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Civil Litigation

Ontario ruling clarifies line between free speech and hate

The often nebulous line between free speech and defamation became clearer when a Superior Court of Ontario judge quashed a motion to dismiss a lawsuit, Toronto lawyer Sarita Samaroo-Tsaktsiris tells AdvocateDaily.com.

The June decision by Justice Shaun Nakatsuru exposed two defendants — who videotaped themselves making what is alleged to be anti-Muslim statements outside a Toronto restaurant during a federal Liberal Party fundraiser — to a pending defamation lawsuit.

The restaurant owner filed a defamation suit following the initial incident in 2017 and one of the defendants sought to have it struck before trial.

Nakatsuru wrote in his dismissal, "we live in a free country where people have as much right to express outrageous and ridiculous opinions as moderate ones. I acknowledge that. But we also live in a country where alleged hateful and defamatory expressions can appropriately be litigated in the judicial system."

The justice's decision suggests free speech and hate speech cannot co-exist in society, says Samaroo-Tsaktsiris, principal of SST Law Professional Corporation

"It sharpens the line because when the anti-SLAPP law came out, everyone believed there was a safe space for defamation, but it now shows the free debate of so-called matters of public interest is not always protected," she says. 

The ruling also re-emphasized the Supreme Court of Canada's definition of hate as "representations vilifying a person or group will seek to abuse, denigrate or delegitimize them, to render them lawless, dangerous, unworthy or unacceptable in the eyes of the audience. Expression exposing vulnerable groups to detestation and vilification goes far beyond merely discrediting, humiliating or offending the victims."

People should think twice before posting messages they deem to be in the public interest but are instead hateful, and they shouldn't believe they're protected under anti-SLAPP provisions in Canada, Samaroo-Tsaktsiris says.

"It shows that especially when hate speech is involved, you can't have freedom of speech," she says. "Vilifying a person and abusing that privilege of having free speech is no longer acceptable. And this could tie to defamation in the sense that not all speech is protected.

"This case exposes an uncomfortable truth and people don't always want to address it or face it, is the fact that this underlies our society," Samaroo-Tsaktsiris says. "I think that anything doesn't go any longer."

Expression is an important value of the justice system, but not at the expense of someone who has worked very hard to build their reputation as an immigrant within Canadian society, she says.

Hate speech has a broad societal impact affecting religious groups and the LGBTQ+ community, "So I think this really sets a precedent for those who think they're protected under certain provisions. This is now deemed to be unacceptable," Samaroo-Tsaktsiris says.

"The judge emphasized that while this could be freedom of expression, this was still deemed to be hate speech," she says.

Nakatsuru heard arguments that anti-SLAPP provisions within the Courts of Justice Act which allow for the retraction of statements and the offer of an apology — and the findings in this case — provided the framework of responsible communications and suggested the alleged anti-Muslim statements were in the public interest, Samaroo-Tsaktsiris says.

If the statements in question fail to meet the thresholds of the two-part test, then the onus to show they are not defamatory is placed on the defendants, she says. With Nakatsuru's findings, the focus is now on the substance of the expressions rather than on the event when they occurred, placing the onus on the defendants to prove whether their expressions related to the public interest and should be protected as free speech, she says.

Nakatsuru found the defendants failed to meet the threshold of s. 137 of the Courts of Justice Act, Samaroo-Tsaktsiris says.

The judge notes the public must have a genuine stake in knowing about the expression and how it legitimately encompasses matters in science, politics, arts, morality, religion and the environment. "It didn't fall within that," she says. "The judge quickly shut them down and said no, that it didn't fall within this static list of topics.

"In this case, the judge didn't see that as something that would merit an apology or a retraction," Samaroo-Tsaktsiris explains. "In his decision, he didn't believe that it should be protected under the public having an interest in hearing that expression."

This decision is significant as it reaffirms the rule of law in Canada, she says.

Samaroo-Tsaktsiris says Nakatsuru laid the foundation of his ruling by citing another case that forms the basis in the defence of fair comment in defamation law as it affects an individual's reputation, described as an important underlying value of the Charter. A court's duty is to seek reconciliation among conflicting positions rather than "ordering a 'hierarchy' of rights."

"The fact the judge says this is a defamation case and doesn't fall under the anti-SLAPP provision was a huge victory for the plaintiff and it is upholding the rule of law, that not every expression is protected under the Charter," Samaroo-Tsaktsiris says.

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