explicitly or implicitly indicated within the publication itself or the facts must be so
requirement that the facts support the comment, in the sense of confirming its truth. At
trial, H need not demonstrate that N is bigoted, transphobic, or promoted hatred, as the
question is merely whether the statement can be tethered to an adequate factual basis
so the reader can be an informed judge. N’s original online post could provide the
requisite factual basis for most statements at issue, as N’s views were available to
readers and grounded H’s statements. Additionally, this was a high-profile local
controversy that spanned over a year, involving two public figures. N’s statements had
likely achieved a level of notoriety such that they would have been known to the
reading audience.
Furthermore, the chambers judge was entitled to find that the sting of H’s
statements was comment and it would have been understood as such by readers. For
expression to constitute fair comment, the statement must be one that would be
understood by a reasonable reader as a comment, rather than a statement of fact.
Context is essential in distinguishing comment from fact. N has not shown grounds to
believe that H’s statements would not be seen as a comment in the context of the instant
case. An allegation of bias or prejudice is a debatable assertion as to a state of mind
and will typically be classified as a comment. Similarly, an allegation that a politician
has not lived up to their obligations is generally understood to be a critique, not a
declaration of fact. Finally, accusations of hate speech would not necessarily be
understood by ordinary readers as referring to a Criminal Code offence. Such
2023 SCC 14 (CanLII)
notorious as to be already understood by the audience. There is, however, no
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