Cherneskey v. Armadale Publishers Ltd.

Cherneskey v. Armadale Publishers Ltd.
Collection
Supreme Court Judgments
Date
1978-11-21
Report
[1979] 1 SCR 1067
Judges
Laskin, Bora; Martland, Ronald; Ritchie, Roland Almon; Spence, Wishart Flett; Pigeon, Louis-Philippe; Dickson, Robert George Brian; Beetz, Jean; Estey, Willard Zebedee; Pratte, Yves
On appeal from
Saskatchewan
Subjects
Torts
Decision Content
SUPREME COURT OF CANADA
Cherneskey v. Armadale Publishers Ltd., [1979] 1 S.C.R. 1067
Date: 1978-11-21
Morris T. Cherneskey (Plaintiff) Appellant; and
Armadale Publishers Limited and Sterling King (Defendants) Respondents.
1977: December 12, 13; 1978: November 21.
Present: Laskin C.J. and Martland, Ritchie, Spence, Pigeon, Dickson, Beetz, Estey and Pratte JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR SASKATCHEWAN
Libel — Defence of fair comment - Words com­plained of published in correspondence column of newspaper — Material found to be defamatory — No evidence that material represented honest opinion of writers of letter — Denial of honest belief by publisher and editor — Whether trial judge erred in taking away from jury defence of fair comment.
As a result of a letter written by two law students and published in the correspondence column of the Sas­katoon Star-Phoenix, the appellant (an alderman and a practising [sic] lawyer in Saskatoon) brought an action for libel against the publisher of the paper and its editor. The writers of the letter were not sued, nor did they appear as witnesses, as both were out of the province at the time of the trial. The letter concerned a petition which was presented to the Saskatoon City Council and which was apparently drafted with the assistance of the appellant. The petition presented on behalf of 54 citizens was directed against the establishment of an alcoholic rehabilitation centre in what was alleged to be a residen­tial section of Saskatoon and the report of its presenta­tion to council as published in The Star-Phoenix referred in particular to Indians and Metis whose use of the centre was alleged to be detrimental to the area.
The only express reference made to the appellant in this report was contained in the last paragraph reading: "Ald. Morris Cherneskey told council he did not think the zoning laws of the area envisioned 15 people living in one place, and until it is fully clarified it should not operate as an alcoholic rehabilitation centre when the citizens of the neighborhood are concerned."
Having read this article, the two law students pro­ceeded to write the letter in question to The Star-Pho­enix. The letter was published in a column headed
[Page 1068]
"Editor's Letter Box" and was itself headed "Racist Attitude". The appellant alleged that the tenor of the letter was such as to charge him with being "racist" and with conduct unbecoming a barrister and solicitor. He claimed that the heading and the letter would tend to lower him in the estimation of right-thinking members of society generally and the citizens of Saskatoon in particular and that the words were defamatory.
The trial judge refused to put to the jury the defence of fair comment on the ground there was no evidence that the words complained of expressed the honest opin­ion of anyone, either the writers of the letter, or any member of the editorial staff of the paper, or its publish­er. The judge was of the view that without such honest opinion he could not tell the jury that the defence of fair comment was available to the defendants. The jury found in favour of the plaintiff and awarded him $25,000 damages. On appeal, the Court of Appeal by a majority allowed the defendants' appeal and ordered a new trial. Pursuant to leave granted by the Court of Appeal, the plaintiff then appealed to this Court.
Held (Spence, Dickson and Estey JJ. dissenting): The appeal should be allowed and the judgment at trial restored.
Per Laskin C.J. and Martland and Beetz JJ.: A defence of fair comment is dependent upon the fact that the words in issue represent an honest expression of the real view of the person making the comment. In the present case the evidence was clear that the letter complained of did not represent the honest expression of the real views of either the owner and publisher of the newspaper or of its editor.
The writers of the letter were not called to give evidence, and so there was no evidence to prove that the letter was an honest expression of their views. The only evidence available was that the editor said, with refer­ence to the writers of the letter, "we figured that was their opinion or their view or their observations".
