Canadian lawyer Albertos Polizogopoulos talks defamation law and legal strategy regarding the Joyce Arthur defamation case:
There are very basic and straightforward defenses to defamation. These include that the impugned statements were true, made in good faith with the reasonable belief that they were true or were personal opinion. As a lawyer, if I had a client seek my advice after being sued for making defamatory statements of fact, the first question I would ask is if the statements were true. If they were, that’s how we would defend the claim. If the statements turned out not to be true, then the next question I would ask is whether the person knew that the statements were true when they were making them. If so, then this, “good faith” would be our second possible defence.
It’s only if and when I conclude that these straightforward defenses are not available that I would start to look at other possible defenses like, the comments were not about the Vancouver CPCs specifically, but rather, CPCs in North America generally. Again, Arthur and the Pro-CAN’s argument is a clever one that has been used before, but it’s not, at least in my opinion, the easiest, simplest or strongest argument to a defamation suit. If you read Arthur and the Pro-CAN’s written arguments, which I have done, you see that Arthur and the Pro-CAN do not spend their efforts arguing that the contents of the Report were being true and accurate. Rather, they focussed on this weak and last resort argument about who the impugned statements in the Report were targeting. Lawyers need to advance the best possible argument for their clients. This leads me to believe that the ‘truth’ argument was not, in this case, the best argument for Arthur and the Pro-CAN.
I don’t want to speak for Ms. Arthur and the Pro-CAN, but it is my opinion that they made this argument because it was the only one available, meaning that they knew that the contents of the Report were not true or were not wholly true.