COMMENT
COMMENTAIRE
Dowson v. The Queen
H. Kopyto*
When a Chief Superintendant of the Royal Canadian Mounted
Police allegedly makes false and defamatory statements about a private
is he
citizen to a provincial Assistant Deputy Attorney-General,
protected from liability for defamation by the doctrine of absolute
privilege? To those familiar with absolute privilege as a defence to libel
it will come as no small surprise that a recent unanimous decision of the
Federal Court of Appeal answered that question affirmatively. It is
arguable that in Dowson v. The Queen’ the Court struck a major blow
against those concerned with maintaining and extending the public
accountability of government employees and police forces. In fact, the
continued existence of liability for defamatory statements made by
public servants in the course of their duty has been put into question by
this decision.
The issue came before the Federal Court of Appeal on a motion
from the Crown to dismiss the defamation action of Ross Dowson 2
initiated against the federal Crown as a result of a statement made by
R.C.M.P. Chief Superintendent Robert Vaughan to R.M. McLeod, the
acting Assistant Deputy Attorney-General for Ontario, on 7 December
1977. 3 The statement complained of was made as a result of questions
*Of the Ontario Bar.
‘(1981) 124 D.L.R. (3d) 260 (F.C.A.)per Le Dain J., concurred in by Ryan J. and
McKay D.J. Leave to appeal to the Supreme Court of Canada refused 1 October 1981
per Laskin C.J.C., Estey and Lamer JJ. For further criticism of this decision see
J. Maingot, Parliamentary Privilege in Canada (1982), chap. 5.
2Statement of Claim filed in the Federal Court of Canada office in Toronto, 15
December 1977. Financial support for the carriage of the case came from the Socialist
Rights Defence Fund whose sponsors include Noam Chomsky, Linus Pauling, Jessica
Mitford, Pierre Berton, Margaret Atwood and a variety of political organization, e.g., the
federal New Democratic Party, The Law Union of Ontario, as well as trade unions and
labour councils across Canada.
3By Notice of Motion dated 20 December 1978, the defendant moved for an order
pursuant to Rule 419 (1) (c) and (f) of the General Rules and Orders of the Federal Court
of Canada to dismiss the action on the grounds that it was frivolous or vexatious or
McGILL LAW JOURNAL
[Vol. 27
directed by Stephen Lewis, then leader of the New Democratic Party
(N.D.P.) on 1 November 1977 in the Ontario Legislature to the
Attorney-General, Roy McMurtry, with respect to alleged investiga-
tions of the N.D.P. by the R.C.M.P. between 1971 and 1973. 4
The following day, Roy McMurtry wrote to the Solicitor-General,
Francis Fox, asking whether the R.C.M.P. investigation had in fact
taken place and if so, what its “origin, scope, method, duration and
result” had been.5 Affidavit evidence, filed and accepted by the Court,
established that R.C.M.P. officials were instructed to make the inquiries
necessary to reply to this letter.6
On 30 November 1977 Francis Fox replied to Roy McMurtry’s
letter advising him that he had asked Assistant R.C.M.P. Commissioner
M.S. Sexsmith to provide any additional information which might be
required at a meeting.7 The meeting between M.S. Sexsmith and R.M.
otherwise an abuse of the process of the court. In the alternative, an order was sought
pursuant to Rule 474 to set down for argument as a question of law before trial the
question of whether the statements complained of were absolutely privileged. In the
further alternative, the defendant sought an order pursuant to Rule 476 requiring that the
issue of absolute privilege be determined prior to discovery of the defendant.
4Ontario Legis. Debates, 31st Parl., Ist Sess., I November 1977, vol. 2, 1375-6:
ACTIVITIES OF RCMP
Mr Lewis: I’d like to put a question to the Attorney General if I may. Could I ask him, on
behalf of the democratic process generally, and on behalf of this party in particular, to
seek from the federal government, from the Minister of Justice and the Solicitor General,
an understanding of, or particulars about the investigation which was launched by the
RCMP, so it is alleged, into the activities of members of the New Democratic Party in the
years 1971-73 in the province of Ontario?
Hon. Mr McMurtry: Mr Speaker, yes, I am quite prepared to make such a request to the
Minister of Justice and the federal Solicitor General.
Hon. Mr McMurtry: Just as a matter of clarification, Mr Speaker, I assume the leader of
the NDP is talking about New Democratic Party members of this legislature?
Mr Lewis: No. Well, it may be, one never knows.
Hon. Mr McMurtry: The New Democratic Party in Ontario?
Mr Lewis: Yes. By way of supplementary, would it be possible, given what we consider
and obviously others consider to be extremely disturbing allegations attributed to the
RCMP of investigating the activities of various members or factions in well-constituted
politial parties in this country, the NDP in Ontario at the time, can I ask the Attorney
General to demand the information, to peruse it carefully, to make some kind of report to
the Ontario Legislature and then to allow us to see whether it might be taken further, say,
to the extent of a request for a commission of inquiry?
Mr Conway: You don’t mean the Waffle, do you?
Mr Lewis: I suspect it went further than that.
Hon. Mr McMurtry: My answer, Mr Speaker, is yes.
sAffidavit of Murray S. Sexsmith, sworn 14 December 1978, para. 4 (b).
