Fair Comment and Freedom of Expression in Simpson v. Mair

For the first time in thirty years, the Supreme Court of Canada has ruled on the fair comment defence in Canada. The Court’s ruling in Simpson v. Mair 2008 SCC 40 broadens the scope of the fair comment defence and brings it in line with modern freedom of expression values protected by the Canadian Charter of Rights and Freedoms.

The facts, very briefly, are that in the course of a radio broadcast the defendant Mair, a well-known broadcaster in British Columbia made disparaging statements about the plaintiff Simpson, a social activist who opposed positive portrayals of homosexual lifestyles. Mair likened Simpson to various extreme ideologues of the far right. Simpson commenced a defamation suit against Mair, who sought to rely on the defence of fair comment. He was successful at trial, but the British Columbia Court of Appeal overturned the trial judge.

The case is significant because it resolves two problems frequently encountered by defendants seeking to rely on the fair comment defence.

The first is a growing number of cases stating that in order to succeed on a fair comment defence the comment in question must be “fair”. As Justice Binnie, who wrote the decision for the majority in Mair stated, this approach is flawed because: “‘Fair-mindedness” often lies in the eye of the beholder”. In other words, it should not be up to the courts to determine whether an opinion on a matter of public interest is fair and therefore protected by the fair comment defence. The very point of the fair comment defence, after all, is to protect diverse opinions. Removing the fairness component of the defence brings Canadian jurisprudence in line with English authorities which have held for some time that the courts should not consider whether an opinion is fair. Following Mair, courts will not be able to find liability merely because they disagree with (or think unfair) a particular comment. This is a significant development.

A second problem for defendants advancing the fair comment defence prior to Mair was the requirement – solidified the last time the Supreme Court of Canada defence in the case of Cherneskey v. Armdale Publishers [1979] 1 S.C.R. 1067 – that the opinion had to be “honestly believed” by the person expressing the opinion. The Mair case provides a perfect illustration of the problem with the subjective honest belief requirement. The trial judge found that the words complained of bore a meaning – that the plaintiff would condone violence – that Mair did not intend to convey. Since Mair did not believe that the plaintiff would condone violence, on application of the subjective belief test, the majority of the British Columbia Court of Appeal found that Mair could not succeed with a fair comment defence. The result of the subjective belief requirement is that the viability of a fair comment defence rested entirely on the sometimes technical determination by the trial judge of what the words meant.

The Supreme Court of Canada has now (as the dissenting judge in Cherneskey would have done thirty years ago), done away with the requirement that the opinion be subjectively believed. The subjective test is replaced with the following objective test: could any person honestly believe the opinion on the proved facts? As Justice Binnie goes on to note, this is not a high threshold for defendants to meet. The practical result is that many cases in which the defence might have failed because of the subjective belief requirement will now be defensible.

The Supreme Court could have gone further, by removing any requirement of belief (subjective or objective) – as suggested in the concurring judgment of Justice Lebel, or by reversing the onus of proof in defamation actions (following Mair the onus remains with defendants to prove a defence such as truth or fair comment). These quibbles aside, however, the Mair decision is a clear and welcome victory for freedom of expression.