The House resumed at 8 p.m.
WELFARE UNITS REPEAL ACT
Hon. Mr. Norton moved second reading of Bill 7, An Act to repeal the Welfare Units Act.
Hon. Mr. Norton: Mr. Speaker, I have a full statement on this. A few comments might be in order since some of the honourable members might not have had occasion to refer to this act during their tenure in the House.
Mr. Nixon: The Welfare Units Act?
Hon. Mr. Norton: That’s correct, the Welfare Units Act. I had mixed feelings about bringing forth this bill tonight, which will have the effect of repealing the Welfare Units Act. It might be appropriate to leave it on the books as a testimony to the foresight and progressiveness of that great former Premier of Ontario, the Honourable George Drew, during whose tenure I believe it was originally passed.
Mr. Nixon: I think it’s a misspelling. It’s the Welfare Eunuchs Act.
Hon. Mr. Norton: I know how it is spelled.
The bill was passed originally in 1948 to enable municipalities, by passing a bylaw and with the approval of the Lieutenant Governor in Council, to assume the administration of municipal and provincial welfare services. Under that act any municipality, by bylaw, could establish a welfare unit with the same territorial jurisdiction as the municipality. Such units could be established by the province in those parts of Ontario which had unorganized territories, and any municipality located in such a territory could join in the unit.
However, once the welfare unit was established, a public welfare administrator appointed by the province and approved by the municipality would carry out the duties assigned under the act and regulations. The province would be required to pay 50 per cent of the administration costs. I would point out to the honourable members opposite that these percentages have improved somewhat over the years. I probably should hesitate to admit that at that time there was no contribution from the federal government either, so that in terms of availability of services and overall costs there has been quite a dramatic change since that time.
Any unit could have been resolved or could be resolved by the municipality or the province. The only units that were, in fact, established under this act were a few in the unorganized territories or communities in northern Ontario. In southern Ontario this legislation was never used, and has not been used in northern Ontario since the passing of the District Welfare Administration Boards Act of 1962-63.
Since the bill has fallen into disuse and has been replaced by subsequent improved legislation, I bring forward the bill tonight with the intent of repealing this legislation.
Mr. Nixon: I am surprised and appalled that this is the sum total of the legislative program the honourable minister’s officials could come forward with since the House rose for the Christmas recess. No doubt there will be further legislation presented some time early in June. I personally have a lot of respect for the honourable minister but I would think, like some of his colleagues, it is extremely bad management that he cannot persuade his officials, who, looking at the blue book, are paid a reasonable amount of money, to come forward with legislation in this most important ministry.
It deals with children’s aid, preventive care, child abuse, all of these things which the honourable minister gets white and lip-trembling about when he is answering questions -- and yet practically nothing comes before this House. We come back here to spend the evening talking about a bill as ridiculous as Bill 7, a complete irrelevancy. I wonder who in the honourable minister’s staff even discovered that welfare units were no longer required -- if, in fact, they were required in 1948.
I don’t feel in an argumentative frame of mind. I just want to convey to the honourable minister how disappointed I am that the Legislature of Ontario, with some of our greatest citizens in the gallery watching us do whatever we do, has this Bill 7 before it tonight. It isn’t even a joke; it’s completely irrelevant.
I don’t believe the honourable minister is as yet irrelevant. He may have many years of active law practice ahead of him but, as far as a bill like this is concerned, one wonders what the legislative draftsmen are called upon to do. Who would even determine that such an insignificant little patch of typesetting would be put together and presented to us here?
Surely the honourable minister, leading a department with grave community concerns of which he is more aware than anyone, could see to it that we had legislation on the hooks before us so we could have plenty of time to look at it, argue about it among ourselves in caucus and get the views of the community. There is not a thing in this bill book that is of any significance at all.
I suppose it’s the Premier (Mr. Davis) of whom we should be critical. There’s no doubt about it. The poor minister sits over there, practically alone, with only the chief whip for support, with this sort of thing --
Hon. Mr. Gregory: What do you mean “only”?
Mr. Nixon: Just what I said -- only -- nobody else in the whole ministry; nothing but empty seats. The poor taxpayers are sitting up there saying, “My God, is this what we’re paying for?”
When we come here on Tuesdays to deal with legislation, I think the government of Ontario ought to have something to put before us after 37 years. They are running out of gas. They have no initiatives left. They think we have reached perfection and there is nothing left to do.
What we should do, I suppose, is bring down the government on this bill just to show it is time somebody else took over the responsibility, because there is plenty of legislation that should be before us tonight. However, we are going to support the bill.
Mr. McClellan: Mr. Speaker, I too, am bewildered why the honourable minister would bother to waste the time of the House on this piece of legislation. I assume he instructed his officials to comb through the archives to find the most singularly useless piece of legislation on the statute books and bring it before the assembly for debate.
This is an act that was rendered superfluous in 1963, and here we have the honourable minister coming forward with his spring 1980 legislative program to repeal this nonentity. I should mention he made some noises about progress in the provincial share of welfare expenditures under --
Mr. Nixon: Ziemba’s predecessor solved the problem of George Drew, if that is what you are worried about.
Mr. McClellan: Under former Premier George Drew at least the province was paying 50 cents on the welfare dollar. Under the present Premier (Mr. Davis) it pays 30 cents on the welfare dollar. I suppose that’s progress.
The other comment I might make -- I believe I’m not mistaken -- is that this is the first piece of welfare legislation that has come before the House since the passage of the Family Benefits Act in the middle 1960s. It is acknowledged that the welfare system in this country is a shambles and in a state of complete discombobulation.
I have the report of the provincial-federal task force on the administration of social security, on the income security system in Canada. I have referred to that in previous estimates debates. It is a report compiled by senior officials of each of the provincial governments, together with the federal government. It talked about the incredible, bewildering proliferation of income maintenance programs across this country -- some 80 in total. It talked about the urgent necessity of some process of disentanglement. That’s the phrase these normally cautious bureaucrats use -- “a process of disentanglement.”
We’ve gone through an entire decade, from the beginning to the end of the 1970s, where the federal and provincial governments wasted each other’s time in a series of fruitless deliberations on the insane social security system in this country. They came up with nothing. This ministry is in the same state of paralysis. I don’t want to prolong this because it’s too silly to waste time on it. We have the estimates coming up on Friday and we can pursue some of these things later.
8:10 p.m.
In the past, we have talked of the desirability of integrating the general welfare assistance programs and the myriad of provincial social assistance programs as part of the total process of rationalizing them. I do not see any initiative on the part of the government in this direction. I do not see any thinking taking place anywhere within the ministry with respect to how that rationalization could take place. Instead, what we have before us is a totally unnecessary bill to repeal a defunct statute.
Mr. Warner: Mr. Speaker, I intend to vote against this bill. I’ll tell members why. It is because I, like the member for Brant-Oxford-Norfolk (Mr. Nixon), am extremely disturbed that in the face of some of the most pressing problems which our province and our country have faced in some time, we are presented, as the forerunner to the government’s legislative program, with the most inconsequential piece of legislation that anyone could contrive. Quite frankly, I am annoyed.
