Defamation, Absolute Privilege, and Sexual Assault: Caron v A
In Caron v A, 2015 BCCA 47 [Caron], the British Columbia Court of Appeal (“BCCA”) was tasked with determining whether complaints to the police should be protected by absolute privilege, and thus, not actionable for defamation. In concluding that qualified, not absolute, privilege applied, the BCCA supported the long-standing truth that protection of reputation is tied to the “innate worthiness and dignity of the individual” (Hill v Church of Scientology,  2 SCR 1130, para 107 [Hill]). While the court did come to the just result in this case, it also failed to engage with the worrisome implications of its ruling on sexual assault victims.
Facts and Issues Before The Court
In November 2012, the appellant (who is referred to as “Youth A” in the Amended Notice of Civil Claim) told the Royal Canadian Mounted Police that the respondent had raped her. After viewing the respondent’s work records, credit card statements, and school attendance records, the police proved that the respondent was working in Alberta – 1500 km away – at the time the rape was said to have occurred. The charges were subsequently dropped.
However, according to the respondent, the effects of the rape allegation continued to impact him. The appellant claimed she had dropped the charges. The respondent’s vehicle was sabotaged. His friend was threatened on the basis of being seen in the respondent’s presence. According to the respondent, rumours continued to circulate to family members and friends. He sought treatment for depression.
In Caron, the respondent brought a defamation claim against the appellant for the false allegation of rape. He also made less specific assertions about her spreading the lie. The appellant applied to strike the respondent’s claim, arguing that any comments she made to law enforcement officials were protected by absolute privilege, and therefore protected from defamation suits. The chambers judge dismissed the appellant’s motion.
The issues before the court were as follows:
- Is the allegedly defamatory statement protected by absolute privilege?
- If yes, do the remainder of the pleadings disclose a reasonable cause of action against the appellant?
The bulk of the court’s analysis was on the first issue. The court ultimately held that the allegedly defamatory statement was not protected by absolute privilege. The court dismissed the appellant’s appeal on this issue. The appellant’s arguments on the second issue, in brief, were also dismissed. The court found that while the allegations in the respondents Amended Notice of Civil Claim were not specific enough to disclose a cause of action, they allowed the pleadings to be amended and did not dismiss the respondent’s underlying claim.
The Court’s Analysis
There are two possible defences to defamation: qualified privilege and absolute privilege.
Qualified privilege is only a partial defence. Under this defence, non-malicious statements are protected from a defamation claim. Qualified privilege serves to “rebut the inference, which normally arises from the publication of defamatory words, that they were spoken with malice” (Hill, para 144). If the publication was made for a malicious purpose, then the defence fails.
The second is absolute privilege, which is a complete defence for defamation, regardless of whether the words were spoken with malice. Absolute privilege is granted to any “communications which take place during, incidental to, and in the processing and furtherance of, judicial or quasi-judicial proceedings” (Elliott v Insurance Crime Prevention Bureau, 2005 NSCA 115 [Elliott], para 112).
The appellant sought to have her statements protected by absolute privilege. However, the court had difficulty with this argument because it did not accept that the police are a “judicial or quasi-judicial” body.
The appellant relied on the BCCA case Hung v Gardiner, 2003 BCCA 257 [Hung], in arguing that absolute privilege should apply to her statements to the RCMP. In Hung, a member of the Law Society of British Columbia and of the Certified General Accountants Association of BC found herself under investigation for her professional conduct. A report was produced, but no disciplinary action was taken. Ms. Hung brought an action for defamation.
The BC Superior Court and Court of Appeal dismissed her claims. The courts held that a report given to professional bodies was under absolute privilege and thus barred from defamation suits because both of the professional bodies were quasi-judicial. Additionally, for public policy reasons, immunity from defamation was required here to protect members of the public who wished to complain about the conduct of a professional.
The appellant argued that the Hung decision should be analogized to the case at hand, stating that initial complaints to a tribunal and complaints to the police should be the same. Additionally, she argued that public policy reasons applied here as much as it did in Hung.
The BCCA was unconvinced by this line of reasoning. The Court highlighted that the test in Hung granted absolute privilege only where the recipients of the complaint “have attributes similar to a court of justice or act in a manner similar to that in which such courts act” (Caron, para 24).
The Court made particular note of the decision in Rajkhowa v Watson (1998), 167 NSR (2d) 108 [Rajkhowa], where Justice Hood determined that the equivalent to a letter of complaint in a civil proceeding would be the laying of an Information in a criminal proceeding. As such, “anything that happens before [the laying of the Information] is not protected as there is no court proceeding until that step is taken” (Rajkhowa, para 46). The BCCA emphasized that “the police investigate, they do not adjudicate” (Rajkhowa, para 46).
