Date: 19971028 Docket: 93 4277 Registry: Victoria IN THE SUPREME COURT OF BRITISH COLUMBIA BETWEEN: CLAUS PRESSLER and EILEEN PRESSLER PLAINTIFF AND: DAVID LETHBRIDGE, WESTCOM TV GROUP LTD., DEFENDANT REASONS FOR JUDGMENT OF THE HONOURABLE MR. JUSTICE OWEN-FLOOD Counsel for the Plaintiff: Douglas H. Christie Counsel for the Defendant CHBC: Daniel W. Burnett Counsel for the Defendant Lethbridge Irvine E. Epstein, Q.C. Place and Date of Hearing: Victoria, B.C. October 3, 1997 I. BACKGROUND [1] The plaintiffs, Eileen and Klaus Pressler (the "Presslers") sue the defendants, David Lethbridge ("Lethbridge") and Westcom TV Group Ltd. ("Westcom"), for defamation. The defamation is alleged to have occurred in a television program broadcast on and between October 11 and 25, 1993, by the corporate defendant and containing statements made by the individual defendant who was interviewed in the program. [2] The case against Kevin Evans and the Canadian Broadcasting Corporation has been discontinued. [3] In their amended statement of claim, the plaintiffs allege at paragraph 12 that the broadcast depicted them: by innuendo, as dangerous, militant, criminal or borderline criminal, violent persons. It implied by innuendo that the Plaintiffs were involved with underground 'bunkers, telecommunicators, para military training, and created an identification with Waco, Texas, and other horrendous activities. Further, that the Plaintiffs and each of them were dishonest and had some evil purpose or intention, which was not true or lawful in that they were deceiving the municipal officials as to the purpose of their new home currently under construction in the Salmon Arm area. [4] In paragraph 16 of the amended statement of claim, the plaintiffs set out particulars of the defamatory innuendo. They allege that by referring to the Plaintiffs as "being hate groups", the defendants implied criminal activity on the part of the plaintiffs. Further, the plaintiffs allege that the innuendos made in the program imply that "the stories are worse than can be repeated". The plaintiffs further take issue with the alleged stated intention of the defendant Lethbridge to accuse the plaintiffs privately and "repeat rumours as rumours". [5] In paragraph 19 of the amended statement of claim, the plaintiffs further allege: ... the Defendants, and each of them, conspired one with the other, or others, to arrange false rumours, innuendo and other falsehoods, both by words and the juxtaposition of pictures and images to create a false impression in a deliberate, malicious fabricated news broadcast which they intended to use to discredit, defame, and incite hatred against the Plaintiffs. [6] In paragraph 20 of the amended statement of claim, the plaintiffs allege that the defendant Westcom deliberately constructed the program to imply criminal activity and character to the plaintiffs. [7] Paragraph 21 of the amended statement of claim imputes malice to the defendant Lethbridge by alleging that, through boycotts of the plaintiffs' business, he intended to "cause the destruction" of that business. [8] The defendants deny that the alleged, or any, defamatory meanings arise from the words complained of by the plaintiffs. In the alternative, the defendants deny that the words complained of are false and deny that they were negligent or malicious or otherwise at fault. They further claim that the words complained of caused no damage to either of the plaintiffs. The defendants specifically deny that the broadcast or anything in it meant, or was capable of being understood to mean, that the plaintiffs were being depicted in the manner they allege, namely, as "dangerous, militant, criminal or borderline criminal, violent persons". They deny that the program implied the plaintiffs were involved with "bunkers, telecommunicators, para military training" or identified with "Waco, Texas, and other horrendous activities". The defendants plead that the words complained of were fair and bona fide comments upon a matter of public interest, namely political ideologies, racism and hate, published without malice. [9] As an alternative defence, the defendants argue that the words complained of were published on an occasion of qualified privilege, by reason of the political or public interest in the subject matter of the news story, together with the plaintiffs' own invitation to engage in public discussion of their views by their own publications and conferences. The corporate defendant further pleads a duty under the Broadcasting Act and as member of the news media to ventilate public issues and foster discussion of public matters. In support of the public interest aspect of qualified privilege, the corporate defendant refers to the Council on Public Affairs ("C.P.A.") Newsletter. The C.P.A. Newsletter is published by the Council on Public Affairs, an organization in which the plaintiffs are purportedly involved. The newsletter expresses the alleged views of the plaintiffs and solicits