This was not a sufficient basis to enable the respond­ents to rely upon the defence of fair comment. There was no evidence to show that the material published, which the jury found to be defamatory, represented the honest opinion of the writers of the letter, or that of the officers of the newspaper which published it. In these circumstances the trial judge was properly entitled to decide not to put the defence of fair comment to the jury.
Silkin v. Beaverbrook Newspapers Ltd., [1958j 1 W.L.R. 743, referred to.
[Page 1069]
Per Laskin C.J. and Ritchie, Pigeon and Pratte JJ.: It is an essential ingredient to the defence of fair comment that it must be the honest expression of the writer's opinion, and each publisher in relying on the defence of fair comment is in exactly the same position as the original writer. Accordingly, in the absence of any proof of the honest belief of the writers of the letter com­plained of in this case, and having regard to the denial of honest belief by the defendants themselves, the defence of fair comment cannot prevail.
This does not mean that freedom of the press to publish its views is in any way affected, nor does it mean that a newspaper cannot publish letters expressing views with which it may strongly disagree. Moreover, nothing that was said here should be construed as meaning that a newspaper is in any way restricted in publishing two diametrically opposite views of the opinion and conduct of a public figure. On the contrary, as stated by Brownridge J.A., who dissented in the Court below, "what it does mean is that a newspaper cannot publish a libellous letter and then disclaim any responsibility by saying that it was published as fair comment on a matter of public interest but it does not represent the honest opinion of the newspaper."
Jones v. Skelton, [1963] 1 W.L.R. 1362; Turner v. Metro-Goldwyn-Mayer Pictures Ltd., [1950] 1 All E.R. 449; Slim v. Daily Telegraph Ltd., [1968] 1 All E.R. 497; Plymouth Mutual Co-operative and Industrial Society Ltd. v. Traders' Publishing Association Ltd., [1906] 1 K.B. 403; Lyon & Lyon v. Daily Tele­graph Ltd., [1943] 2 All E.R. 316; Egger v. Viscount Chelmsford, [1965] 1 Q.B. 248, considered; "Truth" (N.Z.) Ltd. v. Holloway, [1960] 1 W.L.R. 997; Arnold v. King-Emperor (1914), 83 L.J.P.C. 299, applied; Globe and Mail Ltd. v. Boland, [1960] S.C.R. 203, referred to.
Per Spence, Dickson and Estey JJ., dissenting: A defendant should succeed on a defence of fair comment if he shows that the comment was objectively fair and the plaintiff does not establish malice on the part of this individual defendant. These principles of law apply alike to all defendants; no wider or different rule is necessary for newspapers. On the facts of the present case, in light of the enunciated principles, the trial judge should have left the issue of fair comment to the jury.
Lyon and Lyon v. Daily Telegraph Ltd., [1943] 2 All E.R. 316; Slim v. Daily Telegraph Ltd., [1968] 1 All E.R. 497, considered; Sim v. Stretch (1936), 52 T.L.R. 669; O'Brien v. Clement (1846), 15 M. & W. 435; Merivale v. Carson (1887), 20 Q.B.D. 275; Thomas v. Bradbury, Agnew & Co. (1906), 75 L.J.K.B. 726;
[Page 1070]
Turner v. Metro-Goldwyn-Mayer Pictures Ltd., [1950] 1 All E.R. 449; Adams v. Sunday Pictorial Newspapers (1920) Ltd. and Champion, [1951] 1 K.B. 354; Lyle-Samuel v. Odhams Ltd., [1920] 1 K.B. 135; Hennessy v. Wright (1888), 4 T.L.R. 574; Silkin v. Beaverbrook Newspapers Ltd., [1958] 2 All E.R. 516; Bulletin Co. Ltd. v. Sheppard (1917), 55 S.C.R. 454; Winnipeg Steel Granary and Culvert Co. v. Canada Ingot Iron Culvert Co. (1912), 3 W.W.R. 356, Stopes v. Sutherland, [1925] A.C. 47; Egger v. Viscount Chelmsford, [1965] 1 Q.B. 248, referred to.
As to whether the statements were reasonably capable of being construed as comment, a statement that a person's attitude is "racist" or "unbecoming" is clearly capable of being classified as comment rather than fact. Certain facts forming the foundation of this opinion are of course implied but, where the main thrust of the statement is capable of being construed as opinion, it is up to the jury to determine just what is actually opinion.
