Cablegate: Canada's Supreme Court Strengthens Free Speech

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TAGS: PHUM PGOV CA
SUBJECT: Canada's Supreme Court strengthens free speech
constitutional protections

1. (U) Summary: A Supreme Court of Canada ruling on December 22
has added greater protections for journalists against claims of
defamation in striking down two separate findings of libel against
two newspapers. Stating that "current [defamation] law does not
give adequate weight to the constitutional value of free
expression," the Supreme Court created a new "responsible
communication" defense to libel claims on matters of public
interest in which a journalist's attempts to report fairly and
accurately are of greater importance than a discovery of false
allegations. This defense will also be applicable to internet
media, including bloggers. The Supreme Court compared Canada's
defamation laws specifically to those of the U.S. and Commonwealth
countries, and struck a balance between the need for "productive
debate" and the right of individuals to protect their reputations.
End Summary.

THE CASES

2. (U) Peter Grant v. Torstar Corp.: the "Toronto Star" had
examined allegations that a private businessman used political
influence to secure a prime location for a private golf course.
The article quoted local residents critical of the development's
environmental impact and suspicious that Grant was working behind
the scenes to circumvent zoning and environmental laws and secure
government approval. Grant refused to comment on the subject to
the reporter. In the provincial court, the trial judge had ruled
that a defense of "public interest responsible journalism" would
not apply and sent the case to the jury on the defense of the truth
of the statements. The jury found for the plaintiff and awarded
Grant general, aggravated, and punitive damages. The Court of
Appeal subsequently found in favor of the "Toronto Star" on the
basis of flawed instructions to the jury and the dismissal of the
responsible journalism defense.

3. (U) Quan v. Cusson: the "Ottawa Citizen" had printed a series
of articles alleging that Danno Cussan, an Ontario police officer,
misrepresented himself to New York authorities and interfered with
rescue operations following the 9/11 attacks by claiming that he
and his dog were a trained Royal Canadian Mounted Police (RCMP)
sniffer-dog team. At trial in Ontario in 2006, the defense did not
rely on the "responsible journalism" argument often used in the
United Kingdom but not recognized by any Canadian court at that
time. The jury found that many but not all of the allegations in
the article were true and awarded Cusson general damages of
C$100,000 ($94,500). The Court of Appeal subsequently upheld the
decision but also took the opportunity to establish a responsible
journalism defense under Ontario law.

THE RULINGS

4. (U) Citing the Canadian Charter of Rights and Freedoms in the
9 - 0 decision, Chief Justice Beverly McLachlin explicitly
recognized the "vital role of communications media" in providing
"freewheeling debate" on issues of public interest. Calling the
current defamation law a "regime of strict liability," the Supreme
Court found that the current levels of protection for free
expression are not "justifiable" even with the necessary "value" of
protecting reputations. The Chief Justice underscored the
importance in Canadian law and culture in protecting individuals
from public harm to their names, while adding that , "although the
right to free expression does not confer a license to ruin
reputation, ... the balance tips in favour of broadening the
defences available to those who communicate facts it is in the
public's interest to know." The ruling defined such a defense as
one that would "allow publishers to escape liability if they can
establish that they acted responsibly in attempting to verify the
information on a matter of public interest," reasoning that this
would be a "reasonable and proportionate response to the need to
protect reputation while sustaining the public exchange of
information."

5. (U) In Quan v. Cusson, the Supreme Court ordered a new trial
in which a "defence of responsible communication on matters of
public interest ... is applicable." This ruling, also 9 - 0,
immediately followed that of Peter Grant v. Torstar Corp. and drew

upon it for precedent. The Chief Justice ruled that "the public
interest test is clearly met as the Canadian public has a vital
interest in knowing about the professional misdeeds of those who
are entrusted by the state with protecting public safety." The
ruling specified that the issue of liability in this instance rests
upon whether the defendants were "diligent" in trying to verify the
allegations prior to publication and emphasized that any factual
mistakes in the articles are "largely immaterial."

6. (U) The Supreme Court ruling compared existing Canadian law to
those of the U.S. and other common law democracies, and found that
such a comparison "favours replacing the current Canadian law with
a rule that gives greater scope to freedom of expression while
offering adequate protection of reputation." Citing the "Sullivan"
case from U.S .Supreme Court rulings, the Supreme Court noted that
the U.S. standard of proving actual malice has made it "extremely
difficult" to sue successfully for defamation. Although
Commonwealth countries have rejected the precise balance struck in
"Sullivan," the Supreme Court of Canada admitted that the law has
begun to shift in favor of broader defenses for the press in the
United Kingdom, Australia, New Zealand, and South Africa. The
Chief Justice noted that the Supreme Court was seeking a "third
option" for Canada - one that allows for far greater protection for
reputation than the U.S. model, but one that also sustains the "cut
and thrust" necessary to public discourse.

7. (U) The Supreme Court ruling also specifically extended the
new responsible communication defense to the internet media,
including bloggers, making no distinction among journalists working
in print media, broadcast media, or internet media, or anyone
"publishing material of public interest in any medium."

COMMENT: THE IMPACT

8. (SBU) With weak protections protecting investigative
journalism of public figures, Canadian media commentators had
complained that news stories can be "watered down" or even thrown
away due to concerns of losing an expensive law suit. This ruling
will significantly help to protect journalists and publishers from
law suits by those who are simply unhappy with an unflattering
portrayal, and places the onus of proof on the plaintiff to show
that the journalist acted irresponsibly and unprofessionally in
researching the story. While the Supreme Court sought to place its
ruling between the U.S. and Commonwealth countries' standards, the
new Canadian standard brings it far more closely in line with U.S.
law than that of the U.K. However, Canadian law continues to place
a higher value on protection of reputation than the U.S. does for
public figures.
BREESE

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