Absolute Privilege

AuthorRoger McConchie; David Potts
ProfessionMember of the Bars of British Columbia and Alberta/Member of the Bar of Ontario
Pages465-496
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