With respect to the question whether the statements were capable of defaming the appellant directly, and by innuendo, in his capacity as a lawyer, the issue of law is whether the statement is capable of this construction, as it is a question for the jury whether in fact it is. This question was properly put to the jury. Everyone who is an alderman has another occupation. The fact that a statement says that he should carry these qualities into his public duties does not suddenly rob the statement of its quality of being in a matter of public interest. The fact that a statement about a person's work as a public official, or his position on a public matter, reflects on himself as a private individual does not mean that the statement is not one on a matter of public interest. Such statements will generally reflect on the individual in several aspects. Even if the statement defamed the appellant by innuendo, the respondents still have a defence if the statement was fair comment on a matter of public interest.
As to whether the statements were on a matter of public interest so as to be capable of protection as being fair comment, the statements in question concerned the appellant's opposition as an alderman to the establishment of an alcohol centre for native people. It stated that certain aspects of the position he took were incor­rect interpretations of the operation of zoning legisla­tion, particularly with respect to the onus of proof that the existing use is permitted or forbidden. In effect, it stated that his position was inconsistent with that which a person with legal training should, in the opinion of the writers, take toward this issue. The important point is
[Page 1071]
that the statement was a comment on the proposed alcohol centre. This is a matter of undoubted public interest, whether the statement is that the plaintiff should not be making certain remarks as a lawyer, priest, or whatever. The question of whether a comment is one on a matter of public interest must be clearly distinguished from the question of whether it is defama­tory. The statement here may well be defamatory (again a question for the jury) but, even if it is defamatory, it is not actionable if the person publishing the statement has a good defence such as fair comment.
APPEAL from a judgment of the Court of Appeal for Saskatchewan[1], allowing an appeal from a judgment rendered at trial by MacPherson J. sitting with a jury and ordering a new trial of an action for libel brought by the appellant against the respondents. Appeal allowed, Spence, Dickson and Estey JJ. dissenting.
D. E. Gauley, Q.C., and P. Foley, for the plaintiff, appellant.
R. H. McKercher, Q. C., and N. G. Gabrielson, for the defendants, respondents.
The Chief Justice and Beetz J. concurred with the judgment delivered by
MARTLAND J.—The facts which give rise to the present appeal are stated in the reasons of my brothers Ritchie and Dickson. I agree with the disposition of the appeal proposed by the former. I wish to comment on one of the grounds which he adopts for allowing the appeal which I consider to be sufficient to dispose of the matter.
The issue before this Court is as to whether the judge at trial erred in taking away from the jury the defence of fair comment. Before doing so, the trial judge discussed the matter with counsel and stated his reasons for taking this course. They are as follows, and I agree with them:
It is, of course, the burden of the defendant to prove this defence and it does not arise until after the jury has found the words complained of to apply to the plaintiff and that they are defamatory of him.
[Page 1072]
I shall not try to decide whether if the opinion of the writers of the letter is honest and sincere that this fact absolves the publisher or the editor of the paper from a similar opinion. In the present trial that is not necessary because here there is no evidence that the offending words, if they are in fact defamatory of the plaintiff, which is a matter for the jury—there is no evidence that those words express the honest opinion of anyone, either the writers of the letter or of anyone on the editorial staff of the Star—Phoenix or its publisher. The evidence seems to be that the defendants had a contrary opinion or none at all. Without such honest opinion I cannot tell the jury that the defence of fair comment is available to the defendant.
I thought I had better put that on the record, gentlemen, so that my position is clear and the reason for my ruling is clear.
The reason for the existence of the defence of fair comment in a suit for defamation, and the nature of that defence, are stated in Salmond on Torts, 17th ed., p. 180, as follows:
A fair comment on a matter which is of public interest or is submitted to public criticism is not actionable. This right is one of the aspects of the fundamental principle of freedom of expression, and the courts are zealous to preserve it unimpaired. It must not be whit­tled down by legal refinements. The jury are the guard­ians of the freedom of public comment as well as of private character. It is only on the strongest grounds that a court will set aside a verdict for a defendant when fair comment is pleaded.
