Court creates a new libel defence

OTTAWA — The Supreme Court of Canada offered journalists and bloggers a new defence against libel Tuesday in a pair of rulings that were hailed as a landmark victory for free speech.

The statue of Justice outside the Supreme Court of Canada overlooks the Peace Tower on Parliament Hill in Ottawa on Tuesday.

OTTAWA — The Supreme Court of Canada offered journalists and bloggers a new defence against libel Tuesday in a pair of rulings that were hailed as a landmark victory for free speech.

The rulings effectively exonerated the Toronto Star and Ottawa Citizen newspapers and created the new “responsible journalism” defence that will give reporters more leeway to pursue controversial stories as long as they are deemed to be in the public interest.

Media lawyers hailed the creation of the new defence as a major step towards reducing so-called libel chill, which prompts journalists to back away from contentious stories for fear of being sued, often by powerful interests with deep pockets to pay their lawyers.

The rulings also saved the two newspapers from paying out more than $1.5 million in damages, including $1 million for punitive damages against the Star, one of the largest such awards in Canadian libel history.

The Star story in question was about controversial plans for a golf course, while the Citizen’s articles scrutinized the activities of a former police officer.

The rulings mean journalists can make factual errors, but as long as they take a series of steps to ensure fairness in stories that are deemed to be in the public interest, they cannot be successfully sued for libel.

Chief Justice Beverly McLachlin, writing for the unanimous 9-0 court, said the existing libel defences were too restrictive and contrary to the free expression guarantees in the Charter of Rights and Freedoms.

“To insist on court-established certainty in reporting on matters of public interest may have the effect not only of preventing communication of facts which a reasonable person would accept as reliable and which are relevant and important to public debate, but also of inhibiting political discourse and debate on matters of public importance, and impeding the cut and thrust of discussion necessary to discovery of the truth.”

The rulings were hailed by media lawyers and journalism organizations as a major step towards modernizing Canada’s archaic defamation law, bringing it in line with other jurisdictions such as the United Kingdom and Australia.

A broad coalition of organizations, including PEN Canada, the Canadian Civil Liberties Association, the CBC, the Globe and Mail newspaper and others supported the high court appeal by the Star and the Citizen.

“It’s probably the most important decision the Supreme Court’s ever decided on the law of libel. It modernizes our laws to better reflect freedom of speech and that’s in the public interest,” said Paul Schabas, the Star lawyer, who represented the newspaper in the defamation case brought by Ontario businessman Peter Grant.

“It means that the media and anybody else who’s acting responsibly can put something out for public debate and not be chilled because they can’t ultimately prove that it’s true in a court of law years later.”

The Supreme Court upheld an earlier Ontario Court of Appeal ruling that struck down Grant’s $1.5-million libel award and ordered a new trial.

The Star’s July 23, 2001, front-page article focused on opposition by cottagers to Grant’s plans to expand a golf course.

The court action turned on a published quote by one cottager, who said: “Everyone thinks it’s a done deal because of Grant’s influence — but most of all his Mike Harris ties.”

Grant was a friend and campaign donor to Ontario’s former Conservative premier Mike Harris.

“Had this new defence not been established we’d have been in the Dark Ages. So that’s why it is so critical that we are in the 21st century now,” said Ottawa lawyer Richard Dearden.

Dearden represented the Citizen in its reporting of the unusual saga of a former Ontario Provincial Police officer, who travelled to New York City with his dog after the Sept. 11 terrorist attacks to hunt for survivors at Ground Zero.

The newspaper produced three articles that cast the activities of Danno Cusson in a negative light. Some of the details and quotes in the articles were deemed defamatory, and Cusson was awarded $125,000 in a verdict upheld by the provincial appeal court.

The Supreme Court ordered a new trial striking down Cusson’s financial award.

“There’s now room been made under the Charter of Rights for freedom of expression, that if you don’t prove every fact true in a court of law there’s still room that your public interest story, done responsibly, is protected and you can’t get sued for libel,” said Dearden.

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