6lbid., paras 4 (c) – (e).
7Ibid., para. 4 (c).
19821
COMMENTAIRE
McLeod, who attended upon the instructions of the Attorney-General of
Ontario, took place on 7 December 1977, at which time the statement
forming the basis of Dowson’s action was communicated. A summary of
R.C.M.P. activity relating to the inquiries was prepared as a result of
that meeting and was read in the Ontario Legislature by the Attorney-
General on 9 December 1977.8 The portion of the statement complained
of reads as follows:
The RCMP have always acted in the belief that membership in a political party does
not give immunity to anyone who would tend to promote changes brought on by
violent and undemocratic means and thereby attract the attention of the RCMP on
the interest of national security.
Between 1970 and 1973 the RCMP did conduct investigations into the activities of
certain members of the Waffle group while it was still a part of the NDP.
When the Waffle group came into being, it invited persons outside the NDP to join
its ranks. These persons included ex-members of the Communist Party of Canada
and members of the Canadian Trotskyists movements. The leaders of the League for
Socialist Action (Trotskyists), in fact directed their members to join the Waffle
Group.
The RCMP investigation of certain members of the Waffle group established that
subversive elements penetrated the NDP through the Waffle in order to gain more
respectability, credibility and influence. Although the RCMP investigation con-
centrated on individuals of security interest, inquiries were broadened sufficiently to
put the activities of these individuals in proper perspective. The investigation was de-
emphasized after the NDP decided to rid itself of the Waffle. The individuals of
concern to the RCMP, having lost the legitimacy of membership in the NDP, also
lost interest in the Waffle. The RCMP concern with these individuals was not
reduced but any concerns that the RCMP had that these subversive elements were
using the Waffle as a means of penetrating the NDP and therefore as a means of
acquiring credibility and influence was accordingly eliminated.9
Between 1961 and 1972 the plaintiff-appellant was the Executive
Secretary and thereafter the Chairman of the League for Socialist
Action (L.S.A.). 10 At the time the allegedly defamatory statement was
made, he was a professional politician and political journalist. The
plaintiff alleged that because of his role in the L.S.A., he was
identifiable as a person referred to in the statement of 7 December 1977
as “subversive” and as someone “who would tend to promote changes
brought on by violent and undemocratic means.., thereby attracting the
attention of the R.C.M.P. on the interests of national security”, to the
injury of his reputation. The Statement of Claim concluded with a claim
for special damages in the amount of $50,000 and general, punitive and
“Affidavit of Ross Dowson, sworn 4 September 1979, para. 8 (ii).
9Supra, note 4, 9 December 1977, 2815-6.
‘0Supra, note 2, para. 1.
REVUE DE DROIT DE McGILL
[Vol. 27
exemplary damages in the amount of $450,000.11 The defendant alleged
in its defence that the words complained of were spoken on an occasion
of absolute privilege and, alternatively, that they were spoken on an
occasion of qualified privilege.
The effective portion of the plaintiff’s claim was dismissed by Grant
J. of the Federal Court, Trial Division, on 27 December 1979, on the
grounds
that the statement complained of was an extension of
parliamentary proceedings made by an officer of state in the course
of official duty, thereby attracting the defence of absolute privilege. 12
The broad issue before the Federal Court was whether the state-
ment was protected by absolute privilege. The doctrine of absolute
privilege, notwithstanding its nomenclature, is distinct from privileges of
an evidentiary character which may have a parallel effect.’ 3 Absolute
privilege exists only within the realm of defamation, an area of the law
already fraught with numerous formalities of pleading, and its scope is
similar in many respects to the Royal prerogrative providing immunity
to the monarch from civil and criminal process for several centuries.
Absolute privilege has been defined as complete
immunity from
responsibility for publication of defamatory words regardless of purpose
or motivation.’ 4 In this respect, it differs from qualified privilege which
is defeated by proof of malice. Words spoken or published on an
occasion of absolute privilege are not actionable even though the
defendant spoke or published the words with full knowledge of their
falsity with the express intention of injuring an individual.
At present, absolute privilege attaches to statements made with
respect to three general classifications: (1) statements made with respect
to judicial and quasi-judicial proceedings; (2) statements made in the
course of parliamentary proceedings; and (3) statements made by high
officers of state to each other in the course of official duty with respect
to a matter of state.’ 5 The law with respect to the scope of the latter two
categories has been in a state of flux for much of this century in most
Commonwealth countries, with decisions frequently going opposite ways
on similar facts. No Canadian jurisprudence has modified the English
position on the incidents of official privilege. It is generally recognized
“Ibid., paras 2-14. The statement of claim was filed six days after the making of the
statement and for the purpose of subsequent court proceedings, its contents were
presumed to be true.
“2Dowson v. The Queen (F.C.T.D.), T-4816-77, 27 December 1979 per Grant J.
“A reliable exposition of the basic principles of absolute privilege may be found in
R. McEwan & P. Lewis, Gatley on Libel and Slander, 7th ed. (1974), paras 381-428.
“Ibid., paras 381-2. See also J. Flood, A Treatise on the Law of Libel and Slander
(1880), 154-5; Halsbury’s Laws of England, 4th ed. (1979), vol. 28, paras 95-107.