Comment or criticism must be carefully distinguished from a statement of fact. The former is not actionable if it relates to a matter which is of public interest; the latter is actionable, even though the facts so stated would, if true, have possessed the greatest public interest and importance. Comment or criticism is essentially a statement of opinion as to the estimate to be formed of a man's writings or actions. Being therefore a mere matter of opinion, and so incapable of definite proof, he who expresses it is not called upon by the law to justify it as being true, but is allowed to express it, even though others disagree with it, provided that it is honest.
Freedom to express an opinion on a matter of public interest is protected, but such protection is afforded only when the opinion represents the honest expression of the view of the person who
[Page 1073]
expresses it. This requirement is stated in the passage quoted above. Gatley on Libel and Slan­der, 7th ed., p. 308, says:
Comment must be published honestly in that it is the expression of the defendant's real opinion.
A clear statement of the nature of the defence of fair comment is found in the summing up to the jury of Diplock J., (as he then was) in the case of Silkin v. Beaverbrook Newspapers Ltd.[2], at p. 747:
I have been referring, and counsel in their speeches to you have been referring, to fair comment, because that is the technical name which is given to this defence, or, as I should prefer to say, which is given to the right of every citizen to comment on matters of public interest. But the expression "fair comment" is a little misleading. It may give you the impression that you, the jury, have to decide whether you agree with the comment, whether you think it is fair. If that were the question you had to decide, you realize that the limits of freedom which the law allows would be greatly curtailed. People are entitled to hold and to express freely on matters of public interest strong views, views which some of you, or indeed all of you, may think are exaggerated, obstinate or prejudiced, provided—and this is the important thing—that they are views which they honestly hold. The basis of our public life is that the crank, the enthusiast, may say what he honestly thinks just as much as the reasonable man or woman who sits on a jury, and it would be a sad day for freedom of speech in this country if a jury were to apply the test of whether it agrees with the comment instead of applying the true test: was this an opinion, however exaggerated, obstinate or prejudiced, which was honestly held by the writer?
My brother Ritchie has referred to other authorities which are to the same effect, namely, that a defence of fair comment is dependent upon the fact that the words in issue represent an honest expression of the real view of the person making the comment.
In the present case, the corporate defendant is the owner and publisher of The Star-Phoenix, a Saskatoon newspaper in which the words com­plained of were published, and the respondent,
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King, is the editor of that newspaper. The evidence of the officer produced for examination for discov­ery by the respondent company, and that of the respondent, King, make it clear that the letter complained of did not represent the honest expres­sion of their real views.
The writers of the letter were not called to give evidence, and so there is no evidence to prove that the letter was an honest expression of their views. The only evidence we have is that the respondent, King, said, with reference to the writers of the letter, "we figured that was their opinion or their view or their observations".
This is not a sufficient basis to enable the respondents to rely upon the defence of fair com­ment. There is no evidence to show that the ma­terial published, which the jury found to be de­famatory, represented the honest opinion of the writers of the letter, or that of the officers of the newspaper which published it. In these circum­stances the trial judge was properly entitled to decide not to put the defence of fair comment to the jury.
The Chief Justice and Pigeon and Pratte JJ. concurred with the judgment delivered by
RITCHIE J.—This is an appeal brought pursuant to leave granted by the Court of Appeal of Sas­katchewan from a judgment of that Court setting aside a judgment rendered at trial by Mr. Justice MacPherson sitting with a jury and ordering a new trial of this libel action which was brought by the appellant, a practising lawyer and alderman of the Saskatoon City Council, as a result of a letter published in the correspondence column of The Star-Phoenix a newspaper published in Saskatoon, of which the respondent, Armadale Publishers Limited (hereinafter referred to as "Armadale") is the owner and publisher and the respondent Sterl­ing King is the editor.
The facts giving rise to this litigation are accu­rately and fully stated in the dissenting judgment of Mr. Justice Brownridge in the Court of Appeal which is now conveniently reported at 79 D.L.R. (3d) 180 (hereinafter referred to as the "Report"), at pp. 183 et seq., but in order to fully understand
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the questions to which this appeal gives rise it will be necessary for me to summarize them briefly.
