This article was prepared for the Ontario Civil Liberties Association (OCLA). It is also posted on ocla.ca.
Overall Summary
Part 1: Defamation law in Canada is contrary to international law, in both design and practice. Under international law, the right to hold an opinion is absolute, and the right of freedom of expression can be restricted “for respect of the rights or reputations of others” solely using written laws that must conform to the “strict tests of necessity and proportionality”. With Canadian civil defamation law, the state has unfettered discretion from an unwritten common law that provides presumed falsity, presumed malice, unlimited presumed damages, and broad gag orders enforceable by jail, using a subjective judicial test for “defamation” without requiring any evidence of actual damage to reputation.
Part 2: Also, Canada’s practice of its defamation law materially aggravates the noncompliance with the International Covenant on Civil and Political Rights (eleven impugned rules and practices are described). A final section broadly examines the underlying social and historic reasons for having developed an oppressive defamation law, followed by recommendations.
The most important legal instrument to supress expression in Canada is the common law of defamation, which acts both directly and by creating chill. Using this instrument, any corporation or individual with sufficient financial means to pursue a defamation lawsuit can intimidate and silence any publisher, writer, media outlet, social-media commentator, blogger, vlogger, or public speaker. ((See OCLA’s January 2014 position statement “OCLA position paper on Bill 83: The tort of defamation must be abolished in Ontario”))
This article is divided in four themes. In Part 1, I prove that the Canadian common law of defamation is in violation of international law, and is therefore unconstitutional. In Part 2, I show that the practice in the application of this defamation law aggravates the noncompliance. Then, I explore how and why this situation occurred, from a social and historic perspective. Finally, I make recommendations for a statute for civil defamation, which would be compliant with the International Covenant on Civil and Political Rights.
Demonstration that Canadian defamation law is noncompliant with international law
In 1995, the Supreme Court of Canada judged that the common law of defamation is consistent with the Canadian constitution (with the Canadian Charter of Rights and Freedoms). ((Hill v. Church of Scientology of Toronto, [1995] 2 SCR 1130, 1995 CanLII 59 (SCC).)) This judgment has been criticized by legal scholars. ((Bayer proposes that the plaintiff should, contrary to the common law of defamation, be required to prove that the words complained of are false, did indeed cause damage to reputation, and that the defendant acted with actual malice or negligence: Carolin Anne Bayer, “Re-thinking the common law of defamation: Striking a new balance between freedom of expression and the protection of the individual’s reputation”, Thesis, Master of Laws, University of British Columbia, 2001. See also: Hilary Young, “But Names Don’t Necessarily Hurt Me: Considering the effect of disparaging statements on reputation”, Queen’s Law Journal, 37:1, 2011.))
Therefore, in post-Charter Canada, when a defendant is sued for defamation: damages, falsity, and malice of defamation (intent) are presumed. The plaintiff need not prove actual damage to reputation, or the defendant’s intent to damage reputation, or that the words complained of are false.
The test for liability is not based on evidence but merely on subjective judicial discretion: ((WIC Radio Ltd. v. Simpson, [2008] 2 SCR 420, 2008 SCC 40 (CanLII), para. 67, and see paras. 68 to 80 (dissenting analysis).))
A defamatory statement is one which has a tendency to injure the reputation of the person to whom it refers; which tends, that is to say, to lower him in the estimation of right-thinking members of society generally and in particular to cause him to be regarded with feelings of hatred, contempt, ridicule, fear, dislike, or disesteem.
Once defamation is thus determined, the defendant then has the onus to establish one of the common-law-prescribed defences, such as the so-called “fair comment” defence for the case of an expressed opinion. ((Ibid., para. 1)) The threshold for the defendant to establish the “fair comment” defence for an expressed opinion is onerous. ((Ibid, para. 1))
Furthermore, the Supreme Court of Canada has judged that there should not be a cap placed on damages for defamation, ((Hill v. Church of Scientology of Toronto, [1995] 2 SCR 1130, 1995 CanLII 59 (SCC), para. 168, and see paras. 167 to 203.)) which holds for the four types of defamation damages that are allowed in the common law:
(a) general damages (presumed),
(b) aggravated damages (based on evidence of the defendant’s behaviour beyond the expression complained of),
(c) actual damages (based on evidence of actual harm to reputation), ((Evidence of actual damage to reputation includes: loss of employment, not being promoted, loss of career development, loss of work assignments, loss of clients or contracts, loss of income, loss of memberships to clubs and groups, loss of friends, being barred from social circles, loss of social, public and business opportunities, loss of relationships, loss of access to public participation, and so on)); and,
(d) punitive damage (based on evidence of egregious malice).
