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

(Part 3 of 3)

Introduction

This is the third and final installment of an article on the Supreme Court’s current review of qualified privilege in the common law of defamation.

The first installment considered various formulations of qualified privilege in the common law of defamation, and why the formulation applied by the Ontario Court of Appeal in the Cusson and Grant cases fails to provide adequate protection of reputation in our free and democratic society.

The second installment concluded that none of those various formulations really meets the requirements of minimal impairment under section 1 of the Canadian Charter of Rights and Freedoms.

In this installment, we will confirm that conclusion and then posit an entirely new approach to media privilege which does achieve balance between freedom of the press and reputation in a Charter-complaint manner.

Ultimate proportionality

After considering the question of minimal impairment, analysis under section 1 of the Charter then tests what might be termed ‘ultimate proportionality’.

Under Oakes, the court weighs the importance of the law’s objective (here, protecting both expression and reputation) against the potential deleterious effect of infringing the right or interest involved (here, reputation and freedom of the press, respectively) in the facts and circumstances of the particular case. Under Dagenais, the court also weighs the deleterious and salutary effects of (each of) the infringement(s).

Weighing the objectives of qualified privilege against the effect of infringing expression and/or reputation would seem to be an exercise in abstraction. One wonders whether such a process would really produce any insights or difference – unless the harm to the public of not knowing about a matter or, conversely, to the plaintiff’s reputation and participation in public life, were so extreme and obvious on the facts as to outweigh constitutional protection of the competing interest. That may have been the case in Hill v. Scientology, for example. Vogel (discussed in Part 2) would have been a closer call. Cusson or Grant – probably not.

Weighing the deleterious against salutary effects of the two infringements (i.e. one against the other) may be a more practicable way to assess whether any of the existing common law approaches would meet the requirement of ultimate proportionality in the circumstances of any particular case. However, it seems unduly cumbersome to go through a full-blown Charter analysis in order to reach what amounts to a simple weighing of the pros and cons of publication. Why not go straight to the point?

The difficulty with legal tests

Legal tests and non-exhaustive lists are welcomed by lawyers but can overshadow the courts’ statements of legal principle. At the hearing in Cusson, Chief Justice McLachlan asked how predicable the result of defamation cases would be if the test were the ten factors in Reynolds. Justice Binnie observed they were deceptively simple and might not prove to be so easy to apply in a uniform manner.

A re-affirmation of principle, in simple and practical terms, may be of greater help to the media when deciding whether or not to publish, and to would-be plaintiffs when deciding whether or not to sue.

The duty-interest test and the non-exhaustive ten-point list in Reynolds have attracted considerable judicial attention. However, the focus might more usefully have been placed on Lord Nicholls’s fundamental question of whether, having regard to all the circumstances, “the publication of particular material was privileged because of its value to the public”.

In Canada, however, it is not the absolute value of the particular published material which Charter-compliant media privilege should protect, but the net value of publishing it. Net value is arrived at after taking into consideration all the facts and circumstances of the particular case.

Under a ‘net value’ approach to media privilege, the courts would, coincidentally, go direct to the question of ultimate proportionality as described in Dagenais.

Something else entirely

In 1997, Justice McLachlan (as she then was) gave a lecture at the meeting of the Canadian Institute for Advanced Legal Studies in Cambridge, England, on the law of defamation. Her speech was framed within the following story:

… a story about Ludwig Wittgenstein, perhaps the most eminent philosopher of the 20th century, who lived for many years at Cambridge and did much of his most important work here. He was seen standing on the platform of the train station with two other philosophers, Elizabeth Anscombe and Henry Hart. The three were deeply immersed in some philosophical conundrum. The train pulled in. The debate continued. The train started to pull out. The debate continued. Suddenly Anscombe and Hart noticed the departing train and raced for the last car, getting aboard just as the doors swung shut. The observer came over and said to Wittgenstein – “Your friends just made it onto the train.” “Ah yes,” the great philosopher replied. “The problem is, they had come to see me off!”
….
I began by referring to the Cambridge story of the philosopher Wittgenstein, left standing on the railway platform, while the train he should have caught whisked away his friends. Let me in closing return to the same analogy. Have we in Canada, as many would have it, missed the free speech train as it whisks our friends on the fast track to London? I prefer to think that, while the train that has carried our friends to a revised common law of defamation may not yet have called at the Canadian station, we are en route to the same ultimate destination – a principled and flexible balancing of the conflicting values of free expression and reputation worthy of a free and humane society.