1I5bid.
1982]
COMMENT
that the doctrine, so far as it provides immunity from litigation to com-
munications relating to state matters made by high state officials to each
other, has its modern origin in the case of Chatterton v. Secretary of
State of India in Council.16 The underlying rationale for the rule was
stated by Lord Esher M.R. to be that it would be injurious to the public
interest to inquire into the motives of an officer of state with respect to
an official communication to another high state official as it would
reduce the officer’s freedom of action in a matter concerning the public
interest.’ 7 Lord Esher felt that to call upon such an official to deny that
he acted maliciously would prejudice the independence necessary for the
performance of that person’s function as an official of state.’ 8
It should be noted that his Lordship intended the doctrine to offer
complete immunity from suit rather than a defence. Such statements
already attract protection through the defence of qualified privilege
which, if pleaded and accepted, would provide an absolute defence
unless malice on the part of the person making the statement could be
proven. 19 However, Lord Esher clearly felt that the public interest
necessitated not merely a defence of which a high official of state could
avail himself on the merits, but rather a form of complete protection
which would negate any form of liability notwithstanding the merits.
The wide scope of absolute privilege has resulted in judicial
decisions which have attempted to ensure that such a broad privilege
would not be abused. For example, several American cases have held
that in determining whether a statement was made in the course of
official duty concerning a matter of state, it is relevant to examine
whether the statement was made for any other reason and whether the
statement was referable to the duty giving rise to the privileged
occasion.20 American case law has also suggested that absolute privilege
should not be extended in instances where defamatory statements are
not made confidentially and are intended to be “given to the world”. 2′
16[1895] 2 Q.B. 189 (C.A.).
“Ibid., 191.
“‘Ibid.
“gQualified privilege attaches to statements made in discharge of a public duty as well
as to communications in which a defendant and the person to whom the communication is
made has a common interest in making and receiving the communication. Both of these
defences would normally be available in cases where absolute privilege is pleaded. In fact,
these defences were pleaded in the alternative by the defendant in the instant case. See
Fresh Statement of Defence, filed 13 October 1978, para. 3.
2Gregoire v. Biddle 177 F. 2d 579, 581 (2d Cir. 1949)per Learned Hand J. See also
Wright v. Contrell (1943) 44 S.R. (N.S.W.) 45, 53 (S.C.) per Jordan C.J.
21Stivers v. Allen 15 A.L.R. 245, 247 (Wash. S.C. 1921) per Parker C.J.
McGILL LAW JOURNAL
[Vol. 27
The Chatterton case, which
involved an alleged defamatory
statement made by the Secretary of State for India to the parliamentary
undersecretary for India to enable the latter to answer a question in the
House of Commons, established three broad prerequisites for the
invocation of the doctrine of absolute privilege: (1) the statement must
have been made by one officer of state to another officer of state; (2) it
must relate to state matters; and (3) it must be made by an officer of
state in the course of his official duty. 22
In Dowson, the Federal Court of Appeal had to determine whether
it was sufficiently clear in fact and in law that the impugned statement
was made on an occasion of absolute privilege so as to justify striking
out the statement of claim and dismissing the action as frivolous and
vexatious or otherwise an abuse of the process of the Court. Whereas
Grant J. in the Trial Division had found the statement to be protected
both by the privilege of an officer of state and parliamentary privilege, 23
the Court of Appeal found that the statement was protected by the
privilege of an officer of state and found it unnecessary to decide
whether parliamentary privilege attached to the statement. However, Le
Dain J. said that the existence of a parliamentary privilege on the facts
of the case would appear to raise more difficulty in the light of the
existing authorities in view of the fact that the Solicitor-General of
Canada was not a member of the Ontario Legislature, although he was
replying to a request for information by a member of the Legislature to
enable him to answer a question in the Legislature. Whether a statement
made in such circumstances should enjoy the absolute privilege which
attaches to proceedings in the Legislature is not at all clear on the
authorities. 24
Despite their qualified character, these comments stand in sharp
contrast to Grant J.’s endorsement of the argument that parliamentary
privilege attached to the words at issue. 25 It was asserted strongly by
Grant J. that the statement complained of, though made by a stranger to
the House, had the protection of parliamentary privilege. He further
held in a portion of his judgment that may have been madeper incuriam
that the absolute privilege afforded statements made by officers of state
in the course of their duty was an instance of the extension of
parliamentary privilege outside the House. 26 Such a statement tends to
blur the distinct and separate natures of parliamentary privilege and the
22Seesupra, note 16, 190per Lord Esher M.R., 192per Kay L.J. and supra, note 1,
269 per Le Dain J.
23Supra, note 12.
24Supra, note 1, 273.
25Supra, note 12, 11-2.
26Ibid.
1982]
COMMENTAIRE
privilege afforded official communications between high officers of
state.
