contended that its aim was the teaching of tolerance of homosexuality. Simpson, on the other hand, was opposed to what she viewed as the promotion of a homosexual lifestyle. Her organization, the Citizens Research Institute, created the Declaration of Family Rights, a manifesto that asserted the right of parents to demand that their children not be exposed to teaching that "portrays the lifestyle of gays ... as one which is normal, acceptable, or must be tolerated". (42)

Mair, the talk show host, was on the other side of the debate. In his on-air editorial, he blasted Simpson for what he considered her intolerant, bigoted views. One particularly inflammatory portion of the editorial compared Simpson to George Wallace and Adolf Hitler:
   Before Kari was on my colleague Bill Good's show last Friday I
   listened to the tape of the parents' meeting the night before where
   Karl harangued the crowd. It took me back to my childhood when with
   my parents we would listen to bigots who with increasing shrillness
   would harangue the crowds. For Kari's homosexual one could easily
   substitute Jew. I could see Governor Wallace--in my mind's eye I
   could see Governor Wallace of Alabama standing on the steps of a
   schoolhouse shouting to the crowds that no Negroes would get into
   Alabama schools as long as he was governor. It could have been
   blacks last Thursday night just as easily as gays. Now I'm not
   suggesting that Karl 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 or Orval Faubus or Ross Barnett. They were simply declaring
   their hostility to a minority. Let the mob do as they wished. (43)


Mair concluded his editorial by saying, "Kari Simpson is, thank God, permitted in our free society to say 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." (44) In response, Simpson sued Mair and WIC Radio Ltd., which owned and operated the radio station that broadcasted Mair's show, for defamation. (45) She claimed that words in the broadcast were defamatory in their ordinary and natural meaning. Simpson additionally alleged that words in the editorial conveyed seven separate defamatory innuendos, including that she "was hostile toward gay people to the point that she would condone violence toward gay people". (46) Mair denied that his intent was to accuse Simpson of condoning violence or that he had in fact made such an accusation. (47)

IV JUDICIAL HISTORY

Supreme Court of British Columbia (Koenigsberg J.)

The trial judge, Koenigsberg J., held that the reasonable meaning of the comparisons of Simpson to historical figures was that Simpson, too, would condone violence, because these figures are "associated in modern minds solely with violent, genocidal, and irrational hatred towards others". Though Mair had also stated in his editorial that he was not implying that Simpson supported violence, this did not alter the reasonable meaning of the comparisons. The trial judge found this innuendo to be defamatory. She further held that, in light of these comparisons, the final sentences (48) of the editorial were capable of a defamatory meaning and were, in fact, defamatory of Simpson in their ordinary and natural meaning.

Having found Mair's comments to be prima facie defamatory, Koenigsberg J. proceeded to determine whether the defence of fair comment applied on the facts. Simpson contended that the editorial consisted largely of statements of fact, not comment, and that the defence of fair comment was therefore not available. (49) The trial judge rejected this argument. Most of the supposed statements of fact were actually statements of opinion. (50) Though Koenigsberg J. found that certain statements in the editorial were "mixed statement[s] of fact and opinion", she held that in such situations the defence could still be available if the statements of fact--including their defamatory innuendos, if any--on which the comment was based were substantially true. (51) Here, the statements of fact in the editorial were substantially true, or "true in pith and substance". (52) Moreover, those facts--together with other well-known facts not stated in the editorial--constituted a sufficient factual foundation for the opinions expressed in the editorial. (53)

Noting that the concept of "public interest" was a broad one in the context of the defence of fair comment, the trial judge had no difficulty finding that "the question of tolerance, discrimination, and the place for discussion of homosexuality in public schools are ... matters of public interest". (54) Furthermore, since Simpson had not disputed that Mair honestly held the views he expressed in the editorial, the "honest belief" requirement was also met. (55)

Even where the elements of the defence of fair comment are made out, the plaintiff in a defamation action can defeat the defence by showing that the defendant was actuated by malice. (56) On the facts of the case, Koenigsberg J. found that there was evidence of intrinsic malice on the part of Mair. (57) Malice, however, was not the dominant motive for publishing the editorial; (58) rather, "the dominant motive for publishing the editorial was Mair's honestly held opinion". (59) As such, the defence of fair comment applied, and neither Mair nor WIC Radio were liable. (60)

British Columbia Court of Appeal

The British Columbia Court of Appeal reversed the judgment of Koenigsberg J., found both Mair and WIC Radio liable for defamation, and remitted the matter to the trial judge for an assessment of damages and costs. (61) Justice Southin, writing for the majority, (62) framed the question as whether the defence of fair comment requires that the defendant honestly believe what he or she subjectively intended to convey by the defamatory words or statement, or that the defendant honestly believe the objective meaning of the words or statement as found by the trier of fact. (63) Here, Mair had subjectively intended his words to convey that Simpson was an intolerant bigot. The trial judge, however, had found that the objective meaning of Mair's words was that Simpson would condone violence--a finding with which Mair did not take issue. (64) Justice Southin held that Koenigsberg J.'s conclusion "as to the defamatory meaning of [the words in question], excludes any further consideration of fair comment because there is no evidentiary foundation for a finding that the appellant would condone violence". (65) That is, Southin J.A. appeared to hold that, in order to attract the protection of the defence of fair comment, a defendant must prove an honest belief in the specific defamatory innuendo found by the trier of fact, not in what the defendant thought he or she was saying. Since Mair's evidence was that he did not believe Simpson would condone violence, the defence was not available.

