Board of Education for Toronto v. Higgs et al.

living in the same house with Jowett and his wife and that Jowett and the. appellant were working together in taking bets on horse-races. The cross-examination continued: Cartwright J.

Q. Did you have any knowledge at that time of any other source of income of this man Jowett?

A. I did not-I heard that he had sold the odd car, that he was a car dealer or something like that.

Q. But then you found out something else about him. What was that? A. Well I never found out anything until his court case came out, that I heard anything about him.

Q. What did you find out?

A. Well that's just what they said.

Q. What was that?

A. That he had something to do with narcotics, I don't know. I still don't know actually what it was about.

Q. That came as quite a surprise to you?

A. Yes it did, because he seemed like a very nice man to me. This was the Jowett named in count 1 of the indictment. The effect of certain evidence given by police officers called by the Crown was summarized as follows in the closing address of Crown counsel to the jury:

And so much for all that my friend said in an hour and a half this morning in criticism of these officers. Why was the arrest not made for four months? Staff-Sergeant Carson told you, the officers told you. This was one facet in a larger investigation being carried on with great difficulty by these officers in the interest of the public to stem.the flow of illicit heroin into our city. And it wasn't important to pick up an individual person who had a few "caps" but it was important, as you all know from your general knowledge of Police activities and investigations to find out what was the source, to get if they could the "top man". And so they were instructed to find out, not to arrest on that night but to find out where it was that McDonald was getting his source of supply.

Following the cross-examination of the witness Lehman and while she was still in the witness box defence counsel again, in the absence of the jury, sought permission to prove the fact that the appellant had been tried and .acquitted on count 1. Crown counsel again objected and again the learned trial judge refused to allow this proof.

In my opinion the evidence tendered should have been received. It was legally admissible and was logically relevant to the question of the guilt or innocence of the accused on count 6, the charge on which he was being tried, for as between the Crown and the appellant his acquittal on count 1 conclusively established the.facts that he was not on or about September 18, 1955, or at any time in that year in conspiracy with Jowett or any of the other persons described in count 1 to have in his possession a drug for the purpose of trafficking. In my opinion it was the duty of the learned Cartwright trial judge to admit the evidence and having done so to give to the jury an unequivocal direction that in approaching the question of the guilt or innocence of the appellant they must give due weight to the facts thus conclusively established.

I agree with Mr. Robb's submission that as a matter of common sense it appears improbable, although not impossible, that the appellant could have had the fifty capsules of heroin and dealt with them as the officers testified he did unless he was engaged in a conspiracy such as that of which he had been acquitted, and that therefore the fact that he was not so engaged was relevant to the question which the jury were trying; but the matter does not rest there; Crown counsel, as appears from what is set out above as to the course of the trial, had elicited evidence having a tendency to show or at least to suggest that the appellant was working in conspiracy with Jowett and others, and the passage quoted from his closing address to the jury pointed unmistakably in that direction.

In my opinion the question falls within the reasoning contained in the passage from the Sambasivam case quoted by my brother Martland and in the following further passage at p. 480 of the report of that case:

Applying this reasoning to the facts of the case at bar it is my opinion that in fairness to the appellant the fact and the effect of his acquittal should have been made clear to the jury when -the Crown had adduced evidence of his association with Jowett and of the latter's conviction on a narcotic charge, if not before.

The governing principle is that if an acquittal necessarily involves a finding of fact, which fact would be an item of circumstantial evidence relevant to the question of guilt or J. innocence on the subsequent trial on another charge of the person acquitted, that fact may be proved in the lastmentioned trial, and is conclusively established by proof of the acquittal.

It follows that, in my view, question no. 6, quoted above, should be answered in the affirmative, and this is fatal to the validity of the conviction.

I have not overlooked the circumstance mentioned in the reasons of the Court of Appeal that the appellant, in the course of his cross-examination, although not asked about it, volunteered the information that he had been acquitted. In my opinion this is of no significance. The appellant was entitled not only to have the fact of the acquittal properly proved but also to have its effect clearly explained to the jury by the learned trial judge in the manner I have indicated above. Counsel agree that, in obedience to the ruling which the learned trial judge had made, defence counsel made no reference to the acquittal in his address to the jury.

Having reached this conclusion it is not strictly necessary for me to deal with question no. 2 but I wish to state briefly the principles on which, in my view, it would fall to be decided if it were necessary to express a final opinion upon it. It is clear that facts showing a witness to be biased may be elicited on cross-examination or, if denied, independently proved; see R. v. Shawl and Attorney-General v. Hitchcock . Evidence showing that a witness was a member of a conspiracy the object of which was to fabricate evidence against a party would be admissible as it would be cogent evidence of bias. I see no reason why in considering the admissibility of evidence tendered to prove a witness to be a member of such a conspiracy the Court should not follow the ordinary rule which is accurately stated in Phipson on Evidence, 9th ed., p. 98, as follows:

Of course the witness is not on trial, but once it is conceded that the question whether or not he is a participant in such an alleged conspiracy may be inquired into I see no reason why the rules of evidence which are applicable toCartwright both civil and criminal combinations would not govern the admission of any evidence tendered.

