Introduction

This is the second installment of a three-part article on the Supreme Court’s current bout of spring cleaning in the law of defamation.

The first installment considered the various formulations of qualified privilege in the common law of defamation, and showed an important reason why the Hoffman/Hale formulation in the English case of Jameel, as applied by the Ontario Court of Appeal in the Cusson and Grant cases, fail to provide adequate protection of reputation in modern Canadian society.

This installment will consider whether any of those various formulations could withstand scrutiny under the Canadian Charter of Rights and Freedoms.

A constitutional question

In the Cusson and Grant cases, the Chief Justice took the unusual step of stating constitutional questions – even though no legislation or State action was involved. On that invitation, it is therefore appropriate to consider the balance between freedom of the press and reputation through the lens of constitutionality.

Charter-protected rights and interests

Freedom of expression

The importance of freedom of expression, particularly on matters of public interest, is sufficiently well-known not to need repeating here, (see for example Harper v. Canada – except for this.

While freedom of expression enjoyed by the media has traditionally been considered no greater than that of other members of Canadian society, (WIC Radio Ltd. v. Simpson), specific Charter protection of freedom of the press must surely contemplate a separate and different standard based on media-specific considerations.

For example, if freedom of the press appropriately includes a privilege to publish to the world, it should at the same time include a higher standard of responsibility as to what is being published. The reason for both the increased latitude and the higher standard is that freedom of the press, responsibly exercised, is a wellspring for the freedom of expression exercised by everyone else.

The Reputation Interest

The Supreme Court of Canada has recognized that reputation has implicit protection under the Charter. In Hill v. Scientology, the court expounded upon its importance, concluding as follows, (see also Reynolds v. Times Newspapers Limited and Others):

Although it is not specifically mentioned in the Charter, the good reputation of the individual represents and reflects the innate dignity of the individual, a concept which underlies all the Charter rights. It follows that the protection of the good reputation of an individual is of fundamental importance to our democratic society.

Further, reputation is intimately related to the right to privacy which has been accorded constitutional protection. …. The publication of defamatory comments constitutes an invasion of the individual’s personal privacy and is an affront to the person’s dignity. The protection of a person’s reputation is indeed worthy of protection in our democratic society and must be carefully balanced against the equally important right of freedom of expression.

In addition, Canadian courts have long recognized the importance of enabling individuals to take part in public life free of the risk of defamatory attacks on their personal reputations. (Snyder v Montreal Gazette (1978), 87 D.L.R. (3d) 5, rev’d. 5 D.L.R. (4th) 206, rev’d. [1988] 1 S.C.R. 494).

That includes not only running for political office, or serving as a government official, but also many other ways of taking part in the public life of our communities.

In cases like Hill and Vogel v Canadian Broadcasting Corp., (1982), 35 B.C.L.R. 7 (S.C.), reputation comes under attack not only in personal terms (dignity and privacy) but also as an incident of one’s public participation. The facts in Hill are well-known. The facts and findings in Vogel were as follows.

In March, 1980, the CBC ran a series of television reports alleging that then-British Columbia Deputy Attorney General Dick Vogel had sought to interfere with the exercise of prosecutorial discretion in a number of cases involving friends of his.

In finding liability, the court noted that, in addition to attacking Mr. Vogel personally, the defamation had created an apprehension about the credibility of the criminal justice system and the standard of performance of those who are charged with its administration. On its release the defamation was regarded “as a most serious indictment of the plaintiff and of the ministry”, with implications of a cover-up by the ministry. It caused enough embarrassment to shake the foundations of government.

The court further noted that, according to the prevailing view, the defamation of Vogel had “destroyed his usefulness” to government, whether or not he had done anything wrong. Indeed, even after the highest award of damages in Canada to that date, Mr. Vogel’s effectiveness as Deputy Attorney General was apparently still impaired: he left the position a few months later.

It is in the larger public interest to enable individuals like Casey Hill and Dick Vogel to take part in public life. Indeed, it is not so far-fetched to characterize Mr. Grant’s case as one in which his involvement in public life through political donations was the genesis of the defamatory imputation against him. Risk of an unwarranted attack on one’s reputation may chill such persons’ public participation.