Well, the train has arrived at the Canadian station at last.

The common law of defamation with respect to qualified privilege is dusty and antiquated. The Cusson and Grant cases present the Supreme Court with an opportunity to renovate, if not rebuild.

In 1999, in Bazley v. Curry, the court took a similar opportunity with respect to the law of vicarious liability. In that case, Justice McLachlan undertook an analysis of the competing precedents and policies, and then expressed the single underlying principle on which a new approach could be based. Her Ladyship wrote that courts should openly confront the question of whether liability should lie against the employer, rather than obscuring the decision beneath semantic discussions. Doing so would lead them to address the fundamental question involved: whether there is a sufficient connection between creation of the risk and the ensuing wrong such that vicarious liability should flow to meet the policy objectives of the law. Her Ladyship set out a list of subsidiary factors which may inform the sufficiency of the connection.

In her Cambridge lecture, after reviewing the common law of defamation up to and including Hill v Scientology, Justice McLachlan concluded as follows:

We are left with this. Construing the right of freedom of expression broadly, the Supreme Court of Canada has generally adopted a flexible approach to it, seeing it as a high value, but not an absolute one. …. While Cory J. in Hill does not put the matter precisely in these terms, the emphasis on balancing of interests, consideration of the context, and the relative value of the defamatory statement versus the free speech interest it serves might be seen as pointing in the direction of a case-by-case balancing approach.

Methodologically, there is much to be said for a flexible “sliding scale” or balancing approach to free speech relative to reputation. At the price of some uncertainty, courts are permitted to weigh, on a case by case basis, the value of the defamatory speech relative to its harm. The test is capable, one may argue, of developing in a manner which takes malice, recklessness and reasonability into account, albeit in a more flexible way than in other jurisdictions.

A new approach for Canada

At the hearing in Cusson, Chief Justice McLachlan observed that defining the “public interest” is central to the case. Taking our cue from that suggestion, from the 1997 article and from the reasoning in Bazley v. Curry, a new approach may be posited for media privilege in the Canadian common law of defamation. That approach would work from first principles and apply such of the traditional criteria as may be relevant, with whatever weighting is appropriate in the particular case:

• Occasions of communication on ‘private’ matters are properly distinguished, for purposes of qualified privilege, from occasions of communication on ‘public’ matters.

• The former are privileged for reasons of common convenience and public welfare, and the latter because such communication is in the larger public interest.

• The outcome of cases involving communication on ‘public’ matters properly depends on whether, all relevant aspects of the larger public interest having been considered, the net result is in favour of, or against, publication.

• The ’larger public interest’, for that purpose, would be an amalgam of the social importance of expression, the value of what is being expressed (including its significance; truth versus near truth; serious matters versus tittle-tattle), the social importance and personal value of reputation (dignity, privacy, public participation), the degree and extent of real harm to the reputation of the person in the story, and whether or to what extent the person by words or conduct had really put his or her own reputation in issue.

• That is akin to Lord Hoffman’s threshold test in Jameel, but focussing on all aspects of the public interest rather than simply on the subject matter of the publication. It is also similar to the approach taken in Bazley v. Curry – a willingness to meet the policy question head on, rather than obscuring the decision beneath semantic discussions.

• The net value of publication could be assessed with reference to the objectivity and responsibility of the media in researching and presenting the story; the story’s newsworthiness; and the plaintiff’s public profile and how central he or she is to the story.

• That echoes the traditional duty-interest paradigm. It also has elements of Lord Hoffman’s approach, and the ten factors from Reynolds can be used in much the same way as the subsidiary factors proposed to be used in Bazley v. Curry – not as free-standing ideas or tests but aspects of and in answer to the more fundamental question.

• Finally, by going straight to the question of net value, the proposed approach embodies the substance of a Charter section 1 analysis of proportionality but without so many formulae or complexities.

Formulations such as traditional qualified privilege, Grenier, Reynolds or Hoffman/Hale (all discussed in Parts 1 and 2) are born of the urge for certainty. To become Charter-compliant, that urge must give way.