I think of the fact that our country is facing the most horrendous constitutional wrangle that we have had in our history; the fact that the country is apparently coming apart -- we have an enormous problem attempting to solve the constitutional issue which faces us; we have severe problems of unemployment in Ontario -- with the city of Windsor facing 25 per cent of its population out of work; with us having been ripped off by the Ford Motor Company of Canada Limited to the tune of $68-million -- this government gave them the money and they are gone -- we do not have any jobs to show for it; when we have serious energy problems; when we have a judicial system that is in utter chaos -- in half a year, 17,000 people who were innocent rotted in jail because of the judicial system in Ontario; when we have a cost of living that is out of sight for the average Ontarian; when we have farmers who are being driven out of their farms, who are going to lose their farms, because of high interest rates --
Mr. Rotenberg: Stick to the principle of the bill. The honourable member is out of order.
Mr. Warner: -- small businesses that are going to cave in because of high interest rates; home owners who are going to lose their homes --
Mr. Acting Speaker: Order.
Mr. Warner: -- serious complaints against the police in Metro Toronto; child abuse across the province which is not addressed; children’s aid societies which are in receivership --
Mr. Acting Speaker: Order. Will the member for Scarborough-Ellesmere please tell me how this is tying in with the principle of the bill?
Mr. Warner: Mr. Speaker, I stated at the outset that I am in opposition to this bill. The reason I am in opposition is as a voice of conscience against this government --
Mr. Rotenberg: The honourable member had his chance yesterday.
Mr. Warner: -- when the best it can offer is an inconsequential piece of legislation when there are serious problems confronting the people of Ontario.
I find it inconceivable to think that any member of this Legislature could contemplate entering into a debate on this legislation when there are far more serious problems pressing.
Mr. Acting Speaker: All right, the honourable member will have his opportunity during the budget debate and he did have his opportunity in the debate on the speech from the throne. I would request the member to limit his observations to the particular repeal, or otherwise, of this bill.
Mr. Warner: Right, Mr. Speaker, I appreciate that assistance.
The purpose of this bill is to do away with a piece of legislation that is not being used anyway. That’s fine from the government point of view, but I know many members would agree with me that when the Legislature is sitting as infrequently as it does we should at least be addressing the serious problems which the people of Ontario face. Quite frankly, this doesn’t happen to be one of them.
If the Minister of Community and Social Services (Mr. Norton) is concerned about his ministry he would be introducing child welfare legislation, he would be introducing legislation which would help the children of Ontario, particularly those who are wards of the court, and he would be introducing legislation against child --
Mr. Acting Speaker: All right he might be, but he has not in this bill. I would ask you to limit your remarks to the contents of the bill.
Mr. Warner: I appreciate the fact you have recognized the problem with the legislation, Mr. Speaker, and I assume you will be voting against it as well.
Other honourable members may wish to participate. I am extremely frustrated with a government which cannot introduce legislation that is needed in this province, which cannot address the problems of unemployment and high interest rates and soaring inflation, and instead chooses to introduce garbage. Frankly, I am fed up with it.
Mr. B. Newman: Mr. Speaker, I had no intention of partaking in the debate, but after hearing comments by previous speakers I thought I, too, should bring to the attention of the honourable minister the problems constituents are involved in. The minister is asking the repeal of an inconsequential bill, yet back in my own community, with not 1,000 or 2,000 but with approximately 22,000 unemployed, the ministry’s legislation requires individuals to have four job searches before they can qualify for welfare assistance.
Mr. Acting Speaker: I am trying to be tolerant. Would you limit your remarks to the contents of the bill?
Mr. B. Newman: I am speaking, Mr. Speaker, because this bill does not address itself to the concept --
Mr. Acting Speaker: You are quite right and I agree with that.
Mr. B. Newman: The honourable minister does not even address himself to the situation in my own community. I hope he will overcome the problem as far as his legislation is concerned, for the city of Windsor.
Mr. Cooke: Mr. Speaker, not to be outdone by my colleague from Windsor-Walkerville (Mr. B. Newman) but to reinforce what he has said, I think this bill does, in some way, talk about welfare.
Mr. Acting Speaker: I have an idea you are out of order, but proceed anyway.
Mr. Cooke: I heard the member for Scarborough-Ellesmere (Mr. Warner) give that excellent speech about all the inadequacies of this honourable minister and this government. Maybe the honourable minister would like to take the opportunity of responding to the comments of the opposition and tell them exactly how he intends to respond to the problems of the city of Windsor and the welfare problems we have brought to his attention on three or four or 10 or 20 occasions. We have had no response, and because we have had no response we are forced to bring it up at times when we are really out of order. Because we don’t get a response when we are in order, we keep trying and trying and trying. Tonight he has another opportunity and maybe he will respond tonight.
Mr. Acting Speaker: If I am in the chair, he will not have that opportunity on this bill. Does anybody else wish to speak to this bill? Mr. Minister, please limit your remarks to the contents of the bill.
Hon. Mr. Norton: I shall, Mr. Speaker. In the style of those who have gone before me, I would say at the outset, thank goodness there are not any more members from Windsor in the House tonight or we might have gone on until 10:30 p.m.
I agree with the remark of the member for Brant-Oxford-Norfolk (Mr. Nixon) when he said the members of the public in the gallery will be saying, “Is this what we are paying taxes for?” I would echo that, especially in view of the performance they have observed from those verbose but honourable members opposite, especially if those members in the public galleries understand that the principle of this bill is very simple and very straightforward. It is a repeal bill for legislation which is no longer used.
8:20 p.m.
In fact, the purpose of this evening’s debate is to do what ought to be done by government from time to time, which is some house cleaning in terms of the existing legislation that remains on the books.
Mr. Ruston: Is that all you can find?
Hon. Mr. Norton: I am sure there are others, but it appals me that in the past, a little over a year ago, we spent literally months in this House dealing with some of the most comprehensive changes to child welfare legislation that any jurisdiction has passed, and I must say with co-operation and assistance from the honourable members opposite who served on the social development committee of this Legislature, and then the member for Scarborough-Ellesmere could stand up and say, “Why don’t you introduce some child welfare legislation?” I don’t know where he has been since he was elected to this Legislature.
Similar suggestions have come from some of the other speakers. I think what I ought to do is prepare a little memo for some of the honourable members opposite, reminding them what we have done on behalf of children and dealing with matters of child welfare, child abuse and so on over the last year or so, and point out to them how irrelevant their remarks have been tonight.
I don’t wish to prolong this matter any further. This is simply to repeal a redundant piece of legislation, a no-longer-useful piece of legislation. The honourable members from Windsor, whichever their ridings may be, can be assured that with the many millions of dollars my ministry is putting into their ridings their constituents are being well served. In fact, members of my staff are serving on some of the committees, the mayor’s committee in Windsor, for example, looking at the situation, making recommendations and responding to the needs in that community. In fact, the member for Windsor-Riverside (Mr. Cooke) would be aware of that if, in fact he didn’t rely upon --
Mr. Acting Speaker: I remind the honourable minister that he is straying from the bill.
