In this landmark ruling, the Ontario Court of Appeal reviewed the Privilege defence, and chose to follow English law and adopt a new defence based on privilege: Public Interest Responsible Journalism or, simply, the “Responsible Journalism” defence.

The Ontario Court of Appeal did not demonstrate in the Cusson case how we are to apply this new defence in Ontario. The court didn’t apply the defence in the case itself, because it ruled that since the new defence was not the basis of the evidence and argument at the trial, it would be unfair to the plaintiff to revisit his victory there, so the $100,000 award against the Ottawa Citizen, and the $25,000 award against Penny Barager, Mr. Cusson’s OPP boss, were affirmed.

Briefly, Mr. Cusson was an OPP officer who resigned the day after 9/11 to assist in the recovery effort. He resigned because his boss demanded he stay in Canada to assist in border control. A media firestorm ensued in which an MP and others demanded his reinstatement to the force as a hero. The Citizen then reported that all was not as it appeared. After four days of deliberation, the jury upheld the truth of most of the reporting. Justice Sharpe, writing for the Court of Appeal panel, summarized the jury’s findings:

They found the following lead paragraph was “fair comment”:

A Kanata OPP officer who has been hailed as a ‘hero’ for his efforts to find survivors of the World Trade Centre disaster may have compromised the search and rescue mission after he is alleged to have misled New York State Police into thinking he was a fully trained K-9 handler with the RCMP, the Citizen has learned.

The jury found that the defendants proved the truth of several key facts, including:

• the plaintiff had failed to carry out his duties and obligations as an OPP officer and had abandoned his responsibilities without justification or entitlement;

• the plaintiff wore a RCMP uniform at Ground Zero and misled the New York State Police into thinking he was an RCMP officer;

• the plaintiff had misled the New York police into thinking his dog had formal training in civilian search and rescue operations; and

• the New York State Police had removed the plaintiff’s Ground Zero pass and intended to arrest the plaintiff if he came back.

However, the jury also found that they had failed to prove other key facts, including:

• the plaintiff had compromised the rescue effort;

• the plaintiff had deliberately misled the New York police by representing himself as a trained RCMP K-9 officer;

• the plaintiff had no search and rescue training;

• the plaintiff had concealed his true identity; and

• the plaintiff was responsible for a supposed “fiasco”;

The jury also found that the suggestion that the plaintiff may have hindered efforts to find survivors was not fair comment.

The defendants had tried to rely on “qualified privilege”, in an expanded form (though not based on Reynolds), but the trial judge rejected that defence, and the Court of Appeal, as will become clearer below, refused to declare that qualified privilege should be applied as they hoped. The jury had held that the defendants acted without malice (under the fair comment part of the analysis), and the defendants hoped that finding, coupled with qualified privilege, would win the day. The Court of Appeal’s preference for the new defence denied the defendants a victory on that ground.

Justice Sharpe provided a brief, but comprehensive review of the development of the defence of qualified privilege in England, Canada, the United States, and around the common law world. In the end, he felt the combined effect of those developments and the Charter guarantees required the court to update the common law here. He gave this rationale for the direction taken:

