Newspaper Seeks Ruling On ‘Election Libel’

Category:  Historical reprints
Subject matter:  Newspaper slanders federal election candidate for having presented Pat Walsh at a public meeting on the truth about Communists in the federal government.
SourceThe Montreal Gazette, December 10, 1959

Supreme Court Hears Vote Case

Newspaper Seeks Ruling On ‘Election Libel’

Ottawa.  Dec. 9.—CP—The Toronto Globe and Mail today asked the Supreme Court of Canada to rule that a newspaper criticiz­ing the platform and campaign tactics of a federal election candi­date is not open to damages for libel unless the candidate proves malice.

The daily newspaper, contend­ing that a federal election is an occasion of qualified privilege, asked the court to upset an On­tario Appeal Court judgment last January ordering a new trial for Lawyer John Boland’s suit against The Globe and Mail.

The present appeal is expected to end tomorrow. Globe Counsel C. F. H. Carson, who began his argument today, is expected to conclude tomorrow and be followed by Mr. Boland, who has been arguing his own case through three years of litigation.

Mr. Boland, an Independent Progressive Conservative candidate for Toronto Parkdale in the Federal General Election of June 10, 1957, alleged that a Globe And Mail editorial during the election campaign libelled him and caused a substantial reduc­tion in the number of votes cast for him.  He was defeated.

Launching an action under the Libel and Slander Act of Ontario, Mr. Boland claimed for his lost $200 deposit and for considerable damages as a result of injury to his reputation and character.

In Ontario Supreme Court, Mr. Justice W. F. Spence said that during a federal election in Can­ada a newspaper has a public duty to comment — even critic­ally — on the candidates, their campaigns, platforms or policies.

He ruled that an election is an occasion of qualified privilege, which he explained this way:

“There are occasions upon which, on grounds of public policy and convenience, a person may, without incurring legal liab­ility, make statements about an­other which are defamatory and in fact untrue.

Protected Case

“On such occasions a man, stating what he believes to be the truth about another, is pro­tected in so doing, providing he makes the statement honestly and without any indirect or im­proper motive.

“These occasions are called accasions of qualified privilege, for the protection which the law, on grounds of public policy, af­fords is not absolute but de­pends on the honesty of purpose with which the defamatory statement is made.”

Mr. Justice Spence ruled that The Globe and Mail editorial was published on such an occa­sion, and that Mr. Boland’s case would succeed only if he could prove malice.

When Mr. Boland completed his case, the newspaper called no further evidence.  Instead, Mr. Carson made a plea of qualified privilege and moved for non-suit.  Judge Spence then took the case from the jury, finding that Mr. Boland had submitted no evid­ence of malice.  He dismissed the action.

In Mr. Boland’s subsequent and successful appeal to the On­tario Court of Appeals, Mr. Jus­tice A. M. Lebel wrote the rea­sons for the court’s decision to order a new trial and he dis­agreed with Mr. Justice Spence on several points.

In the first place, be said, to plead a defence of qualified pri­vilege, the defendant must — in order to succeed — establish the facts on which that plea is based.

The privilege would be worth little, Judge Lebel said, if a per­son making a .statement on such an occasion were required to prove that he honestly believed his statement to be true.  In such a case “bona fides” is always presumed.

However, in a case of qualified privilege, this presumption was not irrebuttable as it is in a case of absolute privilege.

Mr Justice Lebel said it would be “most unjust” if the press — or an individual — were allowed the protection of a privi­lege when the evidence at the end of the plaintiff’s case shows that the privilege may have been exceeded.

By this, he explained, he meant a situation where the pub­lication “contains a material statement of fact that has not been proved, and further that there may be good reason to think that it was made without an honest belief in its truth, and hence maliciously.”

He said this was the situation when Mr. Boland closed his case in trial court and The Globe and Mail moved for non-suit.  He said that in his opinion, there was evidence of express malice which should have gone to the jury.

The case concerns a Globe and Mail editorial that appeared four days after Mr. Boland held a public meeting at which be presented Pat Walsh, whom he described as a former under­cover agent for the RCMP.  Part of Mr. Boland’s advertisement for the meeting said:  “Hear the truth about Communists at Ot­tawa.”

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