Public participation is both a product and an aspect of free expression. Accordingly, defamatory attacks on persons like Hill and Vogel and Grant not only infringe Charter-protected reputation per se. They also constitute an infringement of their Charter-protected freedom of expression.

Charter compliance

In Canada, where two or more Charter-protected interests come into competition, “the … task is not to prefer one or the other by ordering a ‘hierarchy’ of rights”. (WIC Radio Ltd. at para. 2).

One finds an important point of departure, in that regard, between the law in Canada and the common law of England in the closing words of Lord Nicholls’s judgment in Reynolds:

Above all, the court should have particular regard to the importance of freedom of expression. …. The court should be slow to conclude that a publication was not in the public interest and therefore the public had no right to know, especially when the information is in the field of political discussion. Any lingering doubts should be resolved in favour of publication. (Reynolds, at 205)

Lord Nicholls’s approach would, in principle, allow the expression interest to trump the proper value of reputation. That is not the mandated approach in Canada. The Charter requires a balance to be achieved that fully respects the importance of both interests.

So, in the law of defamation, even if the quality and subject matter of news material provide a basis to make its publication privileged, the constitutionality of any defence of media privilege must also include considerations of rationality and proportionality vis a vis the reputation interests. Those are the sort of considerations which would arise under section 1 of the Charter – when considering whether an infringing law is demonstrably justified in a free and democratic society. (See R. v. Oakes; Dagenais v. Canadian Broadcasting Corp.,)

Charter section 1

What is the infringing law?

On any section 1 analysis, the first task is to identify what aspects of the impugned law potentially infringe a Charter-protected right or interest involved in the case.

In theory, any law which inhibits media publication in any way may be said to infringe Charter-protected freedom of the press. Within the common law of defamation, that would include anything short of an absolute privilege to publish. In particular, it would include any qualifications on media privilege – such as liability for publication with knowing or reckless falsity, or to the world, or with “improper purpose” malice. Indeed, even the requirements of “responsible journalism” may be said to inhibit freedom of the press – although irresponsible journalism may be the equivalent, for that purpose, of shouting “fire” in a crowded theatre.

Similarly, any law which allows publication of any defamatory statements may be said to infringe Charter-protected reputation interests. Within the common law of defamation, that would include any defence other than justification. In particular, it would include any publication with knowing or reckless falsity, or to persons who had no personal connection or need to receive the information, or publication with intent to harm, or irresponsibly.

There is notable symmetry in the aspects of the existing law of defamation which may be said to infringe one or the other of the competing Charter-protected rights and interests engaged here.

Pressing and substantial objective

Having identified the infringing law, the next step in the justification analysis under section 1 is to consider whether that law is in pursuit of pressing and substantial objectives.

In doing so, the courts appropriately make reference to the social context. Context can be established by reference to the nature of the harm sought to be addressed by the law; the vulnerability of the person or group protected by the law; their subjective fears and apprehension of harm; and the nature of the activity infringed by the law. In that regard, the courts may, in the absence of scientific evidence, rely on logic and reason. (Thomson newspapers ltd. v. Canada (Director of investigation and research, restrictive trade practices commission),)

In considering context, it does not require anything beyond logic and reason to conclude that a law protecting both freedom of the press and reputation is an objective sufficiently pressing and substantial in our free and democratic society as to justify limiting the competing Charter right or interest.

Rational connection

Justification under section 1 also requires a rational connection between the laws and the objectives. There is clearly a rational connection between the existence of some sort of media privilege and the dual objectives of the common law of defamation. Some form of privilege is required to protect freedom of the press. Some qualifications on that privilege are required to protect reputation. The question is what.

Minimal impairment

Then, a section 1 analysis turns to consider minimal impairment of the right(s) or interest(s) involved. The governing principle is that the law must be carefully tailored so that rights are impaired no more than necessary. The standard is not perfection but the infringing must fall “within a range of reasonable alternatives”.