financial support for individuals accused of "hateful speech". II. THE PRE-TRIAL MOTION [10] The defendants, and each of them, seek an order revising the common law of defamation so that this law may comply with the values mandated under the Canadian Charter of Rights and Freedoms. Specifically, the defendants contend that each of the following principles of defamation law are in violation of Charter values: 1. The defendant is required to establish that the words complained of are true in substance and in fact; 2. The defendant is presumed to be at fault once it is established that the words complained of are in fact true; 3. Damages are presumed once defamation is established. The defendants urge that in order to conform with Charter values the common law of defamation should require the plaintiffs to prove that the defendant was at fault through acting maliciously, or alternatively, negligently in publishing the words complained of. The defendants also submit that Charter values mandate that the onus of proof be shifted from the defendant to the plaintiff, who should bear the onus of proving that the words complained of were false. Lastly, the defendant would have the court require proof of actual damage to reputation be established on the evidence. [11] The defendants further seek an extension of the defence of qualified privilege to include public discussion of matters of political or public importance. III. SECTION 52 CHARTER VALUES AND THE COMMON LAW [12] In Manning v. Hill (1995), 126 D.L.R. (4th) 129 Cory J, speaking for the court, wrote at pp.152-153: (2) Section 52: Charter values and the common law (a) interpretating the common law in light of the values underlying the Charter (i) Review of the decisions dealing with the issue This court first considered the application of the Charter to the common law in Dolphin Delivery, supra, [1986], 33 D.L.R. (4th) 174]; ... It was held that, pursuant to s.32(1) of the Charter, a cause of action could only be based upon the Charter when particular government action was impugned. Therefore, the constitutionality of the common law could be scrutinized in those situations where a case involved government action which was authorized or justified on the basis of a common law rule which allegedly infringed a Charter right. However, Dolphin Delivery, supra, also held that the common law could be subjected to Charter scrutiny in the absence of government action. ...In emphasizing that the common law should develop in a manner consistent with Charter principles, a distinction was drawn between private litigants founding a cause of action on the Charter and judges exercising their inherent jurisdiction to develop the common law. At p.198 this was written: Where, however, private party "A" sues private party "B" relying on the common law and where no act of government is relied upon to support the action, the Charter will not apply. I should make it clear, however, that this is a distinct issue from the question whether the judiciary ought to apply and develop the principles of the common law in a manner consistent with the fundamental values enshrined in the Constitution. The answer to this question must be in the affirmative. In this sense, then, the Charter is far from irrelevant to private litigants whose disputes fall to be decided at common law. (Emphasis added.) [13] At pp.153-154, Cory J goes on to endorse the dicta of Iacobucci J, speaking for the court in R. v. Salituro (1991) 6 C.C.C. (3d) 289 at p.301: Judges can and should adapt the common law to reflect the changing social, moral and economic fabric of the country. Judges should not be quick to perpetuate rules whose social foundation has long since disappeared. None the less, there are significant constraints on the power of the judiciary to change the law. As McLachlin J. indicated in Watkins, supra, in a constitutional democracy such as ours it is the legislature and not the courts which has the major responsibility for law reform; and for any changes to the law which may have complex ramifications, however necessary or desirable such changes may be, they should be left to the legislature. The judiciary should confine itself to those incremental changes which are necessary to keep the common law in step with the dynamic and evolving fabric of our society. [14] At p.156 Cory J commended the dicta of Iacobucci J. in R. v. Salituro, supra, where he wrote at p.307: The courts are the custodians of the common law, and it is their duty to see that the common law reflects the emerging needs and values of our society. At pp.156-157 Cory J. wrote: 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. ... Courts have traditionally been cautious regarding the extent to which they will amend the common law. Similarly, they must not go further than is necessary when taking Charter values into account. Far-reaching changes to the common law must be left to the legislature. ... [15] Cory J then set out, at p.157, the framework