Hon. Mr. Norton: -- unreliable information from sources within his community and then spend months in the Legislature attacking me, only to learn later that he was acting on wrong information.
Mr. Acting Speaker: Hon. Mr. Norton has moved second reading of Bill 7.
Ml those in favour will please say “aye.”
All those opposed will please say “nay.”
In my opinion the ayes have it.
Motion agreed to.
Ordered for third reading.
Hon. Mr. McMurtry: The member for Scarborough-Ellesmere (Mr. Warner) can hardly wait, Mr. Speaker, until the Attorney General’s estimates start at 10 o’clock tomorrow morning.
Mr. Warner: That’s right.
Hon. Mr. McMurtry: I happened to be out in the lounge listening to his contribution earlier and I see this as kind of a warming-up session. It looks as if the Attorney General is going to have a lively time for a few days.
LIBEL AND SLANDER ACT
Hon. Mr. McMurtry moved second reading of Bill 1, An Act to amend the Libel and Slander Act.
Hon. Mr. McMurtry: Bill 1 will accomplish two objectives. First of all, under the present Libel and Slander Act, the definition of broadcasters did not include cable television. What the amendment seeks to do is simply to include cable television, which was not contemplated at the time this legislation was passed, and to include that within the definition section of “broadcasting” to place those people in the field of cable television on the same footing as other broadcasters. The second objective of the proposed amendment has to deal, as the members know, with the issue of fair comment.
Mr. Haggerty: That applies to all members.
Hon. Mr. McMurtry: I think the fact that this legislation is proposed by the government is interesting. It is not a private member’s bill. The proposed amendment is intended to promote and maintain free dissemination of opinion. Those in government are more often than not the targets of this free expression of opinion, which may not always be of a laudatory nature.
Some of the members will know there was a decision in the Supreme Court of Canada, the Cherneskey decision, delivered in November 1978, which in my respectful view created a great problem for publishers with respect to letters to the editor in relation to the defence of fair comment. In that particular case, the defence of fair comment failed simply because the publisher could not produce the author of the letter that was published in good faith by the newspaper to establish that the author held this specific opinion.
It might be of interest to remind the members that the defence of fair comment is only available if the facts upon which the comment is based are true. The Cherneskey case is a rather confusing decision. There was a very vigorous dissent in relation to the issue of fair comment in relation to whether the defence would be open to a publisher who was unable to produce the actual author of the letter to say he held that opinion if the publisher was not in a position to say that he held that opinion.
In other words, what we are trying to do is maintain the freedom of opinion by permitting publishers of newspapers to publish opinions which they themselves may not agree with but which they think are of relevance to a free and full discussion of a public issue, where opinions are based on proven facts and based on a situation where an individual could honestly hold that opinion, even though the author of the letter might not be available to give evidence.
The Cherneskey case caused a problem in particular for small newspapers that were very concerned about the threat of libel suits and did not have the resources to check out every letter to determine whether the author of the particular letter honestly held that particular opinion. In our view, it placed a very heavy onus on all newspaper publishers, in particular with respect to the letters-to-the-editor column, but also for the smaller newspapers of this province that had expressed great concern.
In conclusion, I am asking the members to support this legislation on the basis that it is directed to maintenance of free discussion and dissemination of opinion which is so necessary to the maintenance of our democratic institutions.
8:30 p.m.
Mr. Nixon: Mr. Speaker, I am sure you are aware that this bill is in a sense an historic departure around here. It is designated Bill 1 and was introduced on the opening day of this session of the Legislature. It has been customary for a spokesman of the government to introduce a bill indicating that the Legislature chooses and has the power to undertake business of its own before taking up the business put before it by Her Honour the Lieutenant Governor’s speech.
In the past, the bill has usually been a nonentity, one of practically no importance, similar to the bill dealing with welfare matters that we had a moment ago. On this occasion, however, the government has chosen to introduce a bill which is going forward and is being considered by the Legislature. It is interesting, at least for a limited number of people, I suppose, on that ground alone.
I should also express, not a conflict of interest but perhaps a footnote of interest, in that my wife, great lady that she is, happens to be a member of the Ontario Press Council. This is not a government organization, agency or emanation, and I feel she does excellent work on that council and finds it useful and interesting, if not particularly lucrative. After all, public service, we have all learned, does not always benefit in a monetary way. But we have been informed by official communication from the press council that they support this, and it may very well be that it was at their behest that the government saw fit to bring in the bill.
In spite of the opinions expressed around home about the bill, I must admit I have some personal reservations. Without naming any community specifically, I would say there are certain provincial publications whose most interesting page is that dealing with letters to the editor. It is the only place where there is very much original material, and it is a good forum for people to express views.
Certainly politicians would ignore it at their peril, and some politicians that I know of, particularly the member for Brantford (Mr. Makarchuk), write extensive letters to the editor. I am not sure whether this bill would relieve him of personal responsibility for anything he might write that would be irresponsible, because in a recent letter he referred specifically to an employee of the Attorney General (Mr. McMurtry) as being the source of certain allegations that he continues to put forward. But that is another issue that perhaps we will be talking about later in the session.
It does seem to me, however, that the bill, if it is passed in its present form, will permit publishers to be completely without responsibility for what is included in the contents of letters that are put forward by people who write to the editor.
I see the Attorney General is making some cuneiform notes, and perhaps I am wrong in that. The Attorney General would be the first to say that I am not learned in the law. However, I do have the responsibility to assist in making good law, and if one reads the operative subsection I really defy him to understand clearly what is meant. I quote it:
“Where the defendant published defamatory matter that is an opinion expressed by another person” -- okay, I got that all right -- “a defence of fair comment shall not fail for the reason only that the defendant or the person who expressed the opinion, or both, did not hold the opinion, if a person could honestly hold the opinion.”
That may have a clear meaning to the Attorney General and to the juries which will apply this law, and the honourable gentlemen and ladies on the bench, but for me it leaves some doubt as to what is the responsibility the publisher must hold. I would think it would be a major concern for those of us here, who might more than almost any other citizens be the subject of such letters, that they could be defamatory, be published irresponsibly, and the only defence would be, I suppose, on the person who writes the letter rather than the person who widely disseminates it.
I don’t suppose we have to be terribly self-conscious about these things because, of course, we have open to us, as the member for Brantford well knows, access to those same columns to defend ourselves.
Mr. Makarchuk: The Tories couldn’t find literate letter writers.
Mr. Nixon: Just as we often feel the editors get the last word, it’s my experience that the member for Brantford frequently gets the last word too. It is one of those crosses that is sent to us to bear, both in this House and perhaps in the columns of the Brantford Expositor.
I feel sure the minister will be able to assist me in this problem. It occurred to me it would not be unreasonable to suggest that if we were to give this bill approval in principle -- perhaps not all my colleagues agree with this -- we could send this to the standing committee on the administration of justice for an hour or two of hearings. Frankly, I would like to have the press council and perhaps others interested in this come in and express their views.
