David F. Sutherland & Associates

Vancouver, B.C.

A recent BC Supreme Court case suggests it may be prudent to include facts on which an opinion is based, within the body of the opinion itself. The availability of the defence of "fair comment" may depend upon it.

Canadians’ scope for fair comment is relatively unfettered (compared to some places in the world). One can not only be thoughtful, wise, and fair-minded, but one can also be inflammatory, pig-headed, and downright foolish. If you’re going to express a critical opinion about someone in particular, however, you may wish to ensure that you specify the facts on which the opinion is based. If the facts are recounted, then you strengthen your defence of "fair comment." It probably goes without saying that this defence is an editorial writer’s greatest shield.

In Scott v. Fulton, Michael Scott, the Reform MP for Skeena, and Jim Fulton, a member of the NDP and a former MP, engaged in a nationally broadcast television debate regarding the Nisga’a treaty. During the course of the debate, Fulton made statements about the Reform Party generally, and Scott, specifically, which suggested that Scott was racist. Both debaters were apparently speaking extemporaneously, a heated exchange on a hot political topic. Scott sued.

Fulton admitted the statements were defamatory but pleaded that they were fair comment on a matter of public interest. In support, Fulton claimed that his opinion was based on a "substratum of facts," that were widely known, establishing that the Reform Party was "anti-Indian." Based on this, Fulton asserted that "all persons who are anti-Indian demonstrate a kind of underlying racism." Since Scott was a member of the Reform Party, Fulton argued that it was fair comment to suggest that Scott was racist.

The judge disagreed. He rejected Fulton’s arguments and found in favour of Scott, stating:

According to the judge, in order to sustain the fair comment defence, Fulton was obliged during the course of the broadcast to provide the facts upon which his comment was based. Since he failed to "frame his statements to show clearly what was intended as comment and what was statement of fact," the charge of racism was treated as factual and Fulton was deprived of his fair comment defence.

Practically speaking, it seems like a waste of time to repeat facts already well-known by readers or listeners. As a result, the law makes an exception. The facts need not be stated if they are sufficiently notorious and sufficiently obviously the basis of the opinion.

So . . . you ask, "what is, or is not, sufficiently notorious?" Making this determination requires a judgement call about what the public knows about any particular subject or set of facts. That is always difficult. Predicting what a judge will find, months or years later, the readers knew and bore in mind, in any particular context, is a risky basis for our freedom of speech. Just ask Mr. Fulton. Any editorial writer or columnist probably considers the audience and then assesses whether that audience is already aware of facts to support any opinion proposed to be expressed. Nonetheless, when the facts are unstated or assumed, there is always a risk that the writer and reader might be thinking of different facts. A judge might not give the writer the benefit of the doubt. After all, the writer could have given the facts. Awareness of any fact is variable and uncertain in any population. While a local newspaper with a limited circulation only has to consider what is known by its readers, a national broadcaster, as in the Scott case, has to take into account what is generally known across the country.

A statement will be considered factual unless the context forces the reader or listener to realize it’s merely an opinion. Stating: "it’s my opinion that…." doesn’t always solve the problem. Besides, most editors would regard such phrases as useless in the context of an editorial or column.

The better option is to include at least some facts within the body of the opinion itself. The contrast serves to distinguish fact from what is merely opinion, and greatly reduce the risk of losing the fair comment defence. Of course, the problem with this is that needless time and space is wasted repeating facts that may already be well-known by the intended audience. To avoid boring the reader with a rehash, some editorial writers base their opinion on a few new facts. Under this approach, the connection between fact and the opinion can become tenuous. Still, this is usually defensible. In other words, a tenuous connection between the fact and the opinion is usually protected. After all, the opinion can be foolish or even pig-headed (in the absence of malice, which is another topic).

The Scott decision is an example of the requirement that, in order to be fair, a comment must be based on "true facts" which are stated or obvious. In Scott, the facts were neither. The judge found that Scott, who was not a prominent political figure, was being labeled a racist in a national broadcast. The judge accepted that most of the audience had likely never heard of Scott before the broadcast and, as a result, Fulton’s assertion that Scott was a racist was received, not as a comment, but as a statement of fact. It probably did not help matters that Fulton also pleaded truth as a defence. Truth, it will be remembered, is difficult to prove except in the clearest of cases, and can lead to increased damages if not established to the court’s satisfaction.

If there is a lesson to be learned from the Scott case, it is that editors should strive to include a factual basis for opinion in editorials and columns. It is difficult to assess, in advance, what a court might find the public already knows about a particular issue or story. When in doubt, throw in a few facts that can be easily proved. They serve to distinguish fact from opinion and preserve the defence.

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