to be used in a Charter analysis of the common law in a private dispute: ... It must be remembered that the Charter "challenge" in a case involving private litigants does not allege the violation of a Charter right. It addresses a conflict between principles. Therefore, the balancing must be more flexible than the traditional s.1 analysis undertaken in cases involving governmental action cases. Charter values, framed in general terms, should be weighed against the principles which underlie the common law. The Charter values will then provide the guidelines for any modification to the common law which the court feels is necessary. ... ... The party who is alleging that the common law is inconsistent with the charter should bear the onus of proving both that the common law fails to comply with charter values and that, when these values are balanced, the common law should be modified. ... It is up to the party challenging the common law to bear the burden of proving not only that the common law is inconsistent with Charter values but also that its provisions cannot be justified. [Emphasis Added.] IV. THE CONSTITUTIONAL LAW ASPECT [16] The germane provisions of the Charter relating to defamation law are set out in s.2(b), which reads: 2. Everyone has the following fundamental freedoms: ... (b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication; ... [17] In the United Kingdom the constitution is unwritten. It can only be found in common law, statute and Professor A.V. Dicey's constitutional conventions. Thus, in a sense, British libel and slander laws stand free from explicit constitutional limitations apart from potential future interpretations pursuant to Article 10 of the European Convention on Human Rights by the European Court of Human Rights. [18] In Australia s.7 and s.24 of the Australian (Commonwealth) Constitution provide for representative government. From these provisions the Australian courts have implied the right to freedom of communication with respect to discussions about government and political matters (Nationwide News Property Ltd. v. Wills (1992), 108 A.L.R. 681 and Australian Capital Television Property Ltd. v. Commonwealth (1992), 108 A.L.R. 577. In Australia this implied freedom is not limited to communication between the electors and the elected but extends to members of society generally. Political discussion in Australia includes debate about the conduct, policies or fitness for office of candidates, political parties, public bodies and public officers. It also includes discussion of political views and public conduct of persons who are engaged in activities that have become the subject of political debate. [19] In Theophanous v. The Herald and Weekly Times Ltd., (1994), 124 A.L.R. 1 (H.C.), the court found the common law of defamation to be in violation of the implied Australian constitutional freedom of political communication. The court amended the common law of defamation to accommodate that implied constitutional protection. The defendant newspaper published a letter to the editor written by the second defendant questioning the fitness of the plaintiff to hold office as a member of parliament. The letter was published on the eve of a federal election. The plaintiff sued for defamation. In finding for the defendant newspaper, the High Court held, per Mason C.J., Toohey and Gaudron JJ at p.2: (ix) The common law defences which protect the reputation of persons who are the subject of defamatory publications do so at the price of significantly inhibiting free communication. To that extent, the balance is tilted too far against free communication and the need to protect the efficacious working of representative democracy and government in favour of the protection of individual reputation. ... (xii) If a defendant publishes false and defamatory material about a plaintiff, the defendant should be liable in damages unless it can establish that it was unaware of the falsity, that it did not publish recklessly, that is, not caring whether the matter was true or false, and that the publication was reasonable in the circumstances. To establish reasonableness the defendant must either show that it took some steps to check the accuracy of the impugned material or show that it was otherwise justified in publishing without taking such steps or steps which were adequate. (xiii) This test does not require the determination of the truth or falsity of the defamatory imputation as to do so would run counter to the freedom of communication implied by the constitution and the purpose it seeks to serve. ... [Emphasis added.] [20] Thus, in effect, the Australian court ruled that in the context of political discussion, a publication will not constitute defamation if the defendant establishes: (a) that it was unaware of the falsity of the material published; (b) it did not publish the material recklessly, that is, not caring whether the material was true or false; and (c) the publication was reasonable in the