Canadian defamation law
Canadian defamation law refers to defamation law as it stands in both common law and civil law jurisdictions in Canada. As with most Commonwealth jurisdictions, Canada follows English law on defamation issues (although the law in the province of Quebec has roots in both the English and the French tradition).
At common law, defamation covers any communication that tends to lower the esteem of the subject in the minds of ordinary members of the public. The perspective measuring the esteem is highly contextual, and depends on the view of the potential audience of the communication and their degree of background knowledge. Probably true statements are not excluded, nor are political opinions unless explicitly stated as such. Intent is always presumed, and it is not necessary to prove that the defendant intended to defame. Where a communication is expressing a fact, it can still be found defamatory through innuendo suggested by the juxtaposition of the text or picture next to other pictures and words.
Broadly, Canadians can be held liable by English-Canadian courts for comments on public affairs, about public figures, which are factually true, and which are broadly believed. They cannot be held liable for opinion, inference, hyperlinking without explicit agreement with the content, reportage when this is based on honest research and journalistic ethics. Plaintiffs need not prove falsity, malice or damages. Politicians can, and do, sue including during elections for political advantage  or to silence critics or accusers. Evidence can be gathered by spies representing themselves falsely in private conversations.Defendants, once accused, are prima facie liable until they prove themselves innocent (reverse onus). Anonymous persons can be exposed for political comment, even if they are vulnerable and reside in jurisdictions where retribution is likely. People may be sued from remote jurisdictions if publication can be proven in that remote jurisdiction, which can mean as few as one person seeing the words. By contrast, under English law, a substantial publication is required before a plaintiff can sue a defendant in an English court. Unlike Canada, the UK is also considering substantial reforms in order to ensure that judgements remain enforceable in the US 
The parameters of English-Canadian defamation law have been described as arbitrary, capricious, absurd and otherwise illogical. Radical reforms to the common law of libel and tort of defamation were initiated in the United States and elsewhere in the Commonwealth after major court rulings expanded the definitions of qualified privilege, reportage, and outlined the public interest value of criticism of politicians and corporations. Calls to reform Canada's "antiquated libel laws" began to appear in the 1990s, continuing to the present.
In a 2006 commentary comparing Canadian laws with US and Commonwealth laws at that time, the situation was described thus:
For all the lofty quotes about free speech in Canadian jurisprudence, the reality is that our libel laws are the least protective of free speech in the English-speaking world.
Libel law developed in an ancient era which we would today consider backward, tyrannical and repressive. It is rooted in 16th and 17th century criminal statutes protecting nobility from criticism. Cases of political libel and eventually damages actions were handled by the infamous Star Chamber until its abolition in 1641. By the end of that century, many elements of the common law of libel we would recognize today had been established. In Law of Defamation in Canada, Professor Brown notes that the common law of defamation has been described by scholars and judges as "artificial and archaic" and characterized by "absurdities", "irrationality", and "minute and barren distinctions" (pp. 1–3).
While social values and legal concepts have evolved dramatically of the past 200 years, the common law of libel in Canada remains startlingly unchanged.
Accordingly, most pre-2006 commentary on defenses and tactics remains valid, although the more recent case law and constantly changing standards require defamation lawyers (on both sides) to study almost every recent case.
Recent developments in jurisprudence
In stark contrast to the US, Canadian libel law has been slow to change. In Hill v. Church of Scientology of Toronto the Supreme Court of Canada reviewed the relationship of the common law of defamation and the Charter. The Court rejected the actual malice test outlined in the U.S. Supreme Court decision New York Times Co. v. Sullivan, citing criticism of it not only in the United States but in other countries as well. The Court held that the Charter guarantee of freedom of expression did not require any significant changes to the common law of libel. Very controversially, it was held that there was no evidence of libel chill in Canada.