(i) Freedom of the press

In general, the courts in Canada and elsewhere have for some time evidently considered that traditional qualified privilege fails to meet what, under a Charter analysis, would be termed minimal impairment of freedom of the press. In remedying that defect, some jurisdictions, notably the United States, (New York Times Co. v. Sullivan), have gone further than others. Grenier and other more recent Canadian cases were attempts to achieve minimal impairment within the traditional defence – to find a middle ground. So, on one reading, (i.e. Jameel per Lords Bingham and Hope), was Reynolds.

At trial in Cusson, counsel for the Ottawa Citizen argued for the version of qualified privilege set out in the Grenier line of cases. However, the trial judge found that that test required “a compelling, moral or social duty to publish” and could not say “with sufficient confidence that [the stories] were in the public interest to the extent that they needed to be heard [by the public at large]”. The newspaper argued that inserting “compelling” set the test too high, and that a moral or social duty to publish had been established. The Court of Appeal did not deal with that issue at all. Rather, it adopted the more “media-friendly” Hoffman/Hale formulation from Jameel as meeting the requirements of Charter compliance.

At trial in Grant, the defence argued both traditional qualified privilege and the Reynolds defence of “responsible journalism”. The trial judge conflated the two and found the defence did not apply. The judge found that the subject-matter was a local issue and of little concern to those outside the area. That, combined with the way the judge applied the Reynolds factors, led to a finding that neither form of the defence could apply. The Court of Appeal found the trial judge erred, including by defining media privilege based on publication to those who have an interest in receiving information on an issue (i.e. the traditional duty/interest paradigm). (See Grant at para. 63)

So, in Cusson, we have an example of the problem, in any updated version of the traditional defence of qualified privilege, with requiring that there be a duty to publish; and in Grant, of the problem with requiring a corresponding interest in receiving the published information.

By adopting the Hoffman/Hale formulation in those two cases, the Ontario Court of Appeal must be taken to have concluded that focusing on the occasion of publication and requiring reciprocal duty and interest is not within the range of reasonable alternatives sufficient to protect freedom of the press, including for purposes of a minimal impairment analysis.

(ii) Reputation

The ten factors of the “responsible journalism” test articulated in Reynolds are clearly directed toward appropriate protection of reputation. So is Lord Hoffman’s requirement, in Jameel, that the more serious the defamation, the more central the person and his or her reputation must be to the story. The question is whether those safeguards are sufficient to achieve minimal impairment for Charter purposes.

The defendants in Cusson did not lead evidence with respect to “responsible journalism”. However, the defendants in Grant did rely on that defence. The trial judge considered some of the ten Reynolds factors but apparently did so in a selective manner, in favour of the plaintiff. The Court of Appeal found that, on the contrary, “[i]t was incumbent on the trial judge to apply the relevant factors in a way that sought to favour publication if the article was researched and published responsibly” (Grant, at para. 67, emphasis added).

In Grant, the trial judge’s application of the Reynolds factors may have been an example of the ‘hurdles’ approach criticized by the House of Lords in Jameel. However, the Ontario Court of Appeal’s ‘box ticking’ approach, applied in favour of publication, is properly subject to the same general criticism. More important, ‘box ticking’ is hardly an effective way to achieve a major goal of “responsible journalism” – namely, protection of reputation, including for Charter purposes of minimal impairment.

Conclusion

The Grenier and Reynolds approaches rely on shifting of onus, back and forth, ending in an opportunity for the plaintiff to prove malice. In doing so, the law is sensitive to the deleterious effect of infringement of reputation in any particular case. However, the uncertainty flowing from the fiction of a reciprocal duty and interest can in some cases create significant impairment of freedom of the press.

Reynolds is less deleterious, in that duty-interest touchstone is supplemented and informed by Lord Nicholls’s statements of principle and the non-exhaustive list of ten factors. However, as we have seen, points of principle can be overlooked or misinterpreted, and the ten factors can be applied as hurdles, and thus become barriers to free expression.

Hoffman/Hale, on the other hand, does away with the potential deleterious effect of the duty-interest paradigm. However, by presuming an occasion of privilege for subject matter in the public interest, Hoffman/Hale takes away the courts’ ability to protect reputation on occasions where, despite the importance of the subject matter, the circumstances of publication make it contrary to the larger public interest to publish.