I really feel the wording of that section 2 is unclear. I know my learned friend in the NDP (Mr. Lawlor), the spokesman on matters pertaining to libel and slander, is proposing an amendment which may assist. I would support it quite reluctantly, in spite of some undue pressures brought to bear upon me personally. I would feel much more satisfied if we could have an assurance from the minister that we could send it to the committee, not for a long series of hearings -- heaven forbid, that’s unnecessary -- but even to hear from the press council and perhaps one or two others who would be interested in this matter.
Mr. Warner: Mr. Speaker, the Attorney General (Mr. McMurtry) is right. I am looking forward to the estimates which begin tomorrow morning as we will attempt to restore some sense of order to the chaotic justice system.
I welcome this bill because it does break the tradition of introducing an inconsequential piece of legislation as the first bit of business for the Legislature. It is a very important piece of legislation and one which I support.
To answer some of the questions which the member for Brant-Oxford-Norfolk (Mr. Nixon) had, if we did not have this piece of legislation I think we would find that the public was generally more restricted in its opportunity to make its views known through the newspapers. The newspapers, in fact, would become more closed in their attitude.
Some of the comments that were brought forward to the Ontario Press Council were to the effect that since the Cherneskey case the papers were far more concerned about the comments that were contained in letters to the editor. Their lawyers were employed full-time to try to determine whether what was being printed was libellous or not. It meant a more restricted opportunity for the members of the public.
In fact, if one carries through the Cherneskey decision what it means is that the publisher has to agree with the comment its the letter to the editor before he will publish it. That, to me, is dangerous. That’s not in keeping with free speech, in my understanding.
I bow to the knowledge of the Attorney General in terms of matters of law. If I have learned anything out of the exercise about libel and slander it is to the effect that libel law is not easy and it is not simple. There isn’t a straightforward answer in terms of libel law. The question of fair comment, for example, that has been brought up in this bill is not an absolute defence. One still has to have some honesty and good faith if one wants to use fair comment as a defence. The irrefutable defence is the truth in libel, and that may not always be easy to prove. None the less, the truth will be a defence.
8:40 p.m.
I was persuaded by a comment by Justice Brian Dickson that was included in the remarks made by the Ontario Press Council. I think it bears repeating. Mr. Justice Brian Dickson said: “It does not require any great perception to envisage the effect of such a rule upon the position of a newspaper in the publication of letters to the editor. An editor receiving a letter containing matter which might be defamatory would have a defence of fair comment if he shared the views expressed, but would be defenceless if he did not hold those views.
“As the columns devoted to the letters to the editor are intended to stimulate uninhibited debate on every public issue, the editor’s task would be an unenviable one if he were limited to publishing only those letters with which he agreed. He would be engaged in a sort of censorship, antithetical to a free press.
“One can readily draw a distinction between editorial comment or articles, which may be taken to represent the paper’s point of view, and letters to the editor in which the personal opinion of the paper is, or should he, irrelevant. No one believes that a newspaper shares the views of every hostile reader who takes it to task in a letter to the editor for errors of omission or commission, or that it yields assent to the views of every person who feels impelled to make his feelings known in a letter to the editor. Newspapers do not adopt as their own the opinions voiced in such letters, nor would they be expected to.”
It should be remembered that fair comment is not an absolute defence but a qualified one. The last sentence is my own. I agree with those sentiments.
We had some discussion within our own caucus and some members were concerned that by supporting this bill we would be allowing some very extreme comments to be made in the newspapers which would then not be held responsible. To be quite blunt about it, racist remarks could be made in letters to the editor and the newspapers would not be held responsible. I don’t believe this bill allows that. What the bill does is allow, if the editor or the publisher is sued over comments made, the editor to hold the defence of fair comment if he honestly believed that the person who expressed the opinions honestly held those opinions.
In order to clarify section 2 of the bill, I would like to introduce an amendment that I think helps to make the intent of the bill more clear. In general principle I support the bill. When it goes to committee, I would be pleased to have ‘the opportunity to move an amendment.
Mr. G. Taylor: Mr. Speaker, I, too, share some of the apprehension of the other members of this House. I have never been reluctant to speak in favour of or against, or even with apprehension, bills that are brought forward in this House, which is one of the great features of this government.
I put that on the record at this time. But I do speak with apprehension, with concern and with a bit of reluctance about the form this piece of legislation takes. It is possibly a defence for small newspapers, of which there are many in my particular area.
I have information on how those small newspapers work. I hope, as a result of what I say and what the other members have said, when it gets to the committee stage there will be an opportunity for the Attorney General (Mr. McMurtry) to clarify this situation in debate.
It isn’t the first section that gives me consternation but the second section, which we’ve discussed. Although we’re not dealing with the exact words -- and there is an amendment coming from the New Democratic Party -- there is the last phrase in section 2. I bring it to members’ attention, although it’s not part of the debate to deal specifically with it.
It says, “If a person could honestly hold the opinion.” My concern is with “a” person, rather than “the” person. When he put forward the amendment, the Attorney General possibly concerned himself with “a” person and whether it should be “the” person who puts forward the information, “the” person who writes the letter and “the” person who is on the talk show. Should that be the one we are involved with, rather than with anybody out there in the world who might possibly hold a similar opinion?
Naturally, we know this flows from the Cherneskey case. That has been gone through with great detail in the Attorney General’s statement and that is what we’re trying to get over. In this House we all know, more than anybody else, that the Cherneskey case dealt with a politician. I’m sure of all the letters written to editors, probably the politician or those people on appointed boards or elected boards are the targets of those pieces of literature more than any others, be they municipal, federal or provincial politicians.
Here we have a Supreme Court of Canada decision where someone has seen fit to take a grievance he has had all the way to the Supreme Court of Canada which runs through a number of local tribunals to the appeal courts and finally to the Supreme Court of Canada. There we have a decision made by those gentlemen in their wisdom -- and they are wise men -- dealing with the common law.
They have made a decision on the common law of libel, slander and defamation, one that has grown with years of experience. Maybe they were giving a defence to the politicians because it is not the first one that has gone to that court or to higher courts that has had a politician being the one defamed. Maybe they were giving us that defence that was not in the statute law as it exists at present. Here we are taking it away from those very people the Supreme Court of Canada said it was defending.
We’ve got to look also at the merits of that case, where somebody called an individual politician a racist. The member for Scarborough-Ellesmere (Mr. Warner) has asked whether this will allow racist remarks to be paraded in the newspapers and in the media. What type of opinion are we protecting? Does it mean we are going to allow anybody to make whatever opinion he so desires? As long as that person honestly holds that opinion, can he put that opinion in print, put it on the airwaves, and put it anywhere he so desires in the public media and let it flow, while the publisher or the owner of the radio station can sit there with impunity and say:
“It’s his opinion. He is welcome to it. I don’t quite agree with it, but there it goes.”
