Supreme Court of Canada
Gazette Printing Co. v. Shallow, (1909) 41 S.C.R. 339
Date: 1909-02-12
The Gazette Printing Company (Defendants) Appellants;
and
Frank D. Shallow (Plaintiff) Respondent.
1908: November 3, 4; 1909: February 12.
Present: Sir Charles Fitzpatrick C.J. and Girouard, Idington, Maclennan and Duff JJ.
ON APPEAL FROM THE COURT OF KING'S BENCH, APPEAL SIDE, PROVINCE OF QUEBEC.
Libel—Privileged publications—Reports of judicial proceedings— Public policy—Pleadings filed in civil actions—Proceedings not in open court.
The publication of the statements contained in a pleading filed in the course of a civil action, merely because such statements form part of such a pleading, is not a privileged publication within the rule which throws the protection of privilege about fair reports of judicial proceedings.
The judgment appealed from (Q.R. 17 K.B. 309), reversing the judgment of the Superior Court (Q.R. 31 S.C. 338), was affirmed, Girouard J. dissenting.
APPEAL from the judgment of the Court of King's Bench, appeal side, which reversed the judgment of the Superior Court, District of Montreal, Bossé J. dissenting, and maintained the plaintiff's action with costs.
The plaintiff, by his action claimed damages for libel charged against the defendants, the proprietors and publishers of a newspaper published in the City of Montreal, in the publication of certain pleadings which had been filed in the office of the Superior
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Court, in a civil action, as public news, previous to any hearing or action in relation thereto by the court or any judicial officer. At the trial the action was dismissed by Mr. Justice Archibald, but his judgment was reversed and the plaintiffs' action was maintained and the damages assessed at |250, with costs, by the judgment from which the present appeal was asserted.
The questions raised on the appeal are stated in the judgments now reported.
A. Geoffrion K.C. and A. W. P. Buchanan K.C. for the appellants.
T. Chase-Casgrain K.C. and G. Desaulniers for the respondent.
The Chief Justice agreed with the opinion stated by Duff J.
Girouard J. (dissenting)—We are here brought face to face with a social and political problem, the liberty of the press in Quebec.
A weekly newspaper, Le Nationaliste, of Montreal, brought a direct charge of blackmailing against Le Moniteur du Commerce, a weekly review of trade and finance also published in Montreal; and invited the latter to prosecute it in order that it might have an opportunity of proving the truth of the accusation. The Moniteur immediately brought an action for libel, of which we do not know the results. The Montreal Gazette, one of the principal daily newspapers of the country, announced the fact that the suit had been brought, and gave a summary of the declaration or
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statement of claim as fyled. This summary must have been satisfactory to the proprietor of the Moniteur, since he has not made any complaint on the subject though he is proved to have read it.
Some days later the Nationaliste served upon the plaintiff its plea of justification, containing some twelve pages of printed matter, in which it gave the names of the banks and business houses that had been made the victims of the alleged blackmailing, and caused it to be fyled in the office of the court in the usual manner. Six days later, the Moniteur sued the Gazette for libel, alleging the fact of the publication by it of an abstract of this plea, and averring that the defendant had acted with malice and with an intent to injure, without, however, claiming that the plea so published was a document of a private nature.
At the hearing before the trial court, and in appeal, as well as before this court, the question of malice does not seem to have perplexed the judges; they all agree that the Gazette acted in good faith, and that the summary published by it of the plea in question was fair, honest, and in the public interest.
The whole difficulty of the case is to determine whether this plea is a document of a private or of a public nature. The Court of King's Bench held, contrary to the decision of Mr. Justice Archibald, at the trial, and with Mr. Justice Bossé dissenting, that the document was of a private nature, and that it would not become public until after it had been read, or, at all events, produced in open court at the trial.
This decision is of very great importance for the whole press of the country, and it is not to be wondered at that some have protested most vigorously, while others have given vent to rather extravagant language,
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which it may be as well to tone down and correct at once. It has been claimed that the press has a right to publish everything which comes before our courts. . It should not be forgotten that it is the publication of such matter only as is of public general interest that comes within the privilege of the press, in Quebec at all events. I am aware that eminent judges in England, whose names will be found in the notes of my learned brother, Mr. Justice Duff, have held that the privilege of the press to publish juridical proceedings may be traced to another order of ideas. According to them, this privilege is based upon the right which the public enjoy of being made acquainted with everything that takes place during the sittings of the courts, and as everybody cannot be present at such sittings, the press comes to the aid of those who are absent by publishing the proceedings, thereby enlarging, as it were, the sphere of usefulness of the courts of justice. According to this theory the press is a kind of good fairy conducting a continuous performance of miracles. By a wave of its wand, it is pictured to us in the act of dissolving the walls which encircle our halls of justice, and of revealing to the public gaze, not only of the country but of the universe, a tableau of everything which may be carried on within.