circumstances. [21] The Australian High Court left the onus on the defendant to establish each of these three elements in order to escape liability for the publication of otherwise defamatory material. [22] In the case at bar, the defendants propose the court go one step further and place the onus on the plaintiffs to prove that the publication was false and that it was published maliciously or, alternatively, negligently. Further, they seek to extend the defence of qualified privilege to media communication, as the Australian High Court did for a limited purpose in Theophanous, supra. [23] In the United States of America the constitutional position is quite different from that under our Charter. The First Amendment (1791) of the United States Constitution reads, in its germane parts: Congress shall make no law ... abridging the freedom of speech, or of the press; Thus, s.2(b) of the Charter, in referring to "freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication", runs parallel with the First Amendment provision prohibiting laws abridging the freedom of speech or the press. The Canadian provision, however, protects "freedom of expression" rather than "freedom of speech", and refers to "other media of communication" as well. On its face, the Charter provision appears broader than its American counterpart, and Canadian courts have faced challenges in interpreting the section to balance the competing interests in a practical and just manner. [24] The United States Supreme Court case, New York Times Co. v. Sullivan, 376 U.S. 254 (1964), was considered by Cory J. in Manning v. Hill, supra. At p.145 Cory J. wrote of that case: ... There, Brennan J. held that public officials could only collect damages for statements concerning their fitness for office in circumstances where they could demonstrate that the defamatory statement was made "with knowledge that it was false or with reckless disregard of whether it was false or not" (p.280). ... and at p.164: In New York Times Co. v. Sullivan, supra, the United States Supreme Court ruled that the existing common law of defamation violated the guarantee of free speech under the First Amendment of the Constitution. It held that the citizen's right to criticize government officials is of such tremendous importance a democratic society that it can only be accommodated through the tolerance of speech which may eventually be determined to contain falsehoods. The solution adopted was to do away with the common law presumptions of falsity and malice and place the onus on the plaintiff to prove that, at the time the defamatory statements were made, the defendant either knew them to be false or was reckless as to whether they were or not. [25] New York Times Co. v. Sullivan, supra, is the genesis of the defendant's motion. To order what the defendant seeks would signal approval of the approach taken in New York Times v. Sullivan, supra and the subsequent American jurisprudence. The Supreme Court of Canada declined to grant such approval in Manning v. Hill, supra. Cory J. noted at p.158: There can be no doubt that in libel cases the twin values of reputation and freedom of expression will clash ... The real question, however, is whether the common law strikes an appropriate balance between the two. ... (i) Freedom of expression Much has been written of the great importance of free speech. Without this freedom to express ideas and to criticize the operation of institutions and the conduct of individual members of government agencies, democratic forms of government would wither and die: ... ... However, freedom of expression has never been recognized as an absolute right. Duff C.J.C. emphasized this point in Re Alberta Legislation, supra, at p.107 [1938], 2 D.L.R. 81: The right of public discussion is, of course, subject to legal restrictions; those based upon considerations of decency and public order, and others conceived for the protection of various private and public interests with which, for example, the law of defamation and sedition are concerned. In a word, freedom of discussion means ... "freedom governed by law." (Emphasis added.) [26] At p.160, Cory J. went on to comment, apropos of the reputation of the individual: The other value to be balanced in a defamation action is the protection of the reputation of the individual. Although much as very properly been said and written about the importance of freedom of expression, little has been written of the importance of reputation. Yet, to most people, their good reputation is to be cherished above all. A good reputation is closely related to the innate worthiness and dignity of the individual. It is an attribute that must, just as much as freedom of expression, be protected by society's laws. In order to undertake the balancing required by this case, something must be said about the value of reputation. ... False allegations can so very quickly and completely destroy a good reputation. A reputation tarnished by libel can seldom