Canadian Supreme Court Creates New "Responsible Communication" Defense

On Dec. 22, 2009, the Canadian Supreme Court vacated libel verdicts against two Canadian newspapers in separate rulings, and created a new defense for members of the public or media who engage in "responsible communication."

The Court's rulings granted new trials in the libel suits against the two outlets which had both been found liable in jury trials. In Grant v. Torstar Corp., [2009] 3 S.C.R. 640 (Can.), the Toronto Star had been ordered to pay more than $1 million in punitive damages for writing about controversial plans for a golf course. In Quan v. Cusson, [2009] 3 S.C.R. 712 (Can.), the Ottawa Citizen was ordered to pay $135,000 for a story it published scrutinizing the activities of a former police officer.

In Grant, Peter Grant and his company, Grant Forest Products Inc., sued The Toronto Star for a story the newspaper published in 2001 concerning a proposed private golf course development on Grant's lakefront estate. The story reprinted the views of several local residents who were critical of the development's environmental impact and suspicious that Grant was "exercising political influence behind the scenes to secure government approval for the new golf course." The story quoted residents as saying that the project was a "done deal" because of Grant's political connections.

The reporter, Bill Schiller, attempted to verify the allegations in the article, including asking Grant for comment, but Grant did not respond. A jury subsequently found The Star liable for damages totaling $ 1.475 million.

In 2008, the Ontario Court of Appeal ordered a new trial, stating the trial judge "should have found as a matter of law that the subject of the article was in the public interest and gone on to assess responsibility on that basis." Grant appealed to the Canadian Supreme Court.

In her opinion for the unanimous court, Beverly McLachlin, Chief Justice of the Canadian Supreme Court, wrote that under Canadian common law, the only existing defenses to a defamatory statement of fact are that the statement was "substantially true," or that the statement was made in a privileged context.

In creating a new defense against defamation for members of the news media reporting on matters of fact, McLachlin wrote it was necessary to protect the freedom of expression. "[T]he current law with respect to statements that are reliable and important to public debate does not give adequate weight to the constitutional value of free expression. While the law must protect reputation, the level of protection currently accorded by the law - in effect a regime of strict liability - is not justifiable," McLachlin wrote. "The law of defamation currently accords no protection for statements on matters of public interest published to the world at large if they cannot, for whatever reason, be proven to be true. But such communications advance both free expression rationales - democratic discourse and truth-finding - and therefore require some protection within the law of defamation."

McLachlin also noted in her opinion that a survey of other common law democracies, including the United States, favors "replacing the current Canadian law governing redress for defamatory statements of fact on matters of public interest, with a rule that gives greater scope to freedom of expression."

McLachlin cited New York Times Co. v. Sullivan, 376 U.S. 254 (1964), which held that a public figure cannot recover in defamation unless he or she proves the allegedly defamatory statement was made with "actual malice," meaning knowledge of falsity or reckless indifference to truth. "Sullivan and its progeny have made it extremely difficult for anyone in the public eye to sue successfully for defamation," McLachlin wrote. "In the contest between free expression and reputation protection, free expression decisively won the day."

McLachlin also cited decisions from Australia, New Zealand, and South Africa before concluding that "a number of countries with common law traditions comparable to those of Canada have moved in recent years to modify the law of defamation to provide greater protection for communications on matters of public interest."

McLachlin then set forth the two elements of the new defense, which she called the defense of "responsible communication on matters of public interest," emphasizing that the defense would not just be available to traditional journalists, but also to bloggers and "others engaged in public communication on matters of public interest."

"First, the publication must be on a matter of public interest. Second, the defendant must show that publication was responsible, in that he or she was diligent in trying to verify the allegation(s), having regard to all the relevant circumstances," McLachlin wrote. Under the Court's new test, the judge determines if the matter is of public interest, while the jury finds whether the publication was adequately "responsible."