Supreme Court of Canada

The Supreme Court unanimously allowed the appeal of Mair and WIC Radio from the decision of the British Columbia Court of Appeal. The Court, however, was divided as to the reasons for doing so. The majority adopted an objective standard for the honest belief requirement, whereas LeBel J. would have abandoned that requirement altogether. Moreover, while the majority spent little time on the issue of prima facie defamation, LeBel J. conducted a more rigorous analysis and advocated a contextual approach. This section summarizes each of these judgments. Justice Rothstein also delivered reasons concurring in the result. He agreed with LeBel J. that the honest belief requirement should be abolished altogether, but agreed with the majority that Mair's editorial was defamatory. (66)

The majority judgment

Justice Binnie, for the majority, adopted the test for fair comment set out by Dickson J. in Cherneskey, as reproduced in the introduction. In particular, Binnie J. rejected the view that a defendant must show an honest belief in the specific meaning that the trial judge imputed to the defendant's words:
   It seems to me that defamation proceedings will have reached a
   troubling level of technicality if the protection afforded by the
   defence of fair comment to freedom of expression ("the very
   lifeblood of our freedom") is made to depend on whether or not the
   speaker is prepared to swear an honest belief in something he does
   not believe he ever said. (67)


The defendant, however, should not have to show an honest belief in what he or she did mean to convey either. (68) Rather, the defendant need only establish that someone could have honestly expressed the defamatory comment in question on the proven facts. This test, Binnie J. claimed, strikes the proper balance between freedom of expression, on the one hand, and the need to protect reputation, on the other. Though Binnie J. conceded that this "objective" test does not set a high threshold for a defendant, he maintained that "even the latitude allowed by the 'objective' honest belief test may be exceeded". (69) Importantly, Binnie J. rejected the CCLA's argument that the element of honest belief be eliminated altogether. Such a step, according to Binnie J., would not be incremental and is not actually required to bring the common law of defamation into compliance with Charter values. (70)

The majority spent little time in affirming that Malt's editorial was in fact defamatory, noting that whether words complained of are defamatory is a mixed question of law and fact. (71) The Court proceeded to determine whether, on the facts of the case, the defence of fair comment applied. According to Binnie J., the imputation that Simpson would condone violence was clearly a comment, not a statement of fact. (72) Moreover, the Court of Appeal had improperly interfered with the trial judge's conclusion that there was a sufficient factual foundation for the opinion. (73) The trial judge had also correctly found that the editorial addressed a matter of public interest. (74) Finally, the majority held that "Simpson's use of violent images could support an honest belief on the part of at least some of her listeners that she 'would condone violence toward gay people', even though Mair denied that he intended to impute any such meaning." (75) Since Simpson had not appealed Koenigsberg J.'s ruling on malice, the defence of fair comment applied. (76)

While the majority replaced the subjective honest belief requirement with an objective test, it left the other elements of the fair comment defence intact. In particular, Binnie J. dismissed the suggestion of the CCLA that the plaintiff should have to prove that the words complained of are statements of fact, not comment, and that the comment is not on a matter of public interest. (77) While the CCLA argued that this reversal of onus was necessary to make the common law of defamation consistent with the values enshrined in s. 2(b) of the Charter, the majority held that "[ordinary] principles of litigation put the burden of proof on the party making the assertion". (78) Since the defendant is the party asserting the defence of fair comment, the defendant must prove each of the defence's elements. Moreover, according to the majority, the threshold for establishing that a statement constitutes comment and that the comment is on a matter of public interest is low. (79)

Justice LeBel (concurring in the result)

Unlike the majority, LeBel J. undertook a fairly rigorous analysis of whether Mair's editorial was in fact defamatory. Additionally, LeBel J. would have completely abandoned the honest belief element of the defence of fair comment.