The British law-givers do not seem to have been greatly impressed by this idea, for all the legislation of the past twenty-five or thirty years has re-affirmed the old doctrine that the privilege of the press exists only in cases where the proceedings are of public interest, and that, when it publishes a libel, a defamatory accusation against a private individual, it cannot claim any right other than those which may be invoked in similar cases by an ordinary citizen. In
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England for at least more than a century—although formerly and perhaps at the time of the cession it was not so, Petersdorff, Abr. (ed. 1029), vol. 12, p. 200— a defendant may triumph over a suit for damages by pleading and proving the truth of the libel; but, where the proceedings are brought in a court of criminal jurisdiction, the accused must, furthermore, establish that he acted in good faith in a matter of public interest.
The press is bound by the same rule. In the Province of Quebec our jurisprudence is more exacting based, as it undoubtedly is, upon the old French law, which lays down as a maxim that la vie privée doit être murée; it requires the two conditions of good faith and of public interest in all cases, civil as well as criminal. Nevertheless, the truth of the libel and other extenuating circumstances may be pleaded, if not as a bar to the suit, at all events in mitigation of the damages. Everything depends upon the circumstances. This is the meaning attached to the jurisprudence of Quebec during the past fifty or sixty years, and, in order to become convinced of this, it suffices to read Mignault, vol. 5, pp. 355 and following, where all the numerous precedents on the subject will be found. We hold that the public is not concerned with the private affairs of an individual or of a family, even when they come before the open courts. Unfortunately, the press has woefully trespassed upon private rights of late years, since the publication of scandals and of sensational items has become the fashion. But no question of this kind is raised in the present instance. What is in issue here is not so much the truth of the libel as the right of the press in connection with the publication of juridical proceedings.
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It is admitted that if the plea fyled by the Nationaliste had been read in open court, there would be no ground of action against the appellant.
Is the press obliged to await the day of trial before it can justifiably print or publish what is in issue, in other words, what is being done in our courts of justice?
Formerly, in England, all the proceedings in a law suit were had in open court, issue and return of writ, appearance, fyling of pleas, etc., etc. The great increase of judicial business has revolutionized the system of pleading and procedure. Blackstone (Lewis ed.), vol. 3, pp. 271 and following, and more especially 275, 279, 293. For many years a suit could not be brought here in Canada without leave of the judge, and the issues were always joined in open court. 25 Geo. III. ch. 2 (1785), secs. 1, 6, 8, 11, 13; R.S.L.C. (1845), pp. 85 and following.
If the decision of the Court of King's Bench be correct, the publication of every proceeding or pleading would have been privileged under the old law, as it had been fyled in open court; and yet not one single authority or precedent has been referred to by that court to shew that such a practice would be contrary to public order.
Nowadays, when these pleadings may be fyled in the office of the prothonotary in virtue of a law which says that they shall be deemed to have been fyled before the court, how can it be claimed that they are of a private nature? What was done under the old system should aid us in the interpretation of the new, especially as the legislature has not expressed any intention of bringing about any change in this respect.
Sir Henri Taschereau, Chief Justice, who delivered
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the judgment of the majority of the court, did not refer to article 16 of the Code of Procedure, which was cited before us, and which says that "the sittings of a court or of a judge are public," for the simple reason, probably, that this article does not lay down any new doctrine, but is the mere expression of a rule of English public law which has always been in force here since the cession of the country. Neither does the learned Chief Justice refer to article 1053 of the Civil Code for the purpose of proving that civil offences committed by the press should be judged in accordance with the principles laid down by that article. Apart from the last quoted article, there is no civil law in Quebec on the subject of libel by news-papers, however desirable it may be that legislation of some kind should be passed by the Dominion Parliament, "for the peace, order and good government of Canada." "British North America Act, 1867," sec. 91. According to his lordship, these offences should be judged according to the rules of the common law of England which recognizes that the press enjoys certain privileges that were unknown to the old French law; and, on this point, I agree with the judges of the King's Bench, who merely give expression to the jurisprudence of our province as determined since the decision of Rolland J., in 1848, in Gugy v. Hincks, subject, of course, to such modifications as the usages of our people have sanctioned. These privileges formed part of the public law of England which follows the British flag wherever it floats.