In addition, the Canadian common law of defamation allows a practice wherein, following a defamation judgment, a judge can make a broad permanent gag order (permanent injunction), beyond the expression complained of, on the sufficient basis of a defendant’s inability to pay ordered costs and damages, ((St. Lewis v. Rancourt, 2015 ONCA 513 (CanLII), see paras. 13 and 14)) enforceable by imprisonment. ((Gee Nam John et al. v. Byung Kyu Lee et al, 2009 BCSC 1157 (CanLII).))
Therefore, Canada enforces an unwritten (common law) defamation law that is contrary to the internationally recognized principle of “necessity and proportionality” regarding state suppression of expression (see below). Canada enforces a defamation law that — by its very design, non-transparent nature (unwritten, non-statutory), and application — is non-compliant with Article 19 of the International Covenant on Civil and Political Rights (“Covenant”):
Article 19
- Everyone shall have the right to hold opinions without interference.
- Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.
- The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary:
(a) For respect of the rights or reputations of others;
(b) For the protection of national security or of public order (ordre public), or of public health or morals. [Emphasis added]
“General comments” are provisions that are added to international law, following landmark decisions, which direct and bind the interpretation of the Covenant. The directives in General comment No. 34 are clear in regard to the meaning of Article 19: ((General comment No. 34, International Covenant on Civil and Political Rights, Human Rights Committee, 102nd session, CCPR/C/GC/34, para. 22))
Paragraph 3 lays down specific conditions and it is only subject to these conditions that restrictions may be imposed: the restrictions must be “provided by law”; they may only be imposed for one of the grounds set out in subparagraphs (a) and (b) of paragraph 3; and they must conform to the strict tests of necessity and proportionality. Restrictions are not allowed on grounds not specified in paragraph 3, even if such grounds would justify restrictions to other rights protected in the Covenant. Restrictions must be applied only for those purposes for which they were prescribed and must be directly related to the specific need on which they are predicated. [Emphasis added]
Here, “provided by law” means: ((Ibid. para. 25))
For the purposes of paragraph 3, a norm, to be characterized as a “law”, must be formulated with sufficient precision to enable an individual to regulate his or her conduct accordingly and it must be made accessible to the public. A law may not confer unfettered discretion for the restriction of freedom of expression on those charged with its execution. Laws must provide sufficient guidance to those charged with their execution to enable them to ascertain what sorts of expression are properly restricted and what sorts are not. [Footnotes removed]
The complexity and subtleties of the common law of defamation are antithetical to Canada’s obligation to provide a defamation statute that is in conformity with the Covenant requirement of clarity, not to mention the “unfettered discretion” that is associated with unlimited presumed damages, presumed falsity, a subjective test for “defamation”, and broad gag orders enforceable by jail.
“Necessity” here means that it must be demonstrably necessary to apply the state-enforced penalty (published correction, apology, damages, costs, gag order, imprisonment) in order to achieve the goal of “respect of the … reputations of others”. The strict requirement of necessity is meaningless unless the state imposes an onus on the defamation plaintiff to establish both: evidence-based actual damage to reputation, and necessity of the nature and degree of the desired penalty.
“Proportionality” means that the penalties cannot be in excess (in nature and degree) of what is needed to achieve reparation and prevention of any demonstrated actual damage to reputation; otherwise the principle is made meaningless by a subjective judicial determination of both “defamation” and “reputation”.