McLachlin affirmed the order for a new trial, with the instruction that, if the trial court determines that the statements at issue in The Toronto Star story about Grant were facts, then they must apply the new test to determine if the defense of "responsible communication on matters of public interest" applies.

Quan v. Cusson involved Danno Cusson, a constable with the Ontario Provincial Police (OPP) who traveled to New York City to assist with the search and rescue effort at Ground Zero in the aftermath of the attacks of Sept. 11, 2001. The Ottawa Citizen published three stories alleging that Cusson had misrepresented himself to the authorities in New York by telling them he was a trained K-9 handler with the Royal Canadian Mounted Police (RCMP), and possibly interfered with the rescue operation.

At trial, the jury found that many, but not all, of the factual imputations in the stories had been proven true, and awarded Cusson $125,000 in damages, although the jury also found no malice on the part of the Citizen and declined to award any special, aggravated, or punitive damages.

In November 2007, the Ontario Court of Appeal used the case to establish a responsible journalism defense under Ontario law, but denied the Citizen the use of the defense because it had failed to assert it at trial.

"As explained in Grant, the time has come to recognize a new defence [sic] – the defence of responsible communication on matters of public interest," wrote McLachlin, who authored the opinion in Quon.

"[I]n my view, the Citizen defendants should have an opportunity to avail themselves of the new defence. I would allow the appeal and order a new trial."

"In this case, the public interest test is clearly met. The Canadian public has a vital interest in knowing about the professional misdeeds of those who are entrusted by the state with protecting public safety," McLachlin wrote. "While the subject of the Ottawa Citizen articles was not political in the narrow sense, the articles touched on matters close to the core of the public's legitimate concern with the integrity of its public service. When Cst. Cusson represented himself to the New York authorities and the media as an OPP or RCMP officer, he sacrificed any claim to be engaged in a purely private matter. News of his heroism was already a matter of public record; there is no reason that legitimate questions about the validity of this impression should not have been publicized too."

Paul Schabas, an attorney who represented The Star in the case against Grant, commented on the landmark nature of the case in a December 22 Canadian Press report. "It's probably the most important decision the Supreme Court's ever decided on the law of libel," Schabas said. "It modernizes our laws to better reflect freedom of speech and that's in the public interest . . .. It means that the media and anybody else who's acting responsibly can put something out for public debate and not be chilled because they can't ultimately prove that it's true in a court of law years later."

Dean Jobb, a journalism professor at University of King's College in Halifax, said the rulings were a long-needed revamp of Canada's libel law in a Dec. 22, 2009 story in The Globe and Mail. "The court has revamped and modernized libel laws that, for too long, have placed the reputations of individuals ahead of our democratic system's need for hard-hitting journalism on important public issues," Jobb said.

"The rulings are significant and long-overdue.. . . The new defence gives journalists a bit more breathing space when they investigate wrongdoing and corruption or report on politics and important public issues. Libel laws have demanded near-perfection from journalists, when nobody expects doctors, lawyers or even judges to be perfect."

Mary Agnes Welch, the president of the Canadian Association of Journalists and a reporter at the Winnipeg Free Press in Manitoba, said the decisions would provide added clarity for journalists reporting on controversial topics. "This gives journalists a step-by-step test they should follow," she said in a Dec. 22, 2009 story in the International Herald Tribune. "It's something to hang your hat on."

In a Dec. 22, 2009 interview on "CTV News with Lloyd Robertson," CTV News reporter Robert Fife emphasized the limitations on the new libel rules. "The Supreme Court laid down some strong rules for reporters to follow," Fife said. "It says we have to be fair and accurate in our reporting, we have to check our facts, and we have to make sure our sources are reliable. In other words, we can't go around reporting rumor or unfounded allegations or we'll end up in court."

- JACOB PARSLEY

SILHA FELLOW AND BULLETIN EDITOR

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This page contains a single entry by cla published on June 7, 2010 11:22 AM.

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