regain its former lustre. A democratic society, therefore, has an interest in ensuring that its members can enjoy and protect their good reputation so long as it is merited. ... [27] At pp.163-164 Cory J. considered the value of reputation in the context of the Charter: Although it is not specifically mentioned in the Charter, the good reputation of the individual represents and reflects the innate dignity of the individual, a concept which underlies all the Charter rights. It follows that the protection of the good reputation of an individual is of fundamental importance to our democratic society. ... ... The protection of a person's reputation is indeed worthy of protection in our democratic society and must be carefully balanced against the equally important right of freedom of expression. ... [28] In summary, Cory J. wrote at pp.169-170: (e) Conclusion: Should the law of defamation be modified by incorporating the Sullivan principle? The New York Times Co. v. Sullivan, supra, decision has been criticized by judges and academic writers in the United States and elsewhere. It has not been followed in the United Kingdom or Australia. I can see no reason for adopting it in Canada IN AN ACTION BETWEEN PRIVATE LITIGANTS [emphasis added.] The law of defamation is essentially aimed at the prohibition of the publication of injurious false statements. It is the means by which the individual may protect his or her reputation which may well be the most distinguishing feature of his or her reputation, personality and, perhaps, identity. I simply cannot see that the law of defamation is unduly restrictive or inhibiting. Surely it is not requiring too much of individuals that they ascertain the truth of the allegations they publish. The law of defamation provides for the defences of fair comment and of qualified privilege in appropriate cases. Those who publish statements should assume a reasonable level of responsibility. ... In conclusion, in its application to the parties in this action, the common law of defamation complies with the underlying values of the Charter and there is no need to amend or alter it. ... [29] At bar, the defendants urge that the facts in the case at bar, unlike those in Manning v. Hill, supra, do involve not merely private parties but rather a media defendant, political commentary and public figure plaintiffs. The defendants characterize the plaintiffs as public figures, different from the private litigants to whom Cory J. referred. Thus, urge the defendants, the Supreme Court of Canada in Manning v. Hill have left it open for the common law to be amended in accordance with Charter values where the media, public figures or political commentary are involved. However, Cory J's finding that the American rule should not be adopted in a defamation action between private litigants distinguished such litigants from government actors. He did not suggest that this same distinction applied as between private and public figures. V. QUALIFIED PRIVILEGE [30] The defendants at bar seek to broaden the defence of qualified privilege to shield defamatory statements of public or political importance. In Manning v. Hill, supra at pp.170- 171, Cory J. considered whether the common law defence of qualified privilege should be expanded to comply with Charter values. Cory J. declined to extend the defence of qualified privilege: The legal effect of the defence of qualified privilege is to rebut the inference, which normally arises from the publication of defamatory words, that they were spoken with malice. Where the occasion is shown to be privileged, the bona fides of the defendant is presumed and the defendant is free to publish, with impunity, remarks which may be defamatory and untrue about the plaintiff. However, the privilege is not absolute and can be defeated if the dominant motive for publishing the statement is actual or express malice: see Horrocks v. Lowe, [1975] A.C. 135 (H.L.) at p.149. [31] The defendants offer Theopanous, supra, in support of modifying qualified privilege to include political discussion facilitated by a media defendant. At p.3, the High Court held: (xv) The discussion of political matters is an occasion of qualified privilege irrespective of whether a federal election is about to be called. [32] The High Court went on to consider the impact of the implied constitutional freedom of political communication on qualified privilege, specifically, on the notion of reciprocal interest and duty. At p.25, the court stated: ...The public at large has an interest in the discussion of political matters such that each and every person has an interest, of the kind contemplated by the common law, in communicating his or her views on those matters and each and every person has an interest in receiving information on those matters. ... It follows that the discussion of political matters is an occasion of qualified privilege. ... [33] The question of extending the common law rule of qualified privilege, to protect