The alleged libel of which the appellant com­plains is contained in a letter written to The Star-Phoenix by two law students concerning a petition which was presented to the Saskatoon City Council and which was apparently drafted with the assistance of the appellant. The petition presented on behalf of fifty-four citizens was directed against the establishment of an Alcoholic Rehabilitation Centre in what was alleged to be a residential section of Saskatoon and the report of its presentation to Council as published in The Star-Phoenix referred in particular to Indians and Metis whose use of the centre was alleged to be detrimental to the area. In this regard Mr. Yawor­ski, who presented the petition, was reported as saying that the establishment of the centre was going to turn the area into "an Indian and Metis ghetto".
The only express reference made to the appel­lant in this report was contained in the last paragraph reading:
Ald. Morris Cherneskey told council he did not think the zoning laws of the area envisioned 15 people living in one place, and until it is fully clarified it should not operate as an alcoholic [sic] rehabilitation centre when the citizens of the neighborhood are concerned.
Having read this article, the two law students proceeded to write a letter to The Star-Phoenix which was published in a column headed "Editor's Letter Box" at the foot of which the following statement was printed:
Letter writers are requested to provide addresses and phone numbers to allow checking for authenticity and accuracy. Letters must be signed—no pseudonyms will be published. All are subject to editing for length, general interest, grammar, style and good taste. Letters under 250 words are preferred. (Emphasis added.)
In his charge to the jury, the learned trial judge touched on this phase of the matter saying:
The Star-Phoenix, as the evidence indicates has a right to decline to publish. They chose to publish and they, as
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they indicated, have a right to insist upon their right to edit. That's their privilege naturally.
The letter complained of was itself headed "Racist Attitude" and it is reproduced in full at pp. 183 and 184 of the D.L.R. Report, but the real sting of the language complained of is contained in the last three paragraphs which read:
As a law student and an articling law student, we are appalled by the stance adopted by Alderman Chernes­key, himself a lawyer. We appreciate his sympathy with the concerns of certain members of the white commu­nity; however, we thoroughly disagree with his conten­tion the centre should cease its operation until such time as the application of the relevant zoning bylaw has been clarified. We feel this situation is not unlike that of a man charged with a criminal offence. Such a man is deemed innocent until proven guilty.
That Alderman Cherneskey should imply the onus is upon those operating the centre to establish their right to remain in the neighborhood until further clarification, is abhorrent to all concepts of the law. At the very least, it flies flagrantly in the face of the principles of natural justice. It is unbecoming a member of the legal profes­sion to adopt such an approach.
Although we do not reside in the particular neighborhood in question, we would have no objection whatso­ever to such a centre operating in our neighborhood. We entirely support the project initiated by Clarence Trotchie and hope the racist resistance exhibited will be replaced by the support and encouragement which the project deserves.
In the course of his reasons for judgment in the Court of Appeal, Mr. Justice Brownridge points out that:
Prior to the trial the defendants sought leave to join as third parties the two authors of the offending Ietter but this application was refused on appeal:...At the trial it was agreed by counsel that both letter writers were out of the jurisdiction and neither was called as a witness. (Emphasis added.)
By his statement of claim the appellant claimed damages for defamation of his personal character in relation to his profession and in his office as an
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alderman and by para. 8 made the following gen­eral claim:
The plaintiff further says that the said heading and letter as a whole would tend to lower the plaintiff in the estimation of right-thinking members of society general­ly and the citizens of Saskatoon in particular and that the words are defamatory.
By their joint defence the defendants pleaded;
8. In so far as the said letter, exclusive of the said heading, set out in paragraph 3 of the Statement of Claim consists of statements of fact they are true in substance and in fact and in so far as the said words consist of expressions of opinion, they are fair and bona fide comment made without malice upon the said facts which are a matter of public interest.
9. The publication of the said letter was an occasion of qualified privilege.
The plaintiff's reply is phrased in the following terms:
REPLY
In answer to the Defendant's Statement of Defence wherein they plead fair comment and qualified privilege, which is not admitted but denied, the Plaintiff says that the heading and the letter were published with express malice and joins issue.
