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Silence can be golden: interlocutory restraints on defamatory speech
Posted in Defamation

A recent decision from the British Columbia Supreme Court is a reminder that interlocutory restraints on speech are possible in Canada, albeit in rare circumstances.

In Richardson v. Hunter, 2014 BCSC 1960, the court issued an interlocutory injunction to restrain the defendant from publishing words that suggest that the plaintiff engaged in criminal conduct. The remedy can be a significant one because, for most people who find themselves the subject of false and defamatory statements online, what they want more than anything is for the statements to stop and be taken down.

The plaintiff was (and is) a police officer serving with the RCMP. The defendant was charged and convicted of three criminal offences as a result of an investigation in which the plaintiff was an investigator (for the background facts to his convictions, see R. v. Hunter, 2006 BCCA 433). In response, the defendant wrote and published a lengthy document online, which the court referred to as a blog, entitled “Creating a Criminal, My story of how the RCMP turned Me into a Criminal.” The blog made allegations of criminal conduct against the plaintiff, including perjury, conspiracy and theft.

The plaintiff sued for defamation and applied for an interlocutory injunction with respect to the defendant’s blog. The court held that it is difficult to obtain an injunction restraining speech because the law puts a priority on freedom of speech. The public interest in freedom of speech ought not to be stifled in advance of a trial on the merits except in the very clearest of cases. The usual test for injunctive relief (a fair case to be tried) is insufficient. The plaintiff must meet a two-prong test: the words complained of must be (1) “manifestly defamatory” and (2) “impossible to justify”.

The court granted the injunction, but only in part. The court ordered that the defendant be restrained until further order of the court from writing words which suggest that the plaintiff has engaged in criminal conduct, including perjury, witness tampering, conspiracy, suborning perjury and theft. However, the court declined to restrain the defendant from stating that the plaintiff’s investigation was negligent, as it could not be said at this early stage of the proceeding that that allegation was “impossible to justify”.

The outcome of the Richardson case shows the potential for injunctive relief but also the strictness with which the standard will be applied.

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