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Supreme Court to weigh in on free speech issue
Janice Tibbetts, Canwest News Service
Published: Monday, December 21, 2009
Janice Tibbetts, Canwest News Service
Published: Monday, December 21, 2009
The Supreme Court must determine if current defamation laws lean too heavily toward protecting reputations, at the expense of freedom of expression guarantees in the Charter of Rights. (Chris Mikula/Canwest News Service)
OTTAWA -- The Supreme Court of Canada will decide Tuesday whether to expand the constitutional right to free speech in a ruling that could strengthen the ability of journalists to defend themselves when sued.
The bench will decide whether to put its seal of approval on a new defamation defence called "public interest responsible journalism," which can shield media outlets from lawsuits, even if they had some of their facts wrong, provided they can show they did everything they could to get the story right.
The issue before the Supreme Court is whether current defamation laws lean too heavily toward protecting reputations, at the expense of freedom of expression guarantees in the Charter of Rights.
Media lawyer Brian Rogers said that a libel thaw is needed to bring Canada in line with most other Western countries in which laws evolve through the courts, including the United Kingdom, Australia, New Zealand, South Africa and India.
"We are the last holdout," said Rogers, who represents a coalition of media organizations that intervened in two separate appeals to be decided Tuesday, one involving the Ottawa Citizen and the other the Toronto Star.
"It is the way the wind is blowing and it has been blowing that way for some time."
The Citizen case began eight year ago, when former police officer Danno Cusson took his dog, Ranger, to New York City to help in the aftermath of the 9-11 terrorist attacks.
The newspapers published stories suggesting Mr. Cusson misrepresented himself and his dog as a trained RCMP sniffer-dog team, when in fact he is not a Mountie and his dog had no formal certification in search and rescue.
Mr. Cusson, a former police officer, sued and won a $100,000 libel award against the Citizen.
The statements in the stories the jury found libellous came from police officers who testified they believed what they told the newspaper reporters. The Citizen argues that is why the media needs a new defence that does not require outlets to prove every fact is true.
Mr. Cusson's lawyer, Ronald Caza, has asked the Supreme Court to resist "radically altering the law of defamation in Canada" by endorsing the new defence.
"The prohibition against publishing defamatory statements about an individual to the world is of particular importance in the modern era of Internet publication, in which the potential impact of the defamation on a person's reputation is considerable and open-ended," Mr. Caza said in a written brief.
The Supreme Court's latest foray into libel law comes two years after the Ontario Court of Appeal carved out the new defence, basing its decision on existing British law.
The decision signalled a dramatic shift from previous law, in which journalists have had to show they got the story absolutely right, a standard that the court said was too onerous in fostering free expression and debate.
"Where a media defendant can show that it acted in accordance with the standards of responsible journalism in publishing a story that the public was entitled to hear, it has a defence even if it got some of its facts wrong," the Ontario court ruled.
"Debate on matters of public interest will often be heated and criticism will often carry a sting and yet open discussion is the lifeblood of our democracy."
Despite opening the door to the new defence, the Ontario Court of Appeal did not reverse the libel decision in the Cusson case.
Since the paper did not try to argue a defence of responsible journalism during the trial, it could not do so on appeal, the court ruled.
The newspaper had argued a traditional, narrower defence of "qualified privilege," but the appeal court rejected the Citizen's arguments on grounds that newspapers do not have an absolute right to publish stories on matters they believe are of public interest.
In a separate case, the Toronto Star argued the responsible journalism defence when it was sued by businessman Peter Grant. The Star published a story suggesting that Mr. Grant's proposal to expand a golf course could be a done deal in light of his friendship with former Ontario premier Mike Harris.
A judge awarded Grant $1.5-million in damages, but the Ontario Court of Appeal accepted the new defence, overturned the award and ordered a new trial last year.
The bench will decide whether to put its seal of approval on a new defamation defence called "public interest responsible journalism," which can shield media outlets from lawsuits, even if they had some of their facts wrong, provided they can show they did everything they could to get the story right.
The issue before the Supreme Court is whether current defamation laws lean too heavily toward protecting reputations, at the expense of freedom of expression guarantees in the Charter of Rights.
Media lawyer Brian Rogers said that a libel thaw is needed to bring Canada in line with most other Western countries in which laws evolve through the courts, including the United Kingdom, Australia, New Zealand, South Africa and India.
"We are the last holdout," said Rogers, who represents a coalition of media organizations that intervened in two separate appeals to be decided Tuesday, one involving the Ottawa Citizen and the other the Toronto Star.
"It is the way the wind is blowing and it has been blowing that way for some time."
The Citizen case began eight year ago, when former police officer Danno Cusson took his dog, Ranger, to New York City to help in the aftermath of the 9-11 terrorist attacks.
The newspapers published stories suggesting Mr. Cusson misrepresented himself and his dog as a trained RCMP sniffer-dog team, when in fact he is not a Mountie and his dog had no formal certification in search and rescue.
Mr. Cusson, a former police officer, sued and won a $100,000 libel award against the Citizen.
The statements in the stories the jury found libellous came from police officers who testified they believed what they told the newspaper reporters. The Citizen argues that is why the media needs a new defence that does not require outlets to prove every fact is true.
Mr. Cusson's lawyer, Ronald Caza, has asked the Supreme Court to resist "radically altering the law of defamation in Canada" by endorsing the new defence.
"The prohibition against publishing defamatory statements about an individual to the world is of particular importance in the modern era of Internet publication, in which the potential impact of the defamation on a person's reputation is considerable and open-ended," Mr. Caza said in a written brief.
The Supreme Court's latest foray into libel law comes two years after the Ontario Court of Appeal carved out the new defence, basing its decision on existing British law.
The decision signalled a dramatic shift from previous law, in which journalists have had to show they got the story absolutely right, a standard that the court said was too onerous in fostering free expression and debate.
"Where a media defendant can show that it acted in accordance with the standards of responsible journalism in publishing a story that the public was entitled to hear, it has a defence even if it got some of its facts wrong," the Ontario court ruled.
"Debate on matters of public interest will often be heated and criticism will often carry a sting and yet open discussion is the lifeblood of our democracy."
Despite opening the door to the new defence, the Ontario Court of Appeal did not reverse the libel decision in the Cusson case.
Since the paper did not try to argue a defence of responsible journalism during the trial, it could not do so on appeal, the court ruled.
The newspaper had argued a traditional, narrower defence of "qualified privilege," but the appeal court rejected the Citizen's arguments on grounds that newspapers do not have an absolute right to publish stories on matters they believe are of public interest.
In a separate case, the Toronto Star argued the responsible journalism defence when it was sued by businessman Peter Grant. The Star published a story suggesting that Mr. Grant's proposal to expand a golf course could be a done deal in light of his friendship with former Ontario premier Mike Harris.
A judge awarded Grant $1.5-million in damages, but the Ontario Court of Appeal accepted the new defence, overturned the award and ordered a new trial last year.
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