According to LeBel J., the courts should follow a contextual approach when determining whether a statement is defamatory:
   The test is not whether the words impute negative qualities to the
   plaintiff, but whether, in the factual circumstances of the case,
   the public would think less of the plaintiff as a result of the
   comment. Relevant factors to be considered in assessing whether a
   statement is defamatory include: whether the impugned speech is a
   statement of opinion rather than fact; how much is publicly known
   about the plaintiff; the nature of the audience; and the context of
   the comment. (80)


Justice LeBel emphasized that statements of opinion, precisely because of their subjective nature, are typically less harmful to one's reputation than statements of fact. Moreover, the reputation of a public figure may be more difficult to damage, particularly since public figures are often able to counteract criticism by expressing their own views. (81)

On the facts, LeBel J. would have held that Mair's statements were not defamatory, had the appellants raised the issue. The statements in issue were comments, not facts. Simpson was a public figure at the forefront of a hotly-contested public debate. (82) Similarly, Mair's listeners "would have understood his comments in light of his well-known style, which involves strong opinions sometimes conveyed with colourful and provocative language". (83) Given all the circumstances, it is unlikely Mair's editorial would lower Simpson's reputation in the eye's of a reasonable person.

Justice LeBel also would have eliminated the honest belief requirement from the defence of fair comment. According to LeBel J., to determine whether any person could have honestly expressed the defamatory comment on the proven facts, one must either inquire into the reasonableness of the comment or else into whether the comment has a basis in fact. The courts have long held the former inquiry to be impermissible: to assess the merits of an opinion unduly restricts freedom of expression. As LeBel J. put it, "[E]ven unreasonable comments should be protected in a democratic society." (84) Since the majority could not have intended to inject a reasonableness component into the defence of fair comment, the "objective" test must involve an inquiry into whether there is a factual basis for the comment. Yet, the test for fair comment already requires that there be a sufficient factual foundation for the comment. As such, the "objective" test is redundant and unnecessary. Moreover, removing the honest belief requirement altogether would be an incremental change. (85)

V ELIMINATING HONEST BELIEF

While WIC Radio is a significant improvement on Cherneskey, the majority in WIC Radio did not go far enough. Instead of replacing the subjective standard for honest belief with an objective standard, the Court ought to have altogether eliminated honest belief as an element of the defence of fair comment, as LeBel J. would have done.

Ironically, the objective test is problematic precisely because the courts are to be so generous in applying it. Virtually every opinion will qualify as one which at least one person--even a prejudiced person with obstinate or exaggerated views--could honestly hold. The reality is that the objective test as formulated by Binnie J. is so low a threshold that it is almost meaningless. One might think that because of this, the objective test is harmless--that courts will engage in a cursory analysis before holding that the comment in question is one that a person could honestly hold. The objective test, however, has the potential to lead to undesirable results. In his concurring judgment, Rothstein J. correctly noted that "the test of objective honest belief adds only an unnecessary complexity to the analysis of fair comment". (86) The danger lies in this additional layer of complexity: the objective honest belief requirement increases the risk that lower courts will be confused and engage in impermissible analysis of the reasonableness of the content of a comment. (87) Professor Martin realized about 25 years ago that the objective test can lead to an inquiry into the content of an opinion:
   Either [the objective test] suggests a standard of reasonableness
   in fair comment, or it is meaningless. That is, if the words do not
   ask a court to objectively assess the content of an opinion, they
   ask it to determine if it is merely an opinion which someone might
   hold. Given the apparently limitless range of human thought, it is
   difficult to imagine an opinion which someone might not subscribe
   to. (88)


The lower courts will be understandably hesitant to conclude that a test formulated by the Supreme Court is meaningless. As such, the danger that those courts will interpret the objective test as a reasonableness requirement is a real one. This is perhaps uncharitable to lower court judges, but the idea that a judge might engage in impermissible reasonableness analysis is not without historical precedent. (89) Here, the danger is further exacerbated by the majority's unfortunate labelling of its test as the "objective test", given that this term, when used in other contexts, is often identified with a "reasonable person" standard. (90) While the appellate courts would presumably intervene where trial judges incorrectly interpret the test, not all litigants have the resources to appeal decisions rendered at trial. The preferable solution is to eliminate the honest belief requirement altogether.

The chief argument in favour of the objective honest belief requirement is that, though it is easy to meet, it still provides some protection to reputation and ensures that people do not simply have free rein to make defamatory comments. The majority, for instance, argued that "even the latitude allowed by the 'objective' honest belief test may be exceeded" and suggested that "mere invective" would not pass muster. (91) With respect, this is not a strong objection to eliminating the honest belief requirement. "Mere invective" disguised as comment would probably be filtered out before the "honest belief" stage of the analysis. For one, it might well fail the public interest requirement, which, as the CCLA pointed out, "anchors the defendant's statements in Charter values and, in doing so, provides an important check on comments which gratuitously attack the plaintiff's reputation". (92) Otherwise, "mere invective" would likely fail for a lack of factual foundation, since by definition pure name-calling or gratuitous attacks are those without any factual basis. Moreover, if LeBel J.'s argument that the objective honest belief requirement is merely duplicative of the factual foundation element is correct, (93) then the former does not provide any additional protection for reputation, contrary to the majority's claims. (94)

