Thawed but Still Chilled: Freedom of Expression in the Aftermath of Simpson v. Mair
The Supreme Court’s ruling in Simpson v. Mair, (indexed as WIC Radio v. Simpson 2008 SCC 40) is, without a doubt, a major victory for advocates of freedom of expression. By both clarifying and broadening the scope of the fair comment defence to defamation, Mair is sure to generate a thaw in journalistic expression, especially among independent and less established journalists (who are less likely to have employers with deep pockets willing to cover legal costs).
That said, the spectre of defamation continues to pose a significant threat to freedom of expression in Canada. While it is clear is that the Supreme Court’s ruling in Mair will make the provision of damages for defamation more elusive, the extent of its ability to occasion a genuine thaw in journalistic expression is less apparent. In two respects, addressed in partially concurring opinions by Justices Lebel and Rothstein, Mair falls far short of neutralizing the chilling effect of defamation lawsuits on freedom of expression.
Facts and Procedural History
Kari Simpson, an anti-gay rights activist brought a defamation suit against Rafe Mair, a radio personality who had derided Ms. Simpson for her opposition to the presence of “gay lifestyle” in B.C. public schools on his radio program. Among other things, Mair compared Simpson to various ignoble historical figures (Adolf Hitler and segregationist Alabama Governor George Wallace to name a few). At trial, the comments in question were found to be defamatory; however, Mr. Mair successfully found shelter in the defence of fair comment. A divided B.C. Court of Appeal overturned the trial judge’s ruling, finding that the impugned comments were not subject to the fair comment defence. Mr. Mair appealed, and the matter proceeded to the Supreme Court.
The Tension Between Defamation and Freedom of Expression
Writing for the majority, Justice Binnie restored the trial judge’s decision, finding that although Mr. Mair’s comments were defamatory, they constituted fair comment. The majority’s decision is ably canvassed here, by Ryder Gilliland. Binnie J. began his analysis by identifying the need for a common law account of defamation that was more sensitive to the threat posed by defamation to freedom of expression:
The function of the tort of defamation is to vindicate reputation, but many courts have concluded that the traditional elements of that tort may require modification to provide broader accommodation to the value of freedom of expression. There is concern that matters of public interest go unreported because publishers fear the ballooning cost and disruption of defending a defamation action. Investigative reports get “spiked”, the Media Coalition [of intervenors in Mair] contends, because, while true, they are based on facts that are difficult to establish according to rules of evidence. When controversies erupt, statements of claim often follow as night follows day, not only in serious claims (as here) but in actions launched simply for the purpose of intimidation. Of course “chilling” false and defamatory speech is not a bad thing in itself, but chilling debate on matters of legitimate public interest raises issues of inappropriate censorship and self-censorship. Public controversy can be a rough trade, and the law needs to accommodate its requirements.
While Binnie J. did not launch into an extensive discussion about the common law account of defamation, in obiter, (the issue of whether or not the impugned statements were defamatory was not before the Supreme Court), Lebel J. argued that Mr. Mair’s comments were not prima facie defamatory. Using a Charter values argument, he asserted that defamation constituted a very limited exception to the Charter guarantee of freedom of expression articulated in s. 2(b):
The law of defamation — whose purpose is to protect reputation — exists as a limitation on freedom of expression, which is protected by s. 2(b) of the Canadian Charter of Rights and Freedoms. Reputation is an important element of human dignity and must be protected. However, even if a fair comment defence is available, it cannot be consistent with the Charter value of freedom of expression to treat spirited statements of opinion in a debate on matters of public interest as being prima facie defamatory.
From a policy perspective there are compelling reasons to adopt a more restrictive approach to defamation. Making it tougher to make out a prima facie claim of defamation would would in turn make defamation lawsuits a far less effective means of intimidating would-be defendants into silence under the threat of litigation.
Regardless of whether a viable fair comment defence exists, the prospect of litigation is in itself often sufficient to suppress expression. Making it more difficult to establish defamation prima facie, however, would help reduce the use of defamation lawsuits for nefarious purposes.