In the result, neither Grenier, nor Reynolds, nor Hoffman/Hale likely achieves minimal impairment of both expression and reputation, as required under section 1 of the Canadian Charter of Rights and Freedoms. The answer to the Chief Justice’s constitutional questions is probably No.

Introduction
The Supreme Court of Canada is in the midst of a little spring cleaning in the law of defamation.

Cusson v Quan was a case concerning an Ontario provincial police officer who on his own initiative travelled to New York City following the events of September 11, 2001, to assist in rescue efforts. He was interviewed in the media and cast as a hero. The OPP was criticized for its reaction to Mr. Cusson’s absence without leave.

The Ottawa Citizen then published articles critical of Mr. Cusson, suggesting that his conduct was less than heroic. For one thing, he had reportedly worn an R.C.M.P. uniform at “ground zero” and misled New York State police into thinking that his pet dog, Ranger, had formal training in civilian search and rescue operations. For another, the newspaper averred (but failed to prove) that Mr. Cusson had deliberately misled the New York police by representing himself as a trained R.C.M.P. canine officer, and had compromised the rescue effort.

Mr. Cusson sued and the newspaper relied on the defence of qualified privilege – that it had a duty to publish the story and the general public had a corresponding interest in reading it. The trial court rejected that defence because a “compelling” public interest had not been demonstrated. The newspaper’s appeal was denied, but on the ground that the defence of qualified privilege had now been superseded by the “different jurisprudential creature” recognized by Lord Hoffman and Baroness Hale in the recent English case of Jameel.

Grant v Torstar Corp. involved a newspaper article headlined “Long-time Harris backer awaits Tory nod on plan”. Mr. Grant was seeking to expand his personal golf course, in Ontario’s cottage-country, by purchasing Crown land. The article included the statement that everyone thought the purchase was a “done deal” due to Mr. Grant’s influence and ties with the then-Premier.

Mr. Grant sued and the newspaper relied on both the traditional defence of qualified privilege and the new Jameel defence. The trial judge conflated the two defences and found in the plaintiff’s favour, because the subject-matter of the article was not of general public interest. The Ontario Court of Appeal found the judge had erred in that regard, and that the Jameel defence would apply – but before applying that defence, the jury first had to decide what was the precise meaning of the defamatory imputation.

The Cusson appeal was heard by the Supreme Court on February 17, 2009. The Grant appeal is set to be heard on April 23, 2009.

It was clear from questions from the bench in Cusson that a number of justices of the Supreme Court were uneasy with the Ontario Court of Appeal’s interpretation and/or application of the Jameel defence as it impacts reputation.

Having heard the court’s concerns, it is now possible to anticipate a made-in-Canada solution to the problems which have vexed past attempts to apply the venerable concept of qualified privilege in modern circumstances and with broader interests in mind.

This is the first of three postings whose unabashed purpose is to offer assistance to the court as it decides these two cases.

The first installment will deal with where the Canadian common law of qualified privilege has come from, and then consider the Hoffman/Hale formulation applied by the Ontario Court of Appeal in Cusson and Grant. The question will be whether that formulation provides adequate protection to reputation in modern Canadian society. The answer will be – No, it doesn’t.

The second installment will explore how a Charter analysis can assist in reaching a better balance the twin values of freedom of expression and reputation. The question will be whether any of the existing formulations of common law media privilege can withstand Charter scrutiny? The answer again will be, for the most part, No.

The final installment will posit an entirely new approach to media privilege. That new approach retains all the elements of the existing common law tests but makes them subservient to one guiding principle – whether it is in the larger public interest to publish. That principle is also the embodiment of the test of proportionality as considered at the final stage of a Charter section 1 analysis (see Dagenais v. Canadian Broadcasting Corp.).

Impatient readers may skip ahead if they wish.

The oral submissions in Cusson
The Cusson appeal attracted numerous interveners in the Supreme Court. Almost all of them were there to speak in favour of greater freedom of expression. The respondent, to judge by his factum, did not place comparable emphasis on the competing importance of reputation. It therefore fell to the court to question counsel on whether and how the reputation interest could be protected. Even though the reputation interest may have been over-emphasized in the past, Justice Binnie memorably asked, should it now be viewed as “road kill” on the highway to media freedom?

