Canadian Defamation Law is Noncompliant with International Law (Part Two of a Two Part Series)
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.
How defamation law has developed and is applied in Canada
Ever since the defamation trial of Socrates,1 many public figures and jurists have tried to explained the concept of free expression in a free society:2
Give me the liberty to know, to utter, and to argue freely according to conscience, above all liberties.
— John Milton, Areopagitica: A Speech for the Liberty of Unlicens’d Printing, to the Parliament of England (published November 23, 1644).Every man has a right to utter what he thinks truth, and every other man has a right to knock him down for it.
— Samuel Johnson, as quoted in James Boswell’s The Life of Samuel Johnson, Vol. 1 (1791), p. 335.Strange it is that men should admit the validity of the arguments for free speech but object to their being “pushed to an extreme”, not seeing that unless the reasons are good for an extreme case, they are not good for any case.
— John Stuart Mill, On Liberty (1859) Ch. 2, Mill (1985). On Liberty. Penguin. pp. p. 108.Without free speech no search for Truth is possible; without free speech no discovery of Truth is useful; without free speech progress is checked, and the nations no longer march forward towards the nobler life which the future holds for man. Better a thousandfold abuse of free speech than denial of free speech. The abuse dies in a day; the denial slays the life of the people and entombs the hope of the race.
— Charles Bradlaugh, Speech at Hall of Science c.1880 quoted in An Autobiography of Annie Besant; reported in Edmund Fuller, Thesaurus of Quotations (1941), p. 398; reported as unverified in Respectfully Quoted: A Dictionary of Quotations (1989).The censor is always quick to justify his function in terms that are protective of society. But the First Amendment, written in terms that are absolute, deprives the States of any power to pass on the value, the propriety, or the morality of a particular expression.
— William O. Douglas, Associate Justice of the Supreme Court of the United States (Memoirs v. Massachusetts, 1966).