But I do not concur with the Court of King's Bench when it holds that according to the common
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law of England the publication of a pleading fyled in the Superior Court is not privileged so long as it has not been produced at the trial in open court. This is doubtless the rule where the statutory law of Great Britain prevails, and, more particularly, the statute of 1888, which restricts the rights of the press to
a fair and accurate report in any newspaper of proceedings publicly heard before any court exercising judicial authority.
These statutes have never been enacted in our province and have no force of law here, although Ontario, British Columbia and other provinces have adopted them at least in substance. So much is admitted by the Court of King's Bench. But, says the learned Chief Justice, these statutes are not new law; they are merely the expression of the common law; and he adds:
The privileges must be confined to the publication of proceedings in open court, as it was in England, before the "Libel Act" came into force, and as it undoubtedly is still under that Act.
Comyn's Digest of the Laws of England, vo. "Libel" (5 ed.), p. 872, published in 1822, simply lays down the rule that the publication of judicial proceedings is lawful. Likewise Petersdorfif's Abridgment, vo. "Libel," published in 1829, makes no mention of the "open court" rule. Odgers, an unquestionable authority on this subject, who has been quoted by both parties in this case says (ed. 1905), p. 307:
The words publicly heard should not have been inserted.
Pollock on Torts (ed. 1908), p. 273, remarks also that this clause of the statute of 1888
would seem to be only a not quite accurate affirmance of the common law.
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But, where is the evidence that the old common law contained any such restriction? By common law I mean the unwritten law, founded upon reason and the usages of the people, and in force in England at the time of the cession of this country. That is the only common law which should govern. Where is this common law to be found? In the decisions of the judges, as contained in the law reports? I have failed to find one single precedent on the point which now interests us, prior or even subsequent to the cession. I do find some decisions rendered about the beginning of the last century, wherein general principles are laid down, and, with all due deference, it seems to me they say quite the reverse of what the Court of King's Bench has said.
In England (says the learned Chief Justice), as far back as 1804, (Rex v. Lee), and continually since (with the solitary exception of Curry v. Walter) (since overruled), the publication of an ex parte proceeding in criminal cases was not only regarded as not privileged by law, but as an illegal act in respect of its tendency to obstruct the due course of justice.
But this is the very opposite to what really took place. Curry v. Walter was approved in Rex v. Wright, in 1799, and more recently in Kimber v. The Press Association, in 1893. Lawrence J. said in Rex v. Wright, and I prefer his opinion on the old law, for he lived in those days:
The proceedings of courts of justice are daily published, some of which highly reflect upon individuals; but I do not know that an information was ever granted against the publishers of them. Many of these proceedings contain no point of law, and are not published under the authority or the sanction of the courts; but they are printed for the information of the public. Not many years ago, an action was brought in the Court of Common Pleas by Mr. Curry
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against Walter, proprietor of "The Times," which supposed libel consisted in merely stating a speech made by a counsel in this court on a motion for leave to file a criminal information against Mr. Curry. Lord Chief Justice Eyre; who tried the cause, ruled that this was not a libel, not the subject of an action, it being a true account of what has passed in this court; and in this opinion the Court of Common Pleas afterwards, on a motion for a new trial, all concurred though some of the judges doubted whether or not the defendant could avail himself of that defence on the general issue. Though the publication of such proceedings may be to the disadvantage of the particular individual concerned, yet it is of vast importance that the proceedings of courts of justice should be universally known. The general advantage to the country in having these proceedings made public, more than counterbalances the inconvenience to the private persons whose conduct may be the subject of such proceedings.
There is something more. Odgers says that it was not Curry v. Walter which was overruled, but rather Rex v. Lee, and at page 292, he remarks:
There are dicta of eminent judges which would seem to deny any privilege to fair arid accurate reports of ex parte proceedings, even in the Superior Courts. Per Maule J. in Hoare v. Silverlock, No. 2,, in 1850, and Abbott C.J. in Duncan v. Thwaites. But Curry v. Walter, is an express decision, that such reports are privileged; a case which was at one time doubted, but is now clear law. Cock-burn C.J., in Wason v. Walter, expressed his clear opinion that a fair and accurate report of an ex parte application would be privileged. And, now, the decision in Usill v. Hales, settles the law, and extends immunity to all bona fide and correct reports of all proceedings in a magistrate's court, whether ex parte or otherwise; and such cases as R. v. Lee, must be considered to be overruled, in so far at all events that it is unlawful to publish any report of ex parte proceedings.
