Tuesday, February 17, 2009

A Responsible Journalism Defence in Canada?

(revised and updated)

A landmark libel case was heard today in the Supreme Court of Canada ("SCC") , argued by a broad range of media interests and a bunch of very impressive counsel. Richard Dearden acted for the appellant and Ronald Caza acted for the Respondent. There were several interveners' counsel.

It involved Danno Cusson, a former OPP constable, who became famous and then infamous right after 9/11 when he went to ground zero with his dog to assist in the search for survivors. The Ottawa Citizen raised questions as to whether Cusson had misrepresented himself as an RCMP officer, whether he and his dog were trained for such K-9 rescue work, and whether he may have actually hampered the rescue effort, etc. Cusson won $100,000 for libel at trial. The Ottawa Citizen lawyer today repeatedly referred to Cusson's dog as a “pet”.

The Ottawa Citizen lost at trial and on appeal, but scored a huge victory on appeal by getting recognition in principle of the "responsible journalism" defence, albeit with a ruling that it couldn't be applied in the circumstances and on the record of this case because "the standard of responsible journalism was simply not litigated at this trial." The Citizen appealed. The issue of whether there is an adequate record for the SCC to decide these weighty issues in this instance is clearly important and contentious.

Big questions coming out of this include how far Canada will go towards the more liberalized standard for journalists now in effect in Australia, New Zealand, UK and - of course - the USA where the NY Times v. Sullivan "absence of malice" standard has ruled for more than 40 years. An important new decision that was the talk of the town today from the House of Lords (the Jameel decision, per Lord Hoffman) was rendered after the trial and before the appeal in this instance, although the previous House of Lords decision (Reynolds) on which Jameel was based came before this litigation was commenced. The Reynolds/Jameel defence is known as the “responsible journalism” defence. It doesn't go quite as far as NY Times v. Sullivan but goes significantly farther than Canadian courts have gone before. It basically gives the “right to be wrong” to a journalist acting responsibly in reporting a matter of public interest.

Of course, NY Times v. Sullivan goes even farther and held that holds that a public official cannot recover damages for defamatory statements relating to his or her official conduct without proof of actual malice, namely, that the statement was made with knowledge of its falsity or with reckless disregard of whether it was true or false. It is often said that without that 1964 decision Woodward and Bernstein would never have been able report their Watergate Story and Nixon would never have had to face the consequences of the cover up. However, for better or worse, NY Times v. Sullivan doesn't seem likely to be the law in Canada just yet - the Supremes flat out rejected it only fourteen years ago in the Hill v. Scientology case.

“Public interest” on one extreme would include questions such as whether a Member of Parliament had been bribed. At another extreme, counsel seemed to agree the affairs of soccer players' wives are not matters of public interest.

Can statements on matters of public interest that may turn out to be incorrect be published to the world at large as long as a "responsible" standard was involved? If so, does this defence replace or complement the ancient and honoured but much more limited defence of “qualified privilege”?

And a burning question for lots of bloggers, which repeatedly arose today, is whether the Court should allow any new defence to be available to anyone, and not just a "journalist" (whatever that means any more) working for a traditional media outlet. Interestingly, all of the appellants who represented vested media interests and are urging a significant liberalization of the law of libel the refrained from limiting the potential new defence they seek to traditional "accredited" type journalists.

Another interesting question to watch will be the Supreme's take on why the law has evolved as it has in the UK, which may have less to do with the evolution of the common law and much more to do with the incorporation the European Convention for the Protection of Human Rights and Fundamental Freedoms into U.K. law. The result so far seems fairly clear. On the one hand, the "responsible" journalism" defence has opened up and liberalized the law of defamation in the UK. But on the other hand, the newly constitutionalized right of privacy under the Convention has enabled a very public figures such as Max Mosley to successful sue for the the publication of very embarrassing but perfectly true private information. It is doubtful that Mosley would succeed in such a claim in Ontario, at least. Freedom of expression for the press is not necessarily that clear in the UK today. Cusson's counsel emphasized that there was no evidentiary basis to change the common law or to render a Charter based decsion and that European law was not persuasive.

Interestingly, British Columbia now has a Privacy Act that might - note the emphasis - provide some relief to a plaintiff in a Max Mosley situation. It has some interesting cross references to defamation law. Ontario has no such statute. So we could, in principle, see a situation in which the same article would be illegal in the Vancouver Sun but legal in the Toronto Star - with both clearly visible online throughout Canada. Privacy is not a right guaranteed by the Canadian Charter, unlike it is now in Europe.

We may also see situations where different provinces may yield different results in defamation that is published on the internet. Clear and decisive reasoning from the Supremes would go a long way towards resolving such potential conflict of laws problems that could seriously impede communication and freedom of expression in Canada. There still remains of the problem of internatioanl conflicts and a treaty may someday be necessary to solve the libel tourism problem

We will be surely be living in interesting times in respect of defamation and privacy laws in the years ahead. Some principles change slowly if ever. But sometimes the law lurches forward for better or worse. The SCC is now faced with a classic double dilemma of deciding whether the law of defamation needs to be changed in Canada, and if so, whether that change can come from the Courts throught the common law (and what about Quebec where the Civil Code prevails?) or can only come from the legislatures?

From an advocacy standpoint, it was interesting to note the unusual (for a Supreme Court case) reliance on "facts" by the Appellant (the Ottawa Citizen), including the use in reply of a large mounted stand up poster of then Constable Cusson in an RCMP uniform. This had been put in the record just a few days before the hearing.

Here's a good summary by Kirk Makin, veteran Supremes watcher.

And in a wonderful new development, the Court has begun webcasting. This is a very appropriate case to launch this practice. Congratulations to my old friend Daniel Henry, a great lawyer at the CBC, who appeared today for CBC and who has been fighting the good fight for cameras in the courtroom for about 30 years. Above all, congratulations to the Supremes themselves for making this happen - along with many other innovations and benchmarks for the rest of the judicial system.

Libel law is very complicated. It always was. Now, it is intersecting in interesting ways in Canada with the Charter and the internet. This case is difficult to call. We should know the answer - which may not be unanimous - in about six months, if the Supremes are true to form.


And in a clearly related development, the Supremes today granted leave to appeal in Grant v. Toronto Star, a libel case involving a wealthy businessman and friend of Premiere Mike Harris and contributor to the Ontario Conservative Party. According to the SCC summary:
On the date of a public meeting called by the Minister of Natural Resources with respect to the proposal, the Toronto Star published a front page article regarding the proposed golf course expansion. Inter alia, the article quoted a cottager, who said, “Everyone thinks it’s a done deal because of Grant’s influence – but most of all his Mike Harris ties”. Grant sued the newspaper for libel, claiming that the newspaper suggested that he had used political influence to circumvent the concerns of local citizens and to bypass the normal approval process.
Grant won at trial, lost on appeal and now has been granted leave to appeal by the SCC on an expedited basis. He was an intervener in the Cusson case on Cusson's side. Clearly, the Court has connected these two cases as sometimes happens and the judgments will likely appear back to back.

(rev. Feb. 19, 2009)

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