Court changes libel law for journalists

The London Free Press,
By Rory Leishman
Under the traditional principles of the common law as affirmed by the Supreme Court of Canada, journalists are no less subject than other citizens to the law of libel. Is that fair and reasonable? Or should the law of libel include a special exception for journalists to further vigorous debate on issues of public interest?
Last week, the Supreme Court of Canada served notice that it will consider this policy of the law in the context of an appeal by the Ottawa Citizen of a defamation conviction for publishing false and defamatory statements about the participation of OPP Constable Dennis Cusson in rescue operations at the World Trade Centre following the terrorist attacks of September 2001. Under the law of libel in Canada, the agents of the newspaper had only one line of defence: Like all other citizens in a similar libel action, they had to prove their defamatory statements were true.
As it turned out, the Citizen could persuade a jury in the Ontario Superior Court of Justice that only some, but not all, of its defamatory allegations against the police officer were true. On this basis, the trial judge awarded Cusson $100,000 in damages against the newspaper.
Backed by lawyers for the Globe and Mail and the Canadian Newspaper Association, counsel for the Citizen maintained in arguments before the Ontario Court of Appeal that the existing law of libel as it applies to journalists is too strict. The media lawyers called upon the court to uphold the guarantee of freedom of the press in section 2 of the Charter, by following the unprecedented ruling of the British House of Lords in Reynolds v. Times Newspapers Ltd. (2001), which held that it is a sufficient defence for journalists in a libel action to show that although they had published a false and defamatory statement, they and their editors had taken reasonable steps to ensure that the story was fair and its contents were true and accurate.
In an unanimous ruling last year, a three-judge panel of the Ontario Court of Appeal accepted this argument. Instead of upholding the law of libel as defined in a long line of precedents of the Supreme Court of Canada, these three judges on the Ontario Court of Appeal presumed to impose responsible journalism in the public interest as a defence for journalists in an Ontario libel action.
On this basis, it might be supposed that the Citizen would get off scot free, but not so. The Court of Appeal did not so much as order a new trial for the newspaper. Instead, it upheld the conviction of the Citizen on the ground that the newspaper had violated the law of libel as that law stood, before the court changed it.
Here we have a clear example of judicial activism and its chaotic consequences: There can be no rule of law, or any certainty about the requirements of the law, in a country where judges take it upon themselves to make major changes in the law as seem most appropriate to them.
In reasons for the Court of Appeal in Cusson, Mr. Justice Robert Sharpe frankly admitted that the court was imposing a far-reaching change in the law. He said: “In my view, it is open to this court to modify Ontario’s common law of defamation by adopting this new and distinctive defence if that change would accomplish a more appropriate balance between the Charter values of protection of reputation and respect for freedom of expression.”
What comes next? Upon further appeal, will judicial activists on the Supreme Court of Canada also trespass upon the legislative powers, by presuming to impose yet another change in the law of libel as seems best to them?
That remains to be seen. In the meantime, regardless of what the elected representatives of the people in the Ontario Legislature might prefer, the Ontario Court of Appeal has decreed that there shall be one law of libel for journalists in Ontario, and another for everyone else.