As far as we are allowed to judge, it seems to me that the old decisions, those which were rendered at a period close to the cession, made no distinction between the report of judicial proceedings in open court and those simply in court.
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The decision of the Court of Appeal in England, in Kimber v. Press Association, has been quoted as having been rendered under the common law against the appellants' contention. And yet it does not sustain the legal proposition of the respondent that, in order to be privileged, the pleading must have been read or produced in open court, that is to say, during term or at least at the sitting of the court. In that case, the proceedings were held in council chamber where the clerk had called the justices of the peace together for the purpose of obtaining ex parte the issuance of a summons against a solicitor for perjury. The public was not excluded, but was not represented, if we may except a reporter—he is everywhere—who made a report to the associated press of what had taken place. It was held that his report was privileged. The Court of Appeal decided that
where there are judicial proceedings before a properly constituted judicial tribunal exercising its jurisdiction in open court, then the publication, without malice, of a fair and accurate report of what takes place before that tribunal is privileged.
Lord Esher added:
The common law, on the ground of public policy, recognises that there may be greater danger to the public in allowing judicial proceedings to be held in secret than in suffering persons for a time to rest under an unfounded charge or suggestion.
The learned judges explain that by the words "open court” must be understood not only the place where the sittings are held, but any place where the court exercises its jurisdiction, and from which the public is not excluded.
Is it essential that this jurisdiction be exercised by the same functionaries, that is to say, by the judges
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who finally decide the issues? It seems to me the assertion is neither reasonable nor practicable under our juridical system.
American precedents have been cited adversely to the appellant. I admit that if they had been rendered under a Code of Procedure similar to that of the Province of Quebec where the action, the declaration, the defence, and all the pleadings before the trial are supposed to be fyled before the court, they would be of great weight; but we must decide this cause according to the rules and principles which we find in the Code of Procedure of that province.
We come now to a second question: Is the prothonotary's office an office distinct from the court? Article 76, C.P.Q., says that a suit is brought before the proper court, while, in practice, it issues from and is returned to and fyled in the prothonotary's office. See also arts. 117, 118, 151, C.P.Q. According to the Code of Civil Procedure, arts. 94 to 103, the writ commands the defendant to appear before the court, and, in the present case, the writ summons the defendant to appear before the court, while, in practice, the defendant fyles his appearance in the office of the prothonotary only. C.P.Q. art. 161. Since he is ordered to appear before the court, it would naturally follow that he should also fyle his defence before the court. C.P.Q., art. 197. It is not every one who has a right to fyle pleadings. They must be accepted by the prothonotary or his representatives in the name of the court which exercises its jurisdiction through them.
Now it seems to me that everything that takes place before the courts being, as is the case here, of a public and general interest, is public matter and the reports which the press may make thereof and which
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are fair in substance, and published in good faith and without malice, are privileged.
Rules of practice have been referred to. Such rules concern only the management of the prothonotary's offices, the custody and preservation of the records and archives of the court, and can go no further. They are of no importance when it becomes necessary to decide whether the appellant had or had not the right to publish the pleading in question, for that issue must be decided according to the laws of the land, and not by the rules of practice of the Superior Court.
Furthermore, the Court of King's Bench gives to rule 36, the only one which can have any application, a much greater scope than its terms import. The rule does not say that communication of the records can be given to the interested parties only, but that these latter shall be entitled to communication thereof in the prothonotary's office. The latter cannot refuse it under any pretext. The rule says nothing about strangers to the cause, nor about the general public, whom the prothonotary may have special grounds to refuse, an order of the judge, for instance, such as is sometimes issued by the courts of other countries. Am. & Eng. Encyc. of Law, vol. 24, pp. 182, 183, par. VIII.
The judge may, it is true, prohibit the inspection of the pleadings or of the whole record, in the interest of good morals or public order, just as he may exclude the public from the sittings of the court, even in a case of public interest. C.P.Q. art. 16. As a rule, the records of courts of justice are public documents. Am. & Eng. Encyc. of Law, vol. 24, pp. 159, 160, 161, 170; Odgers, pp. 295, 296.
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If a newspaper makes a wrongful use thereof, if it gives them to the public when private interests alone are at stake, for instance, in cases of seduction, filiation, separation from bed and board (although, even in such cases, there may be exceptions where public men are concerned), if it makes public, I say, facts or private acts which are entirely of a personal nature, with which the public is not at all concerned, it does so at its risk, and peril, and cannot claim immunity.
