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

CANADIAN LIBEL

AND

SLANDER ACTIONS

it

is

part

of the

legislative

or

administrative system

of the

state,

even though

it

has to

perform duties which

are

judicial

in

character. Though

the

ubiqui-

tous presence

of the

state makes

itself

felt

in all

sorts

of

situations never envis-

aged when

our law was in its

formative stage,

the

judicial power

of the

state

exercised through judges appointed

by the

state remains

an

independent,

and

recognizably separate, function

of

government. Unless

a

body exercising

judicial functions

can be

demonstrated

to be

part

of

this judicial system

it is

not,

in my

view,

a

court

of

law.

I

would

add

that

the

judicial system

is not

limited

to the

courts

of the

civil power. Courts-martial

and

consistory courts,

(the latter since

1540)

are as

truly entrusted with

the

exercise

of the

judicial

power

of the

state

as are

civil courts:

R. v.

Daily

Mail,

ex p.

Farm-worth

and R.

v.

Daily

Herald,

ex

p.

Bishop

of

Norwich.

No

action

for

defamation

lies against judges, counsel, parties, jury mem-

bers,

or

witnesses

for

words spoken

or

written

in the

course

of a

judicial

proceeding

before

a

court recognized

by

law.

Munster

v.

Lamb

(1883),

11

Q.B.D.

588,

per

Brett

M.R.

at

601,

Fry

LJ.

con-

curring

at

607-8

(C.A.).

Royal

Aquarium

and

Summer

&

Winter

Garden

Society

Ltd.

v.

Parkinson,

[1892]

1

Q.B. 431,

per

Lopes

LJ. at 451

(H.L.).

Geyer v. Merritt (1979), 16 B.C.L.R. 27, per Legg J. at 32 (S.C.), aff'd (1980),

26

B.C.L.R.

374

(C.A.).

Fabian v. Margulies (1985), 53 O.R. (2d) 380, per Labrosse J. at 381-83 (S.C.).

Lincoln

v.

Daniels, [1961]

3 All

E.R.

740 at 384

(C.A.).

Halls v. Mitchell, [1928] 2 D.L.R. 97, S.C.R. 125 per Duff J. at 113-14.

Schwartz

v.

Smith

(1964),

45

D.L.R.

(2d)

316

(B.C.S.C.)

per

VerchereJ.

at 318

Stevens

v.

Oakes

(1995),

104

Man.

R.

(2d) 229,

per

Master Bolton

at

paras.

5-6

(Q.B.),

citing

Dawkins

v.

Lord

Rokeby

(1875), L.R.

7

H.L.

744

(H.L. (Eng.)).

Mann

v.

O'Neill

(1997),

191

C.L.R.

204,

per

Brennan

C.J.,

Toohey

and

Gau-

dronJJ.

at 211

(H.C.), citing [with respect

to

jury members]

Bushell's

Case

(1670),

1

Freeman

1, 89

E.R.

2.

If

the

defamatory

expression

was

uttered

in the

course

of a

judicial pro-

ceeding,

it is

irrelevant whether

the

defamatory

expression

was

written

or

spoken

maliciously,

or

without

any

justification

or

excuse,

or

from

person-

al

ill-will

and

anger against

the

person

defamed.

Chapter

Twenty:

Absolute Privilege

467

Royal

Aquarium

and

Summer

and

Winter

Garden

Society

Ltd.

v.

Parkinson,

above,

at

451

Foran

v.

Richman

(1975),

64

D.L.R.

(3d) 230,

per

ArnupJ.A.

at 233

(Ont.

C.A.),

leave

to

appeal

to

S.C.C.

dismissed (1976),

64

D.L.R.

(3d)

230n

(S.C.C.).

Dugas v. Landry (1997), 188 N.B.R. (2d) 21, per Savoie J. at para. 21 (Q.B.

(T.D.)).

1)

Rationale

and

Extent

of

Defence

The

rationale

for

applying

the

protection

of

absolute

privilege

defence

to

judicial

proceedings

has

been

discussed

by

many

judges,

including:

i) in

Royal

Aquarium

and

Summer

and

Winter Garden Society

Ltd.

v.

Parkinson,

above,

at

451:

This

"absolute privilege"

has

been conceded

on the

grounds

of

public pol-

icy to

ensure

freedom

of

speech where

it is

essential that

freedom

of

speech

should

exist,

and

with

the

knowledge that Courts

of

justice

are

presided over

by

those

who

from

their high character

are not

likely

to

abuse

the

privilege,

and who

have

the

power

and

ought

to

have

the

will

to

check

any

abuse

of it by

those

who

appear

before

them.

ii)

in

Munster

v.

Lamb

(1883),

11

Q.B.D.

588,

by Fry

L.J.

at 507

(C.A.):

Why

should

a

witness

be

able

to

avail himself

of his

position

in the box

and

make without

fear

of

civil consequences

a

false

statement, which

in

many cases

is

perjured,

and

which

is

malicious

and

affects

the

character

of

another?

The

rule exists,

not

because

the

conduct

of

those persons

ought

not of

itself

to be

actionable,

but

because

if

their conduct

was

actionable, actions would

be

brought against judges

and

witnesses

in

cases

in

which they

had not

spoken with malice,

in

which they

had not

spoken

with falsehood.

...

It

must always

be

borne

in

mind that

it is not

intend-

ed to

protect malicious

and

untruthful

persons,

but

that

it is

intended

to

protect

persons acting bona

fide,

who

under

a

different

rule would

be

liable,

not

perhaps

to

verdicts

and

judgments against them,

but to the

vex-

ation

of

defending actions.

iii)

in

Cinapri

v.

Guettler

(1997),

33

B.L.R.

(2d) 289,

by

Howden

J. at

296,

para.

16

(Ont. Gen.

Div.):

If

this were

not so

[i.e. absolute privilege

did not

apply],

legal action

would

be

grafted

on

legal

action

in an

endless siege

of

litigation whereby

each

step

in an

action could

be

seen

by

someone

as an

attack

or

intrusion

upon

his or her

reputation

or

economic interests.