A number of justices also seemed uncomfortable with abandoning traditional qualified privilege and instead recognizing a whole new defence based solely on the subject matter of the publication and due diligence by the media. Justice Abella observed that, even for serious journalism, it is necessary to connect who is doing it and why. Justice Binnie suggested that analysis of a reciprocal duty to publish and interest in receiving the published information, even involving the world at large, may create an avenue into considering media diligence.

After the rest of the parties had made their submissions, counsel for Peter Grant stood up. He argued that the common law of Canada should respect both expression and reputation interests. He urged a restated media duty test that would be appropriate to the breadth of publication and extent of potential harm; that would be flexible; that would reflect an incremental development of the common law; and that would protect against an overbroad conception of the public interest in receiving defamatory publications.

The court was evidently interested in hearing more along those lines. Leave in the Grant appeal was granted the very next day.

Traditional qualified privilege and the emergence of “responsible journalism”
As Justice Binnie observed, the common law of defamation has always been strongly weighted in favour of reputation. Once the facts constituting a defamatory publication are proven, the cause of action is complete. Falsity and harm are presumed.

As an exception, the common law recognizes there are occasions where common convenience and the welfare of society may justify defamatory communication about a person despite consequent harm to his or her reputation (see Adam v Ward, [1917] A.C. 309 (H.L.) and cases following). Those are traditionally occasions of communication on what might be termed ‘private’ matters. The parties have some sort of mutual involvement – e.g. former employer to prospective new employer. As Lord Nicholls noted in Reynolds at 195:

The essence of th[e] defence lies in the law’s recognition of the need, in the public interest, for a particular recipient to receive frank and uninhibited communication of particular information from a particular source.

By that means, the common law has sought to balance private reputation, which is prima facie paramount, with a competing public interest in free communication on certain occasions.

Difficulty translating the defence to communication on public matters
The elements which establish an occasion of traditional qualified privilege are the existence of a duty to communicate and the existence and extent of a corresponding interest in receiving the communication.

The duty-interest paradigm works reasonably well for communications from one person to another about a ‘private’ matter. It works increasingly less well as the duty and interest each becomes more generalized – e.g. in communications by a person through the media, or by the media itself, to the general public.

The courts have struggled to fit communication on ‘public’ matters within the duty-interest paradigm. One major difficulty has been the requirement of a corresponding interest in the audience, which ex facie precludes publication to the world (see Douglas v Tucker and other cases discussed by the Court of Appeal in Cusson). Various fictions have been devised to get around that requirement, including recognizing occasions where the media had a moral or social obligation to communicate a story, in the public interest (see Grenier v Southam Inc., [1997] O.J. 2193).

The “responsible journalism” test – Reynolds and Jameel
In Reynolds, the House of Lords attempted to get back to the heart of the matter, creating what has become known as the “responsible journalism” test.

The lead judgment in Reynolds was given by Lord Nicholls of Birkenhead. That judgment is best known for its non-exhaustive list of ten factors on the basis of which responsible journalism could be tested. They are too well-known to need repeating here.

But more fundamentally, Lord Nicholls said the question really came down to whether “the publication of particular material was privileged because of its value to the public.”

In cases following Reynolds, there have been mixed results, due to mechanical application by the courts of the ten factors as if they were ten hurdles for the media to get over, rather than reasoning from the first principles set out in Lord Nicholls’s judgment. Hence Jameel.

Two of the law lords in Jameel (Lords Bingham and Hope) saw the “responsible journalism” defence in Reynolds as preserving the duty-interest paradigm, albeit in a different form.

Lord Hoffman and Baroness Hale saw “responsible journalism” as a different jurisprudential creature altogether. For them, the primary question was not the existence of an occasion of privilege or reciprocal duty and interest but whether the subject matter of the article was a matter sufficiently in the public interest. Lord Hoffman wrote as follows at para. 48:

[The Reynolds defence] was developed from the traditional form of privilege by a generalization that in matters of public interest there can be said to be a professional duty on the part of journalists to impart the information and an interest in the public in receiving it. …[That] should be regarded as a proposition of law and not decided each time as a question of fact. If the publication is in the public interest, the duty and interest are taken to exist.

