New libel defence allowed: Supreme Court

2 publications fighting $1.5M, $100K libel awards

Last Updated: Tuesday, December 22, 2009 | 12:06 PM ET

CBC News
The Supreme Court of Canada has opened the door for journalists to use the defence of "responsible communication" against libel suits.

Canada's highest court ruled Tuesday in two decisions that publishers can escape liability if they can show that they tried to verify the facts and the published material is a matter of public interest.

The decision was prompted by appeals from two Ontario newspapers — the Ottawa Citizen and the Toronto Star. On Tuesday, the Supreme Court ordered new trials for both of them in light of the new defence available to them.

Journalists across Canada, as well as bloggers, can now use the defence of "responsible communication on matters of public interest" as a defence against libel.

However, in order for them to do so, a judge must confirm to the jury that the published material relates to a matter of public interest.

The judge may also rule out the use of the "responsible communication" defence if the case does not meet the criteria outlined in a checklist issued as part of the rulings.

Existing law may have had 'chilling effect'

The Supreme Court said it examined laws in other countries with similar legal systems, such as the United Kingdom and Australia. It found that Canadian law was strict by comparison and did not give enough weight to the value of free expression.

"This, in turn, may have a chilling effect on what is published," said the text of one of the rulings. "Information that is reliable and in the public's interest to know may never see the light of day."

The law must also take into account possible damage to the plaintiff's reputation.

"But this does not preclude consideration of whether the defendant acted responsibly, nor of the social value to a free society of debate on matters of public interest," the ruling said.

The Ottawa Citizen and the Toronto Star launched appeals after the Ontario Court of Appeal first outlined rules two years ago that would allow the use of "responsible journalism" as a defence.

The Supreme Court chose to broaden that to "responsible communication" in order to include non-journalists, especially online, who are increasingly communicating matters of public interest.

The Citizen was appealing a lower court ruling that it must pay $100,000 in damages to Ontario Provincial Police Const. Danno Cusson about a series of stories it published shortly after the Sept. 11, 2001, attacks.

$1.5M libel award appealed

Following the attacks, Cusson went to New York City with his dog of his own initiative to help with search and rescue efforts. The Citizen articles said Cusson misled New York police into thinking he was an RCMP officer and that his German shepherd had formal training.

Cusson sued and the court ruled that 12 of 29 facts that Cusson complained about had libelled him.

The Star is appealing a $1.5-million libel award it had been ordered to pay in 2007 over a 2001 article about a case involving businessman Peter Grant's plans to expand his northern Ontario golf course. The article quoted a local resident's concerns that the application was a "done deal" because of Grant's friendship with then Premier Mike Harris.

The Citizen and the Star argued before the Supreme Court that they engaged in "responsible journalism," as defined by the Ontario Court of Appeal in 2007.

The court laid out rules for that defence, based on precedents in other countries, after it upheld the verdict and damage award against the Citizen in 2007.

Groups representing the media applauded Tuesday's Supreme Court ruling.

"Today's ruling helps journalists do their jobs — bringing to light information that's in the public interest with a better shield against a libel suit levied to block a controversial story," Mary Agnes Welch, president of the Canadian Association of Journalists, said in a statement.

Cal Johnstone, president of RTNDA Canada, which represents radio and television news directors, called the rulings an "important victory for freedom of the press."

With files from The Canadian Press



Commentary by the Ottawa Mens Centre

Canada's defamation laws are already "chilling" and negatively affect the way Canadians are willing to speak out.

One of the most chilling groups in society are judges who are asked to make civil and criminal decisions to indirectly silence any comment that they might not like.

Ontario Judges have several of the worst examples of that oppression.

One of the most blatant examples was the Dishonourable Richard Lajoie of the Ontario Court of Justice who did not like being called "an insult to justice" and "corrupt". He had a father arrested, thrown in jail on a charge of "criminal defamation" later, the Dishonourable CORRUPT Richard Lajoie, refused to testify, in fact , asked that the charges be dropped for defamatory reasons, of course, as a judge, he has absolute immunity for civil and criminal liability.

The next most chilling example was the Dishonourable Justice Denis Power, who to teach the same father a lesson for insulting the Corrupt Judge Richard Lajoie, issued a life time banishment order from an Ontario City.

Later, the "worst of the worst" in Ottawa, in not Ontario, the Dishonourable Allan Sheffield, agreed to hold a hearing when no other judge would hear it, and the pleadings were filed with "yellow stickies" , "Attention Justice Sheffield" which means, a private arrangement was made by Sheffield to hold a hearing to make an order that was tantamount to a deportation order from Canada of a Canadian Citizen, all because, 12 years earlier, a father in Family Court called Judge Richard Lajoie Corrupt and an insult to justice.

If you want to see these examples of the worst child abusers in Ontario, the most flagrant abusers of judicial power, just go to 161 Elgin Street Ottawa.