Jury awards former OPP officer $125,000 in lawsuit against ex-supervisor, Citizen

Kate Jaimet, The Ottawa Citizen

Published: Wednesday, April 12, 2006

A jury awarded former OPP officer Danno Cusson $125,000 in damages yesterday for libellous statements published about him in the Citizen.

After five days of deliberation, the five-woman, one-man jury ordered the newspaper to pay $100,000 to Mr. Cusson for two articles published in September 2001.

The jurors also ordered his former supervisor, OPP Insp. Penny Barager, to pay $25,000 for telling the Citizen in one of the articles that Mr. Cusson had caused a "fiasco."

But the jury upheld certain parts of the Citizen articles as truthful, and ruled that there was no malice on the part of the newspaper, its reporters, or Insp. Barager.

"A jury of his peers has made its ruling and has found that in fact the articles were defamatory," said Mr. Cusson's lawyer, Ronald Caza.

Mr. Cusson said he was satisfied with the verdict. "I want to turn the page, just go on with my life," he said. "I will always have respect for the OPP and the Ottawa Citizen and its reporters. I don't hold any grudge against anyone."

Drew Gragg, deputy editor of the Citizen, said the newspaper's management will carefully study the jury's decision to see what implications it might have on reporting practices.

"I'm very disappointed to say the least," he said. "We were satisfied that we treated all the aspects of these stories fairly, but clearly the jury didn't agree."

Insp. Barager expressed her relief that the lawsuit, which has dragged on for more than four years, was finally over. "It's been difficult for everyone involved," she said.

Mr. Cusson had originally sued Insp. Barager, the newspaper, and three of its reporters -- Doug Quan, Kelly Egan and Don Campbell -- over three articles that were published in September and October 2001. The articles by Mr. Egan and Mr. Quan dealt with Mr. Cusson's involvement in search and rescue efforts at Ground Zero following the Sept. 11, 2001, terrorist attacks on New York.

The article by Mr. Campbell dealt with an internal complaint, filed by

Insp. Barager against Mr. Cusson after his trip to New York. That article was dropped from the lawsuit two weeks ago, after Ontario Superior Court Justice Robert Maranger ruled that it was protected from libel action by the defence of qualified privilege.

Qualified privilege allows journalists to write about judicial and quasi-judicial proceedings without fear of libel lawsuits.

In the end, the jury had to decide which statements made in the remaining two articles were defamatory of Mr. Cusson. They also had to decide if the defamatory facts reported in the articles were true, and if the opinions expressed in the articles were fair comment -- in which case they would be shielded from libel charges.

In their verdict, the jury found that 12 of the statements at issue were libellous, but that 17 were not.

The jury then had the option to award damages in three categories: general damages to compensate Mr. Cusson for the injury caused by libel; punitive damages to punish the Citizen and Insp. Barager for their statements; and special damages if Mr. Cusson has proven that the Citizen and Insp. Barager were responsible for the loss of his job at the OPP.

The $125,000 that the jury awarded was for general damages only. The jury did not award damages to punish the Citizen and Insp. Barager, nor to compensate Mr. Cusson for his job.

Citizen lawyer Richard Dearden said the newspaper will "consider all our appeal options because this case obviously has huge ramifications for freedom of the press."

The evidence presented during four weeks in court showed that Mr. Cusson left his home in Ottawa shortly after the Sept. 11, 2001, terrorist attacks, at a time when he had two scheduled days off, but when the OPP was on high alert and had implemented mandatory overtime for its officers.

Mr. Cusson travelled to New York with his dog, Ranger, a German shepherd that he had trained to sniff out human scent, but that had no formal K-9 certification. He worked at Ground Zero with Ranger, searching for survivors, before being told to return home by his supervisor, Insp. Barager.

In the end, the jury found it was true, as reported in the Citizen, that Mr. Cusson could be characterized as a "renegade," who "failed in his duties as an OPP officer, abandoned his responsibilities without justification or entitlement."

The jury found the Citizen truthfully reported that neither Mr. Cusson nor Ranger had formal training in civilian search and rescue. The jury also found that the Citizen was correct in reporting that Mr. Cusson misled New York police officials; and specifically that he misled New York state police Sgt. Tim Fischer -- the man in charge of canine deployment into Ground Zero -- into thinking he was an RCMP officer, and that his dog had special training.

However, in a subtle distinction, the jury ruled it was not true that Mr. Cusson told Sgt. Fischer that he was an RCMP officer and that his dog had received training.