In Canada, a person who is permanently paralyzed from the neck down or who suffers any such massive debilitating effects due to flagrant medical negligence has his/her “non-pecuniary losses” damages for “pain and suffering” or “loss of enjoyment of life” capped at $100,000.00, adjusted for inflation since 1978 (the “Andrews cap”). ((“Non-pecuniary damages” are damages from emotional reactions and stress, which are not quantified or are not quantifiable, and which do not correspond to an objectively determined loss of income or anything having marketable monetary value.)), ((Andrews v. Grand & Toy Alberta Ltd., [1978] 2 SCR 229, 1978 CanLII 1 (SCC).)), ((Ter Neuzen v. Korn, [1995] 3 SCR 674, 1995 CanLII 72 (SCC), para. 104, and see dissenting view.)) The same cap holds for non-pecuniary losses in all bodily or physical personal injury cases, such as involving loss of limbs, brain damage, etc. ((Cinar Corporation v. Robinson, [2013] 3 SCR 1168, 2013 SCC 73 (CanLII), paras. 95 to 103)) Recently, relying on its 1995 ruling for absence of a cap in defamation damages, the Supreme Court clarified (so to speak) that the Andrews cap does not apply to non-pecuniary damages stemming from “material” injury, such as theft of copyright. ((Ibid))
The Andrews cap also applies to egregious cases of wrongful criminal convictions, although the Supreme Court has recently opened the door to a re-examination of non-pecuniary damages in such cases: ((Hinse v. Canada (Attorney General), [2015] 2 SCR 621, 2015 SCC 35 (CanLII), at para. 146,))
… But when it rendered its decision, the Court of Appeal did not have the benefit of this Court’s judgment in Cinar, which confirmed that the limit is inapplicable to damages for non-pecuniary loss that do not stem from bodily injury …
In contrast, in a defamation case there is no cap on the amount of awards for unproven damage to “reputation” at large, even when there is no evidence for actual damage to reputation. Following orders for large costs and damages, the court can then permanently and broadly gag the defendant, on the sufficient basis of inability to pay the costs and damages, and enforce the gag with imprisonment.
There was a missed opportunity for the Supreme Court to inject rationality into the question of damages in defamation when it expressed a strong dissenting view in 1988: ((Snyder v. Montreal Gazette Ltd., [1988] 1 SCR 494, 1988 CanLII 66 (SCC), at para. 39))
In sum, in view of the arbitrary nature of the compensation awarded for non-pecuniary loss, the risk that it may have a punitive aspect, the temporary nature of the loss suffered, the compensatory effect of the judgment obtained and the moderation displayed by Quebec courts, I think that aside from truly exceptional cases it will not be necessary to award an amount greater than $50,000 (now $100,000) to compensate in full for the non-pecuniary loss resulting from an attack on reputation. […]
The Supreme Court has never revisited that dissenting opinion. On the contrary, the Supreme Court has insisted on turning logic on its head by implementing the Andrews cap in all cases involving physical or bodily injury (not admitting —unless proven at the time of the trial — that additional actual harm can result directly from the original said physical or bodily injury, such as medical depression and complex aggravating medical conditions), and by applying the Andrews cap to cases of wrongful criminal convictions (again, not admitting that prolonged imprisonment can cause severe medical conditions and general loss of health long after the trial for wrongful conviction has ended), while prescribing that general damages in defamation should have no cap, where damages are presumed, where the test for “defamation” is subjective, and where actual damage to “reputation” need not be established with evidence.
These features of the Canadian jurisprudence of damages make it clear that the Canadian common law of defamation is at least incompatible with, if not contrary to, the Covenant principles of necessity and proportionality. This is in stark contrast to Canada’s Covenant obligation to enact laws that implement necessity and proportionality in protecting freedom of expression (regarding all aspects, not solely damages). The said obligation is long overdue.
Canada’s problem of noncompliance with Article 19 of the Covenant is not solely in civil defamation law. Canada’s Criminal Code contains provisions against “blasphemous libel” (s. 296) and “defamatory libel” (ss. 297 to 317), which are squarely contrary to international law ((General comment No. 34, International Covenant on Civil and Political Rights, Human Rights Committee, 102nd session, CCPR/C/GC/34, paras. 47 to 49)) and opposite to all the relevant joint statements of international rapporteurs on human rights, ((JOINT DECLARATION: Current Challenges to Media Freedom, by the UN Special Rapporteur on Freedom of Opinion and Expression, the OSCE Representative on Freedom of the Media and the OAS Special Rapporteur on Freedom of Expression, 30 November 2000)), ((JOINT DECLARATION, by the UN Special Rapporteur on Freedom of Opinion and Expression, the OSCE Representative on Freedom of the Media and the OAS Special Rapporteur on Freedom of Expression, 10 December 2002 )), ((JOINT DECLARATION ON DEFAMATION OF RELIGIONS, AND ANTI-TERRORISM AND ANTI-EXTREMISM LEGISLATION, by the UN Special Rapporteur on Freedom of Opinion and Expression, the OSCE Representative on Freedom of the Media, the OAS Special Rapporteur on Freedom of Expression and the ACHPR (African Commission on Human and Peoples’ Rights) Special Rapporteur on Freedom of Expression and Access to Information, 10 December 2008)). In particular, the said provisions prescribe imprisonment, whereas international law expressly disallows imprisonment as a penalty for any type of defamation, whether characterized as “criminal” or not. ((General comment No. 34, International Covenant on Civil and Political Rights, Human Rights Committee, 102nd session, CCPR/C/GC/34, para. 47))
Canada has an obligation to remove all such laws from its Criminal Code, ((General comment No. 31, The Nature of the General Legal Obligation Imposed on States Parties to the Covenant, International Covenant on Civil and Political Rights, Human Rights Committee, 80th session, CCPR/C/21/Rev.1/Add. 13, 26 May 2004, para. 13)) an obligation that it appears to be disregarding.