In this case, the interest of the public cannot be put in doubt; this much is admitted. The subject matter is the honesty of a newspaper which is accused of blackmailing. The reporter of the Gazette, Duteau, did not surreptitiously obtain from the prothonotary's office the plea the publication whereof is made the basis of this action. He was even invited by one of the officers in charge to take cognizance of it, to take notes from it, and his notes are admitted to be correct This is what is said by him in his testimony:
Well, on the day previous to the publication of the article, I came to the prothonotary's office here, as I do every day, and I inquired if there was anything doing: and one of the deputy prothonotaries told me that Mr. Asselin has fyled his defence in connection with the action that was taken against him by Mr. Shallow, whereupon I inquired if I could see the defence, and I obtained the document, and made an abstract of it, and wrote it out.
This simple story shews that in the opinion of these two officials, the pleading in question was a public document which the press and the public had a right to see, when no order to the contrary had been given.
This is all the evidence there is on the subject, and it might, and doubtless would have been made stronger if the respondent had alleged in his action, or in his answer to plea, that the records of the Superior Court before being read in open court, are private and not
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public documents. Not only has the respondent not said this, but he has left the contrary to be inferred by his answer to plea.
Finally, should the court of appeal allow a plaintiff to make use of a reason which is not set out in his demand, and which he virtually thrust to one side for the purpose of bringing a charge of malice against his adversary. If the plea in question had not been read or produced at the trial and was private should he not have alleged the fact in order to take advantage of it? He charges malice only, which has not been proved. In fact, the contrary has been established. He goes even further in his answer to plea, and avers that the Gazette did not obtain its information from the records of the court, meaning that it was obtained out of court, being evidently under the impression that that source of information would be different, a distinction which is clearly made by the Quebec Court of King's Bench in Archambault v. Great N.W. Telegraph Co.. Here it was held that the publication of an abstract from the declaration is a suit entered, but before the return of the action, is not privileged. The text of the formal judgment upon the point is in these terms:
Considérant que la défenderesse, intimée, n'a pas justifié les allégations de ses défenses, et spécialement qu'elle n'a pas prouvé que la déclaration dans la cause No. 1479 de Dame Henrietta Sylvia Andrews v. Frs. Xavier Archambault, datée le 20 de février 1883, et rapportable et rapportée en cour seulement le 14 de mars 1883, formât partie des archives de la court, fût ouverte au public, à la date de la transmission par la défenderesse du télégramme en question.
The only inference which can be drawn from this decision is that the publication of such an extract
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after the return of the action and the fyling of the declaration in the prothonotary's office would be privileged.
The Court of King's Bench seeks to follow the common law of England. What is to be understood by that? Where is this common law to be found, the common law which was followed at the time of the cession of this country to England, one hundred and fifty years ago? Blackstone (Lewis ed.), vol. 1, par. 65, tells us that the common law is the unwritten law Which takes its strength from immemorial usage, and which may be found in the reported judgments of the courts; but it strikes me that these reports must, be constant and uniform in order to have force of law. Again, how can we look for uniformity when we consider that the public has repeatedly altered its customs and usages on this subject, according to varying circumstances, without waiting for any action on the part of the legislature?
Lord Coleridge said that if he had had to decide the case then before him according to the principles recognized sixty or seventy years earlier, his conclusion would have been different. Odgers (ed. 1905), p. 293. Pollock on Torts (ed. 1908), p. 259, asserts that the modern decisions of the Court of Appeal are far from agreeing with those of former days, and that we will have to wait until the House of Lords has spoken upon the subject in order to know what to hold.
Since the days of the cession journalism has made rapid strides. It has taken hold of every movement of the entire world. A newspaper written to-day as newspapers were edited fifty or sixty years ago (without going as far back as the cession) would not secure
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a single subscriber. We insist, nowadays, upon news of everything, and from every point—telegraphic despatches, parliamentary reports, political, juridical, religious, municipal, financial, police, industrial, strikes, athletic news; accounts of meetings of companies and of corporations, of trade unions, of sports, of theatricals, and we must also have a personal column, and another for local news, another for social news, town topics, without mentioning caricatures, pictures and wood cut portraits. This is well known. However, the common law does not spread its protecting arms over all these. The change in the law with regard to public meetings was not made in England until 1888, nor in Canada until the Criminal Code was published in 1892. Still, without being protected by a text of law, these reports were published during many years before then. They were called for and screened by public opinion. As Lord Campbell observes in Lewis v. Levy:
The law upon such a subject must bend to the approved usages of society though still resting upon the same principle, that what is hurtful and indicates malice should be punished, and that what is beneficial and bona fide should be protected.
