Defamation, Media Privilege and the Charter: Cusson v. Quan and Grant v. Torstar Corp – Part 2
(Part 2 of 3)
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.  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.
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.
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.
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.
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.
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.