Absolute Privilege

• Author: Roger McConchie; David Potts
• Profession: Member of the Bars of British Columbia and Alberta/Member of the Bar of Ontario
• Pages: 465-496

CHAPTER 'I WE N T Y :

Absolute

Privilege

A.

OVERVIEW

The

common

law

defence

of

absolute privilege provides complete immuni-

ty

for

defamatory

expression even

if it was

published with actual malice.

This defence applies

to

expression that

was

made:

i)

in the

course

of a

judicial proceeding;

ii)

in the

course

of a

quasi-judicial proceeding;

iii)

in

communications between

officers

of

state about

affairs

of

state;

or

iv) in the

course

of

parliamentary proceedings.

The

onus

is on the

defendant

to

prove

the

circumstances giving rise

to

this

defence.

Whether

the

defence

exists

on

particular

facts

is a

question

of law

for

the

judge.

Ayangma

v.

NAV

Canada

(2001),

203

D.L.R.

(4th)

717 per

McQuaid

J.A.

at 725

(PE.I.S.C.

(A.D.)),

leave

to

appeal

to

S.C.C. denied, [2001]

S.C.C.A.

No. 76.

B.

IN THE

COURSE

OF A

JUDICIAL

PROCEEDING

There

is

usually little

difficulty

in

applying

the

defence

of

absolute privilege

to

proceedings

of the

civil

or

criminal courts

of

justice.

The

determination whether

a

tribunal

is a

court

of law is

discussed

in A-

G

v.

BBC, [1981] A.C.

303

where Lord Scarman states

at

pages

359-60:

I

would

identify

a

court

in (or

"of)

law,

i.e.

a

court

of

judicature,

as a

body

established

by law to

exercise, either generally

or

subject

to

defined limits,

the

judicial power

of the

state.

In

this context judicial power

is to be

contrast-

ed

with

legislative

and

executive

(i.e.

administrative)

power.

If the

body

under review

is

established

for a

purely legislative

or

administrative purpose,

465

466