Supreme Court offers early present to media/bloggers

Inside the Supreme Court of Canada
Inside the Supreme Court of Canada

Update:

On December 22, 2009 the Supreme Court of Canada has released a very significant decision which affects all media news reporting companies and bloggers in Canada. The decision Grant v. Torstar Corp., 2009 SCC 61 reviews the freedom of expression guarantee in s. 2 (b) of the Canadian Charter of Rights and Freedoms, Libel and Defamation Laws (and defamation defences) and the responsible communication defence, regarding a publication (written or online) that is on a matter of public interest.

The Toronto Star was subjected to a libel law suit initiated by Grant. The trial was presided over by Justice P. Rivard of the Superior Court of Justice, sitting with a jury. On February 5, 2007 Mr. Grant proved successful in his litigation. See the Superior Court of Justice (April 23, 2007)- Pre-Judgment Interest and Costs Endorsement – Decision.

The jury found the respondents (the “Star defendants”) liable and awarded general, aggravated and punitive damages totalling $1.475 million.

In response to this decision, the Toronto Star appealed the decision from the Superior Court of Justice (Ontario) to the Ontario Court of Appeal ( Grant v. Torstar Corporation, 2008 ONCA 796 (CanLII) ). On November 28, 2008 the Court of Appeal ( Rosenberg, Feldman, Simmons JJ.A.) came to the following conclusion:

“As the public interest responsible journalism defence is a question of law for the judge to decide, in some cases where there is an error by the trial judge in applying the test, the Court of Appeal will be able to apply the appropriate factors and substitute its decision for that of the trial judge. However, in this case, for the reasons I have discussed above including the need for the jury to decide the meaning of the impugned statements for the purpose of assessing the defence, as well as because other errors in the charge may well have affected the jury’s verdict, the proper remedy in this case is a new trial where all of the issues will be decided.

I would therefore allow the appeal, set aside the verdict and order a new trial. The costs of the first trial shall be in the discretion of the trial judge who hears the new trial. The costs of the appeal shall be to the appellants, fixed at $65,000 inclusive of disbursements and GST.”

In response to this decision from the Court of Appeal, Grant sought leave to appeal from the Supreme Court of Canada and ultimately received it and the Supreme Court heard the appeal, but dismissed it, outlining the new rules and ordering a new trial, given that the mistakes in the original trial conducted by Superior Court Justice, Justice P. Rivard and taken together, the errors set out amount to a substantial wrong or miscarriage of justice and require a new trial pursuant to s. 134 (6) of the Ontario Courts of Justice Act.

Here is the conclusion reached by the Supreme Court of Canada’s Chief Justice, the Right Honourable Beverley McLachlin (writing on behalf of all the other Justices on the SCC – as it was unanimous):

[7] For the reasons that follow, I conclude that the common law should be modified to recognize a defence of responsible communication on matters of public interest.  In view of this new defence, as well as errors in the jury instruction on fair comment, a new trial should be ordered.

Here are some excerpts from the December 22, 2009 Unanimous Supreme Court of Canada decision:

(1)  The Current Law

[28] A plaintiff in a defamation action is required to prove three things to obtain  judgment and an award of damages: (1) that the impugned words were defamatory, in the sense that they would tend to lower the plaintiff’s reputation in the eyes of a reasonable person; (2) that the words in fact referred to the plaintiff; and (3) that the words were published, meaning that they were communicated to at least one person other than the plaintiff.  If these elements are established on a balance of probabilities, falsity and damage are presumed, though this rule has been subject to strong criticism: see, e.g., R. A. Smolla, “Balancing Freedom of Expression and Protection of Reputation Under Canada’s Charter of Rights and Freedoms”, in D. Schneiderman, ed., Freedom of Expression and the Charter (1991), 272, at p. 282. (The only exception is that slander requires proof of special damages, unless the impugned words were slanderous per se:  R. E. Brown, The Law of Defamation in Canada (2nd ed. (loose-leaf)), vol. 3, at pp. 25-2 and 25-3.) The plaintiff is not required to show that the defendant intended to do harm, or even that the defendant was careless. The tort is thus one of strict liability.

[29] If the plaintiff proves the required elements, the onus then shifts to the defendant to advance a defence in order to escape liability.

[30] Both statements of opinion and statements of fact may attract the defence of privilege, depending on the occasion on which they were made. Some “occasions”, like Parliamentary and legal proceedings, are absolutely privileged.  Others, like reference letters or credit reports, enjoy “qualified” privilege, meaning that the privilege can be defeated by proof that the defendant acted with malice: see Horrocks v. Lowe, [1975] A.C. 135 (H.L.).  The defences of absolute and qualified privilege reflect the fact that “common convenience and welfare of society” sometimes requires untrammelled communications:  Toogood v. Spyring (1834), 1 C.M. & R. 181, 149 E. R. 1044, at p. 1050, per Parke B. The law acknowledges through recognition of privileged occasions that false and defamatory expression may sometimes contribute to desirable social ends.

[31] In addition to privilege, statements of opinion, a category which includes any “deduction, inference, conclusion, criticism, judgment, remark or observation which is generally incapable of proof” (Ross v. New Brunswick Teachers’ Assn., 2001 NBCA 62,  201 D.L.R. (4th) 75, at para. 56, cited in WIC Radio, at para. 26), may attract the defence of fair comment. As reformulated in WIC Radio, at para. 28, a defendant claiming fair comment must satisfy the following test: (a) the comment must be on a matter of public interest; (b) the comment must be based on fact; (c) the comment, though it can include inferences of fact, must be recognisable as comment; (d) the comment must satisfy the following objective test: could any person honestly express that opinion on the proved facts?; and (e) even though the comment satisfies the objective test the defence can be defeated if the plaintiff proves that the defendant was actuated by express malice. WIC Radio expanded the fair comment defence by changing the traditional requirement that the opinion be one that a “fair‑minded” person could honestly hold, to a requirement that it be one that “anyone could honestly have expressed” (paras. 49-51), which allows for robust debate. As Binnie J. put it, “[w]e live in a free country where people have as much right to express outrageous and ridiculous opinions as moderate ones” (para. 4).