The appellant argued that refusing to grant absolute privilege to complaints made to police could have a chilling effect. Failure to afford this protection could deter future victims from reporting crimes because of the threat of a future defamation action.
The Court addressed this argument by examining international jurisdictions.
The BCCA noted that approaches in the US were too divergent to provide any coherent guidance, with some states applying qualified privilege to complaints made to law enforcement, and others applying absolute privilege. In the UK, however, the leading case states the principle that “immunity must be given from the earliest moment that the criminal justice system becomes involved” (Westcott v Westcott,  EWCA Civ 818, para 36).
Despite the favourable UK precedent, the BCCA held that expanding absolute privilege to include complaints to the police would be to take a “step further than any jurisdiction in Canada has, as of yet, gone,” (Caron, para 38). The court quoted Justice Cromwell in Elliott, who stated that when determining how much to broaden the scope of absolute privilege, we need to ask “is this necessary?” not “why not?” (Caron, para 49). The question, then, was: would broadening the scope of absolute privilege be “necessary to protect the proper functioning of the administration of justice”? (Elliott, para 116).
The court thus laid out this test for the appellant to meet and concluded that the appellant was unable to meet it. The court held that it was not necessary to the administration of justice to expand absolute privilege in this case, and dismissed her appeal.
In most respects, this decision reaches a fair outcome. The facts indicated that the young girl falsely alleged rape. The defendant suffered as a result, experiencing depression, loss of employment, and public shaming. Unlike in Hung, the appellant’s defamatory statements in this case had serious consequences for the respondent’s reputation and quality of life.
Each defamation case must be decided on its facts, and here, the fair and just outcome seemed clear. However, the BCCA failed to engage with the problematic implications of its decision that arise in the sexual assault context. The court hesitated to expand beyond current Canadian precedent, and did not seriously consider the possible chilling effect this could have in the future.
Qualified privilege does not protect all communications. In Hill, Justice Cory explained that under qualified privilege, “the information communicated must be reasonably appropriate in the context of the circumstances existing on the occasion when that information was given” (Hill, para 147). In order to thwart qualified privilege, the plaintiff in a defamation suit may have to prove that the statements were made with malice. Malice includes more than just statements given out of spite or ill-will – it can also include statements with any “indirect motive or ulterior purpose,” or statements made with “knowing or reckless disregard for the truth” (Hill, para 145).
This does not seem like adequate protection for sexual assault victims. Sexual assault victims often reach out to police at times when they are feeling vulnerable and confused. During the assault, they may have been intoxicated, drugged, unconscious, or just confused and scared – all this will have an impact on the statements and details they give to the police. Misremembering or mistaking facts to the police in light of a recent traumatic event could be deemed as “reckless,” and could now lead to civil action, prolonging a complainant’s physical, mental, and financial suffering. The court did not consider how the test of malice could be modified to take into account the unique circumstances of sexual assault.
Less than one in ten sexual assaults are reported to the police. A reason for low reporting is a complainant’s fear of re-victimization by police and courts. Police officers are often the first point of contact a sexual assault victim has with the justice system, but it is these preliminary stages of coming forward to the police that are most intimidating to sexual assault victims.
Thirty-three per cent of sexual assault victims who did not report incidents of sexual assault to the police said it was because they did not feel the police could do anything. A further eighteen per cent said it is because they believed the police would not do anything (see the Department of Justice’s statistics on sexual assault here). If there is already such distrust of the police, how will sexual assault victims feel knowing that what they say to the police is not protected by absolute privilege?
The defence of absolute privilege has a two-fold purpose: it protects the functioning of quasi-judicial and judicial processes, and encourages participation in those processes by protecting individuals from the possibility of civil action. While the RCMP is not quasi-judicial or judicial, reporting to the police is a preliminary step to reaching the judicial process. As such, not extending protection to victims in this preliminary stage may mean these cases never reach a judicial process at all. The ruling in Caron may put up even more barriers for an already-marginalized group.
The court, perhaps wisely in light of the inescapable and tangled bucket of worms arising from it, avoided contemplation of these issues. The respondent in this case was sympathetic – a young man wrongly accused of rape, whose life has suffered detrimentally because of it. The court’s ruling avoided the injustice of allowing the plaintiff to have his reputation and life ruined on top of absolving the appellant who maliciously alleged rape.
It is a tricky balance. Should the courts choose to protect sexual assault victims even if that also means protecting false allegers? The court treated the case at hand as if it was another defamation case on par with that in Hung. However, Justice L’Heureux-Dubé said it best in R v Seaboyer,  2 SCR 577: Sexual assault is not like any other crime. Perhaps it would have been wise for the BCCA to explore how the law of defamation could be balanced with the pressing social issues stemming from this violent offence. Forgoing the opportunity to discuss these implications – particularly in light of this country’s ongoing conversation on rape culture elicited by the Ghomeshi scandal – was an unfortunate oversight.