Fair Comment

AuthorRoger McConchie; David Potts
ProfessionMember of the Bars of British Columbia and Alberta/Member of the Bar of Ontario
Pages335-361
CHAPTER
SEVENTEEN:
Fair
Comment
A. A
CORNERSTONE
OF
FREE SPEECH
The
defence
of
fair
comment
is a
cornerstone
of
free
speech
in
Canada.
In
Cherneshey
v.
Armadak
Publishers
Ltd., [1979]
all
nine
Justices
of the
Supreme Court
of
Canada emphasized
the
importance
of
this
defence
to
Canadian democracy. Although Dickson
J.
(Spence
and
Estey
JJ.
concurring) dissented
on the
specific
question
before
the
Court,
he
agreed
with
the
majority
on the
vital role
of
fair
comment, stating
at
page 1096:
...
A
free
and
general
discussion
of
public matters
is
fundamental
to a
dem-
ocratic society.
The
right
of
persons
to
make public their thoughts
on the
con-
duct
of
public
officials,
in
terms usually critical
and
often
caustic, goes back
to
earliest times
in
Greece
and
Rome.
The
Roman historian, Tacitus, spoke
of
the
happiness
of
times when
one
could
think
as he
wished
and
could speak
as
he
thought
(1
Tacitus,
History,
para.
1).
Citizens,
as
decision-makers, can-
not be
expected
to
exercise wise
and
informed judgment
unless
they
are
exposed
to the
widest variety
of
ideas,
from
diverse
and
antagonistic sources.
Full
disclosure exposes,
and
protects against,
false
doctrine.
There were
two
majority
judgments
in
Cherneskey,
one
written
by
Mart-
land
J.
(Chief Justice Laskin
and
Beetz
J.
concurring)
and the
other written
by
Ritchie
J.
(Chief
Justice Laskin
and
Pigeon
and
Pratte
JJ.
concurring). Both
drew
on
English common
law for
their description
of the
importance
of
this
defence.
Martland
J.,
quoting
R.EU.
Heuston,
Salmond
on the Law of
Torts,
17th
ed.
(London: Sweet
&
Maxwell, 1977)
at
180, stated
at
page 1072:
A
fair
comment
on a
matter which
is of
public interest
or is
submitted
to
pub-
lic
criticism
is not
actionable. This right
is one of the
aspects
of the
funda-
mental principle
of
freedom
of
expression,
and the
courts
are
zealous
to
335
336
CANADIAN LIBEL
AND
SLANDER ACTIONS
preserve
it
unimpaired.
It
must
not be
whittled down
by
legal refinements.
The
jury
are the
guardians
of the
freedom
of
public comment
as
well
as of
private character.
It is
only
on the
strongest grounds that
a
court will
set
aside
a
verdict
for a
defendant when
fair
comment
is
pleaded.
Ritchie
J.
adopted
the
following
passage
from
the
judgment
of
Lord
Den-
ning
in
Slim
v.
Daily
Telegraph
Ltd.,
497 at 503
(H.L.)
[at
S.C.R.
1086]:
...
[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. When
a
citizen
is
troubled
by
things going wrong,
he
should
be
free
to
"write
to the
newspaper":
and the
newspaper should
be
free
to
publish
his
letter.
It is
often
the
only
way to get
things
put
right.
The
matter must
of
course,
be of
public interest.
The
writer
must
get his
facts
right:
and he
must honestly state
his
real opinion.
But
that
being done, both
he and the
newspaper should
be
clear
of any
liability.
They
should
not be
deterred
by
fear
of
libel actions.
Similar
views
about
the
importance
of
fair
comment
for
freedom
of
expression
have
been
expressed
by
every
other
appellate
and
trial
court
in
Canada.
On the
Atlantic
coast,
MacKeigan
C.J.N.S.,
writing
the
judgment
of the
Nova
Scotia
Court
of
Appeal
in
Barltrop
v.
Canadian Broadcasting Corp.
(1978),
86
D.L.R. (3d)
61
(N.S.S.C. (A.D.)),
stressed
the
fundamental
importance
of
this
defence
at
page
73:
The
defence
of
fair
comment
on
matters
of
public interest
has
been rightly
termed
"a
basic
safeguard
against irresponsible political power"
and
"one
of
the
foundations supporting
our
standards
of
personal liberty": Fleming
on
the Law of
Torts,
4th ed.
(1971),
p.
511.
On the
other
side
of the
country,
in
British
Columbia,
Southin
J.A.
caught
the
essence
of the
defence
in her
dissent
in
Baumann
v.
Turner
(1993),
105
D.L.R.<