Freedom of Expression and Public Participation in Decision-Making

Dixon v Powell River (City), 2009 BCSC 406 (CanLII) (26 March 2009) This case held that the Canadian common law should, wherever possible, be interpreted and developed to accord with the rights in the Canadian Charter of Rights and Freedoms.  Garson J declined to follow earlier defamation case law on the basis that it was inconsistent with the right to freedom of expression.  Her Honour held that a government body cannot sue individuals for defamation when those individuals speak out about the conduct of its governmental functions.

Facts

Three members of the public posted comments online criticizing actions of the Powell River City Council.  The City sent letters to these three objectors, claiming that the criticisms implied that the City was engaging in corrupt processes.  The City threatened to sue the objectors for defamation of its reputation as a municipal government.

John Dixon, secretary of the British Columbia Civil Liberties Association and a resident of the City, sought declaratory relief to the effect that the City, as a government body, does not have the right to sue for defamation of its governing reputation.

The Charter of Rights contains the 'fundamental freedom' of 'thought, belief, opinion and expression'.  Dixon argued that the actions of the City, in making the threat to sue for defamation, infringed the right to freedom of expression.  Previous authorities on point indicated that the City could sue for defamation relating to its governmental functions.

A subsidiary issue was whether Dixon had standing to sue.  The Charter of Rights does not give people standing to sue where the rights of a third party are violated.  Therefore, Dixon argued that his own rights were violated.  He argued that the right to freedom of expression includes not only the right to make statements, but also the right to receive information regarding the conduct of government affairs.  He argued that his right to receive information was curtailed by the defamation threat letters that the City sent to the objectors.

Decision

Garson J held that Dixon, as a ratepayer and voter in the City, had personal standing to sue.  Her Honour found that Dixon's right to receive communications regarding his local government was infringed by the defamation threat letters, and granted declaratory relief accordingly.

Her Honour held that the common law principles of defamation should be interpreted consistently with the Charter of Rights, especially the right to freedom of expression.  Her Honour endorsed the follow statement from R v Salituro [1991] 3 SCR 654:

"Judges can and should adapt the common law to reflect the changing social, moral and economic fabric of the country ... Where the principles underlying a common law rule are out of step with the values enshrined in the Charter, the courts should scrutinize the rule closely.  If it is possible to change the common law rule so as to make it consistent with the Charter values, without upsetting the proper balance between judicial and legislative action that I have referred to above, then the rule ought to be changed."

Pre-Charter authorities indicated that a government body could sue for defamation.  However, Her Honour declined to follow earlier case law on the basis that the common law should be interpreted and applied, wherever possible, within the framework of the Charter of Rights and its right to freedom of speech.  Garson J stated that

"It is evident that the law of defamation and the constitutional law of freedom of speech ought not to develop in two separate streams incorporating different values.  Rather, the two should accommodate each other."

Accordingly, Her Honour held that

"The Charter enshrined value of freedom of expression is paramount and local governments have to resort to other means to protect their reputations from citizens who publish critical commentary about the government itself...  It is antithetical to the notion of freedom of speech and a citizen's rights to criticize his or her government concerning its government functions, that such criticism should be chilled by the threat of a suit of defamation."

Relevance to the Victorian Charter

Using Charter rights to shape the common law

The Canadian Charter of Rights does not expressly provide that case law should be interpreted in accord with its rights.  Notwithstanding this, Canadian courts have generally developed case law in line with the Charter of Rights (which is entrenched in the Canadian Constitution).  Given the relatively young age of the Victorian Charter, it remains to be seen whether Victorian courts will be as willing to use Victorian Charter concepts to shape common law rights, particularly given the principles of comity and a unitary common law.  However, the fact that the Victorian Charter is limited in application to public authorities (which do not include courts acting in a judicial capacity) and is legislative rather than constitutional may limit the extent to which the Victorian Charter will shape more general common law rights.

Freedom of expression and defamation

Defamation laws are an express exception to the right to freedom of expression in Victoria.  The right to freedom of expression in the Victorian Charter is subject to an exception for laws necessary to 'respect the rights and reputations of other persons', where 'persons' means human beings.  Therefore, the exception to freedom of expression would not cover laws to protect the reputation of government bodies.  Moreover, according to Victoria's statutory defamation laws, government bodies cannot sue for defamation in relation to governmental or administrative actions.

Right to receive information

In order to establish standing, Dixon argued that the Canadian right to freedom of expression implicitly includes a right to receive information (see above).  The Victorian Charter differs from the Canadian Charter of Rights in that the right to freedom of expression in the Victorian Charter expressly includes the right to receive information.

The decision is available at http://www.canlii.org/en/bc/bcsc/doc/2009/2009bcsc406/2009bcsc406.html.

Helen Conrad is on secondment to the Human Rights Law Resource Centre from Mallesons Stephen Jaques