May we not reach the conclusion, from all that has preceded, that the usages of our people have entirely changed on the subject of the press, and what one has a right to expect from it? Can we reasonably exact from the newspapers anything more than fairness, good faith, honesty and public interest, elements which are not put in doubt in this case? Such is the conclusion which has been reached by many eminent judges in England. Odgers, 293, 294, 295.
Finally, to keep to the case which is now before
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us, it seems to me that the principle laid down in art. 288 of the Criminal Code (see. 320, ch. 146, Revised Statutes of Canada), settles the whole difficulty. This is what the article says:
No one commits an offence by publishing any defamatory matter, in any proceeding held before or under the authority of any court exercising judicial authority.
No distinction is here drawn between term days and other days. It will not surely be contended that the Superior Court exists upon trial days only; It exists permanently in its offices, before the trial for the incidental and introductory proceedings necessary for the institution, contestation, and hearing of causes, and afterwards, for the execution of its judgments by its officers. The prothonotary, in certain cases, is supposed to represent the court or judge; and in his office he pronounces certain judgments in the name of the court. C.P.Q. arts. 33, 532, 1310.
Article 288 of the Criminal Code is not mentioned in the respondent's factum; it has, furthermore, escaped the attention of the Court of King's Bench, with the exception of Mr. Justice Bossé, who dissented. With that great judicial discernment which always distinguished him, the learned judge reasons out the question in the following manner:
(Translation.) The principle of the liberty to publish ex parte proceedings is pushed much further in these countries than is necessary for the purposes of this case, where the publication was made of a contested demand and of a plea to such demand after they had been fyled in the office of the prothonotary of the court. Both were public property, the action itself which was the act of Shallow who complained of a libel that had appeared in the Nationaliste, and the plea, also fyled in the same office, by Asselin, giving his reasons why the action of damages by Shallow should be dismissed. A rule of practice had been cited to establish that communication to any others than the parties themselves or their representatives, should not be given of papers fyled in the office of the court. This
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rule was established. for the proper administration of the office, and goes no further. It certainly could not go further, or change the law, any more than it could convert the office into a dark chamber where all judicial proceedings would be had in secret.
Further on he adds:
Where is the law which makes them secret, which enacts that law suits, before they Come to trial in open court, are so very private in their nature that the public has neither an interest nor a right to know what are the contestations which take up the time of the courts, what are the claims, commercial or otherwise, which are recorded, who are insolvent, who are on the point of becoming so, why is it contended that they are so, and what reasons do they offer to shew they are not insolvent? Again, by what authority would we hold that everything in our office, suits as well as pleas, are secret procedures, which no one may disclose to the public under pain of committing a civil offence? It would certainly be pushing things very far to say that a newspaper, accused of blackmailing, which brings an action for damages by reason of such accusation, should have the right, after its action has been returned into court and become public property by the announcement made of the fact by another newspaper, to claim exemplary damages for the publication of the plea to this original action, even before proof has been made or judgment has been rendered in the first suit.
The public has a right to know what degree of importance, what reliance and what confidence it should give to a newspaper, and if such newspaper, being accused of lying and blackmailing, claims damages because of the accusation, the public has an equal right to know what defence is being made to the suit. For it must not be forgotten, that Shallow is suing for damages. The fact that he thus sues, and the reasons which led him to sue, were made public by the Gazette. Shallow did not complain of this. He took good care not to do so; but he complains that the Gazette published the plea offered by Asselin to the suit for libel. He wishes that the plea alone should remain unknown, and he bases his action against the Gazette solely upon this one fact.
To me it is clearly evident that the facts complained of by the respondent would not warrant the prosecution of the proprietors of the Gazette for libel in a criminal court. This appears to be the formal enactment of the article of the Criminal Code. I cannot conceive with regard to newspapers that what is not a libel from a criminal point of view can be held
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to be a libel civilly. If a journalist has the right and is in duty bound to note everything which may interest the public within the limits prescribed by law, without being exposed to penal censure, there is still greater reason that he should be immune against any civil condemnation. Such was the opinion that Mr. Justice Johnson expressed in the case of Trudel v. Le Monde:
The rights and liberties of the people of Canada completely take out of the category of wrongdoing (culpa), to which alone the article (1053 C.C.) relates, the performance of a public duty in a truthful and honest manner, which is the defendant's case, as they put it.
It is well worthy of remark that the Court of Appeal confirmed this view of the matter.