defamatory statements concerned with matters of public or political importance, was considered by the British Columbia Court of Appeal in Moises v. Canadian Newspaper Co. (1996), 76 B.C.A.C. 263. In that case the plaintiff sued the defendant newspaper for libel in respect of a published article. The trial judge held that the publication was made on an occasion of qualified privilege and dismissed the action, as the public had a legitimate interest in receiving from the newspaper the information, erroneous though it may have been, concerning the plaintiff. The plaintiff appealed. The Court of Appeal allowed the appeal, holding that the defendant newspaper owed no duty to the public strong enough to constitute an occasion of qualified privilege even if the public had a legitimate interest in receiving the information. The court affirmed that the test for the defence of qualified privilege requires a reciprocal duty to make the statement and a corresponding interest in receiving it. Williams J.A. for the court, after reiterating that it is the occasion of publication that is privileged and not the parties, went on to hold, at p.268: THE MERE FACT THAT A PUBLISHER OF DEFAMATORY MATTER IS A NEWSPAPER, AS OPPOSED TO AN INDIVIDUAL, IN NO WAY ALTERS THE INTEREST/DUTY ANALYSIS. [Emphasis added.] In Banks v. Globe and Mail Ltd., [1961] S.C.R. 474, at p.482, Cartwright, J., quoted the following passage from Arnold v. King-Emperor (1914), 30 T.L.R. 462 (P.C.): The freedom of the journalist is an ordinary part of the freedom of the subject, and to whatever lengths the subject in general may go, so also may the journalist, but apart from statute law, his privilege is no other and no higher. The responsibilities which attach to his power in the dissemination of printed matter may, and in the case of a conscientious journalist do, make him more careful; but the range of his assertions, his criticisms, or his comments, is as wide as, and no wider than, that of any other subject. No privilege attaches to his position. Furthermore, as he had done earlier in Globe and Mail Ltd. v. Boland, [1960] S.C.R. 203, Cartwright, J., stated that, although newspapers enjoy the same right as all other citizens to report truthfully and comment fairly upon matters of public interest, that right must not be confused with the sort of duty that gives rise to an occasion of qualified privilege. In Boland, at p.209, he stated that the public interest and the interests of newspapers find adequate protection in the defence of fair comment: The interest of the public and that of the publishers of newspapers will be sufficiently safeguarded by the availability of the defence of fair comment in appropriate circumstances. [34] At p.274 Williams J.A., observed that arguments based on Charter values similar to those in Manning v. Hill, supra, had been recently considered in Chief Provincial Firearms Officer (B.C.) v. Kexco Publishing Co. et al. (1995), 17 B.C.L.R. (3d) 176 where Lambert J.A. said at p.183: I would also reject the argument that the effect of reflecting Charter values in the common law is to extend the common law relating to the defence of qualified privilege to a much wider class of political statements. I do not think that Charter values, properly understood, either demand or encourage that extension. ... So I would not accede to any argument on the substance of the liability issue. Williams J.A. confirmed this result, and I find that the decision in Moises, insofar as the defendants' motion at bar with respect to qualified privilege is concerned, is determinative. I reject the defendants' contention that the law of qualified privilege should be extended as sought. VI. STANDARD OF LIABILITY, ONUS AND PROOF OF DAMAGE [35] I now consider the main thrust of the defendants' submission. They contend that the onus be imposed upon the plaintiff to prove that the words complained of were false, and that the publication was malicious or, alternatively, negligent, and, lastly, that they have suffered damage as a consequence of the defamatory statements. [36] The United States of America Supreme Court in Gertz v. Welch, 41 Ed 2d 789 (1974) held, at p.809: We hold that, so long as they do not impose liability without fault, the States may define for themselves the appropriate standard of liability for a publisher or broadcaster of defamatory falsehood injurious to a private individual. This approach provides a more equitable boundary between the competing concerns involved here. It recognizes the strength of the legitimate state interest in compensating private individuals for wrongful injury to reputation, yet shields the press and broadcast media from the rigors of strict liability for defamation. ... [37] In that case, a private plaintiff was defamed by a media defendant. The court restricted the application of New York Times v. Sullivan, supra and held that the rule formulated in that case did not apply to private individuals involved in a matter of public