In its traditional form, the law of defamation is designed to have a “chilling effect” on freedom of expression where a speaker or publisher is about to make a statement that may affect an individual’s reputation. The fact that “[t]he threat of a civil action for defamation must inevitably have an inhibiting effect on freedom of speech” (Derbyshire County Council v. Times Newspapers Ltd., [1993] 1 All E.R. 1011 at 1017 (H.L.)), and “the tendency of the law of defamation to inhibit the exercise of the freedom of communication – ‘the chilling effect’” (Theophanous, supra at 19) has been recognized on high authority. The common law no-fault standard creates a powerful incentive to err on the side of caution and to avoid controversy. A judgment such as that in the case at bar sends a strong message: there is simply no margin for error or allowance for the expression of views honestly and reasonably held. A newspaper that has properly investigated the story and has every reason to believe it to be true still walks on thin ice. The fear or risk of being unable to prove the truth of controversial matters is bound to discourage the publication of information the public has a legitimate interest in hearing.
There is a very real difference between what a speaker honestly and reasonably believes to be true and what can be proved to be true in a court of law. The threat of litigation under a legal regime that leaves no margin for error, even where the speaker took all reasonable steps to verify the facts, discourages free and open debate on matters of public importance.
… As several recent decisions of this court and of the Superior Court of Justice have held, the Supreme Court’s qualified privilege decisions from the 1950s and 60s cannot be taken as having frozen the law of defamation in a permanent state of hostility to any and all change to what Lord Nicholls described in Reynolds as the common law’s “rigorous reputation-protection principle”.
… That, of course, does not mean that we can or should simply ignore the Douglas v. Tucker line of decisions. Likewise, we must respect the Supreme Court’s ruling in Hill v. Scientology. Individual reputation should not be unduly sacrificed or compromised. Protection of reputation is an essential part of the legal framework to ensure individual dignity in our society. Any adjustment to the common law to accommodate freedom of expression must be incremental in nature. Restrictions on expression that, as it was put it in Reynolds (at p. 201D), “are fairly and reasonably necessary for the protection of reputation” are justifiable.
Our task, it seems to me, is to interpret and apply the earlier decisions in light of the Charter values at issue and in light of the evolving body of jurisprudence that is plainly moving steadily towards broadening common law defamation defences to give appropriate weight to the public interest in the free flow of information.
In that spirit, I would reject the appellants’ submission that we should extend qualified privilege in its traditional form to all media reports on matters of public interest. In my view, this would be contrary both to binding authority and to sound legal policy.
The Douglas v. Tucker line of cases clearly holds that qualified privilege does not extend to all media reports on matters of public interest. Hill v. Scientology did not consider this aspect of qualified privilege, but we must take into account the fact that the Supreme Court flatly rejected the argument that Canadian law should adopt the New York Times v. Sullivan actual malice test. The effect of extending traditional qualified privilege in the manner submitted by the appellants would be to require all plaintiffs suing with regard to a report on a matter of public interest to prove malice. In my view, that would be contrary to the spirit, if not the letter, of Hill.
Turning to the question of sound policy, recognizing the general availability of qualified privilege for reports on all matters of public interest and the consequent adoption of a malice requirement would represent a significant change to Ontario law. Malice is notoriously difficult to prove and the adoption of a malice standard would, as a practical matter, make recovery for most plaintiffs a remote possibility. In my view, the adoption of qualified privilege in its traditional form to all reports on matters of public interest would represent a dramatic and unwarranted shift in the law that would unduly minimize the protection of the important value of individual reputation.

These statements seem to put more weight on the Tucker v Douglas line of cases than they have been accorded in recent Canadian jurisprudence. Publication to the world at large has already been accepted in Canadian law, in numerous provincial Courts of Appeal, including Ontario. As for a plaintiff’s difficulty in establishing “malice”, this suggestion is simply not borne out in recent case law. Ontario courts have had no difficulty at all finding malice in a variety of journalistic conduct. From a media perspective, it is difficult to publish anything without risking a finding of malice.

In any case, Justice Sharpe chose what he described as a “middle ground” between two “extremes”: traditional Canadian qualified privilege law and the U.S. approach. He went on to explain the parameters of the new defence:

… I conclude that the appropriate way for this court to resolve the clear tension between the Douglas v. Tucker line of cases and the more recent decisions of this and other courts favouring a more liberal availability of qualified privilege is to adopt, in its broad outline, the public interest responsible journalism defence. As I see it, this defence represents a natural extension of the law as it has been developing in recent years, an incremental change “necessary to keep the common law in step with the dynamic and evolving fabric of our society” (R. v. Salituro, supra at p. 670). It amounts to a sensible half-way house between the two extremes of the traditional common law no-fault liability on the one hand, and the traditional qualified privilege requirement for proof of malice on the other. The public interest responsible journalism defence recognizes that in relation to matters of public interest, the traditional common law unduly chills freedom of expression but, at the same time, rejects the notion that media defendants should be afforded a licence to defame unless the innocent plaintiffs can prove deliberate or reckless falsehood. It rights the common law imbalance in favour of protection of reputation and creates a proper balance between that value and freedom of expression. As Lord Nicholls put it in a subsequent decision of the Privy Council (Bonnick v. Morris & Ors (Jamaica), [2002] U.K.P.C. 31 at para. 23):

Responsible journalism is the point at which a fair balance is held between freedom of expression on matters of public concern and the reputations of individuals. Maintenance of this standard is in the public interest and in the interests of those whose reputations are involved. It can be regarded as the price journalists pay in return for the privilege. If they are to have the benefit of the privilege journalists must exercise due professional skill and care.

