Defamation, Media Privilege and the Charter: Cusson v. Quan and Grant v. Torstar Corp – Part 1

(Part 1 of 3)

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 The newspaper’s appeal was denied, but on the ground that the defence of qualified privilege had now been superseded by the “different jurisprudential creature” recognized by Lord Hoffman and Baroness Hale in the recent English case of Jameel.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.