"It's time to reform Canadian libel law"

by Jeffrey Shallit

Environment Minister Tony Clement is suing Liberal leader Dalton McGuinty for remarks he made in a CBC radio interview. Jacques Parizeau and Lucien Bouchard are suing investment adviser Richard Lafferty for his comments in a 1993 financial newsletter. In 1997, former Prime Minister Brian Mulroney sued the Federal Government, asking $50 million in damages, over a letter naming him as a suspect in the Airbus case.

What gives these powerful politicians the ability to shut down criticism and criminal investigations? The answer is Canadian libel law.

Under the current legal regime, you can be sued for anything you say about another person that damages their reputation. If sued, the onus is on you to prove the truth of your statements; the fact that you genuinely believed them to be true is not good enough. Even truth is not an absolute defence --- if the court finds you told the truth but your intent was malicious, you might lose anyway. Canadian libel law is so draconian that people come from all over the world to file libel suits in Ontario.

The impact on freedom of expression, a core value of the Charter of Rights and Freedoms, is severe. There's even a term for it: "libel chill". Libel chill means that people are afraid to criticize powerful people who might bankrupt them with a costly suit. It means that commentators have to think twice before needling public figures --- as cartoonist Josh Beutel learned when he was sued by controversial New Brunswick school teacher Malcolm Ross. Ever wonder why there's so little investigative journalism in Canada? The reason is simple: libel chill.

Stringent libel laws may have made sense five hundred years ago, when British royalty wanted to stop the nobility from dueling by giving them a legal remedy against character slurs. But we don't live in the time of Henry VII any longer. Debate on political issues can't be robust and wide-open if the threat of a libel suit hangs over you.

Today, if someone tries to ruin your reputation, there are many avenues of redress. You can hold a news conference, take out an ad on radio or television, or set up an Internet web site to tell your side of the story. These methods are cheaper than a lawyer's fees and certainly safer than a duel.

It's time for Canadian libel law to be brought in line with 21st century realities. A good first step would be to reverse the burden of proof in lawsuits involving public figures: the plaintiff, not the defendant, must prove the statements in question are false. Furthermore, let's exempt statements of personal opinion or belief, and force the plaintiff to prove that the statements were made with malicious intent.

If we don't act, the likely result is millions of taxpayer dollars going to fund the legal bills of rich politicians who know how to dish out criticism, but can't take it.