Responsible Journalism

On December 22, 2009, the Supreme Court of Canada revolutionized the law of defamation by recognizing a new defence of responsible communication on matters of public interest. Henceforth, Defendants to a libel action will no longer have to prove the truth of the offending statements in order to avoid liability. Rather, the Court held that the constitutional guarantees of freedom of the press and freedom of expression enshrined in section 2(b) of the Charter of Rights and Freedoms mandate that breathing space be given to those who publish on matters of public importance. In other words, Defendants have the right to be wrong so long as their journalism is practiced responsibly.

The decision, Grant v. Torstar Corporation, 2009 SCC 61, arose out of a June 2001 article in the Toronto Star involving Peter Grant, a businessman and friend of then Ontario Premier Mike Harris. Grant was proposing to build a nine hole golf course on his lakefront estate and required approval of the Ministry of Natural Resources. Local cottagers were concerned about the development and believed that Grant’s political ties would lead to a perfunctory approval process. The headline told the story: “Cottagers teed off over golf course – Long-time Harris backer awaits Tory nod on plan.” One cottager was quoted as saying: “Everyone thinks it’s a done deal because of Grant’s influence, but most of all his Mike Harris ties.” The resulting lawsuit by Grant led to a jury verdict in his favour of $1,475,000, including a million dollar punitive damage award.

In allowing the appeal and ordering a new trial, the Court decided that the traditional defences to a libel action paid insufficient regard to the need to protect freedom of the press:

Freedom does not negate responsibility. It is vital that the media act responsibly in reporting facts on matters of public concern, holding themselves to the highest journalistic standards. But to insist on court-established certainty in reporting on matters of public interest may have the effect of preventing communication of facts which a reasonable person would accept as reliable and which are relevant and important to public debate. The existing common law rules mean, in effect, that the publisher must be certain before publication that it can prove the statement to be true in a court of law, should a suit be filed. Verification of the facts and reliability of the sources may lead a publisher to a reasonable certainty of their truth, but that is different from knowing that one will be able to prove their truth in a court of law, perhaps years later. This, in turn, may have a chilling effect on what is published. Information that is reliable and in the public’s interest to know may never see the light of day.

This reasoning is undoubtedly right, but in coming to its decision the Court slid over an earlier ruling on the same subject. In Hill v. Church of Scientology of Toronto, decided in 1995, the Court had stated that “defamatory statements are very tenuously related to the core values which underlie s. 2(b).” In balancing the right to freedom of expression against the protection of reputation, the Court in Hill came out firmly on the side of protecting reputation. The Court has now recalibrated the analysis in a way that more clearly takes account of constitutional rights.