Parenthetically, the difference may be that Lord Hoffman and Baroness Hale apparently read Lord Nicholls’s statement of principle in Reynolds, quoted above, as referring to the value of the subject matter, while Lords Bingham and Hope considered it referred to the value of its publication.

Lord Scott was the fifth law lord on the panel in Jameel. His Lordship specifically did not accept that the Reynolds privilege was a “different jurisprudential creature”. He said several times in various ways that Reynolds was not supplanting the need for duty and interest, but “supplementing that touchstone in order to provide the protection of qualified privilege, where the circumstances warranted that protection, to statements published to the world at large”.

Yet, in his closing words, Lord Scott wrote the following:

Having had the advantage of reading the respective opinions of my noble and learned friends on the qualified privilege point I am unable to discern any real differences in principle. If, however, there are any, I want to express my full agreement with the reasons given by my noble and learned friend Lord Hoffman.

In light of the rest of Lord Scott’s reasoning, those closing words are quite baffling. Is there a requirement to establish an occasion of qualified privilege and reciprocal duty and interest, or not? Or is it really a distinction without a difference – as the Ontario Court of Appeal apparently found? (see Cusson at paras. 101 and 143; and Grant at para. 37).

The abolition of malice
One important difference is this. Proof of an occasion of privilege, and of a duty to publish and reciprocal interest to hear, properly still creates a context, in media cases, for considering the possibility of publication with malice.

Malice is the gist of the tort of defamation. A defamatory statement is presumed to be malicious. That presumption is rebutted by establishing an occasion of qualified privilege. However, under the traditional defence, it remains open to the plaintiff to prove in the end that malice was present after all.

Evidence proving “responsible journalism” may answer most of the potential incidents of malice – for example, whether there was knowing falsity or reckless disregard for truth (Lord Nicholls’s list, numbers 3, 4, 5, 7, 8), unduly violent or intemperate language (number 9), or whether an attack was impertinent and unnecessary to the occasion (numbers 2, 6 and 10).

Indeed, some commentators have considered that proof of “responsible journalism” does away altogether with the need to consider the factual and legal complications of malice (Loutchansky v Times Newspapers Ltd. (Nos. 2-5), [2002] 2 W.L.R. 640 (C.A.); see Brown, The Law of Defamation in Canada (2d) (Carswell Looseleaf) p. 16-15 and 16-68, footnote 296).

The abolition of the need and right to prove malice comes to fruition in the different jurisprudential creature formulated by Lord Hoffman.

However, in Lord Hoffman’s formulation, the ability to catch malice under the rubric of “responsible journalism” depends very much on how broadly or narrowly the various factors are drawn in any particular case, and how they are weighed against each other.

Further, as Lord Hope observed in Reynolds at 235-236, “… it does not follow that the circumstances which will be relevant at the [malice] stage of the inquiry will be the same as those which were relevant to the question whether the occasion was privileged. On the contrary, they are likely to be different, as the question which must be answered is a different question.”

Finally, and most important, there is at least one aspect of malice which is not covered at all by the “responsible journalism” factors – namely, whether the primary or predominant motive for publication was consistent with the reason why the law recognizes a privilege for publication (“improper purpose” malice) (see See Horrocks v Lowe, [1972] 1 W.L.R. 1625 (C.A.) aff’d. [1975] A.C. 135 (H.L.).

Improper-purpose malice asks a different question from those which comprise the “responsible journalism” defence – one which a plaintiff should be able to ask and have answered. Under the duty element of the defence of qualified privilege as applied in Reynolds, it is presumed that the media would not publish for a collateral motive – whether for commercial gain, political advantage (see Bennett v Stupich (1981), 30 B.C.L.R. 57 (S.C.), or as part of an ongoing public feud. But that presumption properly remains open to challenge by the plaintiff if the circumstances of the particular case warrant it.

If the duty element is assumed automatically, as in the Hoffman/Hale formulation of media privilege, the opportunity to test the presumption of no collateral motive is lost.