Furthermore, Grant J.’s decision went directly against case law
going well back into the nineteenth century establishing that statements
made to members of Parliament by strangers concerning questions to be
put in the House were subject to a qualified privilege and that the
soliciting or receipt of information was not a proceeding in Parliament
which attracts privilege. 27 Until the Trial Division’s decision in Dowson,
conversations between strangers to the House had never been held to be
parliamentary proceedings solely because the contents of such commu-
nications were subsequently repeated in the House. Grant J.’s reliance
on recent Canadian cases dealing with parliamentary privilege ignored
the salient fact that these cases applied only to statements made by
members of the House. 28
Historically,
the object of absolute privilege arising out of
parliamentary proceedings was to protect members of Parliament and no
authority exists for the proposition that statements made outside the
House by members attracts such a privilege. 29 The privilege of a
member of the House is finite and cannot be stretched indefinitely to
cover any person along a chain of communication initiated by the
member.3 0
Grant J. had apparently ignored the underlying test in all cases with
respect to parliamentary privilege; namely, whether the right to claim
the privilege is absolutely necessary for the due execution of the power
of Parliament.3’ Under the common law, only such laws are inherent in a
legislative assembly as are necessary to its existence and to the proper
exercise of its functions.32 Wider power has always depended upon
expreess grant by statute. 33 The application of the principle of absolute
privilege of parliamentary proceedings to proceedings which are carried
on outside the House is far from being settled in Canadian jurispru-
dence.3 4 In fact, the foremost authorities assert that it is an open
27Dickson v. Earl of Wilton (1859) I F. & F. 418, 429, 175 E.R. 790, 794 (Nisi
Prius) per Lord Campbell C.J.
28Roman Corp. v. Hudson’s Bay Oil and Gas Co. [1971] 2 O.R. 418 (H.C.), ajfd
[19721 1 O.R. 444 (C.A.), affd for other reasons [1973] S.C.R. 820.
29E. May, The Law, Privileges, Proceedings and Usage of Parliament, 18th ed.
(1971), 64 et seq.
aRe Clark and A.-G. Canada (1977) 17 O.R. (2d) 593 (H.C.).
3’Report of the Select Committee on Official Secrets Acts, H.C. Paper No. 118
(1946-7), para. 10.
32Landers v. Woodworth (1878) 2 S.C.R. 158.
33Dill v. Murphy (1864) 1 Moore (N.S.) 487, 511-2, 15 E.R. 784, 792-3 (P.C.)per
Molesworth J.
34See Stopforth v. Goyer (1978) 87 D.L.R. (3d) 373, 381 (Ont. H.C.) per Lieff J.
REVUE DE DROIT DE McGILL
[Vol. 27
question whether the immunity attached to parliamentary proceedings
may be extended to matters arising outside Parliament by virtue of their
especially close relation to proceedings in Parliament. 35 Even words
spoken in the House are not absolutely privileged unless they are
directly related to the business at issue.3 6 Within the framework of these
established principles of law, Le Dain J.’s comments on the “difficulty”
in finding the existence of parliamentary privilege in the instant case
appear to be understated, but are clearly consistent with existing
authorities. Le Dain J. did not hesitate, however, to engage in highly
innovative reasoning in order to find that the statement at issue was
protected by the privilege attached to official communications, not-
withstanding that the person making the statement was an officer of the
security service and that the statement was prepared by individuals
below him in the R.C.M.P. hierarchy.
Prior to reaching this conclusion, Le Dain J. conceded that if the
statement made by Chief Superintendent Vaughan was to be regarded as
made on his own behalf and on his own initiative, it would be arguable
whether it should be subject to an absolute privilege. 37 The learned
Justice, however, went on as follows:
But it is clear in my opinion that it can not be so regarded in the light of the facts
which must be taken as established. It was a statement that was made for and on
behalf of the Solicitor-General of Canada and pursuant to his instructions. The
request for information was addressed by the Attorney-General of Ontario to the
Solicitor-General. The Solicitor-General replied by letter on November 30, 1977
setting out the substance of his reply to the Attorney-General’s question in two
sentences and indicating that he had instructed Assistant Commissioner Sexsmith to
provide any further information that the Attorney General might require at a meeting
to be arranged at his convenience. The statement made by Vaughan under Sexsmith’s
direction at the meeting with McLeod was thus simply an elaboration of the Solicitor-
General’s reply to the Attorney-General. Vaughan should therefore be likened to a
person who makes a statement as the agent of another, and as such should be
regarded as having the benefit of the absolute privilege that would clearly apply, on
the authority of the Chatterton case, to a statement in relation to a state matter made
by the Solicitor-General in the course of his official duty. This principle –
that an
agent who makes a statement takes the benefit of the privilege that would attach to
the statement if made by the person on whose behalf it is made –
has been
recognized in cases of qualified privilege [see R. McEwan & P. Lewis, Gatley on
Libel and Slander, 7th ed. (1974), paras 469 and 880 and the cases cited, in
particular, Adam v. Ward [19171 A.C. 309 (H.L.)], and I can see no reason why it
should not apply to the occasion of absolute privilege created by the statement of a
Minister of the Crown in relation to a matter of state, particularly, in view of the
necessary delegation that is involved in the exercise of that office [cf R. Powell, The
Law of Agency, 2d ed. (1961), 279-801.
31May, supra, note 29, 64 et seq.
36Ibid., 63.
37Supra, note 1, 271.
8Ibid., 271-2.