2006-2011 saw significant developments in Canadian jurisprudence, with many important issues being clarified and the law changing generally in the direction of that occurring in the US and elsewhere in the Commonwealth:
- In Crookes v. Newton, the Supreme Court of Canada reiterated its own opinions in these recent cases, citing the application of fair comment and of responsible communication on matters of public interest.
- In Grant v. Torstar, the Court, quoting Jameel & Ors v. Wall Street Journal Europe Sprl, made the latter defence available “to anyone who publishes material of public interest in any medium”. Moreover, it defined the concept of “public interest” expansively:
Public interest is not confined to publications on government and political matters, as it is in Australia and New Zealand. Nor is it necessary that the plaintiff be a “public figure”, as in the American jurisprudence since Sullivan. Both qualifications cast the public interest too narrowly. The public has a genuine stake in knowing about many matters, ranging from science and the arts to the environment, religion, and morality. The democratic interest in such wide-ranging public debate must be reflected in the jurisprudence.
Most commentators took this as a sign that the Supreme Court would continue to expand latitude for political and public affairs comment, and that judges were encouraged to interpret common law defenses and process abuse broadly enough to ensure that comment on public interest matters was not inhibited unduly by looming lawsuits. However, these more recent developments did not specifically exempt all provably true factual statements from liability, nor did they exempt forums or figures on the basis of public activities. Canadian law is still generally the most "plaintiff-friendly" libel law in the English-speaking world.
Common tactics in defamation cases
Once a claim has been made out the defendant may avail him or herself to a defense of justification (the truth), fair comment, responsible communication, or privilege. Publishers of defamatory comments may also use the defense of innocent dissemination where they had no knowledge of the nature of the statement, it was not brought to their attention, and they were not negligent.
Another common tactic in political libel cases is the filing of a strategic lawsuit against public participation ("SLAPP"). Analyses of SLAPP tactics and suggested reforms to civil procedures and legislation have been released by the Ontario Attorney-General, the Uniform Law Conference of Canada, individual academics  and the British Columbia Civil Liberties Association.
An approach increasingly common in Canadian courts is to contest jurisdiction or publication, as the courts have consistently required affidavits of proof of publication within the province where the libel is alleged. In Éditions Écosociété Inc. v. Banro Corp., interveners made extensive argument against assuming jurisdiction even when there were very clearly copies distributed and read, on the grounds that this imposed too much of a defense burden.
Also commonly employed are extra-legal approaches including the so-called "scorched earth" defense wherein, by way of justification, every embarrassing fact in the plaintiff's entire history is publicly exposed, along with those of personal friends and associates, in an attempt to counter libel chill with a similar fear of being totally exposed. Such tactics can backfire seriously however if a powerful defendant such as a mass media organization is perceived as abusing its access to the public, sometimes resulting in large awards. Such tactics are also sometimes employed in other kinds of suits.
The Canadian Medical Protective Association (CMPA) has also been criticized for defending medical malpractice suits extremely vigorously and turning down reasonable offers to settle claims to discourage other lawsuits on a number of occasions. One judge reportedly referred to the CMPA as pursuing a "scorched earth policy." However, the CMPA's objectives include protecting the honor, character, and interests of its members. Accordingly, the Association will support its members in cases which are deemed |defensible". On the other hand, when the CMPA considers a case to be "indefensible," it assesses damages and negotiates settlements. Historically, between 20% and 30% of all cases are settled.
While few defamation cases go to trial, because of the deterrence value of threatened litigation, there can be negative consequences arising from the trial itself. Canadian defamation law permits broad latitude in argument and exempts, with absolute privilege, comment made by way of argument, even if the arguments or positions advanced are noxious, intimidating or astonishing, or amusing enough to be quoted widely in the press (true or not). Some noted Canadian lawyers have advised that every possible alternative to litigation should be employed by a client genuinely fearful of reputation loss, before filing suit, simply because the "scorched earth" tactic has become so common. If defendants have a reason to resist, such as preserving freedom of political speech, the likelihood of negative publicity is magnified. The infamous McLibel case is often cited as a warning against spending vast sums and ending up with bad publicity and an uncollectible judgment.