On the other hand, relying on what is in the “larger public interest” might be criticized as being flexible to the point of vagueness.

There are two answers to that criticism. First, the proposed approach includes any or all of the tests and factors which have been applied to media privilege over the years. The difference is that those tests are subservient to the fundamental principle. Those tests and factors have in the past provided ample ground for determining, judicially, what is in the larger public interest. Second, the proposed approach is no less justiciable than comparing salutary against deleterious effects of infringement of the Charter under the test of ultimate proportionality in Dagenais.

The “larger public interest” in Cusson and Grant

So how would the proposed approach work in Cusson and Grant?

It is difficult to say without ready access to evidence on all the facts potentially relevant to the larger public interest. In addition, fairness would seem to require giving the parties the opportunity to lead new evidence, or to apply the evidence already led, for purposes of the proposed new approach. If the Supreme Court were to adopt anything like a “larger public interest” approach, it probably must remit both cases to trial. Unless the cases settle first.

However, it is possible to offer three brief observations based on what is contained in the reasons for judgment below.

First, the threshold question in each case is whether and why the larger public interest is engaged at all.

In Cusson, the larger public interest was engaged when the plaintiff began giving media interviews on what he was doing in New York City. Before that, it is difficult to see how communication on the matter would even constitute an occasion of traditional qualified privilege. Who, for purposes of common convenience and the welfare of society, would have had a duty to communicate or an interest in hearing about an OPP officer absent without leave? Once Mr. Cusson became a hero, and a petition for his reinstatement began to circulate, the nature of the occasion changed completely.

In Grant, uncertainty over the true nature of the matter is what, according to the Court of Appeal, led the trial judge into error. If the defamatory imputations were in relation to a local matter, then an occasion of traditional qualified privilege may well have arisen but was lost through publication to the world. If they were really about Mr. Grant’s political connections or larger environmental concerns, then the people of Toronto may well have had an interest in the story. Ironically, from Mr. Grant’s point of view, the more serious the defamatory imputation, the broader the interest and broader the privilege.

The second observation has to do with preserving Mr. Cusson’s and Mr. Grant’s reputations as an aspect of the larger public interest.

In Cusson, one cannot help but feel that reputation was put in issue by the very deeds which led to the defamatory imputation, not to mention giving interviews about them.

In Grant, the issue is again more subtle. Does one necessarily put one’s reputation in issue by forming friendships with politicians or contributing money to their campaigns? Is there a presumption that the reason for doing so was to obtain favours in return? One would expect more from responsible journalism than to accept such presumptions. Like evidence about what the relationship involved, how long ago, how close it was, whether it was still current, etc. Again ironically, but this time from the public’s point of view, the less close the relationship seems at first blush, the more important it would be to tell the story if there were indeed anything to it.

The third observation has to do with “near truth”. In Cusson, the defamatory imputations which the jury did not accept as true seem, to this reader at least, a matter of natural inference based on common sense. Statements of near truth, or those which are impossible to prove, would as a rule seem more valuable to the public than truly harmful to reputation. That is the rationale, in the common law of defamation, for the so-called defence of partial justification and the $10 award of damages. In cases involving communication on ‘public’ matters, it makes more sense to incorporate these ideas into the proposed new approach to media privilege, rather than leave them until later.

Conclusion

Media privilege in modern Canada, while protecting the concepts of freedom of the press and reputation, must in the end be sufficiently flexible to protect the realities of infringement. It must protect the various individuals whose rights or interests are potentially infringed in any case – i.e. those with an interest in receiving information in order to take part in public life; and those whose personal reputation and ability to participate may be harmed by publication. It must do so in a more direct and less artificial way than in the past. That is one rationale for the proposed new ‘larger public interest’ approach.

But in addition, there may be practical advantages to a less lawyerly, more gut-level approach. Before publishing, the media would be forced to consider not only the public’s interest in receiving the story but the public interest in the preservation of the person’s reputation. Before suing, any prospective plaintiff, stung by untruths in a story that was otherwise important and essentially true, would also have to consider why the story needed to be published despite its erroneous, hurtful and invasive allegations about him or her. Perhaps that is what should commend the proposed new approach most to all whose interests are served or protected by Canada’s common law of defamation.