Rex v. Wright and Curry v. Walter, cited above, are also authorities for the proposition that where the press has privileges, there can be neither criminal action for libel nor civil action for damages. The Supreme Court of Louisiana, a country governed by a Civil Code similar to ours in matters of civil offences, decided in 1891 that
communications in a judicial proceeding are privileged and no person is liable civilly or criminally in any respect for anything published by him in the course of his duty in said proceedings. Gardemal v. McWilliams.
It is really the case to say that private interests must give way before the public weal.
Such is my interpretation of the Criminal Code, whose enactments are on this subject peculiar to our country.
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For all these reasons I would allow the appeal, restore the judgment of the trial court, and dismiss the plaintiff's action with costs before all the courts.
Idington and Maclennan JJ. agreed with the opinion stated by Duff J.
Duff J.—The question raised by this appeal is whether the publication of the statements contained in a pleading filed in the course of a civil action is (merely because such statements form part of such a pleading) a privileged publication within the rule which throws the protection of privilege about fair reports of judicial proceedings. The decision of the question is to be governed by the application of the law of the Province of Quebec; but it was conceded by counsel on both sides that under the law of that province the principles applicable to the particular question in controversy in this appeal do not differ from the principles of the common law.
The reason lying at the foundation of the privilege in question is, I think, nowhere more broadly stated than by Mr. Justice Laurence in the following passage which occurs in his judgment in Rex v. Wright:
Though the publication of such proceedings may be to the disadvantage of the particular individual concerned, yet it is of vast importance to the public that the proceedings of courts of justice should be universally known. The general advantage to the country in having these proceedings made public more than counterbalances the inconveniences to the private persons whose conduct may be the subject of such proceedings.
The convenience of individuals is to be made subservient to the interest of the public in the administration
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of justice—which requires that full publicity shall be given to judicial proceedings—and hence the privilege. But is there any consideration touching the public administration of justice which affects generally with this desideratum of publicity the statements made in pleadings fyled by private litigants in the course of private litigation? I can conceive none. The publicity of proceedings involving the conduct of a judicial authority serves the important purposes of impressing those concerned in the administration of justice with a sense of public responsibility, and of affording every member of the community an opportunity of observing for himself the mode in which the business of the public tribunals is carried on; but no such object would appear to be generally served by applying the privilege to the publication of preliminary statements of claims and defence relating only to private transactions; formulated by the parties themselves; in respect of which no judicial action has been taken, and upon which judicial action may never be invoked. It is only when such preliminary statements or the claims or defences embodied in them form the basis or the subject of some hearing before, or some action by, a court or a judicial officer, that their contents can become the object of any real public concern as touching the public administration of justice.
It would seem, therefore, that the appellant's claim of privilege for the publication of a pleading, merely because it is a pleading, cannot be justified upon the broad ground on which the privilege itself is said by Laurence J. to rest; and still less does that claim receive any countenance from the judicial decisions in which the rule has been applied or from the
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terms in which it has in later cases been judicially expounded. I have not been able to find among the reported decisions in England or in Canada a single case, except this, in which privilege has been claimed as attaching to the report of a judicial proceeding except in respect of an account of a proceeding in open court. Neither can I find any authoritative statement of the rule in which the application of the privilege is not limited either in express terms, or (when the facts under discussion are considered) by plain implication, to reports relating to such proceedings.
Thus in Rex v. Wright, Laurence J. is discussing the question whether the privilege is broad enough to protect the publication of reports of parliamentary debates; and while in the passage quoted he uses an equivocal phrase ("the proceedings of courts of justice") it is quite evident that he has in his eye proceedings in open court alone.
In the more recent cases the limitation is unequivocally expressed. One of the latest in which the rule is defined is Kimber v. The Press Association. The privilege claimed in that case was not based upon the English Act of 1888 (the defendants not being proprietors or publishers of a newspaper, and consequently not within the statute) but upon the common law principle. That principle is thus stated at p. 68 by Lord Esher:
The rule of law is that, where there are judicial proceedings before a properly constituted judicial tribunal exercising its jurisdiction in open court, then the publication, without malice, of a fair and accurate report of what takes place before that tribunal is privileged.
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To the same effect is the language of Lopes L.J., at p. 73:
The rule of law founded upon principles of public policy and convenience, is that no action for libel can be maintained in respect of a report of judicial proceedings, taken before persons acting judicially in open court, where the report is a fair and accurate report of those proceedings and published without malice.