Honest Belief as a Precondition for Fair Comment
Binnie J. began his discussion on the applicability of fair comment by reciting the test for fair comment established in Cherneskey v. Armadale Publishers Ltd.,  1 S.C.R. 1067:
(a) the comment must be on a matter of public interest;
(b) the comment must be based on fact;
(c) the comment, though it can include inferences of fact, must be recognisable as comment
(d) the comment must satisfy the following objective test: could any [person] honestly express that opinion on the proved facts?
(e) even though the comment satisfies the objective test the defence can be defeated if the plaintiff proves that the defendant was [subjectively] actuated by express malice. [Emphasis added; emphasis in original deleted; pp. 1099-1100.]
(citing Duncan and Neill on Defamation (1978), at p. 62)
While he registered concerns about the B.C. Court of Appeals application of the honest belief requirement to the defence of fair comment, Binnie J. was not in favour of altogether dispensing with it. Doing so, he reasoned, would be inconsistent with the incremental approach to the common law endorsed by Canadian courts.
Moreover, Binnie J. added, the elimination of the honest belief requirement was not necessary to bring the common law in line with Charter values. (As a private law matter, the Charter itself does not apply, however courts have consistently held that Charter values animate the common law). Instead, Binnie J. endorsed a broader conception of “honest belief” then had been advanced by the B.C. Court of Appeal:
“Honest belief”, of course, requires the existence of a nexus or relationship between the comment and the underlying facts. Dickson J. himself stated the test in Cherneskey as “could any man honestly express that opinion on the proved facts” (p. 1100; emphasis added). His various characterizations of “any man” show the intended broadness of the test, i.e. “however prejudiced he may be, however exaggerated or obstinate his views”(at p. 1103, citing Merivale v. Carson (1887), 20 Q.B.D. 275, at p. 281). Dickson J. also agreed with the comment in an earlier case that the operative concept was “honest” rather than ‘fair’ lest some suggestion of reasonableness instead of honesty should be read in” (p. 1104).
Binnie J. went on to conclude that the appropriate test for honest belief was “whether anyone could have honestly expressed the defamatory comment on the proven facts.”
In their partial concurring judgments, both Rothstein and Lebel JJ, indicated their preference for scrapping the honest belief requirement. Pointing to shifting precedent on fair comment in various Commonwealth countries, Lebel J. disputed Binnie J.’s contention that abandoning the honest belief requirement would constitute more than an incremental approach to the common law.
Moreover, as Rothstein J. explained, the “objective honest belief” was a redundant stage in the fair comment analysis:
If objective honest belief means the honest belief of anyone, no matter how “prejudiced . . . exaggerated or obstinate” in his or her views, I cannot think of an example in which the test of objective honest belief could not be met once it is demonstrated that the comment has a basis in true facts.
Worse still, Lebel J. explained, “the only additional protection for reputation afforded by a requirement of objective honest belief is an inappropriate one, in that it places a reasonableness restriction on the opinions a person may legitimately express.” Lebel J. added that “the common law courts in this country and in the U.K. have long been uncomfortable with the idea of limiting fair comment to what is reasonable, even in the broadest sense.” He accordingly concluded that the “time has come to formally acknowledge that such a reasonableness requirement has outlived its purpose and that, in any event, in its present broad form, it provides little or no protection for reputation.”
What is most damning about the honest belief requirement however, is the “unnecessary complexity” (to use Rothstein J.’s words) that it adds to the fair comment analysis. Even in Binnie J.’s broader formulation of honest belief, its objective component makes it an imprecise science; it is difficult to discern the presence of an objective honest belief prior to pleading the defence of fair comment at trial. The practical effect of the ambiguity generated by the honest belief requirement is that it dampens the effectiveness of the fair comment defence in neutralizing the chilling effect on expression created by the spectre of a defamation lawsuit.
Striking the Right Balance
In an age where obscure independent bloggers can attract a magnitude of audience traditionally reserved for well-established newspapers and networks, the tort of defamation has taken on a heightened significance. Defamation has at once become increasingly important — as a means by which individuals can vindicate damaged reputations — and increasingly injurious to freedom of expression. In Mair the Supreme court creditably realigned the balance between freedom of expression and the protection of reputations, to render it more consistent with Charter values.
However the Supreme Court could have gone further. Establishing a higher threshold for the prima facie establishment of defamation and eliminating the “objective honest relief” requirement to the defence of fair comment would substantially limit the ability of defamation lawsuits to compromise freedom of expression.