Slander In Canada: What's The Law?

Slander is considered a crime in Canada and is classified as a form of defamation. Defamation is a legal category that covers both slander and libel, which are defined as harming a person's reputation by making public false or misleading statements about them. In Canada, defamation law varies from province to province, and it is important to check the specific legislation in each province. For example, in British Columbia, a defamation lawsuit must be brought to the BC Supreme Court within two years of the incident. To win a defamation case based on slander, the plaintiff must prove that the false statements caused financial damages, which makes slander-based cases less common than libel-based ones.

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Slander and libel are two forms of defamation

Slander and libel are indeed two forms of defamation. Defamation is a false statement presented as a fact that harms a person's reputation. It is a civil wrong and a tort, and each state has its own defamation laws. The First Amendment to the United States Constitution guarantees freedom of speech, but defamation law protects people from the harm caused by lies being told about them.

Libel is written defamation, while slander is spoken. Libel is a false statement made in writing, such as in a blog comment or on social media. Slander is an oral statement, such as at a town hall meeting or a professional conference. However, the lines between the two are blurred by technology. For example, courts are split on whether a podcast is slander or libel. Most courts now focus on the permanence of the statement and how widely it is distributed. Permanent and far-reaching statements are typically characterised as libel, while fleeting statements to a smaller audience are slander.

In the context of Canadian law, libel is also a criminal offence. Criminal libel charges are often brought when a publication or person is accused of defaming a public official or government employee. However, critics claim that this law is a threat to free speech and is used to silence critics of the government. In a civil lawsuit, a plaintiff does not need to prove they suffered damages from libel, but for slander, they must prove financial damages. This makes slander-based cases less common.

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Defamation lawsuits in Canada

To establish a defamation claim in Canada, the plaintiff must prove three things:

• The communication was defamatory, meaning it would tend to lower the reputation of the plaintiff in the eyes of a reasonable person.
• The defendant does not have a defence to the claim. Common defences include justification (the truth), fair comment, responsible communication, or privilege.
• The plaintiff has suffered damages, such as loss of reputation or financial losses.

It is important to note that the law surrounding defamation and libel in Canada has been slow to change, and there are some differences across provinces. For example, in British Columbia, a defamation lawsuit must be brought within two years of the defamation and must be filed in the BC Supreme Court, not Provincial Court. Additionally, Quebec's defamation law is derived from French civil law, which was preserved even after Quebec became part of the British Empire.

In terms of libel charges, they often arise when a publication or person is accused of defaming a public official or government employee. However, critics claim that government officials use these charges to silence their critics, and several provincial superior courts have struck down Section 301 of the Criminal Code, which punishes defamatory libel.

Overall, Canada has a reputation for having one of the most plaintiff-friendly defamation tort laws among common-law countries, as established in the precedent-setting case of Hill v. Church of Scientology of Toronto.

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Defamation law in Quebec

In Canada, defamation law protects a person's reputation from unjustified harm. Defamation is defined as communication about a person that tends to hurt their reputation and makes people think less of them. This communication must be made to other people and not just conveyed privately. If defamation is spoken, it is called slander, and if it is written, it is called libel.

In Quebec, defamation was originally grounded in the law inherited from France. However, after Quebec became part of the British Empire, then called New France, French civil law was preserved. By the mid-19th century, judges in Lower Canada held that principles of freedom of expression in the British Constitution overrode French civil law in matters of public interest and incorporated various defences of English common law, such as the defence of fair comment, into local law. Quebec's defamation law is distinct from the rest of Canada, as it is derived from French civil law. The Quebec Charter of Human Rights and Freedoms guarantees every person the right to dignity, honour, and reputation, and entitles any person who has had these rights violated to obtain compensation.

