Part of Investigation Counsel’s fraud practice includes the drafting and preparation of a formal police complaints on behalf of its clients. A question that occurs at the initial stage of our intake process is whether the person making the complaint to the police is exposed to liability for making a defamatory statement.
You might ask, what constitutes a defamatory statement? A defamatory statement is one that tends to injure the reputation of the person that is referenced, which lowers how the person is reasonable viewed. If a reasonable person concludes the statement promotes feelings of hatred, contempt, ridicule, fear, dislike or lowers the esteem of the person, it will likely be held to be defamatory.
In short, making a criminal allegation against someone will generally, if not always, be construed as defamatory expression. So the question needs to be asked, if I make a defamatory statement against someone – for example, making a complaint to the police alleging that someone committed a fraud – how can I ensure I am not exposing myself to some sort of liability?
To promote individuals reporting relevant information to the police in good faith, a defence to defamation exists which is called qualified privilege. Absent proof of actual or implied malice, qualified privilege will defeat a claim of defamation.
Qualified privilege will protect the communication if it is fairly made on a privileged occasion by a person acting on a recognized public duty. A public duty exists when a person has reason to believe that a crime has been committed and, as such, citizens have a duty to report crimes to the police. As a result, someone who makes a statement to the police about a suspected crime is protected by qualified privilege.
So does this mean that anyone can make defamatory statements to the police so long as it in relation to an alleged crime? Not necessarily. If the dominant motive for the defamatory expression is actual or express malice then the protection of privilege is lost. This includes spite or ill will; indirect motives or ulterior purpose which conflicts with the occasion or speaking dishonestly or in a knowing or reckless disregard for the truth.
In short, in most cases, complaints to police will be protected by qualified privilege. As we recommend that you review your case with counsel before making a complaint to police or issuing a civil fraud recovery action, we can assist you in reducing the risk being subjected to defamation claims as well. .
Coordinating civil recovery prosecutions with criminal complaints is something most fraud victims should canvas with their fraud recovery lawyers before commencing either process. For further information on coordinating criminal complaints with civil fraud recovery actions, please contact us.
 Gittens v. Brown, 2003 CanLII 40565 (ON SC)