interest. The court did find for the defendants on the matter of damages in holding that presumed or punitive damages could no longer be awarded against a media defendant without proof of falsity or reckless disregard for the truth. The defendants propose that this court should similarly amend the law of defamation in Canada, to place the burden on the plaintiffs to prove, at a minimum, negligence on the part of media defendants. They propose that as against media defendants defamation actions should not be supportable without a finding of fault. Otherwise, media defendants will be unduly stifled as defamatory statements made by them will be presumed to be false and freedom of speech will be impaired. The defendants characterize the "liability without fault" aspect of our defamation law as a "major flaw" and argue that the tort concept of negligence must be imported into our defamation law to remedy this. [38] In the United States of America a public official or public figure can recover damages for defamation connected to his or her public role only if he or she proves that the statement was made with knowledge that it was false or with reckless disregard as to whether or not it was false and further that it was in fact false. [39] At bar, the defendants urge this court to follow the American jurisprudence and remove the burden on the defendants to prove truth and, instead, require the plaintiffs at bar, described as public figures, to prove falsity. In support of this the defendants rely on the decision of the United States Supreme Court in Philadelphia Newspapers Inc. v. Maurice S. Hepps et al. 475 U.S. 767 (1986). In that case, at p.793, the court ruled: ... [W]e hold the common law presumption that defamatory speech is false cannot stand when a plaintiff seeks damages against a media defendant for speech of public concern. [40] At bar, the defendants argue that this reversal of the presumption should be imported into Canadian jurisprudence in view of the importance of permitting the media foster public debate and dialogue. [41] In furtherance of this contention the defendants cited the cases of Derbyshire C.C. v. Times Newspapers Ltd. (1993), A.C. 534 (H.L.) and Theophanous v. Herald and Weekly Times Ltd., supra. In Derbyshire C.C. v. Times Newspapers Ltd. the plaintiff was a publicly elected council and the comments of Lord Keith of Kinkel were restricted to situations of elected government officials who alleged defamation. The court held that these officials could not sue for defamation. The court acknowledged the important public interest considerations in New York Times v. Sullivan, supra, and the difficulties that can arise in proving truth of published statements. Notwithstanding that, the court did not remove the onus on defendants to prove truth. [42] In Theophanous, supra, as stated above, the court held that the existing laws of defamation inhibited political communication. In particular, the court noted the difficulty of proving truth of allegations against public officials and the potentially dangerous impact that this could have on public criticism of those same officials. However, as I have said, this case is to be distinguished as it dealt with elected government officials and, as well, with the Australian constitutional provisions of implied freedom of communication. [43] In Bank of British Columbia v. C.B.C. (1995), 10 B.C.L.R. (3d) 201 Prowse J.A., for the court, declined to amend the common law of defamation to require the plaintiff bank to prove falsity as against the media defendant. The court held that any significant changes to the common law of defamation would have to be accomplished by the legislature and that the reluctance of Canadian courts to adopt the New York Times v. Sullivan rule was valid and justified. It is true that this decision was made before Manning v. Hill, but I am satisfied that even in the light of Manning v. Hill, it remains good law. I would be in error were I to accede to the defendants' motion to reverse the onus of proof as to falsity and place it upon the plaintiffs. [44] In the United States of America, unless a plaintiff can show that a defamatory falsehood on a matter of public concern was made maliciously, the plaintiff cannot recover presumed or punitive damages against a media defendant, only damages that will compensate for actual injury may be recovered if malice is not established and proof of such damages must be established on the evidence. In cases involving private plaintiffs and non-media defendants, presumed and punitive damages may be awarded in the absence of malice: Dunn & Bradstreet Inc. v. Greenmoss Builders Inc., 472 U.S. 749 (1985). [45] In Canada, once a defamatory libel is established, damages are presumed whether or not a media defendant is involved. This is justified because our courts recognize the difficulty that plaintiffs, both private and public, may have in establishing damage to reputation. [46] At bar, the defendants argue that