The circumstance that where such evidence is offered much time might be expended at a trial in inquiring into a collateral issue would not afford a sufficient ground for refusing to receive it. To decide whether in the case at bar the evidence tendered for the purpose of showing bias and rejected by the learned trial judge was properly rejected would require a critical examination of the record and as

I have concluded that the appeal succeeds on another ground I do not pursue this question further.

I would allow the appeal and quash the conviction.

As the view of the majority of the Court is that the.appeal fails, nothing would be gained by my expressing an opinion as to what further order should have been made had the conviction been quashed.

Appeal dismissed, J. dissenting.

THE GLOBE AND MAIL LIMITED

(Defendant) .....................

'

JOHN BOLAND (Plaintiff) ............

judge dismissed the action on the ground that the publication was made on an occasion of qualified privilege and there was no evidence of malice. The Court of Appeal ordered a new trial on the ground that there was evidence of malice to go to the jury, but did not affirm or reject the view of the trial judge on the question of qualified privilege. The defendant appealed to this Court.

Held: The appeal should be dismissed.

The defence of qualified privilege, based on the plea that the newspaper had a duty to inform the public and the public had an interest in receiving information relevant to the question of the candidate's fitness for office, is not open to a newspaper which has published defamatory statements about the candidate. To hold otherwise would be not only contrary to the great weight of authority in England and in this country but harmful to that "common convenience and welfare of society" which is the underlying principle on which the rules as to qualified privilege are founded.

APPEAL from a judgment of the Court of Appeal for Ontario', ordering a new trial in an action for libel. Appeal dismissed.

J. Boland, Q.C., in person.

The Court of Appeal, in a unanimous judgment delivered by Lebel J.A., allowed the appeal and directed a new trial on the ground that there was evidence upon which the jury might find express malice. As I read his reasons, the learned justice of Appeal neither afflims nor rejects the view of the learned trial judge that it was established that the words were published on an occasion of qualified privilege. 1(1959), D.L.R. (2d) 313.

In my opinion the order made by the Court of Appeal was right but as there is to be a new trial I think it desir- GLOBE able to say something as to the appellant's plea of qualified privilege.

The respondent was a candidate for election in Parkdale Cartwright J. riding in the general election held in Canada on June 10,

The words complained of appeared on May 27, 1957, as an editorial in all issues of the Globe and Mail, a daily newspaper published by the appellant. They read as follows:

SHABBY TACTICS

One of the less creditable episodes of the election campaign occurred on Thursday evening in Parkdale constituency, in Toronto, when Mr. John

Boland, self-styled independent Conservative candidate, introduced an issue which does not exist in this election. McCarthy-style, he put forward an ex-Communist in an attempt to show the Liberals are "Soft on Communism". The results were far from edifying.

The reason for this disgusting performance was undoubtedly to mislead the so-called New Canadian vote in that riding, in the hope that their anti-Communist fears might be translated into an anti-Liberal anti- Conservative prejudice. An election won by such tactics would be a degradation to the whole democratic system of Government in Canada.

Let us have no more of that sort of thing, this time or ever.

In the statement of claim it is alleged that the defendant falsely and maliciously published this editorial of and concerning the plaintiff and that in its plain and ordinary meaning it is defamatory of him. In paras. 6 to 15 inclusive a number of innuendoes are alleged.

In the statement of defence publication is admitted. The defences pleaded are, (i) that the words complained of in their natural and ordinary meaning are no libel, (ii) that the said words do not bear and were not understood to bear and are incapable of bearing or being understood to bear the meanings alleged in paras. 6 to 15 of the statement of claim, (iii) a plea of qualified privilege, and (iv) the defence of fair comment, pleaded in the form of the "rolled-up" plea.

The plea of qualified privilege is set out in paras. 3 and 4 of the statement of defence which read as follows:

1957, the Plaintiff, as a Candidate for election, was seeking the support of the electors in Parkdale Riding in the City of Toronto, as an

Independent Conservative Candidate. The Plaintiff, as part of his campaign, introduced the issue that the Liberal Government was employing pro-Communists in the Department of External Affairs and was soft on Communism. This issue was further developed at a Public Meeting held at Parkdale Collegiate Auditorium on 23rd May, 1957, Cartwright J.

when one, Pat Walsh, addressed the meeting in the interest of the Plaintiff. The raising of this issue by the Plaintiff was the subject of discussion and comment in the Public Press.

The rule as to the burden of proof where a defence of qualified privilege is set up is accurately stated in Gatley on Libel and Slander, 4th ed., p. 282, as follows:

The learned trial judge found that the facts alleged in para. 3 of the statement of defence were proved and, for the purposes of this appeal, I will assume the correctness of that finding. He then went on to hold as a matter of law that these facts established the existence of an occasion of qualified privilege. The learned judge based this conclusion primarily on the decisions of Mackay J., as he then was, the trial judge in Dennison et al. v. Sanderson et al. reported in appeal at', and of Kelly J., the trial judge in Drew v. Toronto Star Ltd., reported in appeal at . In the view of the learned trial judge in neither of these cases did the Court of Appeal disapprove of the statements made by the learned judges presiding at the trials to the effect that statements made in a newspaper during an election campaign as to the fitness, or otherwise, for office of candidates offering themselves for election were made on occasions of qualified privilege. The learned trial judge continued:

Therefore in my view we have two judges of this Court who have found that the publication of comment in newspapers as to candidates for election to public office, and made during the course of an election campaign, are uttered on occasions of qualified privilege and the opinion of neither one of those has been disturbed on appeal. Apart from the authority 21[19461 0.R. D.L.R.