The majority also raised a "practical objection" to completely eliminating the honest belief requirement:
   By way of explanation to a jury of what is meant by the test of
   whether the comment is based on relevant or true facts, the court
   would have to warn the jury not to embark on a reasonableness
   inquiry. An effective way of explaining to the jury how the
   necessary connection between the comment and the facts is to be
   established would be to tell them to ask themselves the question:
   could any person honestly express that opinion on the proved facts?
   We would therefore be back at the point of departure. (95)


Once again, this is not a convincing reason for retaining the requirement. In fact, by stating that a good way to instruct a jury on the factual foundation requirement is to put the objective test to the jury, the majority has implicitly agreed with LeBel J. that the honest belief requirement and "based on fact" requirement address the same issue. If the two elements are substantially the same, then one ought to be eliminated.

Justice Binnie also held that eliminating the honest belief requirement from the defence would not be an incremental change. (96) He did not, however, offer any real reason for why this would not be an incremental change. The Supreme Court of Canada has in the past justified more drastic changes to the common law as incremental. (97) In fact, while it is true that replacing the subjective honest belief requirement with an objective test is a smaller step than doing away with the honest belief requirement altogether, this does not mean that the latter is not an incremental step. The abolition of the honest belief requirement would not pose any legal or practical problems for the courts; it would not place too great a burden on the courts or require them to grapple with issues beyond their expertise. (98) On the contrary, eliminating the requirement would render the law of fair comment simpler and easier to apply. Moreover, if LeBel J. is correct that the objective test is redundant, then he is also correct that eliminating it would be a change to the form, but not the substance, of the test for the defence. (99) It would be difficult to classify such a change as anything other than incremental. Perhaps most importantly, abolishing the honest belief requirement would help bring the common law of defamation into compliance with the Charter values enshrined in s. 2(b) by greatly diminishing, if not eliminating, the risk that courts might inquire into the reasonableness of a defamatory comment.

VI RAISING THE BURDEN ON THE PLAINTIFF

Expanding the defence of fair comment is particularly important given that liability for defamation often, if not usually, turns on whether the defendant is able to make out any of the defences--not on whether the plaintiff is able to prove all the elements of the tort of defamation. This is because the test for establishing prima facie defamation is a low threshold. (100) According to Gatley on Libel and Slander, (101) in a passage cited with approval by LeBel J., (102) "it may well be the case that the common law takes a rather generous line on what lowers a person in the estimation of others". (103) This confers a significant advantage on the plaintiff and skews the balance between reputation and freedom of expression too heavily in favour of the former. Regrettably, the majority in WIC Radio did not discuss this imbalance, simply confirming that Mair's editorial was defamatory of Simpson. (104) This is not to say that the Court should have interfered with Koenigsberg J.'s conclusion that the editorial was defamatory. First, Mair and WIC Radio did not appeal this finding. Second, as noted above, the majority clarified that the inquiry as to whether words complained of are defamatory is a mixed question of law and fact. (105) Thus, absent an extricable legal error or a palpable or overriding error of fact, an appellate court should not interfere with a finding of prima facie defamation. (106) The majority did not identify any such error on the part of the trial judge and, as such, was right to affirm the finding of prima facie defamation in this case. (107) Nonetheless, the majority missed an opportunity to authoritatively reject the notion that the test for defamation is a low threshold and to state that the test actually imposes a real burden on the plaintiff in a defamation action.

The majority could have done this by endorsing LeBel J.'s contextual approach, described above. Though the majority did acknowledge that when determining the meaning of allegedly defamatory words, "[the] 'full context' is important", (108) Binnie J. did not explicitly adopt the contextual approach or explain what it entails. Justice LeBel was clearly of the view that the test for defamation is already a contextual one; (109) he was not proposing a change in the law but rather in how strictly or carefully the law is to be applied. His view appears to be correct. One cannot determine whether the words complained of would tend to lower the plaintiff's reputation in the eyes of right-thinking people simply by examining the words themselves. If the rationale behind the law of defamation is to protect reputation while simultaneously safeguarding freedom of expression, then the focus of the test for defamation should properly be on the plaintiff's reputation. Even if the plaintiff need not prove actual damage to his or her reputation, there must at least be a real possibility that the allegedly defamatory words would harm the plaintiff's reputation among reasonable people. (110) Not all negative, insulting, or critical things that are said about a person would pose such a threat. When assessing whether there is a real possibility of damage to the plaintiff's reputation, the trial judge should consider not just the actual words and the context in which they are spoken or written, but any and all relevant factors.