Let’s look at the history of newspapers and some of the other media. The history of those papers happened to be, as we all know, that they were political machines and were known to be so in their history. That was a Grit paper; that was a Tory paper; that was a Whig paper. We still haven’t totally overcome that, but some of those newspapers were known for that. The paper grew out of somebody’s personal opinion as to what he felt on a particular subject. He got out the personal print papers and got into the newspaper business.
We’ve come a long way, with newspapers now saying, “We’ll share the other people’s opinions by allowing a letters-to-the-editor section.” Now they want to let that run with impunity and let what venom may be in those letters flow, and usually against politicians.
I wonder if we’ve come too far when we look at the history of newspapers. I don’t know when letters to the editor started or whether they were always in newspapers as a practice. Maybe that’s the salve that newspaper people put on themselves to say they allow freedom of expression and freedom to pot forward these opinions. Maybe that freedom is too large. Maybe we aren’t, by denying this bill, stifling public opinion.
8:50 p.m.
It is there if we look at newspapers. It is there by their editing process. It is there in the electronic media by what picture they want to use; what snippet; what section; what words. They are not free from editing or free from their own tricks of the trade known to us all and, more so, in the public figure’s life of a politician.
Let us look at some other features of the electronic medium, where that is even more so. It comes to me with some fervour when I listen to people on the phone-in shows. They are a new innovation in our society. The speaker can speak on a phone-in show with whatever opinion he or she desires, and put it forth with total anonymity. There are seven-second delays so one can bleep out a few words that may be offensive because they are not in common use in the living rooms of our community, but they can state whatever opinions they desire. They may say that so-and-so is incompetent; so-and-so is not too stable up top.
Whatever opinion is put forward goes through those electronic media with, in some situations, the seven-second delay. Should there be anonymity for those people? If they possess an opinion should they not put it forward as their opinion? Maybe we should have an addendum to this. Maybe the NDP will put one forward for the electronic media that a person must identify himself if he is going to so put these opinions on the airwaves.
The publishers are providing a vehicle. They provide the cable systems, the newspapers and the radio stations from which they make plenty of profit. Yet, they do not want to absorb the responsibility of the vehicle they are providing to disseminate opinions, be they correct or not.
If I hold an opinion and I speak it to my colleague, it may be defamatory of the individual about whom I am talking, but it still goes only to my colleague in the quiet surroundings where it is expressed. But if it is put on the airwaves, or in the print media, then it becomes defamatory. This is especially so in a small community where individuals are known to more people than in a large metropolitan community. When a letter goes to an editor there, it is given some semblance of authority because it happens to be in a newspaper. It goes across the community with people believing what is contained in that newspaper.
Is what is in those letters within the bounds of politeness? Or is it libellous? Is it defamatory? What determines the editor? I stick to letters to the editor. I’m sure they throw away many letters that they know would bring scorn upon them, bring libel actions, bring suits in the courts. We have received some on our desks where one can usually see where a copy has been sent to an editor.
We know some have not been printed because the editor has used some discretion. Why do we remove even more discretion from that editor? Leave it with that editor, that radio station, those people. They have to return something to the community for the money they make. That is just one of them.
The cable shows are a new system and I am pleased to see that that is brought under the section dealing particularly with cable. I look at other areas, too. When I started practising law in Metropolitan Toronto the mentor I had at that time worked with numerous publications. I could wait for the publication to be put out on the street and the phone would start ringing the minute it got there. It is a renowned Canadian publication, by the way, and the defamation and libel notices would come in because that was the way they wrote as a publication.
Mr. Nixon: Did you work for Flash?
Mr. G. Taylor: Could you imagine that, Mr. Speaker? The member for Brant-Oxford-Norfolk (Mr. Nixon) talks about Flash. I recall being in high school in Hamilton and an edition of Flash came out at that particular time dealing with the high school I went to. It featured a picture of a stork carrying a baby over the high school, to illustrate a story about there being a club in the high school where numerous girls were pregnant. Believe me, in a small community I didn’t know whether to hide because the stork was going over my high school. Was that my stork or somebody’s stork or nobody’s stork? Flash renowned itself in that style of publication.
Could one imagine what type of letters it would allow if it was willing to go to that extreme to put those types of stories in or what letters to the editor there would be in that same style of publication?
I use that as an example I hope the Attorney General can counter in this debate as to how we will go on. Those publications, as I say from my own legal experience, were pushing the limits of their own editorial content and their own story content as far as they could to sell their particular types of items.
This is no reflection on the group I am going to talk about and no reflection on the newspaper, but I bring it as an example of a letter to the editor. Again, as I say, it has nothing to do with the local newspaper. I have a group in the county of Simcoe called the Simcoe rescue squad, about which the Attorney General knows very well. We have done some very good things in that regard.
There is a statement by the Attorney General who, under the heading of Solicitor General, says, “Re crash rescue program.” I don’t want to take too much time, but I use this as an example. You might, Mr. Speaker, bear with me as I read his statement. “Re crash rescue. An intensive training program to improve the crash rescue skills of Ontario firefighters and the Ontario Provincial Police was announced by the Solicitor General, Roy McMurtry, today. ‘I am convinced we will save many lives and reduce hospital costs by cutting down the time it takes to remove those injured in traffic accidents from their vehicles,’ Mr. McMurtry stated.”
It goes on a little bit further. I come down to the final paragraph of that statement which was made on February 21, 1980, if anybody wants to get more details of it. “The minister praised the work done by volunteer organizations like the Simcoe rescue squad and the Quinte rescue service and plans to utilize their enthusiasm and expertise in developing a more sophisticated approach to crash rescue in 1980.” That is the only statement the Solicitor General made on the subject of crash rescue at that particular time.
Then we had an editorial in the Barrie newspaper. One step before that, as a result of that statement there was an article contained in the Examiner, a local daily newspaper in Barrie, dated February 21, 1980. The heading said, “County-Wide Rescue Service May Be Formed This Year.” I paraphrase and quote some words from it: “Both McMurtry and Dupuis praised the work of volunteer rescue organizations such as the Simcoe rescue squad.”
The next article in the same paper of the same date, February 21, 1980, was headed “Fire Crews Bear Rescue Burden.” It went on to say “An interministerial task force on crash rescue ... ” There are some more items contained in there. I paraphrase the whole story under the authorship of Stephen Nicholls, a very good reporter for that newspaper.
He wrote: “The task force study notes four problems with crash rescue in Ontario. The report says in some areas organized extrication exists, but special equipment and training is inadequate or nonexistent, says the study. Volunteer rescue squads, such as Simcoe rescue squad, provide extrication services, but there are no established standards of capability or responsibility.” Still there is no suggestion that the Solicitor General made those statements, just that they were made.
There is an editorial on the next day by the same newspaper, dated February 22, 1980. It goes on, and I paraphrase again: “The provincial task force study into government rescue services released by Solicitor General Roy McMurtry Thursday It goes on to praise the rescue squad and says what is going to take place, and I paraphrase that.
9 p.m.
