Reputation, Freedom of Expression and the Tort of Defamation in the United States and Canada: A Deceptive Polarity

Abstract

This article explores the common law of defamation in Canada and whether it should be "constitutionalized" to comply with freedom of expression imperatives. Using a comparative law approach, the issue's development in Canada and the United States is explored. The author asserts that the short Canadian history of Charter challenges to the tort of defamation shows a misunderstanding of the considerable American experience in this area. By going beyond the limited sphere of jurisprudence to touch upon issues of political culture, constitutional interpretation and social history, the article deciphers the underlying reasons for the differences of judicial opinion in the U.S. and Canada. In so doing, the author dissolves the neat stereotypes derived from a superficial reliance on leading cases in each jurisdiction. The result has been the creation of a false polarity between the countries on the subject of free speech and defamation which eclipses viable compromise approaches to resolving the debate.