Conclusion
In abolishing the opportunity to prove malice after all, the Hoffman/Hale formulation fails to provide adequate protection for reputation in modern Canada, and that is why the Ontario Court of Appeal erred in accepting that formulation as the common law of Canada.

Recognizing privilege without considering (as Justice Abella said) who is publishing or why, is the fatal flaw in Lord Hoffman’s formulation of modern media privilege.

In Reynolds(at 205), Lord Nicholls referred to the media’s role as both watchdogs and bloodhounds. However, the law of media privilege is also appropriately concerned about a different kind of dog – bred and kept for bull- or bear-baiting, to appeal to the baser aspects of the audience’s nature. “Journalists” of that ilk, even if they do their homework, should not be immunized from liability if that was the predominant purpose for the story. The Canadian common law of defamation properly preserves the opportunity of plaintiffs to hold accountable any persons who publish for such reasons.

The appellants in this case, the Ottawa Citizen, are arguing that the Supreme Court’s past decisions, denying the media the defence of qualified privilege for publications to the world at large, on matters of public interest, are inconsistent with and an infringement of freedom of expression as guaranteed by section 2(b) of the Charter. They will be arguing that the common law of defamation must be modified to provide broader accommodation to the value of freedom of expression to protect the reporting of legitimate matters of public interest.

As the Court hears arguments from the parties in Quan v. Cusson, they will also be asked to consider arguments from many media intervenors, as well as the Canadian Civil Liberties Association.

The Court has recently acknowledged the chilling effect of libel law and its impact on “freedom of expression and debate that is said to be the ‘very life blood of our freedom and free institutions” in WIC Radio Ltd. v. Simpson, 2008 SCC 40. In WIC Radio, an incremental change was made to the defence of fair comment to accommodate the requirements of the “rough trade” of public controversy. The Court clarified and strengthened the defence of fair comment to permit robust discussion of matters of public interest. The intervenors in this case are now looking for similar accommodation in the defence of qualified privilege.

While the intervenors each have their own arguments, that differ somewhat in the details, there are two basic arguments that flow throughout the submissions.

Firstly, the intervenors argue that the traditional qualified privilege defence does not conform to current societal standards and Charter values as it restricts the ability of the media to report on matters of public interest and gives undue protection to reputation at society’s expense.

Secondly, the media intervenors argue that the Court should affirm the Ontario Court of Appeal adoption of the defence of public interest responsible journalism, as a necessary, principled and incremental development in the common law of defamation. This defence would be an added protection when the traditional defence of qualified privilege is inadequate to protect stories that are responsibly reported and of interest to the public. Some also argue that a defence of “public interest communication” should be adopted, which would not be restricted to media.

There are differences in the way in which the various media intervenors would like to see the changes made. There are those who would simply like to see the “public interest responsible journalism” (PIRJ) defence adopted, wholesale, as an additional defence, as set out in Justice Sharpe’s Court of Appeal judgment in Quan, with no alteration to the traditional defence of qualified privilege. There are others who would prefer that the defence of qualified privilege simply be expanded to include PIRJ. And, there are those who would like to see a test like that in Dagenais v. Canadian Broadcasting Corporation, [1994] 3 S.C.R. 835, applied in cases where a question of potentially erroneous defamatory fact, on matters of public interest, is expressed.

The current state of the law is outdated and unconstitutional. Most people in a democratic society such as ours receive their information from a third party, be it on the internet, through newspapers or through broadcast media. As participants in a democracy they have a right to timely information on all matters of public interest. At the same time, those who publish the information have a responsibility to ascertain, as much as possible, the truth of the facts they are imparting. A recognition, from the Court, that this new approach is necessary and desirable, would greatly reduce the chill in libel law and bring Canada into the 21st century.

While some commentators have gone so far as to call it a “mausoleum of antiquities peculiar to the common law and unknown elsewhere in the civilized world…a labyrinth of uncertainties, of false clues, blind alleys, and unexplored passages,” others have been kinder, simply labelling the law of defamation “notoriously complex and difficult.”

