Defamation, libel and slander: What are my rights to free expression?

PHOTO: Mike Gifford (CC)
June 15, 2015

The Canadian Charter of Rights and Freedoms guarantees the right to “freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication”, but this right, along with all rights guaranteed by The Charter, is not absolute.

Some types of free expression in Canada are crimes, such as perjury, distributing obscene material, and hate speech. The right to free expression is subject to “reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.” Free expression crimes in Canada are constitutional issues, and the onus is on the government to prove that the infringement is justifiable.

However, some limits on free expression in Canada have nothing to do with government restrictions or the right to free expression as defined in the Charter. One such limit is the civil tort of defamation.

Defamation refers to harming another person’s reputation by making a false written or oral statement about that person to a third party. Defamation law is not about protecting pride; it is about protecting reputation and offering restitution to people whose reputations have been wrongly damaged. Although courts will very occasionally issue an injunction to stop defamation that has not yet occurred, almost all defamation cases involve one person suing another for damages from defamatory statements that have already been made.

Tort law surrounding defamation law does not directly curb your right to free expression; it is not illegal per se. Rather, defamation is generally about paying damages to people that have been harmed by your speech. You can still say whatever you want, but you may have to pay for it (and you may have to pay a lot).

It should also be noted that defamation law in Canada varies from province to province. In Ontario, for example, legislation on defamation is found in the Libel and Slander Act. Defamation can be subdivided into libel and slander:

  • Libel: defamation with a permanent record, such as an email, a radio or TV broadcast, a newspaper, a website posting, etc.
  • Slander: defamation with no permanent record, such as a spoken statement or even a hand gesture.

If you are suing for libel in Canada, you do not need to prove that you suffered damages—you only need to prove that a false statement with a permanent record was made about you to a third party, and the court will presume that damages were suffered. If you are suing for slander, however, you usually do need to prove that damages were suffered. Proving that slander caused you financial loss is difficult, which is why slander cases are far less common than libel cases. There are a number of legal defenses against defamation:

1. You can claim that the statement was true; a true statement cannot be defamatory.

2. You can claim “absolute privilege,” which means that the communication was made in a venue where people ought to have absolute privilege to speak freely; this includes Parliament or giving evidence in a trial.

3. You can claim “qualified privilege,” which means that the communication was given in a non-malicious and well-intentioned context and therefore ought to be excused: for example, giving an honest but negative reference for a former employee.

4. You can claim “fair comment,” which means that your statement was a non-malicious opinion about a matter of public interest: for example, an editorial in a newspaper about a politician.

5. You can claim “responsible communication on matters of public importance,” which allows journalists to report false allegations if the news is urgent and of public importance, and if the journalist made an effort to verify the information. Even if the statement is false, the public has an interest in this type of discussion being legally permissible.

Key rulings in Canadian defamation law

In Hill v Church of Scientology of Toronto (1995), the Supreme Court departed from the American standard of requiring “actual malice” for libel; this makes libel easier to prove in Canada than it is in the U.S.

The Court also dismissed arguments that awarding damages in this case would cause “libel chill”—refraining from speaking out for fear of being sued for defamation—in Canada. In this case, the Court awarded Mr. Hill over $1.5 million in damages. This was certainly a loss for free expression in Canada.

While defamation tort law does not technically prevent defamation or make it illegal, the amount of money you may have to pay in damages for defamation can be financially crippling. In Leenan v CBC and Myers v CBC , the CBC was ordered to pay damages to two cardiologists who were wrongly portrayed in a negative light on a CBC program, showing that both Crown corporations and broadcasters of defamatory content, including broadcasters of content created by others, can also be liable for defamation.

In Grant v Torstar (2009), the Court created a new defense against defamation allegations (the fifth defense cited above): the defense of “responsible communications” for journalists. The Court ruled that the existing defamation law in Canada, in comparison to similar countries, was overly strict and that "this, in turn, may have a chilling effect on what is published. Information that is reliable and in the public's interest to know may never see the light of day."

In Crookes v Newton (2011), the Court ruled that publishing a hyperlink to defamatory material does not make one liable for defamation, because hyperlinking to material does not count as publishing that material.

These last two cases hint at a trend towards increasing protections for journalists against defamation. This is just a small sampling of many important Canadian court cases surrounding defamation.