0.R. D L.R. I would be much inclined to come to the same opinion. Surely no section of the public has a clearer duty to publish, for the information and guidance of the public, political news and comment, even critical comment, during a Federal Election in Canada than the great Metropolitan daily newspaper such as the Defendant. Just as certainly the public, every citizen in Canada, has a legitimate and vital interest in receiving such Cartwright J. publications. At this point I do not intend to deal with either the bona fides of the publication or with the alleged over extension of the publication thereof, to both of which I shall refer later, but only with the question of whether the occasion was one of qualified privilege. I have come to the conclusion that a Federal Election in Canada is an occasion upon which a newspaper has a public duty to comment on the candidates, their campaigns and their platforms or policies, and Canadian citizens have an honest and very real interest in receiving their comments, and that therefore this is an occasion of qualified privilege.

With respect, I am of opinion that this is an erroneous statement of the law. It is directly opposed to the unanimous judgment of this Court in Douglas v. Tucker', particularly at pp. 287 and 288 (which does not appear to have been brought to the attention of the learned judge) and to Duncombe v. Daniell , which was approved and followed in Douglas v. Tucker.

An attempt was made to distinguish the case at bar from Duncombe v. Daniell and Douglas v. Tucker on the ground that in each of those two cases the libel referred to the private life rather than the conduct in public affairs of the plaintiff; but the judgments in both of those cases proceeded on the basis that the defamatory statement made about the candidate would, if true, have been relevant to the question of his fitness for office and was such as the electors had an interest in hearing. In my opinion there is nothing in this suggested distinction which renders the principle of Douglas v. Tucker inapplicable to the case at bar.

With respect it appears to me that, in the passage from his reasons quoted above, the learned trial judge has confused the right which the publisher of a newspaper has, in common with all Her Majesty's subjects, to report truthfully and comment fairly upon matters of public interest with a duty of the sort which gives rise to an occasion of qualified privilege.

1 [19521 1 S.C.R. 275, 1 D.L.R. 657.

2 (1837), 8 Car. & P. 222, 143 E.R. 470, 2 Jur. 32, 1 W.W. & H. 101. It is well to bear in mind the following passage from the judgment of Lord Shaw in Arnold v. The King Emperor', quoted by Lebel J.A.:

The freedom of the journalist is an ordinary part of the freedom of Cartwrnght Jthe 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.

To hold that during a federal election campaign in Canada any defamatory statement published in the press relating to a candidate's fitness for office is to be taken as published on an occasion of qualified privilege would be, in my opinion, not only contrary to the great weight of authority in England and in this country but harmful to that ''common convenience and welfare of society" which Baron Parke described as the underlying principle on which the rules as to qualified privilege are founded. See Toogood v. Spyring . It would mean that every man who offers himself as a candidate must be prepared to risk the loss of his reputation without redress unless he be able to prove affirmatively that those who defamed him were actuated by express malice. I would like to adopt the following sentence from the judgment of the Court in Post Publishing Co. v. Hallam 3 :

We think that not only is such a sacrifice not required of every one who consents to become a candidate for office, but that to sanction such a doctrine would do the public more harm than good.

and the following expression of opinion by the learned author of Gatley (op. cit) at page 254:

It is, however, submitted that so wide an extension of the privilege would do the public more harm than good. It would tend to deter sensitive and honourable men from seeking public positions of trust and responsibility, and leave them open to others who have no respect for their reputation.

1 (1914), 30 T.L.R. 462 at 468.

2 (1834), 1 C.M. & R. at 193, 149 E.R. 1044.

3 59 Fed. 530 at 540.

The passages just quoted recall the words of Cockburn C.J. in Campbell v. Spottiswoodel:

It is said that it is for the interests of society that the public conduct of men should be criticised without any other limit than that the writer should have an honest belief that what he writes is true. But it seems to Cartwright J. me that the public have an equal interest in the maintenance of the public character of public men; and public affairs could not be conducted by men of honour with a view to the welfare of the country, if we were to sanction attacks upon them, destructive of their honour and character, and made without any foundation.

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.

As, in my opinion, it is settled by authority binding upon us that the facts pleaded by the appellant even if established would not render privileged the occasion on which the editorial complained of was published, I do not find it necessary to consider those parts of the reasons of the learned trial judge and of the Court of Appeal which discuss the question whether there was evidence of express malice.

At the new trial, in view of the state of the pleadings it should be taken that, as a matter of law, the defence of qualified privilege is not open to the defendant.

I would dismiss the appeal with costs.

1 (1863), 3 B. & S. 769 at 777, 122 E.R. 288.