19821
COMMENT
What is most significant about this reasoning is the way in which the
intrinsic restriction of the privilege to high officials of state has been
effectively circumvented, notwithstanding the unqualified nature of the
privilege. Until the instant case, policemen had never been held to be
protected by absolute privilege, whether by delegation or otherwise. As
Lord Denning M.R. said on behalf of the English Court of Appeal:
The authorities do show that a report by a very senior military or naval officer to his
superior is absolutely privileged; but nothing else is settled. It is doubtful whether
reports by the middle or lower ranks of the army and navy are absolutely privileged.
The middle ranks of the police do not appear to be absolutely privileged. It has been
held by the High Court of Australia that a report made by an inspector of police to his
superior officer is not absolutely privileged… . It is a nice question whether the secret
service should be treated like the police force or like the army or navy.3 9
Similarly, in Gibbons v. Duffell the High Court of Australia held
that a report to a superior officer which contained defamatory references
to a subordinate officer, made by an inspector of police in the course of
his duty was not the subject of absolute privilege.4 0 A majority of the
Court held that the functions of an inspector of police were not removed
39Richards v. Naum [1967] 1 Q.B. 620, 625 (C.A.). The Court of Appeal decided to
refuse to dismiss this action for libel on the ground of absolute privilege at the stage of a
motion to strike raising a preliminary determination of a question of law as it was not clear
whether absolute privilege extended to a statement made in the particular circumstances
of the case and that there were relevant and necessary facts that could only be determined
at trial. A similar argument had been put forward unsuccessfully in the case at hand.
40Gibbons v. Duffell (1932) 47 C.L.R. 520, 533-4 (H.C. Austl.). Evatt J. distin-
guished the case of police officers from operations of a military character arguing that
there had always been marked judicial disapproval of Dawkins v. Lord Paulet (1869)
L.R. 5 Q.B. 94, which established absolute privilege for communications between
military and navel officers: See S. Bower, The Law of Actionable Defamation, 2d ed.
(1927), 87. Evatt J. pointed out at pp. 534-5 that there was no justification “for extending
to members of the police force, in respect of their official reports, an absolute privilege
against all actions of defamation…. Extension of the privilege by reason of analogies to
recognized cases is not justified. Even if it were, there is no analogy between the Police
Force preserving the State from ‘internal enemies’ and the army preserving it from
‘external enemies’. Those who break the law – whether it be contained in the Crimes
Act or the Liquor Act –
are punishable by the King’s Courts but they do not thereby
become the King’s enemies. They remain his subjects.” Evatt J. further noted at
p. 534 that Royal Aquarium and Summer and Winter Garden Society Ltd v. Parkinson
[1892] 1 Q.B. 431 also held that “the classes of publication to which the common law
had attached a complete immunity were ascertained, and any proposed extension of
classes was looked upon with disfavour.” In this connexion see Williams, Absolute
Privileges for Licensing Justices (1909) 25 L.Q.R. 188, 200: “Absolute immunity from
the consequences of defamation is so serious a derogation from the citizen’s right to the
State’s protection of his good name that its existence at all can only be conceded in
those few cases where overwhelmingly strong reasons of public policy of another kind cut
across the elementary rights of civic protection; and any extension of the area of immunity
must be viewed with the must jealous suspicion, and resisted, unless its necessity is
demonstrated.”
Mc GILL LAW JOURNAL
[Vol. 27
from the common round of official duty and that his situation was not so
elevated to require for the satisfactory execution of his office the same
freedom from apprehension of suits as a Cabinet Minister or a General
Officer.4′ The Court felt that absolute privilege was not necessary for
the discipline of the force; nor did they see the removal of the privilege
as subverting the administrative needs of the police. The Court felt that
there was no sufficient warrant in the principles of common law for
denying the protection of the law from malicious defamation to a person
aggrieved by a police officer. Stark J., concurring in the result, asked the
pointed question:
If the police in the execution of their duties use more force than is reasonably
necessary to effect the object in respect of which they are entitled to use force, their
responsibility in law is clear. What reason is there of public policy which makes it
necessary that a police officer should be immune from legal responsibility when he
makes statements defamatory of others which he knows to be false, and maliciously
for the purpose of injuring or ruining their reputations? 42
Similarly, in Merricks v. Nott-Bower, a case involving the applica-
bility of absolute privilege to a police report, Salmon L.J. asserted that
while the categories of absolute privilege are not closed, at the moment
they have not been held to include a communication from one high
ranking police officer to another. 43
What is equally significant about the Dowson decision is the
manner in which Le Dain J. used the delegable character of qualified
privilege as the basis for extending it to absolute privilege as well. In so
doing, he left the impression that the question has never been considered
and is open to interpretation. However, one need only peruse one of his
own authorities with some care in order to note that the Federal Court of
Appeal appears to have seriously misinterpreted the law.
Le Dain J. refers to Powell’s The Law of Agency 44 as an authority
for extending the relevant principle of agency law to absolute privilege.
