Libel law needs drastic change, media lawyers tell Supreme Court

Canadian libel law needs to be reinterpreted to offer better protection to journalists, even when they get some of their facts wrong, the country's top court has been told.

Canadian libel law needs to be reinterpreted to offer better protection to journalists, even when they get some of their facts wrong, the Supreme Court of Canada was told on Tuesday.

Richard Dearden, counsel for the Ottawa Citizen newspaper, contended in a hearing Tuesday that traditional common-law principles put too much emphasis on protecting individual reputation, to the detriment of free speech and the public's right to know.

"The pendulum has swung too far over to the reputation side [and] it has to swing back," Dearden declared as he opened a Supreme Court case that could redefine the rules for defamation suits.

The new test, he said, should be whether a story is in the public interest and whether a news outlet makes a good-faith effort to ensure its information is correct.

That would be a dramatic departure from long-standing legal tenets that essentially require every fact in a story to be proven true in defending a libel action.

The Citizen is supported by an array of other news organizations, including the Globe and Mail, the Toronto Star, the CBC and the Canadian Newspaper Association, as well as the Canadian Civil Liberties Association.

But Ronald Caza, the lawyer for a former Ontario Provincial Police constable who won a $100,000 damage award against the Citizen, urged the court to reject the media pleas.

"How can we win by lowering the standard of the news we're going to get in this country?" Caza said.

He derided the suggestion that making an effort to be correct — as opposed to actually being correct — should be the new legal yardstick.

"They're asking you to take away some of the rights to reputation of people all over Canada, so that they can publish stories that are not true," Caza told the nine-member bench.

Court reserves judgment

Several of the justices seemed to be of two minds during the hearing as they grappled with the legal implications of the case.

Justice Ian Binnie suggested at one point that the media arguments seemed one-sided, emphasizing public debate at the expense of protecting the reputation of the individual.

"Reputation becomes a sort of road kill in the larger public interest," Binnie tartly observed.

But he was equally pointed in his comments about Caza's presentation, criticizing his "static view" of defamation law for taking little account of changing social attitudes or the advent of the Charter of Rights.

Others, including Chief Justice Beverley McLachlin and Justices Rosalie Abella and Louise Charron, also chimed in with searching questions for both sides.

The court reserved judgment at the conclusion of the four-hour hearing and likely won't deliver a ruling for several months.

Constable went to NYC after Sept. 11

The case centres on former OPP member Danno Cusson, who left his post in Ottawa and went to New York City on his own initiative in the wake of the Sept. 11, 2001, hijackings. The officer ended up participating in recovery efforts to locate survivors in the rubble of the World Trade Center.

In a defamation suit that followed, it was concluded that of 29 factual matters at issue in a series of Citizen articles, 17 were accurate but 12 had libelled the individual.

The Ontario Court of Appeal, in a 2007 decision, upheld the verdict and damage award against the Citizen.

But in doing so it also laid out rules for a new defence of "responsible journalism," based primarily on precedents established by British courts.

The new approach includes the principle that a story should be judged as a whole, that part of the test should be whether it served the public interest, and that "due diligence" in trying to check out the facts can serve as a legitimate defence, even if some of those facts later turn out to be incorrect.

The Citizen is asking the Supreme Court to adopt the same test but wants it to overturn the finding that the paper remains liable for the damages.