Case comment: WIC Radio v. Simpson.

• Author: Frankel, Steven
• Position: Defamation - Canada

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 > du critere de la > ... 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...