Windsor Square readers have an unique opportunity to don their Supreme Court robes and delve into a recent issue involving this writer.
Libel and slander are important issues but, as a member of the Supreme Court, you will know that the highest court of the land is also concerned with fair comment. The Court is also quite concerned that vexatious charges against journalists could dampen the freedom of the press.
There is no actual fair comment law in Canada, instead relying on long-standing common law. This may be why the Supreme Court, on June 26, 2008, issued guidelines after hearing the case of WIC Radio v Simpson.
In the case, the Court determined that even though an editorial was defamatory, “… the trial judge was correct to allow the defence of fair comment.”
The Court also suggested the, “… law of fair comment must therefore be developed in a manner consistent not only with the values underlying freedom of expression, including freedom of the media.”
The Court made it clear about the risk of, “… matters of public interest go[ing] unreported because publishers fear the ballooning cost and disruption of defending a defamation action. Investigative reports get ‘spiked’, it is contended, because, while true, they are based on facts that are difficult to establish according to rules of evidence.”
The Court was also concerned that defamation charges could be, “… launched simply for the purpose of intimidation.”
The Justices also opined that 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.”
The Court then set out some tests to help judges determine if a comment is fair.
It 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?”
As a Supreme Court Judge, would you rule that a term often used when politicians announce they will not run again, such as ‘quit’, is defamation?
Some of the considerable evidence you might consider would be two headlines from the Toronto Star and the St Catharines Standard.
- “Liberals suffer blow as Sandra Pupatello quits politics” Toronto Star, June 10, 2011
- “Long-time Ontario Liberal Calls it Quits” St Catharine’s Standard, June 10, 2011
And, why not? You do have your Supreme Court robes on.
I will leave you with this from WIC Radio v Simpson.
 There is no doubt that a comment may be defamatory. It must simply be borne in mind that just because someone expresses an opinion does not mean that it will be believed and therefore affect its subject’s reputation.
 This is all the more true in an age when the public is exposed to an astounding quantity and variety of commentaries on issues of public interest, ranging from political debate in the House of Commons, to newspaper editorials, to comedians’ satire, to a high school student’s blog. It would quite simply be wrong to assume that the public always takes statements of opinion at face value. Rather, members of the public must be presumed to evaluate comments in accordance with their own knowledge and opinions about the speaker and the subject of the comments.
 People who voluntarily take part in debates on matters of public interest must expect a reaction from the public. Indeed, public response will often be one of the goals of self‑expression. In the context of such debates (and at the risk of mixing metaphors), public figures are expected to have a thick skin and not to be too quick to cry foul when the discussion becomes heated. This is not to say that harm to one’s reputation is the necessary price of being a public figure. Rather, it means that what may harm a private individual’s reputation may not damage that of a figure about whom more is known and who may have had ample opportunity to express his or her own contrary views.