Manning and Church of Scientology held a press conference to publicly announce criminal contempt proceedings they were starting against Hill, a Crown attorney. Found liable for libel at trial.
Is the common law of defamation inconsistent with the guarantee of freedom of expression, and if so, can it be scrutinized?
Charter values (in private litigation) are balanced differently than Charter rights. There is no formal s.1 analysis. Courts always have power to modify common law to bring into conformity with the Charter.
*Charter is a “restatement of fundamental values” which guide and shape democratic system, so court can incrementally revise the common law to bring in line
**They will not go further than necessary when evaluating Charter values
*Most private litigants can do is claim the common law is inconsistent with Charter values, not Charter rights (because rights do not exist absent state action)
**This avoids subjecting all court order to Charter scrutiny
*A balancing between principles
**More flexible than a traditional s.1 analysis
**Charter values are balanced against the principles underlying the common law
*Party alleging common law is inconsistent bears onus of proof that:
**1. The common law fails to comply with Charter values
**2. The common law should be modified
In 2010, court changed the common law of defamation to add the defence of responsible communications in matters of public interest (addressing libel chill).