REGINA, Sask. — Questions about what constitutes a fraudulent claim to Indigenous ancestry versus one made in good faith, as well as the limits on free speech and fair comment, were among those posed Friday in Regina by lawyers for Dr. Darryl Leroux and Dr. Michelle Coupal.
Leroux’s lawyer told the three-judge panel the defamation case is a landmark one.
Justices Meghan McCreary, Jillyne Drennan and Naheed Bardai heard and questioned arguments from both parties for more than two-and-a-half hours before reserving their decision on whether to overturn a $70,000 judgment Leroux was previously ordered to pay Coupal.
Justice Daryl Labach ruled in Coupal’s favour at Regina’s Court of King’s Bench in March with respect to a series of statements Leroux made about Coupal in 2021 and 2022.
In his March judgment, Labach found Leroux, an associate professor at the University of Ottawa and Indigenous identity researcher, defamed Coupal – an associate professor at the University of Regina – by claiming she had fraudulently and wilfully claimed Indigenous ancestry for personal and professional gain.
Leroux's lawyer, Paul Champ, said in an interview with SaskToday after Friday’s hearing that the court’s decision could set a precedent for future free speech cases in court.
“If there's other people who are claiming Indigenous identity, are people going to be afraid of questioning it?” he said. “And there's a lot of good technical arguments why it might be different in different circumstances, but the reality is there's a very large damages award against Professor Leroux, and so when there's other cases of people having doubts or questions about the validity of someone's claim of Indigenous identity or the legitimacy of it … are they going to be chilled from saying anything about it?
“So I think that's an important issue here in this case, and I'm hoping the court addresses it.”
Coupal’s lawyer Paul Harasen meanwhile argued Friday that defamation claims cannot be defended based on judicial findings issued after the allegedly defamatory statements were issued.
Harasen was referring to a 2023 finding from a five-person tribunal that Thomas Lagarde, the ancestor with whom Coupal claimed Indigenous connection, was not Algonquin, while the statements from Leroux at the centre of the King’s Court case were made prior to the tribunal’s ruling.
“Dr. Leroux could have simply asserted that she isn’t indigenous. That wouldn’t have been defamatory. He didn’t do that… he went further and said that her claims were fraudulent and dishonest,” Harasen said, proposing that truth of defamatory statement must be assessed relative to the time the statements were made.
“There is a fundamental difference between claiming she’s not indigenous and finding that she committed fraud or was dishonest,” he said.
Labach’s judgment cited Leroux’s words including social media posts stating Coupal had claimed to be of Algonquin heritage “based on family lore and forged documents,” that Coupal was considered for her U of R position as Canada Research Chair in Truth, Reconciliation and Indigenous Literatures due to her claims of Indigenous ancestry, and claiming Coupal was pretending to be Indigenous in a post that was accompanied by a link to a news story.
Labach also noted a text message conversation between Leroux and Dr. Niigaan Sinclair, a professor in the Department of Native Studies at the University of Manitoba, along with a presentation Leroux made during a presentation to the Robinson-Huron Waawiindamaagewin Treaty Governance Forum in February 2022.
Leroux’s defence, Labach wrote, hinged on matters of justification and fair comment.
On the first matter, the judge wrote that while “truth or justification is a complete defence to a defamation,” the defendant cannot merely show they believed their statements to be true, but rather must show those statements to be “substantially” true.
On the second, Labach said a defence of fair comment must meet conditions of a) the comment being a matter of public interest, b) the comment being based on fact, c) the comment being recognizable as commentary, and d) the opinion in question being one any person could “honestly express” based on proven facts.
In that circumstance, Labach wrote that “the elements of the defence of fair comment have not been established on any of the five defamatory statements made by Dr. Leroux and as such, he is not able to rely on this defence.”