This leads to the letter to the editor from Lynda Bonney on February 25, which says: “Sir: It may have been inevitable that the Simcoe rescue squad was not given funding through the government, but for Mr. McMurtry to say the members of the Simcoe rescue squad are ill trained and poorly equipped is totally erroneous.” A bit further in the letter she says: “Mr. McMurtry states that half the victims might not have died had the responding members had better training and equipment. I think Mr. McMurtry is forgetting the half that survived because they were removed from the trapped situation.”
A little further down, she goes on: “I feel Mr. McMurtry would to this day not be concerned with the plight of the trapped individuals, and enough credit and recognition is not being given to the initiative of these men,” referring to the men in the rescue squad.
There is someone who honestly holds a belief which is totally and factually incorrect. Mr. McMurtry never made any of those statements; in fact, he praised the Simcoe rescue squad, as he has done on many occasions, and as has his brother, Dr. McMurtry. I even went to the extent of trying to find the writer of this letter by looking in the assessment rolls, the voters’ rolls, the telephone book and in other sources. There is no Lynda Bonney available to me in the normal situation. The only way I suspect I could get it is if I went back to the newspaper and said, “Do you know who sent in that letter and do you have an address?”
There is someone who is indeed inferring by innuendo and by statement that the Attorney General is making statements that are factually incorrect and has no support for rescue squads, which is just the opposite of what Mr. McMurtry is saying. I bring the honourable members that little situation as an example of where this may protect that person. I am sure Mr. McMurtry, being a gentleman who is used to comments and letters to the editor, would not bring any suit against the newspaper or suit against the individual, but it is a situation where if those words were put a little more harshly by that individual, the newspaper could, by impunity, not have been sued because it would say somebody out there holds that opinion or that individual holds that opinion.
I hope the Attorney General will take from my comments, as I have made them in generous context, that I am concerned about this piece of legislation. I am concerned that we may be giving away too much of the decision that has been defined by the Supreme Court of Canada. I am concerned that the suggestion that it go before a committee will be heeded by the Attorney General, not that I prefer all items to go before a committee to be worked over thoroughly, but he will heed the words of the members of this House and will send this to a committee to be further discussed. Indeed, I have sent away for the press council’s briefing, about which I received a letter only yesterday which said they would provide me with this information so I may have a more thorough background. Maybe with that more thorough background and with what Mr. McMurtry says, my opinions could be tempered on this particular piece of legislation.
Mr. Sargent: Mr. Speaker, with your permission, in reference to my House leader’s mention of Dorothy Nixon being on the Ontario Press Council, I attended the funeral today of Harvey Davis. Harvey Davis was the former warden of Bruce county. He was on the press council and he was the current president of the Good Roads’ Association of Canada. He was one of the greatest citizens of our area over the years.
I would like to take the opportunity to ask the House to express to Rita Davis and her family its deep sympathy in the tragic death of this great man.
Mr. Bradley: Mr. Speaker, I rise to speak on Bill 1 and to express many of the same concerns that have been expressed by some of the other honourable members of the House of all parties who have seen certain problems which might arise with this legislation. I won’t be completely repetitive of the arguments made by the member for Simcoe Centre (Mr. G. Taylor). Through examples he presented, I think he pointed out there are certainly dangers in proceeding with this legislation as it appears at the present time.
I recognize there are many in this House and many in this province and country who are very concerned when freedom of speech is limited. There are those who feel that the decision of the court in the Cherneskey case went some distance towards limiting the freedom of those who were in the publishing business, those in the media business, perhaps even of the public indirectly.
I recognize also that there are those who are concerned that if this legislation were not passed, publishers and radio station managers and owners could use this as an excuse in this case to prevent legitimate opinion from being brought forward and presented through the news media from individual citizens within the community.
However, I guess those of us who serve in public office recognize probably better than anyone else the dangers of this legislation and the fact that one’s reputation can be completely ruined by those who world be irresponsible enough or vindictive enough to write letters to the editor or phone hot-line shows to make charges that simply cannot be substantiated.
I think we recognize, and we have seen in so many cases, instances where the reputations of many people, be they in political life or otherwise, have been ruined by the initial charges. The retraction is usually made somewhat later, often on the back pages of the newspaper as opposed to those pages that would be read most frequently, or comes later on after a hot-line show has taken place. The initial damage has been done or the seeds of doubt have been sown in the minds of the public.
Unfortunately, many people believe much of what they find in a newspaper or much of what they hear on a cable TV program, on television other than cable TV, and on radio programs. Much of this of course is accurate information or information that can be substantiated in terms of building an argument. But there are items presented to the public over the airwaves and through the written media which are not accurate and which do great damage.
The instance the member for Simcoe Centre used with the Attorney General (Mr. McMurtry) I think was a legitimate one. Although we make light of the fact, nevertheless it is a clear case where the Attorney General has been misrepresented in his views. Certainly there are many occasions where we can be critical of the Attorney General, and legitimately so, but this certainly would not be one case. Those of us who serve in public office would be sympathetic with this case, seeing that the Attorney General was misrepresented in his views. In fact, the exact opposite to what he had attempted to convey to the public was conveyed through this newspaper.
So I have this great concern that people in the public eye, or not necessarily people in the public eye, will be libelled or slandered and the newspaper publishers will not have to exercise the necessary control from this happening. I think most newspapers in this province are relatively liberal, and I use that as a small-l liberal, in their policy of printing letters to the editor. Even my own local newspaper, which certainly is a friend of the Family Compact across the aisle, has a very liberal policy when it comes to presenting letters to the editor. am referring to letters to the editor, not their coverage of what I say in the House buried on page 68 in the bottom left-hand corner. The only reason it was in was because I happened to attack the NDP on that occasion. That was why it was put in the paper at all.
9:10 p.m.
Nevertheless, this newspaper is, I think, probably a good example of many newspapers in its policy of allowing the public free expression. In the last five or eight to 10 years the letters-to-the-editor column and the hot-line show have become very popular. There are those who would suggest that hot-line shows and their callers consist of people to whom no one has ever listened in the past, and with a good deal of justification, because they have seldom had anything constructive to say about anything or anyone.
I would say there are some who do use the letters-to-the-editor column and the electronic media for that purpose and others who express a legitimate, reasonable and non-vindictive point of view, even if it is in contrast to what we would like to hear.
The question of anonymous letters to the editor and anonymous phone calls to these various programs is another one which I think is attempted to be addressed by the member for Scarborough-Ellesmere (Mr. Warner) in his amendment. This, of course, is something which concerns all of us. Again, the member for Simcoe Centre points out that this individual could not be traced through the normal telephone book, the voters’ list, or things of this nature. Often people are able to hide behind that to express points of view. I am told that sometimes -- particularly in the political field -- people even use other people’s names and addresses when writing letters to the editor, either with or without their permission, to express particular points of view.
I understand there are people in other parties who do that. Certainly there was some question in British Columbia that there was an organized campaign by one of the parties on the extreme right there, now affectionately referred to as the “lettergate scandal.”