Two such factors are the nature of the impugned statement--that is, whether it is a statement of opinion or statement of fact--and whether the plaintiff is a public figure; both of these factors were listed by LeBel J. and have been discussed above. (111) Justice LeBel also stated that the nature of the audience is an important consideration, but it is unclear that this is correct. The test refers to right-thinking people, not to the people who actually heard or read the impugned statement; additionally, the actual audience may not be comprised solely of right-thinking people. The nature of the audience would be much more relevant if the plaintiff were required to prove actual harm to reputation. (112) Other important factors include the reputation of the plaintiff and the defendant. If the plaintiff already has a poor reputation, the supposedly defamatory statement is less likely to pose a threat. Similarly, if the defendant has a good reputation--for instance, if the defendant is a respected public figure--the defendant's words are more likely to affect how reasonable people think of the plaintiff. By considering these types of factors, the trial judge will be in a better position to assess whether the defendant's statement really put the plaintiff's reputation at risk. The test for prima facie defamation will be a real hurdle.

Another possibility for lessening the plaintiff's advantage in fair comment cases is to create a presumption in favour of the defendant with respect to the "public interest" and "recognisable as comment" elements of the defence, as proposed by the CCLA. (113) To be clear, this would not raise the threshold for establishing prima facie defamation, but rather make the defence of fair comment easier to make out. As discussed, the majority rejected this suggestion, stating that to reverse the onus would be contrary to the "[ordinary] principles of litigation". (114) With respect, that is not a strong argument. As the law currently stands, once a defendant establishes all the elements of the defence of fair comment, the plaintiff can defeat the defence by proving malice. (115) That the burden of proving malice is on the plaintiff is not considered contrary to the principles of litigation. If the onus for the "public interest" and "recognisable as comment" elements were reversed, then, assuming the remaining elements of the defence are established, the plaintiff will be able to defeat the defence by proving that the statement did not address a matter of public interest, was not recognisable as comment, or was actuated by malice. The majority did not explain why this situation would be contrary to the principles of litigation, while the current law is not.

VII CONCLUSION

Following Cherneskey, the law of defamation swung too far in favour protecting reputation, at the expense of freedom of expression. By overturning Cherneskey and replacing the subjective honest belief requirement with the objective test in WIC Radio, the Supreme Court expanded the sphere of protected expressive activity and struck a better balance between the two values. As this comment has argued, however, the Court should have gone further and eliminated the honest belief requirement altogether. Furthermore, the majority did not adequately turn its mind to the test for prima facie defamation. As a result, the majority missed an opportunity to raise the threshold for prima facie defamation--or rather, forcefully state that the test does not establish a low threshold--or to otherwise lessen the advantage that the plaintiff in a defamation action enjoys. Nevertheless, the majority's decision represents progress; perhaps the Court will further widen the ambit of free expression in future cases. The decision is a fairly recent one. As the case becomes the subject of academic commentary (116) and is judicially considered, other issues and perspectives are likely to surface. What appears likely is that the Court will continue to grapple with the twin values of reputation and freedom of expression.

* The author gratefully acknowledges the assistance of the Senior Board Notes, Comments and Reviews Editors, in particular Lead Researcher Rebecca Rodal, and the Senior Editors of the University of Toronto Faculty of Law Review.

(1) Thomas Atkins Street, Foundations of Legal Liability: a Presentation of the Theory and Development of the Common Law, vol. 1, "Theory and Principles of Tort" (Northport: Edward Thompson Company, 1996) at 274. See also Raymond Brown, The Law of Defamation in Canada, 2d ed. (Scarborough: Thomson Carswell, 1999) at [section] 1.1.

(2) Brown, ibid.

(3) Slim v. Stretch (1936), 52 T.L.R. 669 at 671 (H.L.), Atkin L.J. See also Brown, ibid. at [section]1.5(1)(a).

(4) Brown, ibid.

(5) [1968] 1 All E.R. 497 (C.A.).

(6) Slim v. Stretch, supra note 3 at 503.

(7) 2008 SCC 40, [2008] S.C.J. 41 [WIC Radio].

(8) Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 [Charter].

(9) [1979] 1 S.C.R. 1067 [Cherneskey].

(10) Ibid. at 1072-73, 1081, Martland J. and Ritchie J., respectively.

(11) WIC Radio, supra note 7 at paras. 1, 28. See also Cherneskey, supra note 9 at 1099-1100.

(12) WIC Radio, ibid. at para. 1.

(13) [1995] 2 S.C.R. 1130.

(14) Ibid. at para. 121.

(15) WIC Radio, supra note 7 at para. 2.

(16) Cherneskey, supra note 9 at 1083. Allegedly, the letter implied that the plaintiff was racist.

(17) Ibid. at 1084.

(18) Ibid. at 1074, 1088. Justices Martland and Ritchie wrote judgments that, between the two of them, accounted for a total of six justices. Justice Martland agreed with Ritchie J. that there was no evidence that either the defendants or the writers honestly held the views expressed in the letter, and held that this was sufficient to dispose of the case.

(19) Ibid. at 1087.

(20) The holding in Cherneskey is equally applicable to the broadcast media; there is nothing in the decision suggesting that the holding is limited to newspapers.

(21) Referring to the judgment of Ritchie J.