In Quebec, defamation was originally grounded in the law inherited from France. After Quebec, then called New France, became part of the British Empire, the French civil law was preserved. However, by the mid-nineteenth century, judges in what by then had come to be called Lower Canada held that principles of freedom of expression inherent in the unwritten British Constitution over-rode French civil law in matters of public interest, and incorporated various defenses of the English common law, such as the defense of fair comment, into the local law. Such references to British law became more problematic in the Twentieth Century, with some judges and academics arguing that the basic principles of the civil law gave rise to similar defenses without need to refer to English case law or principle.
The Civil Code of Quebec does not have specific provisions relating to an action in defamation. Therefore, the general rules of extra-contractual responsibility established by article 1457 of the Civil Code of Quebec apply:
1457. Every person has a duty to abide by the rules of conduct which lie upon him, according to the circumstances, usage or law, so as not to cause injury to another.
Where he is endowed with reason and fails in this duty, he is responsible for any injury he causes to another person by such fault and is liable to reparation for the injury, whether it be bodily, moral or material in nature.
He is also liable, in certain cases, to reparation for injury caused to another by the act or fault of another person or by the act of things in his custody.
To establish civil liability for defamation, the plaintiff must establish, on a balance of probabilities, the existence of an injury, a wrongful act, and of a causal connection between the two. A person who has made defamatory remarks will not necessarily be civilly liable for them. The plaintiff must further demonstrate that the person who made the remarks committed a wrongful act. Therefore, communicating false information is not, in itself, a wrongful act.
In the case of Bou Malhab v. Diffusion Métromédia CMR inc., the Court ruled that Quebec law exempted broadly racist comments by someone with a reputation for making same, and that accordingly MP-and-radio-host André Arthur had no liability for comments against Quebec City cabdrivers. It stated flatly that racism was not a matter to be debated or decided in courts, at least not in Quebec. Quebec's anti-SLAPP law further exempts political and public issue comment almost entirely from liability, an approach that is broadly advocated (see SLAPP studies above) to be emulated in common law jurisdictions.
In 1994, the Court of Appeal of Quebec held that defamation in Quebec must be governed by a reasonableness standard, as opposed to the strict liability standard that is applicable in the English common law; a defendant who made a false statement would not be held liable if it was reasonable to believe the statement was true. However, in upholding the "responsible communication" defense in Torstar v. Grant, the Supreme Court of Canada also flatly rejected the strict liability standard in common law jurisdictions as well.
Defamation as a tort does not infringe the freedom of expression guarantee under the Canadian Charter of Rights and Freedoms. Defamatory libel is equally valid as a criminal offence under the Criminal Code.
Enforceability of judgments in US courts
In general Canadian defamation judgements against Americans are not collectible in the United States under the SPEECH Act, and have to be re-proven in an American court in the state where the defendant resides. The exception may be Quebec which has broad protections for political comment and respects international laws (such as the International Covenant on Civil and Political Rights) similar to the US's own First Amendment.
- Murphy v. LaMarsh (1970), 73 W.W.R. 114
- Andrew Bernstein; Natalie Biderman (July 7, 2008). "Supreme Court of Canada Widens Defamation Defence". Torys LLP.
- Brown 1994, p. 201.
- John Mascarin (June 10, 2011). "Municipal politicians and online defamation". The Lawyers Weekly.
- David A. Potts. "Libel and Reputation Management: A Defamation Checklist for Politicians".
- Antonin I. Pribetic (August 24, 2009). ""Naming Names": Online Defamation and Compelling ISP's to Disclose Identities of Anonymous Subscribers". The Trial Warrior Blog.
- "UK Libel Reform and the US SPEECH Act: A View from Canada". The Trial Warrior Blog. March 20, 2011.