… I recognize that adopting this defence shifts the focus of defamation law away from the truth and towards the conduct of the defendant. In my view, this is an acceptable price to pay for free and open discussion. It has long been recognized that the public interest in affording the individual a way to “vindicate his reputation against calumny” has its limits and must be “accommodated to the competing public interest in permitting men to communicate frankly and freely with one another” on certain matters: Horrocks v. Lowe, [1974] 1 All E.R. 662 at 668 (H.L.).

We should not, as the House of Lords cautioned, adopt the Reynolds-Jameel defence in a slavish or literal fashion, but rather accept it in a manner that best reflects Canada’s legal values and culture. The defence rests upon the broad principle that where a media defendant can show that it acted in accordance with the standards of responsible journalism in publishing a story that the public was entitled to hear, it has a defence even if it got some of its facts wrong. That standard of responsible journalism is objective and legal, to be determined by the court with reference to the broader public interest. The non-exhaustive list of ten factors from Reynolds, applied in the manner directed in Jameel, provides a useful guide. The defence is plainly intended to shift the law of defamation away from its rigidly reputation-protection stance to freer and more open discussion on matters of public interest and should be interpreted accordingly.

To avail itself of the public interest responsible journalism test a media defendant must show that it took reasonable steps in the circumstances to ensure that the story was fair and its contents were true and accurate. This is not too much to ask of the media. What constitutes reasonable steps will depend of course upon the circumstances of the particular case. In assessing whether the media has met this standard the court will consider the ten factors outlined by the House of Lords in Reynolds (set out above at para. 89), or such of them – or any other factors – as may be relevant in the circumstances. As Reynolds and subsequent authorities have noted, these factors are not a list of hurdles that media defendants must negotiate; rather, they are indicia of whether the media were truly acting in the public interest in the circumstances.(emphasis added)

Interestingly, a few years ago, in Prud’homme v. Prud’homme [2002] S.C.C. 85 (par. 151-153), a defamation case involving Quebec’s Civil Code, the Supreme Court of Canada held that where a journalist publishes defamatory “public interest” information that turns out to be untrue, he may be able to succeed in his defence if he acted in fulfilment of a legal, social or moral duty, and honestly believed the information to be true. In Quebec, of course, the plaintiff has to prove fault, but the test is similar otherwise. One wonders whether these two approaches to the test, and to the onus of proof, will be reconciled one day in the Supreme Court of Canada. Whether they are or not, the Supreme Court’s assessment of journalistic responsibility in the Neron case, for the publication of what the court accepted was true, will long remain a cautionary tale for journalists anxious to have the Supreme Court consider and confirm their responsibility.

In any case, one benefit of the new defence should be the ability to rely on confidential sources, without necessarily having to reveal them in court. In Reynolds, the House of Lords noted:

In general, a newspaper’s unwillingness to disclose the identity of its sources should not weigh against it. Further, it should always be remembered that journalists act without the benefit of the clear light of hindsight. Matters which are obvious in retrospect may have been far from clear in the heat of the moment. Above all, the court should have particular regard to the importance of freedom of expression. The press discharges vital functions as a bloodhound as well as a watchdog. The court should be slow to conclude that a publication was not in the public interest and, therefore, the public had no right to know, especially when the information is in the field of political discussion. Any lingering doubts should be resolved in favour of publication.

In Jameel, the journalists did not have to reveal their sources to win.

It won’t be long before this new test is tested. The Ontario Court of Appeal is set to hear an appeal of a $1.475 million award against the Toronto Star in the Grant case this fall.

See: Cusson v Quan et al (Ottawa Citizen) and Barager