Supreme Court of Canada Recognizes Responsible Journalism Defence in Defamation Claims

Today’s Supreme Court of Canada decision in Quan v. Cusson, 2009 SCC 62 and the companion decision in Grant v. Torstar Corp., 2009 SCC 61 recognizes the “responsible journalism” defence in the law of defamation.
In Quan v. Cusson, Cusson was an Ontario Provincial Police constable who, shortly after the 9/11 terrorist attacks, and without permission from his employer, traveled to New York City to assist with the search and rescue effort at Ground Zero. The Ottawa Citizen newspaper published articles alleging that Cusson had misrepresented himself to the authorities in New York and possibly interfered with the rescue operation. Cusson sued for libel against the newspaper and the reporters. At trial, the defendants pleaded qualified privilege and did not rely on the defence known in England as “responsible journalism” which, at the time, had not yet been recognized as a distinct defence by any Canadian court. The trial judge rejected the defendants’ claim of qualified privilege and put the case to the jury to decide whether the defence of truth had been made out. The jury found that most, but not all, of the factual imputations in the articles had been proven, but concluded that there was no “actual malice” on the part of any of the defendants. It awarded the plaintiff $100,000 in general damages against the Ottawa Citizen and $25,000 against Staff Sgt. Barager who had spoken to Sgt. Fischer of the New York Police Department and had apologized to New York police for Cst. Cusson’s behaviour. It declined to award any special, aggravated or punitive damages. The Court of Appeal for Ontario upheld that decision and in its reasons established a responsible journalism defence in Ontario law, but held that the defendants were not entitled to a new trial and the protection of the new defence because they had not advanced the defence at trial.

The SCC unanimously allowed the appeal and ordered a new trial. Writing for the Court, Chief Justice McLachlin held that the defence of responsible communication on matters of public interest recognized in Grant v. Torstar Corp. is applicable where the publication is on a matter of public interest and, having regard to the relevant factors, the publisher was diligent in trying to verify the allegations. The public interest test is clearly met here, 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 defendants’ liability therefore hinges on whether they were diligent in trying to verify the allegations prior to publication, and it will be for the jury at a new trial to decide whether the articles met this standard of responsibility. (At ¶’s 28, 31-32.)

McLachlin, C.J. further observed that an appellate court may depart from the general rule and entertain a new issue where the interests of justice require it and where the court has a sufficient evidentiary record and findings of fact to do so. In this case, it is open to question whether the issue argued on appeal was genuinely “new” in the sense of being legally and factually distinct from the issues litigated at trial. The arguments on qualified privilege and responsible journalism were both directed toward the same fundamental question: whether the newspaper and its reporters enjoyed a privilege to publish the impugned material on grounds of public interest and due diligence. In any event, the deficiencies in the evidentiary foundation are largely immaterial in this case because the ultimate determination of responsibility is a matter for the jury, and a proper evidentiary record can be established at a new trial. (At ¶’s 37, 39-41).

At paragraphs 42-47, the learned Chief Justice held:

“[42] The remaining question is whether the interests of justice favour allowing the defendants the opportunity to avail themselves of the change of the law brought about by this litigation on a new trial.

[43] In my opinion, they do. In Ontario, a court hearing an appeal of a civil matter may only order a new trial if “some substantial wrong or miscarriage of justice has occurred”: Courts of Justice Act, R.S.O. 1990, c. C.43, s. 134(6). This is arguably a higher standard than that for raising a new issue on appeal, but similar considerations apply. The appellant must demonstrate that “the case was not fairly put to the jury, as, for example, where the charge leaves the jury with a misapprehension as to the applicable legal principles”, that the jury charge was “materially deficient”, or that “the law was not clearly stated on a critical issue”: Pereira v. Hamilton Township Farmers’ Mutual Fire Insurance Co. (2006), 267 D.L.R. (4th) 690 (C.A.), at paras. 75-76, per Borins J.A.

[44] In this case, this test is met. The plaintiff will suffer no undue prejudice from a new trial other than costs, addressed below. The defendants, on the other hand, would be seriously disadvantaged by being deprived of the opportunity to avail themselves of the responsible communication defence which their appeal was responsible for developing. If it turns out that the defence is found to apply to the articles in question, such a deprivation would amount to an injustice.

[45] As background, it is necessary to recap the approach of the courts below. Applying earlier cases that were loathe to extend qualified privilege to the media, the trial judge applied a stringent duty/interest test that required the publisher to show a “compelling” public interest in publication amounting to a “moral or social duty” (C.A. reasons, at para. 5). Not surprisingly, he found that the Quan and Egan articles fell short of this standard. The jury returned its verdict in favour of the plaintiff on the basis that the defence of qualified privilege was not available. The defendants appealed, arguing that the trial judge’s formulation of qualified privilege was too narrow and, in the alternative, arguing for a broad responsible journalism defence. The Court of Appeal affirmed the existence of a separate responsible journalism defence, but held that the defendants were not entitled to a new trial, given that they had not pleaded this defence initially.

[46] The plaintiff supports the Court of Appeal’s conclusion, arguing that the defendants are not entitled to a new trial on the basis of the new defence of responsible communication on matters of public interest, because they did not raise that defence at the first trial. He argues that the defendants made a strategic decision to rely on traditional qualified privilege, declining to stake their case on the riskier prospect that the trial judge might extend the law to provide a distinct responsible communication defence. Instead, they chose to remain on the more familiar terrain of qualified privilege. On appeal, the plaintiff contends, they should have to lie in the bed they made.

[47] While this argument is not without force, it does not, in my view, carry the day. First, at the time of trial, it was by no means clear that the new defence of responsible communication would emerge as a “different jurisprudential creature” (Loutchansky v. Times Newspapaers Ltd., [2001] EWCA Civ. 1805, [2002] 1 All E.R. 652, at para. 35), in English or Canadian law, since Jameel had not yet been decided. It was therefore not unreasonable for the defendants to argue qualified privilege at trial, and later, on appeal, to contend for a broader elaboration of a responsible communication defence. A panel of the Court of Appeal was much more likely to undertake a thoroughgoing re‑evaluation of the governing jurisprudence than was a single trial judge. It cannot therefore be said that the conduct of the defendants exhibited the absence of due diligence that the “no new issues on appeal” rule is meant to discourage.”

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