Indeed, Powell does say at the page cited by Le Dain J. that:
Most privileges, however, can be delegated. Examples of such privileges are –
consent to the commission of an act which would otherwise be a tort; statutory
authority to do an act which would otherwise be a trespass; defence of person or
property; abatement of a nuisance; absolute privilege in defamation. 4′
Immediately following this passage, however, Powell sets out the
criteria which have to be satisfied in order to permit an agent to avail
himself of the privilege:
4 Ibid., 528 per Gavan Duffy C.J., Rich and Dixon JJ.
42Ibid., 532.
43Merricks v. Nott-Bower [19651 1 Q.B. 57, 73 (C.A.)
44R. Powell, The Law of Agency, 2d ed. (1961).
45Ibid., 279-80.
19821
COMMENTAIRE
An agent can avail himself of a delegable privilege provided three conditions are
satisfied –
(i) The principal must have power to do the act involving the privilege through an
agent.
(ii) The agent’s act must be within his actual authority. The fact that it may be within
his usual authority or within an apparent authority would seem to be irrelevant here.
(iii) The privilege must be exercised for the purpose for which it was given. 46
Motive and malice are normally irrelevant to determining whether
absolute privilege attaches to an occasion. But in those instances where
an agent seeks the protection of a principal’s ex officio and personal
claim towards absolute privilege, it is necessary not only for an
appropriate principal-agent relationship to subsist but also for the agent
to act at the time of making the allegedly defamatory statement, within
his actual authority and exercise it for the purpose for which it was given
in order to avail himself of the protection of the privilege. Such a line of
reasoning is contrary to that exemplied in the instant case, which would
appear
irrelevant the motives of the R.C.M.P. or an
investigation
into the purposes the R.C.M.P. had in drafting the
impugned statement.
to make
If Powell is to be followed, however, effect must be given to
allegations contained in the appellant’s reply which clearly established
that the R.C.M.P. exceeded their actual authority and used the occasion
for a purpose other than the one for which it was arranged. In particular,
the appellant pleaded that the words complained of were not made in
confidence in the course of official duty for the purpose of giving the
origin, scope, method, duration and
results of the R.C.M.P.
investigation into the activities of N.D.P. members in Ontario between
1971 and 1973 but-were made in order to avoid revealing that the
R.C.M.P. committed illegal acts against members and supporters of the
N.D.P., including the plaintiff and his political associates. 47
There are strongly grounded policy considerations for insisting upon
the limitations set out by Powell before permitting an agent to avail
himself of the immunity granted by absolute privilege. The right to
commit what would otherwise be tortious acts with complete protection
liability is fraught with potential for abuse. 48 Judicial
from civil
46Ibid., 280.
47Supra, note 8, para. 6. It should be noted that an attempt by Mr Dowson to lay
criminal charges against Assistant R.C.M.P. Commissioner Stanley Chisholm and
Superintendent Ronald Yaworski resulted in the entry of a stay of proceedings by the
Attorney-General for Ontario. On 5 December 1980, Montgomery J. dismissed an
application for mandamus on behalf of the informant. An appeal taken from this decision
was upheld by the Ontario Court of Appeal on 18 September 1981.
4″See, e.g., Barrv. Matteo 360 U.S. 564, 578 (1959)per Warren C.J. concurred in by
Douglas J. (dissenting).
REVUE DE DROIT DE McGILL
[Vol. 27
pronouncements have been made from time to time in favour of limiting
the scope of absolute privilege to the existing cases. 49 In fact, govern-
ments have functioned for centuries without the protection of this
doctrine. While instances of abuse may theoretically be conceivable,
few cases support the contention that ministers of state have actually
been subject to judicial abuse from plaintiff’s wrongfully issuing claims
against them for defamation either before or after the emergence of the
doctrine of absolute privilege.50
the Court of Appeal
Notwithstanding these considerations,
in
Dowson appears to have extended the scope of absolute privilege
beyond traditional limitations. Adopting the reasoning of this case, it is
now an open question whether absolute privilege may attach to any
defamatory statement made by any Crown employee acting in the
course of his usual or apparent authority. Ignoring the specific context of
his decision, Le Dain J. appears to draw no limits upon the chain of
delegability of absolute privilege. Indeed, on the facts of Dowson it
would appear that there was no direct communication between the
minister and the individual actually making the impugned statement.”‘
49Supra, note 39, 626-7.
‘0The rationale for maintaining immunity from civil litigation through absolute
privilege has weakened over the decades. However, a number of remedies are available
within the judicial sphere to deal with frivolous and vexatious or otherwise foundationless
suits directed against high officials of state including the awarding of costs on punitive
scales and requirements for depositing funds as security for costs. In addition, non-
judicial remedies are also available; for example, various jurisdictions in Canada
routinely provide counsel to defend government officials named as defendants by
plaintiffs for acts committed in the course of the performance of their duties. See also Barr
v. Matteo, supra, note 48, 584-5 per Warren C.J. (dissenting): “The public interest in
limiting libel suits against officers in order that the public might be adequately informed is
paralleled by another interest of equal importance: that of preserving the opportunity to
criticize the administration of our government and the action of its officials without being
subjected to unfair –
retorts. If it is important to permit
government officials absolute freedom to say anything they wish in the name of public
information, it is at least as important to preserve and foster public discussion concerning
our government and its operation” And see 588-9 per Brennan J. (dissenting): “[T~he
courts should be wary of any argument based on the fear that subjecting government
officers to the nuisance of litigation and the uncertainities of its outcome may put an
undue burden on the conduct of the public business. Such a burden is hardly one peculiar
to public officers; citizens general go through life subject to the risk that they may, though
in the right, be subject to litigation and the possibility of a miscarriage ofjustice… . [TJhe
way to minimizing the burdens of litigation does not generally lie through the abolition of
the right to redress for an admitted wrong. The method has too much of the flavour of
throwing out the baby with the bath.”