The Civil Code of Quebec (CCQ) provides that every person has a right to the respect of their reputation and privacy. To proceed with a defamation claim, claimants must satisfy the criteria set out in section 1457 CCQ, which governs all forms of extracontractual responsibility. This requires claimants to prove their injury, a fault, and a causal link between the two. In Quebec, defamatory statements are statements that cause an ordinary citizen to lose consideration or promote unfavourable or unpleasant feelings towards a person. There are three situations where the author of a defamatory remark could be civilly liable under Quebec law:

• A person makes an unpleasant remark knowing that it is false, with the intention to harm.
• A person spreads unpleasant statements that they should have known were false, as a reasonable person would have reason to doubt the truth of the information.
• A person intentionally makes an unfavourable but true statement about a third party without any valid reason to do so.

In Quebec, the terms libel, defamation, and even defamatory libel are encompassed in the concept of damage to reputation. Thus, Quebec civil law treats both forms of defamatory statements equally when seeking legal recourse.

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Defamation and free expression

Defamation is a legal category that covers both slander and libel. It refers to any communication that tends to lower a person's reputation or expose them to hatred, contempt, or ridicule. In Canada, defamation law is governed by both common law and civil law jurisdictions.

At common law, to establish a prima facie defamation case, the plaintiff must prove three things: first, that the communication was defamatory, i.e., it lowers their reputation in the eyes of a reasonable person; second, that the defamatory statement was published, i.e., conveyed to others and not just privately; and third, that the statement caused harm, such as financial damages. If the plaintiff can prove these elements and the defendant cannot successfully defend the claim, the court may award damages for loss of reputation, also known as general damages.

While defamation law seeks to protect individuals' reputations, it must also be balanced with the right to free expression. In Canada, this balance is addressed through various defences available to defendants in defamation cases. For instance, truth or justification is an absolute defence, as a true statement cannot be defamatory. Additionally, fair comment protects statements of opinion that are honestly held and based on true facts. The public interest in unrestricted speech may also outweigh the interest in protecting reputation in certain contexts, such as reporting on matters of public concern or political speech.

In the province of Quebec, defamation law is derived from French civil law, which historically took precedence over English common law. Quebec's anti-SLAPP (Strategic Litigation Against Public Participation) law exempts political and public issue comments from liability, promoting free expression. However, the Supreme Court of Canada has also upheld the "responsible communication" defence, striking a balance between free speech and protecting individuals from defamatory statements.

While libel and slander laws aim to curb harmful speech, critics argue that they can also be used to suppress free expression. For example, criminal libel laws have been criticised for being used by government officials to silence critics. Additionally, the fear of a libel lawsuit can discourage writers and media from engaging in controversial discourse. As such, the development of defamation law in Canada must carefully consider the delicate balance between protecting reputations and upholding freedom of expression.

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Defamation defences

Truth or Justification

Truth is an absolute defence to defamation in all common law provinces. The defendant must prove that the defamatory meaning allegedly conveyed was true in substance. This defence can be used even if the defamatory expression was published with actual malice.

Fair Comment

Fair comment is a defence often used to defend a statement of opinion or interpretation on a matter of public interest. The defendant must prove that the comment could be honestly expressed without malice or hidden motive and was based on true facts. The Supreme Court of Canada modified this defence in 2008, replacing a subjective requirement with an objective test: "could anyone have honestly expressed the defamatory comment on the proven facts?".

Responsible Communication

This defence is available to journalists and other media professionals who are sued for making defamatory statements in a publication. The court will consider whether the publication was on a matter of public interest and whether the publication of the defamatory statement was responsible.

Innocent Dissemination

A defendant who distributed defamatory material without knowing its nature can rely on this defence. To succeed, the defendant must also not have acted negligently in the dissemination and must have taken action to remove the content upon learning of its defamatory nature.

Qualified Privilege

Qualified privilege protects defamatory misstatements of fact when the defendant has an interest or duty to communicate the information, and the recipients have a corresponding interest or duty to receive it. This defence is lost if the publication was actuated by express malice or if the limits of the duty or interest have been exceeded.

Absolute Privilege

Absolute privilege applies to expressions communicated in the course of judicial or quasi-judicial proceedings, communications between officers of state, or parliamentary proceedings. It also protects the reporting of a public tribunal's proceedings.

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