Government Can’t Sue for Defamation
Published in the May 2006 issue of Litigation Notes - View Article
The Town of Halton Hills and its Director of Parks and Recreation sued a local internet-based news provider in defamation. The plaintiffs alleged that the defendant had called the Director “corrupt” in connection with his work for the Town. The defendant brought a motion to strike the Town’s claim. He argued that the statements complained of did not defame the Town, and also argued that the Town could not sue for defamation.
The Superior Court of Justice of Ontario struck the claim asserted by the Town, finding that no government may bring an action in defamation. Canadian cases that did allow for this cause of action were found to be no longer the law of Canada, as they pre-dated the Charter of Rights and Freedoms and relied on English authority that had been expressly overruled.
Justice Corbett noted that the Town was a corporation, and may have a “business reputation” to protect, as do other corporations. He also noted that a local government, as created by the Municipal Act, has the powers and rights of a natural person – and a natural person may sue in defamation. Prior to the Charter, Canadian courts held that government bodies could sue in defamation. The defendant argued that, with the advent of the guaranteed right to freedom of expression in the Charter, “everyone should be free to criticize democratically elected governments . . . without risking a defamation action.”
The plaintiffs argued that this issue could not be considered on a motion to strike, but would require a full trial record. Justice Corbett found that the matter could be argued on a motion to strike and without a full record, as it was a pure question of law.
Justice Corbett considered the importance of freedom of speech and its existing limits, concluding that the right to freedom of speech is “a pillar of democracy”, to be limited only to recognize other important rights.
Local governments, while possessing a “business reputation” do not possess a “private” reputation, as “their sole existence is public.” In this way they are unlike other corporations and natural persons. Justice Corbett differentiated between public officials, who maintain private reputations which may be damaged, and governments. Where a defamatory statement about a public body is properly understood to refer to a specific individual, that person may have a right to sue in defamation. However, where the public official is defamed, the government body he represents does not gain a right of action.
Justice Corbett framed the issue as involving the restriction of freedom of speech, specifically any speech of and about government, as being inimical to the basic tenets of democracy. He concluded that the unavailability of defamation actions for governments did not rest on the power imbalance involved in a government suing a citizen, nor did it rest with the identity of the alleged defamer as a “citizen” or taxpayer:
“It is in the very nature of a democratic government itself that precludes government from responding to criticism by means of defamation actions. . . Governments are accountable to the people through the ballot box, and to judges or juries in courts of law. When a government is criticized, its recourse is in the public domain, not the court. . . . Litigation is a form of force, and the government must not silence its critics by force.”
He listed the public methods by which government may protect its reputation, including convening meetings, publishing press releases and setting up public investigations or boards of inquiry.
Justice Corbett concluded by finding that statements made about government were protected by absolute privilege under the common law.
The Superior Court of Justice of Ontario struck the claim asserted by the Town, finding that no government may bring an action in defamation. Canadian cases that did allow for this cause of action were found to be no longer the law of Canada, as they pre-dated the Charter of Rights and Freedoms and relied on English authority that had been expressly overruled.
Justice Corbett noted that the Town was a corporation, and may have a “business reputation” to protect, as do other corporations. He also noted that a local government, as created by the Municipal Act, has the powers and rights of a natural person – and a natural person may sue in defamation. Prior to the Charter, Canadian courts held that government bodies could sue in defamation. The defendant argued that, with the advent of the guaranteed right to freedom of expression in the Charter, “everyone should be free to criticize democratically elected governments . . . without risking a defamation action.”
The plaintiffs argued that this issue could not be considered on a motion to strike, but would require a full trial record. Justice Corbett found that the matter could be argued on a motion to strike and without a full record, as it was a pure question of law.
Justice Corbett considered the importance of freedom of speech and its existing limits, concluding that the right to freedom of speech is “a pillar of democracy”, to be limited only to recognize other important rights.
Local governments, while possessing a “business reputation” do not possess a “private” reputation, as “their sole existence is public.” In this way they are unlike other corporations and natural persons. Justice Corbett differentiated between public officials, who maintain private reputations which may be damaged, and governments. Where a defamatory statement about a public body is properly understood to refer to a specific individual, that person may have a right to sue in defamation. However, where the public official is defamed, the government body he represents does not gain a right of action.