For these reasons, some of us members of this Legislature are quite concerned about this. We would ask certainly at the very least that this go to committee so that others can express their viewpoints. We so often hear from people, “I read it in the paper.” Three months later they don’t remember where they read it, but they read it in the paper so it must be right. Or they say, “I heard it on the radio, so it must be right.”
I think people have a right to be protected against irresponsible and totally inaccurate statements made by those who often hide behind anonymity, or even those who are prepared to sign their names and rest assured that they will not be prosecuted for either libel or slander.
So I guess my message this evening is one of extreme caution, and a request that this go to committee at the very least and that the minister even consider withdrawing the bill.
Mr. Lawlor: Mr. Speaker, I am delighted to see with Bill 1 the reintroduction of the Attorney General (Mr. McMurtry) in control and handling his own legislation. When he is not in charge I find that very serious irrational defects tend to take place. This is an accolade to the Attorney General and a disservice to his representative in the House, because I have been through a particular procedure, as he knows, and about which I have written him, which seriously discontents me. I am convinced that if he had been personally present during the course of those hearings, many of the events that took place would not have taken place. Better sense would have ruled the day.
In the case of this legislation it is defective. It is too broad. It is worded in such a way that one quite respects the intention. You try to meet the position of the Supreme Court in the matter. There the problem wasn’t a question particularly of defamation; it was a question of fact. It was a question of whether the defence of fair comment, a qualified defence, arose.
As a matter of procedure, largely, the two students who originally wrote the letter to the newspaper making the aspersions or derogatory remarks in question were not in the province, nor were they called to the witness stand to test their credibility or to test their honesty. Nor was the publisher of the letter prepared to go on to the stand and say categorically that he honestly believed in the truth of the matter. This might have sufficed. But he was vacillating, or let’s say neutral. He neither believed nor disbelieved, he simply published and felt justified in so doing. The court ruled he was not justified in so doing. The whole thing might have been easily obviated if one of the letter writers had appeared on that particular occasion.
As my colleague has said, the law of libel and slander is not easy. Take a look at Gatley. There seem to be at least three elements present.
First, a statement to be honestly made to be fair comment has to be a matter of public interest.
Second, I don’t think it can be malicious in intent. If the maliciousness is evident within the statement itself or as it emerges before a jury on cross-examination, then I would think the fair comment element is expunged. Nor can it be mendacious. That goes to the truth or falsehood of the defamation in itself.
Third -- and this is a bit tricky -- can it be irresponsible? I think upon reading some judgements on the matter that irresponsibility as judged again before a court would wipe out the honesty of intent that is critical to making the defence stand in that particular situation.
In this legislation, the Attorney General exculpates, in effect, both the publisher and the letter writer and goes off into some ozone, into some nebulous sphere and puts his finger on the man, as I call him, from Coboconk, that nebulous individual who might just possibly, objectively speaking admittedly, have an honest opinion that coincides with the opinion meant. It means that the publisher must prove this. I suspect it wouldn’t be all that difficult, as one can always find someone who honestly holds the most weird opinions on the face of the earth, even outside of irresponsibility. Fanaticism isn’t the same as being mad, necessarily, as we have learned from acquaintances we have.
With that in mind, when the Attorney General says the defendant or the person who expressed the opinion did not hold the opinion but some person from Mars or a distant planet might possibly and legitimately have held that opinion, then it’s too broad, it’s too ambiguous, it’s too vague. We have to nail it down. The court in the Cherneskey judgement constantly makes reference to either one or the other, namely, that the publisher honestly holds the opinion, in other words, on good grounds. I would suggest a high degree of responsibility reposes there, which would be reposed by any jury as to what the honesty really was of the communicator of the opinion. The Attorney General has to put his finger on it better than he has done.
The amendment or some revision of the amendment that we are bringing before the House might just meet that. We do our amendment in the negative, and I will read it before I sit down.
I want to quote a bit into the record from the Cherneskey decision, quoting at 10:72 from Salmond on torts: “Comment or criticism must be carefully distinguished from a statement of fact. The former is not actionable if it related to matters that are of public interest, and the latter is actionable even if the facts so stated would, if true, have possessed the greatest public interest importance.
“Comment or criticism is essentially a statement of opinion as to the estimate to be formed of a man’s writings or action. Being therefore a mere matter of opinion and so incapable of definite proof, he who expresses it is not called upon by law to justify it as being true, but is allowed to express it even though others disagree with it, provided that it is honest.”
9:20 p.m.
I suppose in a way I would like to see honesty spelled out a bit more in terms of the criteria that constitute it in the Attorney General’s own legislation.
On the next page, the justification for the legislation appears. “People are entitled to hold and to express freely on matters of public interest, strong views, views that 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 that are honestly held.
“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. It would be a sad day for freedom of speech in this country” -- this is the Silkin versus Beaverbrook Newspapers case -- “if a jury were to apply the test of whether it agrees with the comment, instead of applying the true test, which is, was this an opinion, however exaggerated, obstinate or prejudiced, which was honestly held by the writer?” I think that has to be the test, not if some invented or hypothetical personage, however kooky he or she may be, could possibly hold the opinion, which is what this legislation does.
I want to take one moment to express a slight discontent over a letter received in connection with this legislation. It’s from the Ontario Press Council and page two of that letter, the second paragraph, reads as follows:
“When it first called for an amendment, the press council emphasized that it did so in the public interest, alarmed that the decision might restrict the free expression of conflicting, controversial and strong opinions vital to the health of a free society.” All to the good; we all feel the same way.
It noted that: “Newspaper publishers and broadcasters could easily avoid the risk of defamation actions by declining to publish only opinions with which they agree.” I think it’s a badly worded sentence and I want the press council to know it. I have a naive faith in journalism, which has been somewhat eroded over the years, et cetera, and in those who govern that particular field as to their literary excellence. That sentence doesn’t mean anything. I can tell the press council that. It has to be reworded. I think it should read, if it is to mean anything, “ ... the risk of defamation actions by declining to publish opinions other than those with which they agree,” and that was the dancer.
If you take the first point I made earlier that the opinion must be honestly held by the publisher, that is terribly restrictive and no one could go along with that, There is no reason in the world why he shouldn’t publish a wide range of opinions with which he thoroughly disagrees, provided you can tie down the opinion itself as to its veracity and its good faith in being made at all.
The amendment we are proposing reads as follows: “Where the defendant publishes the opinion of another person, the defence of fair comment should be available to him, except where he has knowledge that the person expressing the opinion did not honestly hold that opinion.”
It’s done in the negative but could be done the other way round, but at least it ties down and makes definite where the opinions emanate from and who is forwarding them and doing the real damage in terms of publication and its effect upon the general public.
I think that’s enough said about the legislation. By the way, the member for Brant-Oxford-Norfolk (Mr. Nixon) was extremely reticent over this tonight and almost deferential. It warmed and caused a slight glow around the aorta.
In any event, it should go to committee and we should look at it.