and absolutely privileged –
5IOn the Cross-Examination of Murray S. Sexsmith on his affidavit in support of the
motion to dismiss the action, sworn on 14 December 1978, Mr Sexsmith stated that he
did not understand that he was required to communicate information to Mr McLeod
19821
COMMENT
It may be arguable that in using the phrase “on his own behalf”, Le
Dain J. was distinguishing between a Crown agent with specific
delegation that becomes necessary under certain circumstances and a
Crown agent acting without such specific delegation. The distinction
between the two is often unclear for a specific delegation may affect
large numbers of people in the employ of a-Ministry and may have
consequences
to instances of general delegation. In the
absence of an explicit and prior adoption of an agent’s statement by a
Minister, there appears to be little reason to extend immunity to that
agent.
identical
Giving the words “on his own behalf” their apparent meaning, it is
difficult to envisage a situation where an employee of the Crown would
make a statement in connection with the discharge of his duties which
could be said to have been made entirely “on his own behalf”. It is a
long-established principle of parliamentary and legal procedure as well
as a political practice, that the Crown is responsible in law for the
actions of its agents and servants performed in the course of duty.5 2
Le Dain J. draws a chain of command from the Solicitor-General to
Sexsmith to Vaughan. A similar chain of command could be drawn with
respect to any hierarchy of individuals involved in other matters of
ministerial jurisdiction and authority and in connection with which the
Minister provides instructions, no matter how general or remote from his
personal review and control. Instead of dealing with the specific issue
before him –
is a superintendent of the R.C.M.P. a high officer of state?
– Le Dain J., by importing agency law holus bolus into the territory of
absolute privilege, elevates the entire civil service hierarchy beyond the
reach of the law of defamation. In like manner, the essence of the
argument accepted in the Dowson case could apply to all statements
made in pursuance of official duties and relating to state affairs.
Where new situations arise for judicial consideration and analysis,
giving rise to conflict between different principles and developments in
the case law, it would appear prudent for a court to examine carefully
the facts and the effect of its decision on similar cases in order to
regarding the methods of surveillance which were used by the R.C.M.P. in connection
with the investigation which was the subject matter of the questions raised in the Ontario
Legislature. He further indicated that he did not recall that the duration of the
investigation was discussed at the meeting with Mr McLeod either. The letter, however,
sent to Mr Fox from Mr McMurtry specifically asked for providing the “origin, scope,
method, duration and results of the RCMP investigation”. See Cross-examination of
Murray S. Sexsmith, taken on 6 February 1979, 6, 7.
S2See Chartier v. A.-G. Quebec [1979] 2 S.C.R. 474, 498-501 per Pigeon J. and
Bosada v. The Queen (F.C.A.), A-254-79, 12 March 1979. See also The Crown
Liability Act, R.S.O. 1970, c. 38, s. 3.
McGILL LAW JOURNAL
[Vol. 27
determine applicable principles of law. Regretably, such a careful
consideration of the relevant facts appears to be absent from the present
case. It should be noted that the statement complained of was
apparently not approved by the Minister, was seen by Assistant Com-
missioner Sexsmith only in its final form, and was implicitly approved
by him without checking its accuracy because of his trust in Chief
Superintendent Vaughan. 3 This was not a simple repetition or technical
libel by an agent, but the independent conception and production of an
allegedly defamatory statement without direct Ministerial approval of its
contents and without any steps being taken by the Minister to verify the
accuracy of its contents.5 4 In fact, prior to its release by R.M. McLeod,
the statement was submitted to the R.C.M.P. office in Toronto for final
amendment and approval. 5
It is unfortunate that the Court failed to address the plaintiff’s
argument that the respondent should be held responsible for the
repetition of the impugned words. It had been explicitly pleaded that the
members of the R.C.M.P. who uttered the relevant words know that they
would be published by the press. 6 In affidavit material before the Court,
it was contended that the impugned statement was given out as a press
release by the Attorney-General for Ontario to the public at large.5 7
Aside from these general considerations concerning the Dowson
decision arising out of the wholesale importation of agency law into the
5Cross-examination of Sexsmith on his affidavit disclosed
that the statement
complained of was prepared after Commissioner Sexsmith received instructions to do so
from the Director-General of the Security Service, Robin Bourne. Mr Bourne received his
instructions from the Assistant Deputy Solicitor General, Michael Dare, or the Solicitor
General directly. (See Cross-examination of Murray S. Sexsmith, taken on 8 February
1979, 9, question 48.) Sexsmith, in turn, instructed Chief Superintendent Robert Vaughan
who was an officer “in charge of a portion of the security service” and concerned with the
surveillance alluded to by Mr Lewis in his question to the Legislature, to cause the
necessary enquiries to be made and to report. Commissioner Sexsmith left the details to
Superintendent Vaughan. Though Commissioner Sexsmith assumed that Superintendent
Vaughan had satisfied himself that the research that had been done was accurate and
based on fact, he was not involved in reviewing the files or preparing the report. The
report was in fact prepared under Superintendent Vaughan’s direction by inferiors of his in
the R.C.M.P. hierarchy and thereafter approved by him (without checking the source
material). Superintendent Vaughan was present with Commissioner Sexsmith, however,
at the meeting when the words were spoken and he made the statement complained of to
R.M. McLeod. (See the continuation of the Cross-examination of Murray S. Sexsmith,
taken on 9 February 1979).
