Quan v Cusson Goes Before the Supreme Court of Canada

Today, the Supreme Court of Canada (“SCC”) is hearing arguments in what could prove to be a sea change in defamation law. (For more background on the case see the January 20th, 2009 post from Eric Baum.)

Background

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 (see 2007 ONCA 771), 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.

Submissions

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 SCR 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.