(22) See especially Cherneskey, supra note 9 at 1087-88. Note that other passages in the judgments of both Martland and Ritchie JJ. seem to support the view that, once the honest belief of the writer is established, the publisher is also entitled to the protection of the fair comment defence. For a summary of these passages, see Simpson v. Mair (2004), 31 B.C.L.R. (4th) 285, [2004] B.C.J. No. 1164 at paras. 109-14 (B.C.S.C.) [Simpson].

(23) See Cherneskey, ibid. at 1091: "This does not mean that freedom of the press to publish its views is in any way affected, nor does it mean that a newspaper cannot publish letters expressing views with which it may strongly disagree. Moreover, nothing that is here said should be construed as meaning that a newspaper is in any way restricted in publishing two diametrically opposite views of the opinion and conduct of a public figure."

(24) The plaintiff, Kari Simpson, argued that since WIC Radio's representative did not express an honest belief in Rafe Mair's opinions, WIC Radio was not entitled to the defence of fair comment, even if Mair was so entitled.

(25) Simpson, supra note 22 at paras. 108-20.

(26) Robert Martin, "Libel and Letters to the Editor" (1983-84) 9 Queen's L.J. 188 at 193.

(27) Cherneskey, supra note 9 at 1096-97.

(28) WIC Radio, supra note 7 at para. 48; WIC Radio, ibid. (Factum of the Canadian Civil Liberties Association at para. 42) [Factum of the CCLA].

(29) See e.g. Vander Zalm v. Times Publishers et. al. (1980), 18 B.C.L.R. 210 (C.A.) [Vander Zalm], in which the trial judge denied the defendant, a political cartoonist, the defence of fair comment. While the British Columbia Court of Appeal allowed the appeal, the trial judge's decision illustrates that the subjective honest belief requirement can and does lead to undesirable results.

(30) Factum of the CCLA, supra note 28 at para. 41; see also WIC Radio, supra note 7 at paras. 35, 61.

(31) See Defamation Act, R.S.A. 2000, c. D-7, s. 9 (Alberta); Libel and Slander Act, S.B.C. 2004, c. 57, s. 16 (British Columbia); The Defamation Act, R.S.M. 1987, c. D20, C.C.S.M. c. D20, s. 9 (Manitoba); Libel and Slander Act, R.S.O. 1990, c. L. 12, s. 24 (Ontario); Defamation Act, R.S.N.L. 1990, c. D-3, s. 11 (Newfoundland & Labrador); Defamation Act, S.N.B. 1980, c. 16, s. 1 (New Brunswick); Defamation Act, R.S.Y. 2002, c. 52, s. 8 (Yukon); Defamation Act, R.S.N.W.T. 1988, c. D-1, s. 10 (Northwest Territories); Defamation Act, R.S.P.E.I. 1988, c. D-5, s. 9 (Prince Edward Island); Defamation Act, R.S.N.W.T. 1988, c. D-1, s. 10 as duplicated for Nunavut by s. 29 of the Nunavut Act, S.C. 1993, c. 28 (Nunavut). See also Martin, supra note 26 at 194-97; Anne Skarsgard, "Freedom of the Press: Availability of Defences to a Defamation Action" (1980-81) 45 Sask. L. Rev. 287 at 311. Note that s. 6.1 of the British Columbia Libel and Slander Act only came into force on 21 October 2004--more than four months after Koenigsberg J. delivered her reasons in Simpson, supra note 22. This may explain why Simpson sued WIC Radio as opposed to just Mair.

(32) The British Columbia, Manitoba, Newfoundland & Labrador, Northwest Territories, Nunavut, Prince Edward Island, and Yukon statutes also require that the defendant did not know that the person whose opinion they published did not honestly hold that opinion, but specify that the publisher has no duty to inquire as to whether that person holds the opinion: see the respective acts ibid. The New Brunswick statute includes a third requirement: namely, that the person whose opinion was published be identified in the publication: ibid. The Ontario statute states that the defence does not fail if the defendant, the person who expressed the opinion, or both, did not hold the opinion, as long as a person could honestly hold it: ibid. The Alberta statute does not require that the defendant establish that a person could have honestly held the opinion: ibid.

(33) See Defamation Act, R.S., c. 122, s. 1 (Nova Scotia); The Libel and Slander Act, R.S.S. 1978, c. L-14 (Saskatchewan).

(34) Martin, supra note 26 at 197.

(35) (1887); 20 Q.B.D. 275 (C.A.) [Merivale].

(36) Ibid. at 281.

(37) Cherneskey, supra note 9 at 1103.

(38) WIC Radio, supra note 7 at paras. 43, 50.

(39) Ibid. at para. 43.

(40) Ibid. at para. 46.

(41) Simpson, supra note 22 at para. 8.

(42) Ibid. at para. 13.

(43) WIC Radio, supra note 7 at para. 3.

