The Court of Appeal in Ontario gets in on the act

Ottawa Citizen image, from its website.I have already discussed on this blog the decision of the Irish High Court in Leech v Independent Newspapers [2007] IEHC 223 (27 June 2007) which all but copperfastened the defence of reasonable publication (or responsible journalism in the public interest) to libel actions at Irish law. Now, in Cusson v Quan [2007] ONCA 771 (13 November 2007) (also here), in a case concerning an article in the Ottawa Citizen, the Court of Appeal in Ontario has allowed Canada to begin to get in on the act too. Joe Rayment saw this coming last January (also here). Now battle lines are being drawn, with Andrew Scott weighing in with an excellent post in favour of this development on MediaPal@LSE, and Mark McQueen contributing an equally impressive critique against it. Fagstein says that in Canada, the libel chill is warming slightly (with interesting further links; see also Cavanagh Williams | Editor & Publisher). Two paragraphs of Sharpe JA’s judgment in particular are worth focussing on. First, he placed his approach in comparative perspective:

[122] While evolution of the law of defamation has produced a variety of solutions in different jurisdictions, the evolution away from the common law’s traditional bias in favour of the protection of reputation is strikingly uniform. The courts of England, Australia, New Zealand, South Africa, and the United States have all concluded that the traditional common law standard unduly burdens freedom of expression and have all made appropriate modifications to achieve a more appropriate balance between protecting reputation on the one hand and the public’s right to know on the other.

He might have added Ireland to the list. Second, Sharpe JA got around the considerable barrier of Hill v Church of Scientology [1995] 2 SCR 1130, [1995] CanLII 59 (20 July 1995) in which the Supreme Court of Canada held that the common law of defamation was consistent with the Charter:

[138] Nor do I agree that Hill v Scientology precludes us from taking this step. Hill was decided before Reynolds and must be read in the light of its facts and the jurisprudential issue it posed. As Cory J expressly stated, the appeal did not involve the media. The court’s decision that “the common law of defamation complies with the underlying values of the Charter and there is no need to amend or alter it� was explicitly made in relation to the application of the law “to the parties in this action�, namely non-media defendants who had made an egregious and unwarranted attack upon the reputation of an innocent Crown attorney who had been completely vindicated at the contempt trial. The defendants had made no attempt at a bona fide investigation and were acting in pursuit of private interests. There was absolutely no public interest in having such a vicious attack published to the community at large. Cory J’s statement that “[s]urely it is not requiring too much of individuals that they ascertain the truth of the allegations they publish� is, in my view, entirely consistent with what the Reynolds-Jameel defence aims to achieve: namely, requiring the media defendant to satisfy the onus of demonstrating that it did take reasonable steps to ascertain the truth of the story by following the standards of responsible journalism when investigating, writing and publishing the defamatory statement. The conclusions in Hill must be read in the context of the case that was before the Supreme Court and, when read in that light, fall well short of a categorical ruling that would preclude reconsideration of the law of defamation in light of Charter values.

It remains to be see whether the Supreme Court of Canada buys this dodge.