In the interest of brevity, the takeaway is this: defamation law is an attempt to strike a balance between the right to free expression and restitution for individuals who have been harmed by that free expression—and while there have certainly been losses for free expression, there have been some recent victories for free expression as well. Defamation law in Canada is still evolving, and the list of acceptable defenses for journalists is growing.

What do you think?

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  • Brenda Barber
    commented 2020-07-29 09:21:58 -0400
    I was “Googling” character assination and came across this post/article on defamation on your site. I read the comments section as I always do to get a sense of what others are dealing with. It’s quite eye opening to see that others are dealing with gangstalking activities too. If you are not familiar with this term, look into it. I found out about gangstalking a year ago. It is a very well co-ordinated attack on specific people sometimes referred to as Targeted Individuals or TI for short. Essentially the alphabet agencies or private security firms coordinate attacks on your character at every level. This includes where you work, where you live and even your family members can be recruited. From what I have researched, it is an experimentation on humanity. Lives are being destroyed because of this insidious program. There are whistle blowers who have come out to expose this program. It is an extention of the MK Ultra program I believe. As we edge closer to a world controled by Super Computers and AI, the “elites” of this world want more population control. The best way to achieve this goal is to use advanced technology at their disposal. Technology such as directed energy weapons (DEW), Voice to Skull (V2k) Real time communication equipment to coordinate their attacks and a host of other diabolical methods such as recruiting thugs and gang members. Most TI’s are being tortued every day in their homes with DEWs. The character assination is part of it to isolate the victims, to make them homeless etc. Those being targeted are free thinkers, whistle blowers, intelligent people, or those they consider dissidents. Sadly they have been long experimenting on the homeless population. None are exempt from becoming targeted. I hate being the bearer of bad news, so I will leave you with a positive note: Because of my targeting, I turned to the most high God and put my complete trust in Him. Each day I wake up and give thanks for all blessings no matter .. great or small. I ask for protection from the enemy and believe me it has been forthcoming!! My eyes have been opened to the truth. It’s an awakening of sorts. Trust God and His plan. Good triumphs over evil in the end.
  • Jenn Sanders
    commented 2020-06-24 16:38:48 -0400
    so my neighbours are making false accusations of theft towards me and my household posting photos of the front of house and back shed and posting it on facebook telling everyone this is where they can find their stolen property we just moved in 2 month ago and never have stolen anything from any one of them ever and we have nothing stolen here, and this post this person made we may be evicted over it , is this not slander cause facebook told me it not and there is no reason to remove content from thier site. we cant even go have a smoke outside or my boyfriend cant work on his bike and they call the cops for suspicious activity and i dont know what to do we worked so hard to get into this place to have a place to call home instead of a little hotel room we lived in for 2 years prior . and we may lose it all because of a post on facebook and noisy neighbours.
  • MaryEllen LeBlanc
    commented 2020-06-19 12:33:35 -0400
    I think the don’t shoot the messenger statement should apply. My shrink fell asleep on me many times, these were his actions, I’m just sharing them with the public. If you don’t want people to know you fell asleep, don’t fall asleep.
  • Trevor Champagne
    commented 2020-06-09 00:38:37 -0400 · Flag
    I have had a question for a long time if my landlord has a maintenance staff that shared with me that the staff in the office that belongs to my landlord believes I am a drug dealer not only are their beliefs unfounded but untrue such beliefs can be believed and I do not think they are illegal but what is illegal is the practice of running around both buildings and saying to everybody that you meet and say good morning to you’re also explicitly sharing with them that I’m a drug dealer and that I don’t make my rent on time and then I throw things off of my balcony and have loud parties until 4 a.m. and smash stuff if true or not such actions should be considered slander it wouldn’t matter if they’re true and it wouldn’t matter if they’re untrue all that matters is that my reputation is gone I know I have been sniped but you can’t necessarily say that not only the people are abusing their powers they are given by spreading around these lies in a very Petty way I don’t think I’m being just slandered I think these people are out to ruin my life my mail was opened and I think my neighbours are being specifically instructed to be just as disturbing as their claims against me are and their accusations
  • Leave me_alone
    commented 2020-03-12 17:23:09 -0400
    Regardless of your job, you do not have the authority to violate the human rights of innocent people by defamation, slander, gossip, spying, and harassment. Leave me alone.
  • Leave me_alone
    commented 2020-03-12 17:19:50 -0400
    you are an expert in psychology, but have no empathy or love in your heart. What good is your psychology? Even the devil knows psychology.
  • Leave me_alone
    commented 2020-03-12 17:18:02 -0400
    shame on those who are suppose to help other people and yet they spread gossip, slander and persecute and oppress the innocent. Gaslighting and psychological manipulation is not the solution. Whether you are a special agent, a spy or whatever, leave people alone. If I want to be alone with my family, it means you must leave me alone. May God Almighty rebuke those who spy and harass and slander me Amen!
  • Thomas Courtney
    commented 2019-08-31 19:19:05 -0400
    < was only 500 cash and i requested it from a 4500,00 payment – not $1,450 and proof of this in text messages
    < i started on the second and finished on the 5th fired on 7th
    < he hired my subcontractor to do work behind my back
  • Thomas Courtney
    commented 2019-08-31 18:55:49 -0400
    and thing like this