(44) Simpson, supra note 22 at para. 31.

(45) Ibid. at para. 2.

(46) Ibid. at para. 19; WIC Radio, supra note 7 at para. 9.

(47) WIC Radio, ibid.

(48) See Simpson, supra note 22 at para. 31.

(49) Ibid. at para. 38.

(50) Ibid. at para. 47.

(51) Ibid. at paras. 40, 34.

(52) Ibid. at paras. 39-41, 43-44.

(53) Ibid. at paras. 51-52. Note that the trial judge cited Vander Zalm, supra note 29, for the proposition that implied facts can form a sufficient factual foundation for an opinion.

(54) Simpson, supra note 22 at para. 63.

(55) Ibid. at para. 66.

(56) Sun Life Assurance Co. of Canada v. Dalrymple, [1965] S.C.R. 302 at 309; WIC Radio, supra note 7 at para. 1.

(57) Simpson, supra note 22 at paras. 70-71, 73-74, 78.

(58) In order for malice to defeat the defence of fair comment, malice must be the dominant motive for the defamatory opinion: Ross v. New Brunswick Teachers" Association (2001), 201 D.L.R. (4th) 75 at paras. 115-16 (N.B.C.A.); Simpson, ibid. at paras. 81-83.

(59) Simpson, ibid. at para. 84.

(60) Ibid. at paras. 85, 120.

(61) Simpson v. Mair, [2006] 10 W.W.R. 460 at paras. 44-48, 50 (B.C.C.A.) [Simpson (BCCA)].

(62) Justice Prowse wrote a short concurring judgment: see ibid. at paras. 49-50.

(63) Ibid. at para. 37.

(64) Ibid. at paras. 25, 27, 38.

(65) Ibid. at para. 43.

(66) See WIC Radio, supra note 7 at paras. 108-12.

(67) Ibid. at para. 35; see also para. 61.

(68) That said, as Binnie J. pointed out, "[I]t remains true that an effective way to establish that somebody could 'honestly express the opinion on the proved facts' is to call the defamer (if available) to establish that he or she did indeed express an honest belief." See ibid. at para. 44.

(69) Ibid. at paras. 49-51.

(70) Ibid. at para. 36.

(71) Ibid. at para. 56.

(72) The appellants argued that the Court of Appeal incorrectly characterized the innuendo that Simpson would condone violence as a statement of fact. See ibid. at paras. 19, 27, 58. One should note that Mair also argued that even if the defamatory innuendo that Simpson would condone violence was a statement of fact, he was entitled to the protection of the "responsible journalism defence": ibid. at para. 18. The Ontario Court of Appeal adopted the "public interest responsible journalism" defence in Cusson v. Quan (2007), 286 D.L.R. (4th) 196 [Cusson], a decision released less than a month before the Supreme Court heard WIC Radio. The Supreme Court of Canada granted leave to appeal from the decision of the Court of Appeal in Cusson and heard the case in February 2009: see Supreme Court of Canada, SCC Case Information--Scheduled Hearings, online: <http://www.scc-csc.gc.ca/information/cms-sgd/hear-aud-eng.asp>. As of the writing of this comment, the Supreme Court has not yet rendered a decision on that case. Since the imputation that Simpson would condone violence was a statement of opinion, the Court in WIC Radio did not need to decide whether this defence should be recognized in Canada (let alone whether the defence applied on the facts of the case). Yet, Binnie J. still took the time to set out the English, Australian, and New Zealand versions of the defence: WIC Radio, supra note 7 at paras. 20-23. This suggests that the Supreme Court may well be receptive to some sort of "responsible journalism" defence. The Supreme Court's view on that defence, however, is beyond the scope of this comment.

(73) WIC Radio, ibid. at paras. 34, 59.

(74) Ibid. at para. 57.

(75) Ibid. at para. 60.

(76) Ibid. at paras. 63-64.

(77) Ibid. at paras. 29-30; see also Factum of the CCLA, supra note 28 at paras. 33-40.

(78) Factum of the CCLA, ibid. at paras. 28, 37, 40; WIC Radio, ibid. at para. 30.

(79) WIC Radio, ibid.

(80) Ibid. at para. 69.

(81) Ibid. at paras. 71-75.

(82) Indeed, the trial judge found that Simpson "had a public reputation as a leader of those opposed to schools teaching acceptance of a gay lifestyle. Simpson's reputation was earned as a result of her very public actions and words". See Simpson, supra note 22 at para. 10.

(83) WIC Radio, supra note 7 at para. 76. The majority described Mair as a "shock jock": ibid. at para. 3. Interestingly, Mair has asked the Supreme Court to amend the judgment and remove that term: see Frank Luba, "Mair wants retraction from Supreme Court judges" The Province (26 August 2008), online: The Province <http://www2.canada.com/theprovince/ news/story.html?id=0dd8dbd5-abf2-468b-abf6-b0eadd5ed581>.