Nor was it fair comment, the jury ruled, when Sgt. Fischer told the Citizen that "without proper training, Const. Cusson may have hindered efforts to find survivors."

In fact, the jury found that the allegations printed in the Citizen that Mr. Cusson might have left a survivor undetected beneath the rubble at Ground Zero due to his and Ranger's lack of training, were not true.

During the trial, Mr. Cusson called those allegations "the most abominable comments I've ever heard in my life."

The jury allowed Insp. Barager's comment that Mr. Cusson's trip to New York was a "renegade mission," but it took her to task for characterizing it as a "fiasco," ruling that term defamatory of Mr. Cusson and unsupported by the evidence.

After the jury rendered its verdict, Mr. Dearden asked the judge to set aside part of the decision, the sections that applied to Mr. Quan's article, arguing the jury made seemingly contradictory findings.

He said, for example, that the jury was inconsistent in its findings regarding the statements about Mr. Cusson misleading Sgt. Fischer. And he argued that once all the contradictory findings were considered, there wasn't enough clearly defamatory material left in Mr. Quan's article to cause harm to Mr. Cusson, and therefore the article should not be found libellous.

Judge Maranger denied Mr. Dearden's request, indicating he was not inclined to overturn a jury's verdict, and saying that the seemingly contradictory findings were due to subtle nuances in the questions posed to the jury.

Yesterday, the Citizen's deputy editor said he did not feel vindicated by the fact that the jury found much of the reporting in the newspaper to be true. "Vindication hasn't sunk in yet," Mr. Gragg said. "Obviously, we were hoping to have a clean bill out of this."

 The Ottawa Citizen 2006

Source

 

Commentary,

Wow, The damages boil down to the fact that jury found as fact Cusson "mislead" the New York Police that he was an RCMP officer but the Citizen incorrectly reported that Cusson TOLD the New York Police that he WAS an RCMP officer.

What's the difference? WHY does Cusson deserve damages for MISLEADING the New York Police and not "telling" the NYPD that he was an RCMP officer?

Jesus, This "police officer" come self appointed canine handler with no official training in people finding effectively had himself labeled as some kind of hero while he disobeyed his superiors instructions to get back to Ontario.

I wonder what the NYPD thought of this.

Now lets deal with the incredibly good reporting by the Ottawa Citizen. Typically every one makes mistakes, what a pity the jury did not look at the standard of practice by police and lawyers for example and how these two professions can make incredible mistakes that would be unacceptable in many other professions such as medicine.

Lawyers can make incredible mistakes but fail to make a mistake beyond that of an "average solicitor" and they don't have any liability. Did the Ottawa Citizen make more than an average error in reporting? Don't think so. Their reporting was "incredibly accurate", did their reporting really vary the perception of the facts by an average person?

This writer does not think so.

I hope the Citizen fight this case tooth and nail. 

Lets do a quick run at the the Notice of Appeal would read.

The jury erred in finding as fact that there was any significant difference in having mislead rather than directly informed the NYPD that he was an RCMP officer.

Right there, its an almighty error in fact?

Then we have a real doozy, 

If this decision is not reversed on appeal, then it will effectively strike legal terror through all forms of reporting and shut down a free press as we know it.

lets look at Ronald Caza's statement, "A jury of his peers has made its ruling and has found in fact that the articles were defamatory"

Hum, that sounds a little misleading to me, only one fact was not "entirely accurate" but was substantially and effectively the same thing.

Then we have the $25,000 ordered to be paid by Penny Barager for using one word

FIASCO.

Jesus, I can't think of a better word to describe this trial and the decision let alone a renegade cop on a self appointed mission that mislead the NYPD that he was an RCMP officer but he was smart enough, probably due to his profession as a cop, to not "directly inform".

I'm betting that this is not the first and last time we hear of cop Cusson in the news and thats my opinion. 

I think Cusson is a disgrace for misleading the NYPD that he was an RCMP officer when he was NOT.

The fact that he sued for damages, just how much does Cusson wish to insult the intelligence of Ontario citizens? We don't need people as cops who mislead cops that they are someone like an RCMP officer when they are not.

Perhaps the RCMP should sue Cusson for misrepresentation,

It really begs the question, whey didn't the NYPD charge Cusson with a criminal offence for misleading the NYPD that he was a RCMP officer when he was not.

 

OMC