The questions put to the jury by the learned trial judge and their answers are as follows:
1. Would a reasonably minded reader imply that the words 'racist attitude' in the heading over the letter refer to the plaintiff?
Answer: No.
2. If your answer to question number 1 is yes, then are those words defamatory?
Answer: Not applicable.
3. Would a reasonably minded reader imply that the words `racist resistance' in the last sentence of the letter refer to the plaintiff?
Answer: Yes.
4. If your answer to number 3 is yes, then are those words defamatory?
Answer: Yes.
5. Do the words in the fourth and fifth paragraphs of the letter directly or by innuendo defame the plaintiff as Alderman?
Answer: Yes.
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6. Do the words in the fourth and fifth paragraphs of the letter directly or by innuendo defame the plaintiff as a lawyer?
Answer: Yes.
7. If you have answered yes to questions 2, 4, 5 and 6 or any one or more of them, what damages do you award the plaintiff?
Answer: $25,000. & costs.
I think it convenient at this stage to say that I am in agreement with Mr. Justice Brownridge, for the reasons which he has stated at p. 187 of the Report, that the defence of qualified privilege is not available to the defendants in the present case. This view was adopted by Mr. Justice Bayda who observed at p. 196:
I have read the reasons for judgment of my brother Brownridge, and respectfully agree that for reasons similar to those expressed by the Supreme Court of Canada, in Douglas v. Tucker, [1952] 1 D.L.R. 657, [1952] 1 S.C.R. 275; Globe and Mail Ltd. v. Boland (1960), 22 D.L.R. (2d) 277, [1960] S.C.R. 203, and Jones v. Bennett (1968), 2 D.L.R. (3d) 291, [1969] S.C.R. 277, 66 W.W.R. 419, the defence of qualified privilege is not available to the defendants in the present case. I also agree with the conclusions reached by him in respect of the other grounds of appeal, save the ground involving the plea of fair comment. In that regard, I have reached the opposite conclusion, namely, that the learned trial Judge should not have taken away from the jury the defence of fair comment.
Mr. Justice Brownridge found no merit in "the other grounds of appeal" and Mr. Justice Hall stated at the opening of his reasons for judgment:
The significant ground of appeal is that which alleges error by the trial Judge in refusing to put to the jury the defence of fair comment.
It is thus apparent that all members of the Court of Appeal were concerned only with the complaint that the trial judge had erred in taking the defence of fair comment away from the jury and this was the main issue presented in this Court.
In the present case the plaintiff's (appellant's) plea that the words used in the letter are defama­tory is couched in language which has long been accepted as giving rise, upon publication, to an
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action for defamation by the person to whom it refers. In this regard I refer to the following excerpt from Gatley on Libel and Slander, 7th ed, p. 5, para. 4, where he said:
Any imputation which may tend to lower the plaintiff in the estimation of right-thinking members of society generally or to expose him to hatred, contempt or ridi­cule is defamatory of him.
This language was in large measure adopted by the trial judge in addressing the jury.
Accordingly, as I agree with the trial judge that the words used are capable of being construed as tending to lower the plaintiff in the estimation of right-thinking members of society generally, a prima facie cause of action arises and in my view a plea of fair comment by way of defence does not of itself have the effect of saddling the plaintiff with the burden of proving that the comment was unfair. This plea constitutes a vital part of the case for the defendants and in my view the burden of proving each ingredient of the defence so pleaded should rest upon the party asserting it. One of these ingredients is that the person writing the material complained of must be shown to have had an honest belief in the opinions expressed and it will be seen that, in my view, the same consider­ations apply to each publisher of that material.
The question of burden of proof in such cases was considered by Lord Morris of Borth-y-Gest in Jones v. Skelton[3], at p. 1379 where he said:
... if a defendant publishes of a plaintiff words which a jury might on the one hand hold to be fact or might on the other hand hold to be comment, and if a plaintiff does not accept that any of the words are true or does not accept that any of them are comment and if a defendant chooses to assert that some of the words are fair comment (made in good faith and without malice) on facts truly stated it must (assuming that the judge rules in regard to the public interest) be for the defendant to prove that which he asserts. If a plaintiff does not acknowledge that there are any words of comment and if the words are reasonably capable of being held by a jury to be statements of fact the plaintiffs overall burden of proving his case does not involve a duty of proving that comment (the existence of which he denies) is unfair.