Mr. Ruston: Mr. Speaker, I have concerns about this bill. I know how much everyone treasures freedom of speech. We all agree with that. The problem is, there are many abuses of it. This may be more so in political life and with people in the area I am familiar with, who also have been in some form of political life, whether it be municipal or whatever. I have seen cases over the past number of years, local and otherwise, where people would put articles in the weekly paper without signatures on them. There might be a big advertisement with people’s names in the ad. I have been advised of people who went to the local newspaper and it didn’t want to tell them who put the ad in.
If one is going to run and own a newspaper, it seems to me there has to be some responsibility. I don’t think it should be necessary that the newspaper agree with the article, but I think it should be aware of the content enough to know that it might be liable to someone at some time. It seems to me that’s what we should be looking at.
I don’t want to get too involved because I may be involved in something of this nature -- in fact, it is on the border right now. I don’t want to speak about that. I have known occasions when a newspaper has printed something that was completely wrong. As other members have said, it will print a retraction four days later on the 17th page. In the case I was involved in they put it on the second page. However, some people think the second page is the same as the 17th. In a way, the damage has already been done.
I have great concerns about extending the freedom we have, as stated in this bill. I would be reluctant to support the bill. Apparently, from what I can gather, there are a number who would like to see it go to standing committee.
I would then have the opportunity to hear the presentations of people who have something to add to it. It probably would clear my mind. I might agree then that the bill has some merit, but at the present time I am very reluctant to support it.
Mr. McGuigan: Mr. Speaker, I do not have any profound words of wisdom to add to this debate. I’m sure members from the legal profession and those with journalistic experience have already expressed those.
I would like to say that I had occasion, within the last couple of weeks, to look at a letter that had been sent to me as a copy of a letter sent to an editor. There were some inflammatory remarks in it. From my non legal training I thought these things were libellous. I was preparing to ask a question in the House on the basis of this letter. I phoned the editor and asked if he had published the letter. The editor said: “No, we did not publish the letter. We saw the libellous character of the letter. We sent it back to the sender and pointed this out to him. We said to him, ‘Do you really want us to publish the letter in its present form?’”
9:30 p.m.
Having known some of the background, and having talked to the person who wrote the letter, I know it was written in anger over a long-standing grievance of this particular gentleman. I agreed with a good many of his points of issue. Nevertheless, I am quite sure the letter was written in anger. If it had not been for the fact that the publisher recognized its libellous nature, and recognized his responsibilities to the person, it no doubt would have been published and put this man in very bad position -- perhaps, at the end of a successful lawsuit, in the position of losing his life’s work.
So my position is that I would not wish to support this bill unless, as my colleagues suggested, it went to committee where we could hear expert witnesses give their opinion upon it.
Hon. Mr. McMurtry: Mr. Speaker, I’ll attempt to be relatively brief because I have no objection to the legislation going to committee. I do recognize that the law of libel and slander is a very complex area. At the same time, I would like to make some observations, because I believe there is some degree of confusion -- I understand how it could occur -- about the purpose, intent and effect of the legislation, and the extent to which it alters the present law. There are some very basic misconceptions as to what we are attempting to accomplish.
First of all, I am very grateful for the concern expressed by my colleague and very good friend, the member for Simcoe Centre (Mr. G. Taylor), as to the apparent unfairness done to the Attorney General by a correspondent to a newspaper who misrepresented the facts and then expressed an opinion. While that is and always should be of concern to anyone in or out of public life, I would like to make the point that that individual is not protected by this legislation.
If the facts were wrong, and they were wrong in the letter, then there is a cause of action because the defence of fair comment is dependent upon the truth of the facts.
Where the facts are misstated or presented in an untrue fashion, then a cause of action lies. I think it is important to keep that in mind. I recognize the difficulty that the law of libel presents to lawyers and, obviously, to non lawyers.
What we are attempting to do in this legislation is not to extend any privilege or to give licence to publishers to defame individuals. We are simply attempting to clarify what many people have always believed to have been the law -- not to create any additional immunity but simply to clarify what I regard to be a rather unfortunate situation created by a highly respected court.
Mr. Haggerty: But it does give them additional immunity?
Hon. Mr McMurtry: No, it does not. It clearly does not. The defence of fair comment is only available if the facts are truthful.
It should also be pointed out that this legislation does not affect the liability of the correspondent or the author of the letter, for example. It is quite clear that we are talking about the publisher. If the facts are demonstrated to be untrue, as they were in that case the member mentioned, then the defence of fair comment is not available to newspapers. I think it is important to recognize that. The legislation does not affect the liability of the correspondent. It is only the carrier, as it were, of the letter or broadcast -- the publisher -- and I think it is very important to keep that in mind.
Under the Cherneskey case, the problem it presents, apart from some overriding confusion as to just what is stated by the majority judgement, is that it places the publisher of a newspaper in a position where not only is a publisher required to seek out the correspondent but if someone has written a letter, to publish the letter the newspaper should be aware of the facts upon which the opinion is expressed. Then it is open to an action for defamation. The newspaper can publish the letter with some degree of impunity only if the facts upon which the opinions expressed are true, first, and second, if it is an opinion that is honestly expressed. Perhaps it is expressed with bias and with some degree of prejudice but it is an opinion that could be honestly held.
What we are talking about here is objective opinion as opposed to subjective opinion. I think we all in this House agree on the fundamental importance of a free and reasonable dissemination of opinion on matters of public interest, but the difficulty that is presented by this decision to a publisher -- and this is a particularly grave dilemma, in my view, for publishers of more modest means -- is that they then seek out, in order to be confident that they are not making themselves vulnerable to a libel action, the author of the letter to ascertain that person actually exists.
Not only that but they must make some sort of judgement, which I think as a practical matter would be very difficult, as to whether that person agreed with the opinion he or she expressed. And not only must they do that but they must further be assured that author would be available two or three years down the road if the action came to court.
In my view this places a very unfair onus on publishers. Despite the bruises they cause some of us in public life from day to day, I think we all recognize they are a very essential and vital ingredient of the democratic process. What we are attempting to do in this legislation is to maintain what the three distinguished jurists, who gave the minority decision, believed to have been the state of the law -- not to change it but simply to be what most individuals believe to be the state of the law with respect to the defence of fair comment.
That is, first of all the facts must be proved to be true. Second, the opinion must be one that can be honestly held and not one that is expressed with malice. For example the proposed amendment by the NDP in my view makes it clear that if a publisher published a letter knowing that the correspondent does not hold that opinion that would probably amount to a prima facie case of malice and would by itself defeat the defence of fair comment.
I recognise that this legislation, because of the complicated nature of the libel law, has caused members of all sides of the House some concerns. Therefore, I have no objection to the legislation going to committee. But I want to urge upon the members that in my view this is very important legislation in maintaining the avenues of reasonable democratic freedom of expression that are so essential to our democratic institutions.
I would urge that the legislation be supported in principle and that members be afforded the opportunity in committee for further discussion.
Motion agreed to.
Ordered for standing committee on administration of justice.
The House adjourned at 9:45 p.m.