Common Law Should Evolve to Protect Human Rights and Freedoms

WIC Radio Ltd v Simpson, 2008 SCC 40 (27 June 2008)

The Supreme Court of Canada has again emphasised the importance of the common law evolving in a manner that is consistent with Charter values.

This was a private law defamation case involving a controversial radio talk show host, ‘M’, and a social activist opposed to any positive portrayal of a gay lifestyle, ‘S’.  M publicly likened S to Hitler, the Ku Klux Klan and skinheads and S claimed defamation because she had never advocated violence against homosexuals.  The trial judge dismissed the action on the basis that, while statements complained of in the editorial were defamatory, the defence of fair comment applied and provided a complete defence.

The Supreme Court upheld the trial judge’s finding, and affirmed the importance of protecting freedom of speech as well as respect for others, in light of the Charter.  Justice Binnie held that the law of defamation may require modification to better accommodate the value of freedom of expression and noted that:

There is concern that matters of public interest go unreported because publishers fear the ballooning cost and disruption of defending a defamation action...  Of course ‘chilling’ false and defamatory speech is not a bad thing in itself, but chilling debate on matters of legitimate public interest raises issues of inappropriate censorship and self-censorship.  Public controversy can be a rough trade, and the law needs to accommodate its requirements.

Justice Binnie favourably quoted the following statement of Cory J in Hill v Church of Scientology of Toronto [1995] 2 SCR 1130 regarding the need to develop the common law in accordance with Charter values.

Historically, the common law evolved as a result of the courts making those incremental changes which were necessary in order to make the law comply with current societal values.  The Charter represents a restatement of the fundamental values which guide and shape our democratic society and our legal system.  It follows that it is appropriate for the courts to make such incremental revisions to the common law as may be necessary to have it comply with the values enunciated in the Charter.

The decision is available at

Melanie Schleiger is on secondment to the Human Rights Law Resource Centre from Lander & Rogers