A Treatise on Criminal Law as Applicable to the Dominion of Canada

result either from some right on the part of the defendant to say what is complained of, or from a sense of duty, public or private, legal or moral, under which the defendant is acting. (a)

The proper meaning of a privileged communication is this: that the occasion on which the communication was made rebuts the inference prima facie arising from a statement prejudicial to the character of the plaintiff, and puts it upon him to prove that there was malice in fact, and that the defendant was actuated by motives of personal spite or ill-will, independent of the occasion on which the communication was made. (b)

In Campbell v. Spottiswoode, (c) Crompton, J., is reported to say, "By privilege. I understand that immunity attaching to a particular class of persons, or to an individual, who, being placed in some particular position, or being charged with the performance of some particular duties, derives therefrom rights which are not shared by the community at large." And Blackburn, J., in the same report, says, "The word 'privilege' signifies that species of immunity attaching to a person who, by reason of the circumstances of his position, is justified in uttering or writing of another, matters which, if uttered or written by a third party, would be libellous, or slanderous, as the case may be." And in Cowles v. Potts, (d) quoting the language of Parke, B, in Toogood v. Spyring, (e) "The law considers such publication as malicious, unless it is fairly made, by a person in the discharge of some public or private duty, whether legal or moral, or in the conduct of his own

(a) Poitevin v. Morgan, 10 L. C. J. 99, per Badgley, J.; Hearne v. Stowell, 12 A. & E. 719-26.

(b) Poitevin v. Morgan, 10 L. C. J. 98, per Badgley, J. See also Shaver v. Linton, 22 U. C. Q. B. 183, per Hagarty, J.; Somerville v. Hawkins, 10 C. B. 583.

affairs, in matters where his interest is concerned. In such cases, the occasion prevents the inference of malice, which the law draws from the unauthorized communication, and affords a qualified defence, depending upon the absence of actual malice. If fairly warranted by any reasonable occasion or exigency, and honestly made, such communications are protected for the common convenience and welfare of society, and the law has not restricted the right to make them, within very narrow limits. (a)

This proof of express malice appears to consist, in all cases, in shewing mala fides in the defendant, and this renders him liable, because, by the general rule applicable to such cases, every person is bound for an intentional injury done by him to another. (b)

To entitle matter otherwise libellous to the protection which attaches to communications made in the fulfilment of a duty bona fides or honesty of purpose is essential; and to this again two things are necessary: First, that the communication be made not merely in the course of duty, but also from a sense of duty; and second, that it be made with a belief of its truth. (c)

Where the libel is clearly a privileged communication, the inference of malice cannot be raised on the face of the libel itself; but extrinsic evidence of actual express malice must be given, and it is not to be taken to be malicious although it may turn out to be unfounded, but the plaintiff' must also prove the statement to be false as well as malicious. (d)

Malice, in its legal sense, means a wrongful act done intentionally, without just cause or excuse. (e) By legal

(a) Smith v. Armstrong, 26 U. C. Q. B. 59, per Draper, C. J.

(b) Poitevin v. Morgan, 10 L. C. J., 98, per Badgley, J.

(d) M'Intyre v. M'Eean, 13 U. C. Q. B. 534. See also M'Cullough v. M'Intee,

13 U. C. C. P. 438; Shaver v. Linton, 22 U. C. Q. B. 183.

(e) Poitevin v. Morgan, 10 L. C. J. 97, per Badgley, J.; M'Intyre v. M'Bean, 13 U. C. Q, B., 542, per Robinson, C. J.

malice is meant no more than the wrongful intention, which the law always presumes as accompanying a wrong. ful act, without any proof of malice in fact. (a)

For the purpose of proving express malice, the plaintiff may shew that the libel is really untrue; but this alone will not constitute express malice, but it may, along with other circumstances, raise an inference that express malice exists. (b)

Libellous expressions, used in a privileged communication, may be evidence of actual malice for the jury; but if taken in connection with admitted facts, they are such as might have been used honestly and bona fide by the defendant, the Judge may withdraw the case from the jury, and direct a verdict for the defendant. (c)

