Qualified and Statutory Privilege
| Author | Roger McConchie; David Potts |
| Profession | Member of the Bars of British Columbia and Alberta/Member of the Bar of Ontario |
| Pages | 363-423 |
CHAPTER liic ii M:!-:N :
Qualified
and
Statutory
Privilege
A.
INTRODUCTION
At
common law, there
are
privileged occasions
when
the
public interest
in
free
and
candid
speech
trumps
the
public
and
private interest
in
protecting
individual
or
corporate reputation.
In
addition,
the
federal
Parliament,
the
provinces
and the
territories have enacted certain statutory privileges
which
codify
or
extend
the
common law.
A
crucial
feature
of a
privilege defence
is
that
it
protects defamatory
errors
of
fact
which
are not
excused under
the
defences
of
justification
or
fair
comment.
Privilege defences, whether arising
at
common
law or
based
on
statute,
generally
fall
into three categories:
i)
absolute;
ii)
qualified;
and
iii) fair
and
accurate report.
When
defamatory expression
is
protected
by
absolute privilege,
the
mind-set
and
purpose
of the
speaker
are
irrelevant. Qualified privilege,
on
the
other hand, will
not
protect statements made with actual
or
express
malice,
or for an
indirect
or
improper purpose. Fair
and
accurate report
privilege
is
defeated
if the
content
of the
defamatory expression does
not
satisfy
certain standards.
The
parameters
of
absolute privilege
are
well defined
in the
jurispru-
dence.
The
defence
is
therefore
relatively easy
to
recognize, plead,
and
adju-
dicate.
See
Chapter
20
"Absolute Privilege."
The
jurisprudence concerning common
law
qualified privilege lays
down
general guidelines
for
determining whether expression
on a
given
363
364
occasion will enjoy
the
protection
of
this defence. Certain categories
of
occasion
are
described
but
they
are not
exhaustive:
the
existence
of a
qual-
ified
privilege defence
in a
particular case depends
on the
facts.
Recogniz-
ing, pleading
and
assessing
a
qualified privilege defence therefore
often
demands considerable care.
The
circumstances giving rise
to
fair
and
accurate report privilege
at
common
law are
reasonably defined
in the
jurisprudence.
The
determina-
tion
of
fairness
and
accuracy
may
require rigorous scrutiny
of the
facts
of
the
particular case. Many
of
these privileges have been codified.
There
are
instances
where
the
expression
of
defamatory imputations
is
privileged under provincial, territorial,
or
federal
statutes. This chapter will
also discuss these provisions.
A
separate chapter also addresses recent jurisprudence
of
courts
in the
United Kingdom, Australia,
and New
Zealand which
is
shaping
the
com-
mon law of
qualified privilege
in
terms
of the
public interest.
See
Chapter
19,
"Qualified Privilege
and
Publication
to the
World
at
Large:
Develop-
ments
in
Australia, Britain
and New
Zealand."
B.
QUALIFIED
PRIVILEGE
AT
COMMON
LAW
1)
The
Elements
of The
Defence: Duty
and
Interest
This defence applies
to an
occasion where
the
defendant
has (i) an
interest
or
(ii)
a
duty
-
legal, social,
or
moral
- to
communicate
the
defamatory
expression
and its
recipients have
a
corresponding duty
or
interest
to
receive that communication.
Presskr
v.
Lethbridge
(2000),
86
B.C.L.R.
(3d) 257,
per
Southin
J.A.
at 295
(C.A.).
Haight-Smith
v.
Nedcn
(2002),
211
D.L.R.
(4th) 370,
per
Levine J.A.
for the
court
at 383
(B.C.C.A.),
citing
Lord
Atkinson
in
Adam
v.
Ward,
[1917]
A.C.
309 at 334
(H.L.)
and
Mcloughlin
v.
Kutasy,
at
321.
Stopforth
v.
Goyer
(1979),
97
D.L.R.
(3d) 369,
per
Jessop
J.A.
at 372
(Ont.
C.A.),
adopting
the
description
of the
defence
contained
in
Halsbury's
Laws
of
England,
3d
ed., vol.
24
(London:
Butterworths,
1952-64)
at
56-57.
Reciprocity
of
duty
and
interest between
the
communicator
and the
recipient
is
essential
to
this
defence.
Sapiro
v.
Leader Publishing
Co.,
[1926]
3
D.L.R.
68, per
Lament
J.A.
for the
court
at
68-69
(Sask. C.A.),
citing
Adam
v.
Ward, [1917]
A.C.
309
(H.L.).
Chapter
Eighteen:
Qualified
and
Statutory
Privileges
365
The
burden
is on the
defendant
to
prove each
of the
elements
of the
defence.
Although
a
communication occurred
on an
occasion
of
qualified
privi-
lege,
the
protection
of
this
defence
is
lost
if:
1)
the
plaintiff
proves that
the
dominant motive
for
publishing
the
defamatory
expression
is
actual
or
express malice;
or
ii)
the
limits
of the
duty
or
interest have been exceeded. This occurs
when:
a.
the
speaker includes anything which
is not
relevant
or
pertinent,
or
in
other words,
not
reasonably appropriate
in the
circumstances
existing
on the
occasion when
the
information
is
given;
b.
the
manner
and
extent
of
communication
is
excessive.
Hill
v.
Church
of
Scientology
of
Toronto,
1130,
per
CoryJ.
at
1189-90.
Botiuk
v.
Toronto
Free
Press,
[1995]
3
S.C.R.
29 at
29-30,
per
CoryJ.
(La
Forest,
LHeureux-Dube,
Gonthier, McLachlin
and
lacobucci
JJ.
concur-
ring).
Wade
and
Wells
Co. v.
Laing
(1957),
11
D.L.R.
(2d)
276 at
279,
282-83
(B.C.C.A.),
Per
Sheppard
J.A.
(Sidney Smith
J.A.
concurring), citing
Clark
v. Molyneux (1877), 3 Q.B.D. 237 at 247.
Kelsie
v.
Canada
(Attorney
General), [2003]
NJ.
No.
232,
Barry
J. at
para.
33.
The
burden
of
proving
actual
or
express
malice
rests
on the
plaintiff.
Netupsky v. Craig, [1973] S.C.R. 55 per Ritchie J. for the court at 61-63.
Mclaughlin
v.
Kutasy,
324-25.
2)
Foundation
in
Public
Policy
The
defence
of
qualified
privilege
is
intended
to
serve "the general interests
of
society"
and
"the common convenience
and
welfare
of
society" rather
than
the
interests
of
individuals
or a
class.
Halls
v.
Mitchell,
[1928] S.C.R.
125 at
147,
per
Duff
J.
(Anglin C.J.C., Mignault,
and
Lamont
JJ.
concurring).
Sapiro
v.
Leader
Publishing
Co.
Ltd., above,
at 70.
Macintosh
v.
Dun,
[1908]
A.C.
390
(EC.)
per
Lord Macnaghten
at 398 and
399,
citing Toogood v. Spyring (1834), 1 C.M & R. 181 at 193 where Parke B. stated:
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