Even the “hate propaganda” (s. 318) provision of the Criminal Code, which should be designed to prevent war and genocide, without violating the right of freedom of expression, does not mention the ultimate crime of war of aggression, and is further noncompliant with the Covenant because it does not impose a necessity onus on the state to establish a “direct and immediate connection” to actual “discrimination, hostility, or violence”. ((See Article 20 of the Covenant; and see General comment No. 34, International Covenant on Civil and Political Rights, Human Rights Committee, 102nd session, CCPR/C/GC/34, paras. 35 and 50 to 52.)) As such, the said provision describes a “crime of expression”, which is subjectively judged by the state, without any objectively defined and justified threshold, while failing to comply with the Covenant requirement imposed by Article 20(1) regarding outlawing war propaganda.
Further, the “public incitement of hatred” (s. 319) provision of the Criminal Code is at least as problematic, and clearly in noncompliance with the Covenant. ((13 January 2016 letter of the Ontario Civil Liberties Association regarding “Unconstitutionality of s. 319(2) of the Criminal Code (R. v. Topham, Court File No. 25166, Quesnel Registry)”.)) In this author’s opinion, to be compliant a statutory scheme for a crime of “inciting hatred” must have both: (1) an onus on the state to prove intent to incite hatred, and (2) an onus on the state to prove causation of actual harm (discrimination, hostility, or violence) to one or more actual victim(s). We should reject “victimless crimes of expression, especially those “perpetrated” merely through public internet diffusion from a personal website or blog or social media account, and in the absence of any actual (not perceived) power relationship. Canada should not enforce “crimes” that consist in publicly publishing words arbitrarily judged to induce hypothetical emotional responses.” ((Ontario Civil Liberties Association letter to Justice Butler, “Re: Unconstitutionality of s. 319(2) of the Criminal Code (R. v. Topham, Court File No. 25166, Quesnel Registry)”, 13 January 2016))
But the Supreme Court of Canada goes in the opposite direction. It goes so far as to find that there is no constitutional right to the defence of truth against prosecutions of “hate speech”, whether the prosecutions arise in a Criminal Code or in a Human Rights Code. ((R. v. Keegstra, [1990] 3 SCR 697, 1990 CanLII 24 (SCC), p. 781)), ((Saskatchewan (Human Rights Commission) v. Whatcott, [2013] 1 SCR 467, 2013 SCC 11 (CanLII), paras. 137 and 138.)) This is truly remarkable considering that one is dealing with a category of offenses, in Canada, in which the state does not require proof or any evidence of actual harm to one or more persons (there is no victim that testifies), and in which intent is presumed. It is simply baffling to read the contortions that are in these rulings. ((Ibid., paras. 137 to 143)) This author does not know of any case where true statements can be considered the pith of “advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence”. ((At Article 20(2) of the Covenant. The French is clearer: “Article 20 : 1. Toute propagande en faveur de la guerre est interdite par la loi. 2. Tout appel à la haine nationale, raciale ou religieuse qui constitue une incitation à la discrimination, à l’hostilité ou à la violence est interdit par la loi.” Article 20 delimitates all such “hate speech” laws allowed and required by the Covenant.))
Thus, Canada is a well-armed nation for broadly and arbitrarily suppressing individual expression, and it does not shy away from jail sentences to achieve its goal of controlling speech.
These statutory realities (and the coming “anti-terrorist” legislations) are inconsistent with continuous Supreme Court pronouncements that “the [Canadian Charter of Rights and Freedoms] should be presumed to provide at least as great a level of protection as is found in the international human rights documents that Canada has ratified.” ((Saskatchewan Federation of Labour v. Saskatchewan, 2015 SCC 4 (CanLII), at para. 64)) Given the said pronouncements, we must conclude that Canadian common law of defamation is unconstitutional, not to mention the expression provisions of the Criminal Code.