presumed damage is an unfair restraint on freedom of speech and freedom of the press. In support of this, the defendants cited Gertz v. Welch, supra, and Milkovich v. Lorain Journal, 497 U.S. 1 (1990). [47] In Gertz the court found that the vigorous exercise of First Amendment freedoms could be inhibited by the uncontrolled discretion of juries to award damages where no actual loss occurred. The court supposed that presumed damages, combined with broad discretion, could result in juries punishing popular opinion rather than compensating for loss. [48] In Milkovich the court confirmed that without establishing malice the States could not permit recovery of presumed or punitive damages. In order to recover damages, the plaintiff must establish that the defamatory words can be interpreted as reasonably stating actual facts. Mere "opinion" is not exempted from First Amendment protection. [49] I am not persuaded that the presumption of damages in the law of defamation requires modification in order to comply with Charter values. Presumed damage flowing from defamatory remarks is not an unfair restraint on the media, but rather strikes a proper balance between protection of reputation and freedom of expression. I refer to the reasons of Cory J. in Manning v. Hill, supra, and specifically to his consideration of the important value of good reputation and the difficulties associated with protecting it. VII. CONCLUSION [50] It goes without saying that while the laws and societal values of both Canada and the United States are similar, they are not on all fours. There are differences not only as to law but, even more importantly, as to societal and cultural values. [51] In the Moises case, supra, at p. 274, Williams J.A. quoted, with approbation, R. Brown's The Law of Defamation in Canada (Toronto: Carswell, 1987), p.312: Unlike their American colleagues, therefore, our judges have weighed more heavily the value of personal reputation over those of free speech and free press. Thus there occurs in many of their decisions a careful reminder that these freedoms are ones "governed by law" and there is no "freedom to make untrue defamatory statements". The press in Canada, particularly, has received no special protection in the law of defamation. The courts have been unwilling to recognize any unique prerogatives on the part of the press to communicate matters of public interest or concern to the general public. Thus, Canadian courts have stated emphatically that the press enjoys no privilege of free speech greater than enjoyed by a private individual and that the liberty of the press is no greater than the liberty of every subject. This is not intended as an invidious comparison. Our judges cherish free speech and free press no less than their American counterparts. They just happen to value personal reputation, particularly the reputation of their public servants, more. [52] I endorse that view. I also share the view of Keane J.A. of the Irish Court of Appeal when he wrote, in the Irish Law Reform Commission's report on the Civil Law of Defamation (The Keane Final Report: Dublin Law Reform Commission, 1991) at p.82: While the widest possible range of criticism of public officials and public figures is desirable, statements of fact contribute meaningfully to public debate only if they are true. That statement is equally apposite not only to Ireland but to Canada. [53] In these days of mass instant media communication, the publication in the media of false statements not only does nothing to help the media in its duty of educating the public in the great issues of the day but wrongfully takes away something that for all too many cannot be entirely restored by damages alone, namely, the good name of the innocent. As Iago in Shakespeare's Othello put it: "Good name in man and woman, dear my lord, Is the immediate jewel of their souls. Who steals my purse steals trash; 'Tis something, nothing; 'Twas mine, 'tis his, and has been slave to thousands; But he that filches from me my good name Robs me of that which not enriches him, And makes me poor indeed." Act III, Scene 3. [54] In conclusion, I am satisfied that it would be contrary to Charter values to grant the order sought. In Canada, the law of defamation is aimed at prohibiting the publication of detrimental false statements. It is the means by which an individual protects his or her reputation. The fact that defamation is a strict liability tort, together with falsity and damages being presumed, does not preclude the law of defamation from compliance with Charter values. The available defences of truth and fair comment provide recourse for media defendants as they do for private defendants. [55] The Charter values which reflect the s.2(b) freedom of expression provision contemplate a freedom to publish that which is true or fair. Defamation is an enemy of free speech. Truth and Fairness are its guardians. Application dismissed. "Owen-Flood, J," The Honourable Mr. Justice Owen-Flood