Complaints Made to Police Prior to Charges Can Be Defamatory
Reasons for judgement were released today by the BC Court of Appeal finding that complaints made to the police prior to the commencement of judicial proceedings are subject to qualified, not absolute, privilege and therefore can be used as the foundation of a defamation action.
In today’s case (Caron v. A.) the Plaintiff alleged that the Defendant (appellant) “went to the RCMP where [the appellant] falsely accused (the Plaintiff) of rape“.
The Plaintiff was not charged. The Plaintiff then sued the Defendant for defamation. The Defendant sought to dismiss the claim arguing that statements made to police are subject to absolute privilege and cannot be used in a defamation lawsuit. The BC Court of Appeal disagreed finding that such statements made prior to the commencement of judicial proceedings were only protected by qualified privilege and, as such, if the dominant motive for publishing the statement is actual or express malice the statements could be used in a defamation lawsuit. In reaching this decision the BC Court of Appeal provided the following reasons:
 Qualified privilege applies when there is a “duty, legal, social or moral, to publish the matter complained of to persons with a corresponding duty or interest to receive it”: Pressler v. Lethbridge (2000), 86 B.C.L.R. (3d) 257 at 296 (C.A). The legal effect of the defence of qualified privilege is to “rebut the inference, which normally arises from the publication of defamatory words, that they were spoken with malice. . . . However, the privilege is not absolute and can be defeated if the dominant motive for publishing the statement is actual or express malice”: Hill v. Church of Scientology of Toronto,  2 S.C.R. 1130 at para. 144. In short, where there is a public or shared interest in support of the statement both being made and received, a defendant cannot be held to have defamed a plaintiff unless the plaintiff can show that the defendant made the alleged publication for a malicious purpose.
 Absolute privilege, on the other hand, provides a complete defence in cases of alleged defamatory publications, even if the defendant published the statement with actual malice. Traditionally, absolute privilege was granted to any “communications which take place during, incidental to, and the processing and furtherance of, judicial or quasi-judicial proceedings”: Elliott v. Insurance Crime Prevention Bureau, 2005 NSCA 115 at para. 112, citing Raymond E. Brown, The Law of Defamation in Canada, (Toronto: Carswell, 1999) at para. 12.4(1)…
 In summary, the law in Canada, at least at the trial level, appears to be quite consistent that only a qualified, and not an absolute, privilege applies to initial complaints made to the police before the commencement of judicial proceedings. Trial level decisions in Nova Scotia, Ontario, and British Columbia, while not binding on this Court, have all reiterated this principle.
 The appellant can therefore only succeed on the issue of absolute privilege if this Court were to expand the defence so as to include complaints to the police. This is a step further than any jurisdiction in Canada has, as of yet, gone. The appellant argues that such an expansion is justified on the basis of public policy…
 In my opinion, the appellant is asking this Court to expand the defence of absolute privilege beyond its current borders in Canadian law. There is some precedent for such an expansion in English and U.S. law. The onus for justifying such an expansion is on the appellant, and the test the appellant must meet is as described by Cromwell J.A. in Elliott: The expansion must be found to be necessary in order to protect the proper administration of justice.
 In my opinion, it would not be appropriate for this Court to make such a determination at this time, without the benefit of an evidentiary record.
 Statements to police prior to the commencement of judicial proceedings are protected by qualified privilege, not absolute privilege, under Canadian law. In order to expand the defence of absolute privilege, the appellant must show that such an expansion is necessary in order to protect the administration of justice. The appellant cannot meet that onus in the current appeal, as there is no evidentiary record with which to support her argument or suggest that an expansion to absolute privilege, rather than an application of qualified privilege, is necessary in order to protect the proper administration of justice: Northwest Organics v. Maguire, 2014 BCCA 454.
 I would dismiss the appeal on this issue.