SCOC ruling broadens free speech protections

The Supreme Court of Canada ruling on the Rafe Mair case effectively broadens the scope of the use of the fair comment defence in Canada's courtrooms.

On June 27, 2008, the Supreme Court of Canada delivered a landmark 9-0 ruling that will have wide implications on free speech in Canada — mainly, it will make defamation more difficult to prove in courtrooms because it expands the way it can be defended.

The country's highest court ruled that B.C. radio personality Rafe Mair used fair comment in a 1999 radio editorial that was critical of B.C. Christian values advocate Kari Simpson, who was opposed to the use of gay teaching materials in schools. Mair's editorial included references to Nazi Germany and the Ku Klux Klan.

Simpson took issue with his commentary, alleging it implied that she condoned violence against homosexuals, even though Mair said in his editorial that he wasn't claiming she was actually advocating violence. Simpson sued Mair for defamation after the piece aired.

The Supreme Court of Canada's decision has wide implications for defamation suits in this country.

A lower court decision found that Mair's radio editorial about Simpson, which included references to the Ku Klux Klan and Hitler, was protected by fair comment — a common defence in defamation cases.

The B.C. Supreme Court overturned that ruling in 2006, saying that Mair's employer at the time — WIC radio — hadn't made an adequate defence.

But in the June 27 ruling, the Supreme Court of Canada restored the original finding and absolved Mair. (Read the full judgment.)

In doing so, the court also rewrote the legal test for fair comment, in effect widening the scope for its use in defamation suits. 

Before this ruling, a traditional element of the fair comment defence was that the person making the comment must believe in what they are saying.

The SCOC's revision of the test of fair comment now says that opinions made within editorial commentary, even outrageous commentary, should be looked at on the basis of whether any honest person could have held the same opinion if they were presented with the same set of facts. The fair comment defence means that it must still pass the tests of being factual, without malicious intent and made in the public interest, the SCOC said.

Binnie said that there was no proof that Mair's comments, although "outrageous," were made with malice, and thus his right to voice his opinions was protected by the courts.

Highlights of the decision

The judgment: "The trial judgment dismissing the action should be restored. M.'s expression of opinion, however exaggerated, was protected by the law. M.'s editorial was defamatory, but the trial judge was correct to allow the defence of fair comment."

Justice Ian Binnie, Justice Beverley McLachlin, Justice Michel Bastarache, Justice Marie Deschamps, Justice Morris Fish, Justice Louise Charron and Justice Rosalie Abella concurred.

The other two justices, Justice Louis LeBel and Justice Marshall Rothstein, partially concurred, providing reasons:

Justice Marshall Rothstein: "The statements in question were defamatory but the defence of fair comment applies. To satisfy the fair comment defence, there is no requirement to prove objective honest belief. The defence of fair comment should only require the defendant to prove (a) that the statement constituted comment, (b) that it had a basis in true facts and (c) that it concerned a matter of public interest. These requirements were met in this case. Although the issue of malice is not before the Court, there is agreement with LeBel J.'s discussion in respect of that element."

Justice Louis LeBel (a portion of his comments): "If the defendant is successful in establishing the elements of the fair comment defence, the inquiry may turn to malice, which the plaintiff must prove if alleged.  Proof of malice may be drawn from the language of the assertion itself or from the circumstances surrounding the publication of the comment.  It may involve inferences and evidentiary presumptions. In order to defeat fair comment, malice must be the dominant motive for expressing an opinion. There was no evidence of malice on the facts of this case."

Justice Ian Binnie on the crux of the decision, which modifies the test for fair comment that can be used in courts. Point (d) is the part of the decision which says that the test for fair comment should be whether any honest person could hold the same opinion:

C.  The Test for Fair Comment 

  • (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 recognizable 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.

Justice Ian Binnie on the talk-show culture and people's ability to judge opinions on radio:

"Rafe Mair's radio talk show is carried on station CKNW owned and operated by the appellant WIC Radio Ltd., which accepts legal responsibility for the broadcast. Mair has a reputation for provoking controversy. With controversy has come a measure of commercial success. His listeners expect to hear extravagant opinions and, according to his counsel, discount them accordingly."


The landmark decision may affect other, similar cases, including a recent one heard by the British Columbia Human Rights Commission. In that case, two members of the Canadian Islamic Congress alleged that an excerpt from a book by Mark Steyn criticizing the threat of the Islamic religion to North America discriminated against Muslims on the basis of their religion. They have not ruled yet, though the Canadian Human Rights Commission decided in the same case that Steyn had not committed a hate crime by writing the piece. It is expected that the B.C. ruling could take up to three months.

The Supreme Court also found that while Mair's comments were defamatory, there was no proof that he meant that Ms. Simpson would condone violence against gay individuals, which is what Ms. Simpson alleged in her lawsuit:

"M.'s commentary was not actuated by malice in the sense of improper motive and S. did not appeal against the trial judge's conclusion that M.'s fair comment defence was not vitiated by malice."

Justice Ian Binnie on the fact that Simpson was aware of her very public profile as anti-homosexual:

"It seems that Kari Simpson relished her role as a public figure. At one point, Simpson faxed Mair a cover article about herself in British Columbia Report magazine entitled "The Most Dangerous Woman in B.C." (November 24, 1997). and:

"The trial judge found that Kari Simpson's reputation was earned as a result of her "very public actions and words." Further, "[h]er reputation was fairly characterized by Mair at trial as the person who was associated by the media with the anti-gay side. This characterization is supported by various of Kari Simpson's speeches put in evidence at the trial."

With reports from the Canadian Press