Among other things, of growing concern is our courts’ approach to the “qualified privilege” defence and the proper place to be accorded to responsibly-made journalistic expression within Canada. As it stands, the balance between free expression on one hand and the protection of an individual’s reputation on the other leans heavily in favour of the latter, and leaves a veritable “chill” on journalistic activity.

This state of affairs, however, might change next month when the Supreme Court considers Cusson v. Quan, a landmark decision by the Ontario Court of Appeal. In its ruling, the Court of Appeal provides both a clear-cut diagnosis of the current state of the law, and the foundations for a newly recognized Canadian approach to responsibly-made journalistic expression.

As noted by Sharpe J., writing on behalf of the Court of Appeal, the traditional law of defamation provides for a version of strict liability. A defendant may neither escape liability by proving a lack of intention to defame, nor by proving that reasonable care had been taken to ascertain truthfulness. Nor, for that matter, might a defendant argue that they were merely repeating the statement of someone else. Within this scheme, any statement made by a defendant to a third person that would lead ordinary Canadians to think less of the plaintiff is presumptively defamatory: “[t]he common law presumes falsity, fault and damages.”

Such a prima facie handicap would not be terribly disturbing if it weren’t for three other common law impediments to media defendants. First, in Douglas v. Tucker (1952) and The Globe and Mail Ltd. v. Boland (1960), the SCC ruled that the reciprocal relationship of duty and interest, which is inherent to the traditional qualified privilege defence, is not generally applicable to the media. In other words, the courts do not recognize defendant newspapers as having a duty to report matters of public interest to the world at large.

The second hurdle to defendants is that while the defence of “fair comment” may attach to defamatory statements of opinion, it provides no defence in relation to the publication of defamatory statements of fact, no matter how reasonably believed to be true. Put otherwise, when it comes to publication of defamatory facts (i.e. facts that would lead the ordinary person to think less of the plaintiff) newspaper defendants can only avoid liability by proving the truth of those facts according to the exacting standards of a court of law.

The last and final hurdle to media defendants facing allegations of defamation is the SCC’s ruling in Hill v. Church of Scientology of Toronto. Although Hill dealt with a different aspect of defamation, the Supreme Court flatly rejected the argument that the present law of defamation is unconstitutional, and that the American “actual malice” approach should be adopted as a remedy. As laid down in the leading American case, New York Times v. Sullivan, the “actual malice” test bars public officials from recovering damages for defamation if they are unable to prove actual malice on the part of the publisher. Considering that malice is exceptionally difficult to prove, the adoption of such a test would have firmly swung the balance between reputation and free speech in the other direction.

Sharpe J. was unequivocal in his assessment of the effect of these hurdles. The current approach to defamation in Canada relies on a line of cases developed “some fifty years ago in a very different legal context, one that gave preponderant consideration to the protection of reputation…[they] bear the mark of the pre-Charter past, an era less concerned about the right of free expression and the need for open, vibrant political debate.”

Having made his diagnosis, Sharpe J. then proposed a well-conceived cure: the adoption of a new defence recently developed by the House of Lords. Established in Reynolds v. Times Newspapers Ltd. and Jameel v. Wall Street Journal, this development is not so much an extension of qualified privilege, as a “different judicial creature” altogether.

The defence, labelled by Sharpe J. as “the public interest responsible journalism defence,” rests on a sound principle: if a media defendant can show that when publishing a story of public interest it had acted according to the standards of responsible journalism, it has a defence, even if it was mistaken in some of its facts. This defence is different from traditional qualified privilege in that it imposes a burden on the defendant to show that it acted responsibly, whereas qualified privilege imposes a burden on the plaintiff to prove malice.

According to Sharpe J., the public interest responsible journalism defence is a logical mid-way between two common law extremes; “[it] recognizes that in relation to matters of public interest, the traditional common law unduly chills freedom of expression but, at the same, rejects the notion that media defendants should be afforded a licence to defame unless the innocent plaintiffs can prove deliberate or reckless falsehood.”

Certainly, as far as the Ontario Court of Appeal is concerned, a public interest responsible journalism defence would go a long way towards righting the common law imbalance in favour of reputation over free speech.

It’s hard not to agree.