The defendant, in a privileged communication, described the plaintiff's conduct as "most disgraceful and dishonest." The conduct so described was equivocal, and might honestly have been supposed by the defendant to be as he described it:-Held that the above words were not of themselves evidence of actual malice. (d)

The question is not simply whether the act or fact stated is true or untrue, but whether the defendant had reason honestly to believe the act or fact to have been as he represented. (e)

When express malice is shown, by proving the libel false as well as malicious, the defendant may still make out a good defence, by shewing that he had good ground for believing the statement true, and acted honestly under that persuasion. (ƒ)

Before it can become material for the jury to en

(a) Wason v. Walter, L. R. 4 Q. B. 87, per Cockburn, C. J.

(b) M'Cullough v. M'Intee, 13 U. C. C. P., 441, per A. Wilson, J.

(d) Ib.

(e) M'Cullough v. M'Intee, 13 U. C. C. P. 441, per A. Wilson, J.; Harrison v. Bush, 5 E. & B. 344.

(f) M'Intyre v. M'Bean, 13 U. C. Q. B. 534.

quire whether the defendant acted maliciously or not, the plaintiff must satisfy them that the defendant's statements are not true, and that he had no reasonable ground for believing them to be true. (a)

It is matter of law for the Judge to determine whether the occasion of writing or speaking criminatory language, which would otherwise be actionable, repels the inference of malice, constituting what is called a privileged communication. If, at the close of the plaintiff's case, there is no intrinsic or extrinsic evidence of malice, it is the duty of the Judge to direct a nonsuit or verdict for the defendant, without leaving the question of malice to the jury.

But whenever there is evidence of malice, either extrinsic or intrinsic, in answer to the immunity claimed, by reason of the occasion, a question arises which the jury, and the jury alone, ought to determine. (b) But where there is no evidence of malice, the question whether the defendant believed his statements to be true should not be left to the jury, for it is only admissible on the question of malice or bona fides (c).

In Shaver v. Linton, the defendant being clerk of the peace, in a conversation with the Sheriff as to the medical examination of a lunatic in gaol, said he would not employ the plaintiff, as he had not the Governor's license, adding that he thought the Sheriff had more pluck than to ask him, after what he, the defendant, had written (referring to some article in a medical journal). On being applied to by one M., on the plaintiff's behalf, for an apology, he repeated that plaintiff was not a qualified

(a) M'Intyre v. M'Bean, 13 U. C. Q. B. 534.

(b) Shaver v. Linton, 22 U. C. Q. B. 183, per Hagarty, J.; Cooke v. Wildes. 5 E. & B. 340. See also Poitevin v. Morgan. 10 L. C. J. 99, per Badgley, J.; Lawless v. A. E. Cotton Co., L. R. 4 Q. B. 262; M'Intee v. M'Cullough, 10 U. C. L. J. 238 (in E. & A.)

physician in Upper Canada, and could not legally practise here without the Governor's license, and it was held that both conversations were privileged, and that there being no intrinsic evidence of malice in either, and no extrinsic evidence thereof, in accordance with the above principles, there was nothing to leave to the jury.

In the same case, (a) the defendant published a letter, addressed to the editor of a public paper, in which he stated that the plaintiff was unlicensed, and it was held that the Judge might either have ruled this to be privileged, or, at all events, might have left it to the jury, with a strong caution as to usual liberty of discussion allowed in all matters of public interest, and with observations somewhat like those of Sir William Erle, in Turnbull v. Bird. (b)

These observations are, of course, a declaration of the law on the subject of publishing communications on matters affecting the public, and are as follows:-" The law is, that a man may publish defamatory matter of another holding any public employment, if it is a matter in which the public have any interest, within the limits I will lay down in accordance with decided cases. Every person has a right to comment on the acts of a public man which concern him as a subject of the realm, if he do not make his comments the vehicle of malice or slander. The rule is, that the comments are justified, provided the defendant honestly believed that they are fair and just. With that limitation, the law allows the publication."

In that case, he told the jury that if they were "of opinion that the defendant, in the comments he made, was guilty of any wilful misrepresentation of fact, either

(a) Shaver v. Linton.

(b) 2 F. & F. 508.

« 이전 계속 »

도서