[32] Where statements of fact are at issue, usually only two defences are available: the defence that the statement was substantially true (justification); and the defence that the statement was made in a protected context (privilege).  The issue in this case is whether the defences to actions for defamatory statements of fact should be expanded, as has been done for statements of opinion, in recognition of the importance of freedom of expression in a free society.

[33] To succeed on the defence of justification, a defendant must adduce evidence showing that the statement was substantially true.  This may be difficult to do.  A journalist who has checked sources and is satisfied that a statement is substantially true may nevertheless have difficulty proving this in court, perhaps years after the event. The practical result of the gap between responsible verification and the ability to prove truth in a court of law on some date far in the future, is that the defence of justification is often of little utility to journalists and those who publish their stories.

This was the state of the law before the Supreme Court of Canada made their decision in Grant v. Torstar Corp.

The Supreme Court went on to say:

[53] Freedom does not negate responsibility. It is vital that the media act responsibly in reporting facts on matters of public concern, holding themselves to the  highest journalistic standards.  But to insist on court-established certainty in reporting on matters of public interest may have the effect of preventing communication of facts which a reasonable person would accept as reliable and which are relevant and important to public debate.  The existing common law rules mean, in effect, that the publisher must be certain before publication that it can prove the statement to be true in a court of law, should a suit be filed.  Verification of the facts and reliability of the sources may lead a publisher to a reasonable certainty of their truth, but that is different from knowing that one will be able to prove their truth in a court of law, perhaps years later. This, in turn, may have a chilling effect on what is published.  Information that is reliable and in the public’s interest to know may never see the light of day.

The Supreme Court reviewed several other countries laws (Australia, New Zealand, Africa, United Kingdom, U.S), related to the issue at hand, and have decided to allow media (which would include bloggers) to advance a difference defence (responsible communication defence) in libel suits, which in effect updates Canada’s libel laws and helps eliminate “libel chill”.

The Toronto Star has avoided having to pay general, aggravated and punitive damages of $1.475 million (one of the largest libel amounts in Canada)  and can now look forward to a new trial, with a new libel defence available to its counsel.

Toronto Star’s background:

The Toronto Star’s history stems back to 1892 and was originally known as The Evening Star, followed by The Toronto Daily Star. In 1971, The Toronto Daily Star was re-named The Toronto Star and the newspaper moved (from 80 King Street West) to its current headquarters located at 1 Yonge Street, just north of the Queens Quay and south of Lakeshore Blvd. A year later, in September, 2002, the “The” was dropped from its title, changing it to today’s Toronto Star.

What media has to say about the ruling and issues related to it?

thestar.com: Supreme Court backs press in major libel ruling
Ottawa Citizen: Supreme Court establishes new libel defence
National Press: Supreme Court creates new libel defence
Canadian Press: Supreme Court creates new public interest libel defence for press and bloggers
CBC: New Libel Defence Allowed: Supreme Court
The Canadian National Newspaper Exopolitics Headlines: Canada’s Supreme Court establishes new libel defence
Macleans.ca: Supreme Court creates new public interest libel defence for press and bloggers

Supreme Court Ruling on the Protection of Confidential Sources by Journalists:

See Supreme Court Ruling dated May 7, 2010 in R. v. National Post, 2010 SCC 16

The Supreme Court of Canada says journalists have no constitutional right to protect confidential sources at all costs, in a ruling against the National Post that could have major implications for press freedom. The CBC reported in:

National Post, Matthew Fraser and Andrew McIntosh

Appellants

and

Her Majesty The Queen

Respondent

‑ and ‑

Attorney General of Canada, Attorney General of New Brunswick,

Attorney General of Alberta, Bell GlobeMedia Inc.,

Canadian Broadcasting Corp., British Columbia Civil Liberties

Association, Canadian Civil Liberties Association, and

Canadian Newspaper Association, AD IDEM/Canadian Media

Lawyers Association, Canadian Journalists for Free Expression,

Canadian Association of Journalists, Professional Writers Association

of Canada, RTNDA Canada/Association of Electronic Journalists,

Magazines Canada, Canadian Publishers’ Council,

Book and Periodical Council, Writers’ Union of Canada

and Pen Canada (“Media Coalition”)

Interveners

the top court ruled 8-1 against the newspaper and journalist Andrew McIntosh, in a case linked to the 10-year-old so-called Shawinigate scandal that involved former prime minister Jean Chrétien, a hotel in his home riding and questionable bank documents.

McIntosh and the Post were attempting to quash a search warrant issued nearly 10 years ago in the case that would have forced them to provide RCMP with the documents, which McIntosh obtained from a confidential source known as “X.”

McIntosh, who no longer works for the National Post, promised “X” confidentiality and stored the documents in a safe place.

RCMP sought the documents via a search warrant after the Business Development Bank of Canada called them forgeries.

The Supreme Court’s justices said claims of immunity can be argued on a case-by-case basis, but there is no broad legal protection to shield sources. In certain cases, such as this one, the court said police investigation needs override confidentiality.

What other news sources report on this story:
Global Maritimes, Montreal Gazette, Montreal Gazette, Times Colonist, Leader-Post,J-Source.ca,Global News, Sympatico news.ca, global tv,CTV.ca, 680 News,The Record.com,MACLEANS.CA

Update: December 14, 2010 – New spam, copyright laws on the way.

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