    The allegations which will be the subject of a possible action are in summary as follows:

    ⦁ you have also done FRAUD work. 1450$ in cash for “his time”
    ⦁ attempted to do vapor barrier that should have taken 2 days max took over 2 weeks
    ⦁  i had to hire someone else to do the vapor barrier.
    ⦁ Every time he came he always asked for money even thou he didn’t do any work
    ⦁ He didn’t work around my HVAC guy because he knew they would see him mess around all day
    ⦁ he gives no regard for who’s watching and who is talking to him
    ⦁ He gave us no contract
    ⦁ He wants your money and will refuse to do work.
    ⦁ 5% of work he will do
    ⦁ He just can’t read a plan. 
    ⦁ your false BBB partnership which should really be CAA (Con Artist Association) your false advertising and scamming will soon come to a close once again.
    ⦁ Sir Thomas has no idea how to construct as well as what a legal 
  • Thomas Courtney
    commented 2019-08-31 18:50:20 -0400
    here is an example of a review that was put on my company, this is one of 16 this person put over 23 months posting updates to his thoughts . this person was nor has been defrauded by my company nor has my company been charged with fraud . however this person says a lot like im a huge fraud company …… please provide your opinions

    You sir are the one who’s doing the illegal game here. We both know the wrong things you say and do, I have already handed my case off to a lawyer and I can legally have a write to post a review regarding your business and how you handle things. Every time you try and say your in the right I always see through your shenanigans. You are a fraud and the law will deal with you as they should. You are the one playing games. You are the harassment. Your are a fraud contractor. Either way I have MANY witnesses and people who you have also coned before. You games is about to be shut down on many levels. You are the slander here. You lie to customers on a daily basis. You have no idea how much stress and anger you have caused. You are just digging your whole deeper by threatening me. You have no money to get a lawyer and you have already been reported to the police. I’M HAVING YOU AND YOUR ACCOMPLICE ARRESTED FOR FALSE ADVERTISING AND FRAUDULENCE. Something im sure you have been arrested for before. Unless you can provide me with a lawyer contact like my lawyer has asked you to do. DO NOT CONTACT ME.
  • Gab Di
    commented 2019-05-03 08:22:48 -0400
    A friend of my ex couple lied about me having a sexual relationship with him, my husband never believed me anymore, as the statements that the other person made where very disturbing and being a good friend of my ex couple, he believed him. It cost me months of arguments and the end of the relationship. Can I sue this person for defamation? All my life has gone to hell.
    Some of the comments where about me being latina and all of them had to do with sex.
  • Goran Swe
    commented 2018-10-07 15:31:53 -0400
    Hi. My friend in Bosnia has a problem with Canadian citizen who is spreading lies about her on facebook to people who know her and supporting financialy hers work with animals. This person lies caused stress and financial loss to my friend.
    Can she contact Canadian authorities and make rapport about it?
  • Patty Mattos
    commented 2018-02-12 12:22:27 -0500
    incredible publication, lots of knowledge, lots of information in one post, still posting has helped a lot #thanks
  • Shawn Stickney
    commented 2017-11-19 21:23:32 -0500
    Very informative post. It is impossible to know too much about this stuff when studying journalism. Thanks for sharing.