- "The US Speech Act puts pressure on UK libel tourism laws". World Association of Newspapers and News Publishers.
- "How the US SPEECH Act Will Affect Libel Tourism". Legal Language Services.
- Dan Burnett (October 27, 2006). "Commentary: Canada should reform its antiquated libel laws". The Lawyers Weekly.
- Crookes v. Newton 2011 SCC 47,  3 SCR 269 (19 October 2011), Canada)
- WIC Radio Ltd. v. Simpson 2008 SCC 40,  2 SCR 420 (27 June 2008), Canada)
- Grant v. Torstar Corp. 2009 SCC 61,  3 SCR 640 (22 December 2009), Canada)
- Jameel & Ors v. Wall Street Journal Europe Sprl  UKHL 44 at para. 54,  1 AC 359 (11 October 2006)
- Grant v. Torstar, par. 96
- Grant v. Torstar, par. 106
- "Report to the Attorney General of Ontario". Anti-SLAPP Advisory Panel. October 28, 2010.
- "Strategic Lawsuits Against Public Participation (SLAPPs) Report 2008". Uniform Law Conference of Canada. August 2008.
- Chris Wullum. "Protecting Freedom of Expression in Public Debate: Anti-SLAPP legislation". Canadian Media Lawyers Association.
- Michaelin Scott; Chris Tollefson (2010). "Strategic Lawsuits Against Public Participation: The British Columbia Experience". Review of European Community & international environmental law 19 (1): 45–57. ISSN 0962-8797.
- "Recommended Legislative Measures to Counter Strategic Lawsuits Against Public Participation". British Columbia Civil Liberties Association. January 10, 2011.
- "Breeden v. Black and Les éditions Écosociété Inc., et al. v. Banro Corporation". British Columbia Civil Liberties Association. October 10, 2011.
- "CanWest MediaWorks Publications Inc. v. Horizon Publications". British Columbia Civil Liberties Association. October 27, 2009.
- Éditions Écosociété Inc. v. Banro Corp. 2012 SCC 18,  1 SCR 636 (18 April 2012), Canada)
- Patrick Sullivan (June 13, 2000). "Ottawa MD makes legal history with huge libel award against CBC". Canadian Medical Association Journal. pp. 1735–1736.
- "Medical Malpractice Liability: Canada". Library of Congress.
- Duranceau, André. "The Canadian Medical Protective Association". American College of Surgeons, Division of Advocacy and Health Policy. Retrieved May 9, 2013.
- Andrew Allentuck (April 8, 2004). "Cybersmear: The Internet versus your company's reputation". itbusiness.ca.
- Joseph Kary (2004). "The Constitutionalization of Quebec Libel Law, 1848–2004". Osgoode Hall Law Journal 42 (2): 229–270. Retrieved 30 August 2013.
- Gilles E. Néron Communication Marketing Inc. v. Chambre des notaires du Québec 2004 SCC 53 at par. 56,  3 SCR 95 (29 July 2004), Canada)
- Prud'homme v. Prud'homme 2002 SCC 85 at par. 35,  4 SCR 663 (20 December 2002), Canada)
- Bou Malhab v. Diffusion Métromédia CMR inc. 2011 SCC 9,  1 SCR 214 (17 February 2011), Canada)
- "Top court sides with MP over cabbie comments". CBC News. February 17, 2011.
- according to the Nova Scotia Supreme Court in Coates v. The Citizen (1988), 44 CCLT 286 (NSSC)
- Martin & Adam 1994, p. 736.
- R. v. Lucas 1998 CanLII 815,  1 SCR 439 (2 April 1998), Canada)
- Raymond E. Brown (1994). The Law of Defamation in Canada (2nd ed.). Scarborough: Carswell. ISBN 0-459-55861-7.
- Robert Martin; Gordon Stuart Adam (1994). A Sourcebook of Canadian Media Law (2nd ed.). Ottawa: Carleton University Press. ISBN 0-88629-231-X.