Justice Corbett framed the issue as involving the restriction of freedom of speech, specifically any speech of and about government, as being inimical to the basic tenets of democracy. He concluded that the unavailability of defamation actions for governments did not rest on the power imbalance involved in a government suing a citizen, nor did it rest with the identity of the alleged defamer as a “citizen” or taxpayer:
“It is in the very nature of a democratic government itself that precludes government from responding to criticism by means of defamation actions. . . Governments are accountable to the people through the ballot box, and to judges or juries in courts of law. When a government is criticized, its recourse is in the public domain, not the court. . . . Litigation is a form of force, and the government must not silence its critics by force.”
He listed the public methods by which government may protect its reputation, including convening meetings, publishing press releases and setting up public investigations or boards of inquiry.
Justice Corbett concluded by finding that statements made about government were protected by absolute privilege under the common law.
Halton Hills v. Kerouac, [2006] O.J. No. 1473 (S.C.J.)
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3 comments:
So let's get this straight... Aurora and Georgina legally attacked residents using town resources despite this little gem of a quote from a similar 2006 case in Halton Hills…
QUOTE:
“The Superior Court of Justice of Ontario struck the claim asserted by the Town [Halton Hills], finding that no government may bring an action in defamation. Canadian cases that did allow for this cause of action were found to be no longer the law of Canada, as they pre-dated the Charter of Rights and Freedoms and relied on English authority that had been expressly overruled.”
Followed by this QUOTE:
“It is in the very nature of a democratic government itself that precludes government from responding to criticism by means of defamation actions. . . Governments are accountable to the people through the ballot box, and to judges or juries in courts of law. When a government is criticized, its recourse is in the public domain, not the court. . . . Litigation is a form of force, and the government must not silence its critics by force.”
Georgina is now telling us that their case was never a private legal action, but was rather a council directed action. That sounds a bit like Morris trying to suggest recently that she was carrying on the town council's initiative. It's too bad that both towns don't appear to understand what constitutes our basic fundamental democratic rights !
In Aurora we were told by Phyllis Morris during the last election, in around the time she was launching her SLAPP lawsuit, that her council “set the gold standard for democracy" and yet not only was the Code of Conduct apparently breached because public office can’t be used for personal gain (i.e. the launching of private $6 million lawsuits with use of tax dollars), but now we find out that the town appears to have found a way to circumvent the intent of the Charter of Rights with the added bonus that Council also potentially breached the Municipal Conflict of Interest Act, which of course will be determined one way or the other this coming August.
I have to ask, how bad does this have to get until the message gets through to some people !
The last two paragraphs are worth noting as well. One wonders how some politicians might try and talk their way around these quotes...
QUOTE: He [the judge] listed the public methods by which government may protect its reputation, including convening meetings, publishing press releases and setting up public investigations or boards of inquiry.
Justice Corbett concluded by finding that statements made about government were protected by absolute privilege under the common law.
The Halton Hills case indicates that governments can’t legally sue residents, so how is it that any government can apparently circumvent the intent of the Charter of Rights by funding a private lawsuit and yet most of the regular media doesn't even blink ? It's no wonder that the internet has a critical role to play in defending free speech.
Georgina's press release and former Mayor Morris both said they were carrying out the town's initiative, which initiative was publicly funded with tax dollars and supported by other town resources, in order to sue residents for the offence of criticising their government. The fact remains that voicing our opinion is a fundamentally important democratic right and the towns in question had other means to address any differences of opinion or “misunderstandings” (to borrow a phrase from Georgina’s press release – which strikes me as pure “BS”) in any number ways other than using the "force" of litigation.
The actions taken by Halton Hills, Georgina and Aurora to sue their residents are absolutely reprehensible in my humble opinion, assuming of course that I’m still allowed to share my opinion. Someone needs to be held accountable, at the very least on election day, but I would also hope that someone at AMO or the province is paying attention. These examples look to me like a gross abuse of power and I doubt that I'm alone in that view.
Democracy and the freedoms it grants us are apparently far more fragile than we ever thought, most especially when you have politicians and lawyers that are prepared to twist the intent of the Charter of Rights in order to access our tax dollars in such a heavy handed and politically suspect fashion.
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