Simpson v. Rebel News Network Ltd.
Page 27
She has also resorted to litigation, or threats of litigation, including defamation suits
such as this one, in an effort to stifle criticism.
[89] In any event, whatever harm Ms. Simpson may have suffered as a result of
the impugned expression would have to be weighed against the public interest in
protecting it. The considerations that arise in this part of the analysis were
conveniently summarised in Pointes as follows:
[73]
Once harm has been established and shown to be causally related to
the expression, [s. 4(2)(b)] requires that the harm and corresponding public
interest in permitting the proceeding to continue be weighed against the
public interest in protecting the expression. Therefore, as under [s. 4(1)(b)]
public interest becomes critical to the analysis.
[74]
However, the term “public interest” is used differently in [s. 4(2)(b)]
than in [s. 4(1)(b)]. Under [s. 4(1)(b)], the query is concerned with whether the
expression relates to a matter of public interest. The assessment is not
qualitative — i.e. it does not matter whether the expression helps or hampers
the public interest. Under [s. 4(2)(b)], in contrast, the legislature expressly
makes the public interest relevant to specific goals: permitting the proceeding
to continue and protecting the impugned expression. Therefore, not just any
matter of public interest will be relevant. Instead, the quality of the
expression, and the motivation behind it, are relevant here.
[75]
Indeed, “a statement that contains deliberate falsehoods, [or]
gratuitous personal attacks . . . may still be an expression that relates to a
matter of public interest. However, the public interest in protecting that
speech will be less than would have been the case had the same message
been delivered without the lies, [or] vitriol” (C.A. reasons, at para. 94, citing
Able Translations Ltd. v. Express International Translations Inc., 2016 ONSC
6785, 410 D.L.R. (4th) 380, at paras. 82-84 and 96-103, aff’d 2018 ONCA
690, 428 D.L.R. (4th) 568).
[76]
While judges should be wary of the inquiry descending into a
moralistic taste test, this Court recognized as early as R. v. Keegstra, 1990
24 (SCC), [1990] 3 S.C.R. 697, that not all expression is created
equal: “While we must guard carefully against judging expression according
to its popularity, it is equally destructive of free expression values, as well as
the other values which underlie a free and democratic society, to treat all
expression as equally crucial to those principles at the core of s. 2(b)”
(p. 760).
[90] In assessing the value of the impugned expression at issue in this case, I
accept that at least part of the motivation behind Rebel News’ reporting was to warn
the public about what the reporters believed to be the threat that Ms. Simpson’s
conduct poses to society. Rebel News says that it strives to present an alternative