WIC Radio Ltd. c. Simpson, 2008 CSC 40 (2008)

SUPREME COURT OF CANADA

Citation: WIC Radio Ltd. v. Simpson, 2008 SCC 40

Date: 20080627

Docket: 31608

Between:

WIC Radio Ltd. and Rafe Mair

Appellants v.

Kari Simpson

Respondent

- and -

Canadian Civil Liberties Association, British Columbia

Civil Liberties Association and Canadian Newspaper Association,

Ad IDEM/Canadian Media Lawyers Association,

British Columbia Association of Broadcasters,

RTNDA Canada/Association of Electronic Journalists,

Canadian Publishers' Council, Magazines Canada,

Canadian Association of Journalists and Canadian Journalists for Free Expression

(Collectively "Media Coalition")

Interveners

Coram: McLachlin C.J. and Bastarache, Binnie, LeBel, Deschamps, Fish, Abella, Charron and Rothstein JJ.

Reasons for Judgment:

(paras. 1 to 65)

Partially Concurring Reasons:

(paras. 66 to 107)

Partially Concurring Reasons:

(paras. 108 to 112)

Binnie J. (McLachlin C.J. and Bastarache, Deschamps, Fish, Abella and Charron JJ. concurring)

LeBel J.

Rothstein J.

Note: This document is subject to editorial revision before its reproduction in final form in the Canada Supreme Court Reports.

______________________________

wic radio ltd. v. simpson

WIC Radio Ltd. and Rafe Mair Appellants v.

Kari Simpson Respondent and

Canadian Civil Liberties Association, British Columbia Civil

Liberties Association and Canadian Newspaper Association,

Ad IDEM/Canadian Media Lawyers Association, British

Columbia Association of Broadcasters, RTNDA Canada/The

Association of Electronic Journalists, Canadian Publishers'

Council, Magazines Canada, Canadian Association of

Journalists and Canadian Journalists for Free Expression

(Collectively "Media Coalition") Interveners

Indexed as: WIC Radio Ltd. v. Simpson

Neutral citation: 2008 SCC 40.

File No.: 31608.

2007: December 4; 2008 June 27.

Present: McLachlin C.J. and Bastarache, Binnie, LeBel, Deschamps, Fish, Abella, Charron and Rothstein JJ.

on appeal from the court of appeal for british columbia

Torts - Defamation - Defence of fair comment - Elements of defence - Role of honest belief in test for defence - Radio talk show host defaming social activist opposed to positive portrayals of gay lifestyle - Talk show host making comparisons to Hitler, Ku Klux Klan and skinheads - Comparisons implying activist would condone violence toward gay people - Whether fair comment defence available.

M is a well-known and sometimes controversial radio talk show host. The target of one of his editorials was S, a widely known social activist opposed to any positive portrayal of a gay lifestyle. M and S took opposing sides in the debate about whether the purpose of introducing materials dealing with homosexuality into public schools was to teach tolerance of homosexuality or to promote a homosexual lifestyle. In his editorial, M compared S in her public persona to Hitler, the Ku Klux Klan and skinheads. S brought an action against M and WIC Radio, claiming that certain words in the broadcast were defamatory. At trial, M testified that no imputations of condoning violence were intended by him nor in fact made. Rather, M had intended to convey simply that S was an intolerant bigot. The trial judge dismissed the action on the basis that, while statements complained of in the editorial were defamatory, the defence of fair comment applied and provided a complete defence. The Court of Appeal reversed the trial judgment, finding that the defence of fair comment was not available because there was no evidentiary foundation for the imputation that S would condone violence against gay people, nor had M testified that he had an honest belief S would condone violence.

Held: The appeal should be allowed.

Per McLachlin C.J. and Bastarache, Binnie, Deschamps, Fish, Abella and Charron JJ.: The trial judgment dismissing the action should be restored. M's expression of opinion, however exaggerated, was protected by the law. M's editorial was defamatory, but the trial judge was correct to allow the defence of fair comment. [4] [56] [64-65]

Although this is a private law case that is not governed directly by the Canadian Charter of Rights and Freedoms, the evolution of the common law is to be informed and guided by Charter values. 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, but also with those 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 to attempt a reconciliation. [2]

The traditional elements of the tort of defamation may require modification to provide broader accommodation to the value of freedom of expression. There is concern that matters of public interest go 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 establ...

If you are already a vLex customer, Access Here