WIC Radio Ltd. v. Simpson

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Link to the original Supreme Court decision (June 27, 2008).

Case summary: "M is a well-known and sometimes controversial radio talk show host. The target of one of his editorials was S, a widely known social activist opposed to any positive portrayal of a gay lifestyle." He compared her to Hitler, the KKK, and skinheads. S sued for defamation, saying that she did not in fact advocate violence against gays. M said he was only calling her an intolerant bigot. The trial judge dismissed the case, saying the remarks were defamatory, but it was "fair comment." The Court of Appeal reversed that decision saying it did not qualify for the fair comment defence, which requires that the speaker believes the defamatory implications of the comment; because there was no evidence, and M did not testify, that he believed S actually would condone violence. On the contrary, he repeatedly testified that he did not believe she was "a violent person."

Opinions:

(Binnie, McLachlin, Bastarache, Deschamps, Fish, Abella, and Charron): The remarks were defamatory - that is, damaging to S's reputation - but they qualify as fair comment even without subjective honest belief. Honest belief is important in defining fair comment, but because of the importance of freedom of expression, it is appropriate that subjective honest belief should not always be absolutely necessary. We modify the "honest belief" test to apply if any person, not necessarily the speaker, could honestly express the opinion - an "objective" honest belief standard instead of a "subjective" one. Majority decision.

(LeBel): Because of the context, and M's own reputation, nobody would seriously believe based on the comments that S really was a Nazi, KKK member, skinhead, or someone who would condone violence against gays; it looks like the remarks would not actually damage her reputation and there was no defamation in the first place. However, we cannot overturn the trial judge's decision on that. As for fair comment, honest belief should not be required at all if the other requirements (such as the comment being on a matter of public interest) are met; we can remove the honest belief part of the test completely.

(Rothstein): The remarks were defamatory, but honest belief should not be required for fair comment. You can find someone to honestly believe and say any random foolishness, and so requiring that someone could believe the defamatory implications, means nothing.