The Court of Appeal, moreover, in that case treated as a vital point an objection that the proceedings were not in open court. At page 70, Lord Esher says:
Therefore under that section the justices are acting judicially in a judicial proceeding in considering the application for the issue of a summons and by the law of England the proceeding must be in open court. No order to close the court was made by the justices in the present case and it is clear that the proceedings were in open court.
At page 73, Lopes L.J. says:-
I am therefore of opinion that the objection that this was a report of proceedings not taken in open court fails.
And so Fry L.J., at p. 76:
I think therefore that the defendant must * * * shew that the matters in respect of which the report was published took place in open court.
In Lewis v. Levy Lord Campbell, considering the application of the rule to the publication of an account of a preliminary investigation of a criminal charge before a magistrate, deemed it necessary to examine the question whether the court in which the magistrate sat while conducting the inquiry was "a public court of justice"; and, at page 558, this passage occurs:
But although a magistrate upon any preliminary inquiry respecting an indictable offence may, if he thinks fit, carry on the inquiry
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in private, and the publication of any such proceedings before him would undoubtedly be unlawful, we conceive that while he continues to sit foribus apertis, admitting into the room where he sits as many of the public as can be conveniently accommodated, and thinking that this course is best calculated for the investigation of truth and the satisfactory administration of justice (as in most cases it certainly will be) we think the court in which he sits is to be considered a public court of justice.
The same learned judge in Davison v: Duncan at page 231, mentions (as one of the safeguards provided by the rule) the fact that "the proceedings" in respect of which reports are privileged "are under the control of the judges."
So strongly indeed have the courts emphasized the condition that the proceeding reported shall be a proceeding in open court, and so completely has that condition become incorporated in the rule as an essential element of it, that there is a considerable body of opinion of very high authority in support of the view that the rule itself is to be explained as merely intended to effect an extension of the area of the public court; and, aîthough the passage I have quoted from Laurence J. has been accepted by eminent judges as stating truly the common ground upon which rest both the public right to be present in court and the privilege attaching to the publication of what occurs there—still it is perhaps open to doubt whether there is not a greater weight of opinion in favour of resting the privilege upon the first-mentioned or narrower ground. Thus Lord Esher in Macdougall v. Knight & Son, at page 639, adopts the opinion which he extracts from the judgment of Lord Campbell (speaking for the Court of Queen's Bench) in Lewis v. Levy that the privilege is based upon the ground
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that the court is open to the public but cannot hold all the people who may wish to be present and it is for the public benefit that what takes place should be made known to all.
Speaking in the same case, in the House of Lords, Lord Halsbury says the foundation of the privilege is
that judicial proceedings are in this country public and that the publication of what takes place * * * is allowed because such publication is merely enlarging the area of the court.
In Stockdale v. Hansard, Patteson J. and, in Furniss v. Cambridge Daily News, Gorrell Barnes J. give their adherence to the same doctrine.
There seems, therefore, to be as little foundation in authority as in principle for this view put forward by the appellants concerning the scope of the privilege; and one may perhaps venture to say that it is with some satisfaction that one arrives at this result. It is, I think, obviously undesirable that, by the simple expedient of commencing an action and filing a claim, anybody should be able to secure to himself the protection of the law in the dissemination of the most outrageous libel. The publication of statements of fact which it is in the public interest to publish and which are hot untrue requires the protection of no privilege, because without any such protection such a publication entails no liability.
This view, as applicable to proceedings in the courts of Quebec, receives additional confirmation from the provision contained in rule 36, rules of practice, which seems to shew that the contents of pleadings and other papers filed in the course of litigation in the superior courts are not publici juris. That rule provides as follows:
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All parties to a suit shall be entitled to communication of exhibits and other writings fyled therein;
a provision not easily to be accounted for if the public generally had in respect of such documents rights—one need not say equal—but at all analogous to the right of the public to be present at and to observe all proceedings in open court.
The American authorities cited by counsel are uniformly in accord with the opinion above expressed. I do not refer to them at length, but cannot forbear at least to mention the opinion delivered by Holmes J. speaking for the Supreme Court of Massachusetts, in Cowley v. Pulsifer, and that of Hayden J., speaking for the St. Louis Court of Appeal, in Barber v. St. Louis Dispatch Co., each of which contains a convincing argument in favour of the rejection of the privilege now claimed based mainly upon an exhaustive examination of the English decisions.
The appeal should be dismissed with costs.
Appeal dismissed with costs.
Solicitors for the appellants: White & Buchanan.
Solicitors for the respondent: Desaulniers & Vallée.
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