The Defence of Justification

• Author: David A. Potts; Erin Stoik
• Pages: 165-169

165

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The Defence of Justif‌ication

In Grant v Torstar, [2009] 3 SCR 640, 2009 SCC 61, the Supreme Court of

Canada states at para 33:

[33] To succeed on the defence of justif‌ication, a defendant must adduce evi-

dence showing that the statement was substantially true. This may be dicult

to do. A journalist who has checked sources and is satisf‌ied that a statement

is substantially true may nevertheless have diculty proving this in court, per-

haps years after the event. The practical result of the gap between responsible

verif‌ication and the ability to prove truth in a court of law on some date far in

the future, is that the defence of justif‌ication is often of little utility to jour-

nalists and those who publish their stories.

The defence of justif‌ication is brief‌ly described in Chapter 2, “Summary

of Defamation Law.” While simple in appearance, the defence of truth or

justif‌ication is not devoid of complexity either in the various substantive

forms of the defence or the procedure and evidentiary requirements that are

inextricably part of the defence and its application.

For a more detailed review of the law in this area see the following texts:

• Alastair Mullis, Richard Parkes, & Godwin Busuttil, Gatley on Libel and

Slander, 12th ed (London: Sweet & Maxwell, 2013) at chapters 11, 27.1,

and 33.10.

• Raymond E Brown, Brown on Defamation, 2d ed, looseleaf (Toronto: Car-

swell, 2010) at chapters 4, 19, 20, 21, & 22.

• Roger McConchie & David Potts, Canadian Libel and Slander Actions

(Toronto: Irwin Law, 2004) at chapters 21, 24, and 28(I).

• Julian Porter & David A Potts, Canadian Libel Practice (Toronto: Butter-

worths, 1986) at chapters 5, 59–68, and 17, 175–83.