The Role of the Court in Developing the Canadian Defence of "Responsible Communication on Matters of Public Interest"

Abstract

There has been a clear shift amongst common law jurisdictions away from the traditional common law of defamation and the weight it afforded to protection of reputation. The Canadian Supreme Court in the recent judgment of Grant v Torstar Corp (Grant)1 brought Canada’s defamation law up to date with these developments in other common law jurisdictions through the creation of a new defence entitled “responsible communication on matters of public interest”.2 The defence protects defendants who publish defamatory statements of facts, even if they are false, on matters of public interest where they can prove publication was responsible.3 This essay will primarily examine whether it was properly within the role of the Court in Grant to create the new defence. This requires a wider consideration of how the institutional role of the court should be conceived. The argument will be advanced that the institutional role of the Court can and should be conceived of within a framework which justifies the Court’s creation of the new defence. This analysis takes place in two parts. Firstly, the framework and factors which inform the institutional role of the court are analysed. Secondly, a framework for developing the common law is advanced which conceives of the institutional role of the court in a manner which allows the adoption of the new defence. Finally, the possible impact that this defence could have on the common law of defamation within New Zealand is considered. It is appropriate to provide a brief overview of the facts of Grant and the defence of “responsible communication on matters of public interest” by way of background, before moving on to the focus of this essay.