(84) WIC Radio, ibid. at para. 82.

(85) Ibid. at paras. 85, 94.

(86) Ibid. at para. 110.

(87) Interestingly, Binnie J. rejected the argument that the honest belief requirement should be replaced with a "relevancy" requirement (i.e., that the comment be "supported by the facts") on the grounds that this might allow notions of fairness or reasonableness to creep back into the fair comment defence: ibid. at paras. 36-39. The majority rejected this suggestion without analyzing whether maintaining the objective test while also requiring a sufficient factual foundation would allow those notions to creep back into the defence.

(88) Martin, supra note 26 at 195.

(89) See Skarsgard, supra note 31 at 312-15.

(90) See also WIC Radio, supra note 7 at para. 82.

(91) Ibid. at para. 51

(92) See Factum of the CCLA, supra note 28 at para. 39.

(93) Unfortunately, LeBel J. did not identify the more significant problem. That is, if the lower courts will be reluctant to find that the Supreme Court articulated a meaningless test, they will also be reluctant to find that the Supreme Court articulated a redundant test--in other words, they will be hesitant to adopt the interpretation of LeBel J. In fact, to say that the objective test is redundant is to say that it is meaningless. Thus, there is still a danger that trial judges will inquire into the reasonableness of the comment, even though it is clear that the majority did not intend to reinsert a reasonableness component into the fair comment defence.

(94) WIC Radio, supra note 7 at paras. 90-93.

(95) Ibid. at para. 41.

(96) See R. v. Salituro, [1991] 3 S.C.R. 654, [1991] S.C.J. No. 97 [Salituro]. See also WIC Radio, ibid. at para. 36.

(97) See e.g. R .v. Labaye, 2005 SCC 80, [2005] 3 S.C.R. 728, in which the Supreme Court adopted the harm test for criminal indecency.

(98) Salituro, supra note 96 at para. 33. The Supreme Court, referring to its earlier decision in Watkins v. Olafson, [1989] 2 S.C.R. 750, stated that in that case, "McLachlin J. identified a number of major difficulties with periodic payments which courts would have difficulty responding to, including the fact that legal obligations between the parties would not be finally resolved and would require supervision, presumably through repeated court appearances."

(99) WIC Radio, supra note 7 at para. 85.

(100) See ibid. at paras. 68-69, LeBel J., dissenting; Cherneskey, supra note 9 at 1095, Dickson J., dissenting.

(101) Patrick Milmo & W.V.H. Rogers, eds., Gatley on Libel and Slander, 10th ed. (London: Sweet & Maxwell, 2004) [Gatley].

(102) WIC Radio, supra note 7 at para. 681

(103) Gatley, supra note 101 at 18.

(104) WIC Radio, supra note 7 at paras. 55-56.

(105) Ibid. at para. 56.

(106) See Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235 at paras. 26-37.

(107) Justice LeBel would not have interfered with the finding that the editorial was defamatory, as Mair and WIC Radio were not appealing that finding. In any event, LeBel J. did not clearly identify any error that would have permitted him to interfere with the trial judge's findings either. It is perhaps arguable, however, that Koenigsberg J. did not engage in a contextual analysis and that this constituted an extricable legal error.

(108) WIC Radio, supra note 7 at para. 56.

(109) Ibid. at paras. 69, 79.

(110) Ibid. at para. 78.

(111) Ibid. at para. 69.

(112) Moreover, even if the nature of the audience is an important factor, LeBel J.'s assertion that it militates against a finding of prima facie defamation on the facts of WIC Radio is questionable. According to LeBel J., "Mair's 'sizeable following' ... would have understood his comments in light of his well-known style, which involves strong opinions sometimes conveyed with colourful and provocative language"; as such, the audience would not have "taken [Mair's] comments at face value": see ibid. at paras. 76-77. Consider, however, that it seems just as likely that these loyal listeners would have attached significant weight to Mair's views--otherwise, they would not listen to his program quite as regularly. In other words, it is quite possible that a significant percentage of Malt's listeners would have taken his words at face value.

(113) See text accompanying supra note 77.

(114) WIC Radio, supra note 7 at para. 30; see text accompanying supra note 78.

(115) Ibid. at para. 63.

(116) Indeed, commentary has already begun: see Ryder Gilliland, "Fair Comment and Freedom of Expression in Simpson v. Mair", online: <http://www.thecourt.ca/2008/06/27/fair-comment-and-freedom-of-expression- in-simpson-v-mair/>; Matthew Shogilev, "Thawed but Still Chilled: Freedom of Expression in the Aftermath of Simpson v. Mair", online: <http://www.thecourt.ca/2008/07/16/thawed-but-still-chilled-freedom -of-expression-in-the-aftermath-of-simpson-v-mair/>.

STEVEN FRANKEL, B.A. (Hon.) (McGill), Third Year J.D. Candidate (Toronto).
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