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In commenting on this statement, Mr. Justice Bayda observed at p. 200 of the D.L.R. Report:
It is plain from these remarks (which I adopt as a correct statement of the law) that where the pleadings, as in the present case, disclose that the plaintiff does not acknowledge the words complained of are comments or opinions, but the defendants, in their pleadings, raise the issue of comment and of fairness of the comment, the onus is on the defendants to prove fair comment. The normal principle that he who asserts, must prove, applies. In such event (assuming the words complained of are capable of being a comment and further assuming that condition (b) mentioned above is not applicable as is the situation here), it is for the Judge to determine, as a matter of law, (1) whether there is any evidence of condition (a), that is, any evidence entitling the jury to find that the statements upon which the comments are based are true; and (2) whether there is any evidence of condition (c), viz., the requirement of honesty. If he finds there is some evidence to support the finding that those conditions are met, he must place the defence of fair comment before the jury for their consideration (assuming that he has previously ruled that the element of public interest was proved). If, on the other hand, the trial Judge finds as a matter of law, that there is no evidence to support the presence of either of these two conditions, he should not put the defence of fair com­ment to the jury.
In cases where the essential ingredients of either the plea of "qualified privilege" or that of "fair comment have been established by the defence, then if it can be proved that the statements com­plained of were made or written maliciously, the plea must fail; but in my view no burden lies upon the complainant to prove malice unless and until either plea has been shown to be supported by the evidence.
Here the plea of "express malice" was added midway through the evidence called on behalf of the plaintiff (appellant) and it is in my view important to appreciate that this allegation forms no part of the main case but is inserted entirely by way of answer to the respondents' claim of "quali­fied privilege" and "fair comment". As I have indicated, the defence of qualified privilege is not available to the defendants and the question of malice could only arise in the present case if there were some evidence to indicate that the comment complained of was otherwise fair and this cannot
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be said unless the opinions expressed are honestly held.
As I have already observed, it is an essential ingredient to the defence of fair comment that it must be the honest expression of the writer's opin­ion and in this regard I refer to the following statement made by Lord Porter in Turner v. Met­ro-Goldwyn-Mayer Pictures Ltd.[4] at p. 462, where he said, commenting on the charge to the jury in that case where the defence was qualified privilege:
Its early words on this part of the case express exactly what the authorities convey. "Fair comment" (in effect the learned judge says) "has to be an honest expression of the real opinion of the defendants when they wrote it ..." "Did they honestly and really think that she" (the appellant) "was completely out of touch with the tastes and entertainment requirements of the picture-going millions who are also radio listeners and that her criticisms are on the whole unnecessarily harmful to the film industry? Did they honestly hold that opinion and really believe it? If they did—then they were not abus­ing the occasion." Such a direction is, I think, entirely accurate and could not be attacked, and similar lan­guage is to be found in other parts of the summing-up. On the other hand, language of this kind is frequently interspersed with words which suggest that the criterion is whether fair-minded men could hold that view. Let me take one example only. It runs:
"First of all ... do you think that a fair-minded man capable of impartial judgment of the plaintiff's (appellant's) talks ... could come to that conclusion. Was there anything in them or in her conduct which would lead a fair man honestly to entertain the opin­ion that the defendants expressed in this letter?"
Similar observations appear throughout the summing-up and, undoubtedly, if they were found alone there would have been clear misdirection. It is said, however, in the first place, that, in his cross-examination and address, leading counsel for the respondents used the phrase and accepted the burden that fair-mindedness was required. I do not think that the record justifies this allegation, but if it did I should think it immaterial. Secondly, it is argued with more force that, when the summing-up is regarded as a whole, a jury would not be misled, but would rightly apprehend that honesty, not reasonableness,
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was the state of mind required. My Lords, I cannot take this view. I have read the summing-up as a whole more than once and I think a jury might well have come to the conclusion that both honesty and reasonableness were necessary and that the defendants were unreasonable and therefore malicious. It is, I think, difficult for the uninstructed mind to guard against such a miscon­ception, and to my mind the clearest direction is neces­sary to the effect that irrationality, stupidity or obstina­cy do not constitute malice, though in an extreme case they may be some evidence of it. The defendant, indeed, must honestly hold the opinion he expresses but no more is required of him.