54Cross-examination of Murray S. Sexsmith, taken on 8 February 1979, question 48.
See also the continuation of Cross-examination of Murray S. Sexsmith, taken on
9 February 1979.
551bid.
‘ 6Supra, note 2, para. 9.
57Supra, note 8, para. 8 (iii).
19821
COMMENTAIRE
realm of absolute privilege, the Court came dangerously close to
accepting the suggestion that absolute privilege is established by the
mere fact that a statement purports to be made in the course of official
duty.” It is at the very least arguable, in the absence of any Canadian
cases on the point, that the statement complained of should be made in
the course of official duty as a matter of fact prior to attracting absolute
privilege. This is the situation in the United States where a number of
cases have suggested that a court has the obligation to enquire whether
an allegedly defamatory statement was referrable to a duty giving rise to
a privileged occasion before applying
the doctrine of absolute
immunity.59 The considerably broader language used by the Federal
Court of Appeal leaves the door wide open for the potential abuse of
such a pervasive and all-encompassing privilege. The mere fact that
administrative and conventional conveniences may clothe an occasion
with an official character need not in itself be conclusive of the fact that
any statement made on that official occasion concerning matters of state
is for purposes of the law of defamation made in pursuance of official
duty. The imprimatur of the occasion clearly raises a presumption that
should give rise to absolute immunity. However, that presumption
should be left open to rebuttal when it can be shown that there was a
total abuse of the occasion. It is arguable that to do otherwise would
raise high officials of state – which in the instant case have been
defined to include all agents of such high officials appearing to be
performing their official duties –
to a quasi-divine status where they can
do no wrong and therefore stand above the law.
It was contended on behalf of the appellant in the present case that
precisely such an abuse took place. Central to his argument was his
claim that the statement complained of was not responsive to the
questions asked, was not made in confidence in the course of official
duty for the purpose of “giving the origin, scope, method, duration and
results of the RCMP investigation into the activities of the members of
the New Democratic Party in the Province of Ontario”, but was made in
order to avoid revealing that the R.C.M.P. committed illegal acts
against members and supporters of the N.D.P., including the appellant
and his political associates. 60
”
8See, supra, note 1, 272-3 per Le Dain J. with respect to the impugned statement:
“[Wihether the statement was an adequate answer to the request for information from the
Attorney-General or whether it was intended to serve some other purpose at the same
time is, in my opinion, beside the point. It purported to be an answer to that request and it
was acted on as such.”
59Supra, notes 20 and 21.
“Supra, note 8, para. 6 and 7.
REVUE DE DROIT DE McGILL
[Vol. 27
In this respect, the reasoning of Waisberg Prov. Ct J. in R. v.
Toronto Sun Publishing Ltd6 may be noted. In that case, he found that
notwithstanding the fact that certain documents were marked “Top
Secret”, such a designation did not make such documentation secret in
fact within the meaning of the Official Secrets Act. 62 In rejecting an
attempt by the federal Crown to lay charges against the editors and
publishers of the Toronto Sun for violating the Act by publishing the
allegedly “secret” material, Waisberg Prov. Ct J. said: “What is
designated ‘secret’, furthermore cannot be determined to be ‘secret’ by
the mere stamp itself. Secrecy must lie in the very nature of the
document itself and in the existing circumstances surrounding and
affecting the document. ’63
Similarly, the defence of absolute immunity and the continuation of
ministerial activity would appear well able to survive an inquiry into the
circumstances surrounding a statement complained of and an examina-
tion of the statement itself in order to determine whether it was in fact
made in pursuance of official duty. Such a line of reasoning, however,
seems to run in direct contradiction to that adopted by the Federal Court
of Appeal in Dowson v. The Queen.
In conclusion, it can be said that the readiness of the Court in
extending complete immunity from civil liability without significant
qualification in respect of each issue raised by the facts in Dowson
should give rise to some concern. Aside from the consideration as to
“necessary delegation”, policy matters, in particular the potential for
abuse inherent in a defence which arises irrespective of any considera-
tion of merits in a given situation, seem to have been given little weight.
The tenor of the decision, coming at a time of broad public concern
about police accountability, offers little hope that the Federal Court of
Appeal will play an appropriate judicial role in assuaging public concern
about these matters.
61(1979) 24 O.R. (2d) 621 (Prov. Ct (Crim. Div.)).
62R.S.C. 1970, c. 0-3, s. 4.
63Supra, note 61, 631.
