"The public benefits from a vigorous press that performs its watchdog and bloodhound role," Canwest News lawyer Richard Dearden told the court, as arguments began in a landmark media law case.
Mr. Dearden urged the court to fashion a new defence against defamation based on whether the subject matter of a report is in the public interest and whether a journalist took responsible steps to gather information.
The case in question involved an Ontario Provincial Police officer who presented himself as a trained dog handler at ground zero after the Sept. 11, 2001, attacks on New York.
It pits former constable Danno Cusson against the Ottawa Citizen, whose reporting characterized Mr. Cusson's work to free trapped survivors as an ill-conceived misadventure.
A spectrum of the Canadian news media, including The Globe and Mail, has joined in the legal fray, hoping to persuade the court to revolutionize the law of defamation and libel.
Globe and Mail lawyer Peter Jacobsen told the Court that under the current law, journalists and their editors can scrupulously attempt to nail down each source and fact in an important story — such as a Member of Parliament who has apparently accepted a bribe — yet the MP "plays rope-a-dope" by refusing to comment.
"There could be a successful libel suit," he said — unless the balance is tipped more in favour of responsible journalism.
"The matters we are talking about are truly in the public interest. If the media can show that they have done everything they could do under the circumstances — and they get it wrong — they would have protection under this defence."
At one point, Madam Justice Rosalie Abella asked Toronto Star lawyer Paul Schabas: "Are you saying that if it is in the public interest, then they (the media) have the right to be wrong?"
"If they have acted responsibly, yes, they have the right to be wrong."
The main task for the court will be to decide whether to endorse a landmark defence of "responsible journalism," created by the Ontario Court of Appeal when it heard the Cusson appeal.
In a dynamic submission, a lawyer for Mr. Cusson — Ronald Caza — argued that the existing law of defamation has worked well to balance free expression with an individual's right to protect their good name.
"If it ain't broken, why are we fixing it?" he said. "It is a very stimulating intellectual exercise, but there has been no justification given for making changes. All the arguments being raised are the same ones that were raised 50 years ago — except the Internet issue."
However, the reach of the Internet has changed nothing, Mr. Caza maintained. He said that the adequacy of the qualified privilege defence was attacked when radio and television appeared on the scene as well, yet fears the law remained perfectly usable.
Arguing in favour of a responsible journalism defence, Patricia Jackson — a lawyer for the Canadian Civil Liberties Association — said that what has changed is the litigious nature of Canadian Society and the quickly rising nature of libel and defamation awards.
Ms. Jackson said that the news media cannot help but cast a worried eye at their finances, even in stories of great public significance where they believe that they know the truth.
"In reality, truth is not black and white, and it is rarely black and white when it walks into a courtroom," she said. "If you can't prove that it is true, no amount of care will protect you."
In a legal brief, the Citizen describes its articles as sound journalism rooted in the public good. It quoted New York police authorities, as well as Mr. Cusson's Ontario Provincial Police superiors, portraying him as an undisciplined amateur whose lack of training potentially jeopardized the search for survivors.
"Const. Cusson's one-year-old pet dog had absolutely no qualifications to find survivors buried under a collapsed building," said the Citizen brief.
However, Mr. Cusson asserted in a legal brief that he and his dog were adequately trained and that he did not misidentify himself.
The jury at the Cusson trial found that, while many of the facts in the Citizen stories were accurate, some were false or unproven. It awarded Mr. Cusson $125,000 in general damages.
Under the defence of qualified privilege that prevailed at the time, defendants could avoid liability by establishing that they had a duty to publish information on a matter of public interest, and by proving the truth of each statement. Plaintiffs were also required to show malice on the part of a defendant.
Under the responsible journalism defence created by the Court of Appeal - and based on a model used in several Commonwealth countries - a media defendant can avoid liability by showing that it took responsible steps in assembling a story.
In their legal brief, lawyers for Mr. Cusson argue that the new defence will "destroy" the balance that currently exists between freedom of expression and an individual's right to protect his reputation.
They also argue that defamation cases would become more complicated and stacked against plaintiffs, since they would have to locate experts to exhaustively analyze and critique each step that a journalist took in producing a story.
While Citizen lawyers heartily endorsed the new defence, their brief argues that the Court of Appeal was wrong to bar them from taking advantage of it on the basis that the defence did exist when the Cusson trial was held.
To raise the stakes even more, the loser in the case will be on the hook for hundreds of thousands of dollars in legal costs.
Mr. Deaden said that Canadian defamation law has fallen far behind that of countries such as England, Australia, India and the U.S. - where the danger of "libel chill" has been recognized as a serious threat to free expression.
In the Cusson case, he said, the defendants had a series of police witnesses who all confirmed the information they had given Citizen reporters - yet a jury still found that certain facts had not been proved and gave a substantial award against them.
"In my submission, that is not only chilling, but frightening," he said. "What is an editor supposed to do?
"Awards are now exceeding a million dollars," he said. "It is stifling and inhibits free expression."
Several judges asked Mr. Dearden about whether his proposal would lead to a battle of journalism expert witnesses in every defamation case; whether sensationalist media would benefit from a "responsible journalism, public interest" defence; and whether Internet bloggers would be equally protected under it.
Mr. Dearden said that the defence would be considerably less useful to sensationalist media whose scribblings are not truly furthering the public good, and that it ought to be open to everyone from bloggers to public interest groups that post damning comments on their websites.
"It could be a non-governmental organization that posts reports on atrocities somewhere - as long as it is in the public interest and it meets the tests (of responsible journalism)."