In the same case Lord Oaksey stated at p. 475:
In the absence of any evidence that the respondents did not honestly hold the opinions expressed in their letter, I see no grounds on which they could be held to have exceeded the limits of fair comment.
After having heard lengthy argument as to whether or not this defence should be left to the jury in the present case, the trial judge made the following ruling:
I shall not try to decide whether if the opinion of the writers of the letter is honest and sincere that this fact absolves the publisher or the editor of the paper from a similar opinion. In the present trial that is not necessary because here there is no evidence that the offending words, if they are in fact defamatory of the plaintiff, which is a matter for the jury—there is no evidence that those words express the honest opinion of anyone, either the writers of the letter or of anyone on the editorial staff of the Star-Phoenix or its publisher. The evidence seems to be that the defendants had a contrary opinion or none at all. Without such honest opinion I cannot tell the jury that the defence of fair comment is available to the defendant.
Honesty of belief has been characterized by Lord Denning M.R., in Slim et al. v. Daily Tele­graph Ltd. et al.[5], at p. 503, as "the cardinal test" of the defence of fair comment, and in the context of the present case this must mean honesty of belief in the opinions expressed in the letter com­plained of.
It has long been established that the state of mind of the publisher of the alleged libel is directly in issue where there is a plea of fair comment. This
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is illustrated in the case of Plymouth Mutual Co-operative and Industrial Society Ltd. v. Trad­ers' Publishing Association Ltd.[6], where the ques­tion was whether an interrogatory addressed to the state of mind of the defendant who had pleaded fair comment was admissible and after referring to the case of White & Co. v. Credit Reform Asso­ciation and Credit Index Ltd.[7], Vaughan Williams L.J. said, at p. 413:
It seems to me that that case shews that an interrogato­ry of this kind is just as relevant and admissible in a case where the defence is fair comment as in one where it is privilege. In either case the question raised is really as to the state of mind of the defendant when he published the alleged libel, the question being in the one case whether he published it in the spirit of malice, in the other whether he published it in the spirit of unfairness. In either case, I think such an interrogatory as the one now in question is admissible.
And later at p. 418 of the same report Fletcher-Moulton L.J. said:
... I am clear that, both in cases in which the defence of privilege and in those in which the defence of fair comment is set up, the state of mind of the defendant when he published the alleged libel is a matter directly in issue .. .
Perhaps the most singular feature of the present case is that the state of mind of the defendants is established by their own evidence to the effect that they did not honestly hold the opinions expressed in the letter. This is illustrated by the following excerpt from the evidence of the defendants in relation to the comments complained of. Mr. R. Struthers, who was the executive vice-president of the defendant, Armadale, stated in the course of cross-examination as follows:
Q. But of course there is no question but what you do not believe Morris Cherneskey to be a racist?
A. No, I do not.
Q. You do not believe Morris Cherneskey to be a person with a racist attitude?
A. I do not believe him to be so.
Q. And in any capacity, as a lawyer, you don't believe him to be a lawyer with a racist attitude?
A. No.
Q. Or an alderman with a racist attitude?
A. No.
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The same witness had given the same answers when speaking as the officer examined for discov­ery on behalf of the defendant, Armadale.
The second defendant, Sterling King, who was the editor of The Star-Phoenix, stated that he had no opinion as to the approach of Cherneskey in relation to the white community in the area in question but it was his honest opinion that Cher­neskey had a reputation for honesty and integrity as a lawyer and an alderman.
It will be remembered that Mr. Justice Bayda adopted the passage from the reasons for judgment of Lord Morris of Borth-y-Gest in Jones v. Skel­ton which I have already quoted and the reasons for judgment of Mr. Justice Brownridge and Mr. Justice Bayda both satisfy me that if the writers of the letter here in question had been the defendants in this action and had entered a plea of fair comment, both these judges would have found that the burden of proving honest belief in the opinions expressed rested upon the defence.
Mr. Justice Bayda, however, allowed this appeal on the ground that a newsp