VZCZCXYZ0019
RR RUEHWEB

DE RUEHOT #0903/01 3571855
ZNR UUUUU ZZH
R 231855Z DEC 09
FM AMEMBASSY OTTAWA
TO RUEHC/SECSTATE WASHDC 0195
INFO ALL CANADIAN POSTS COLLECTIVE

UNCLAS OTTAWA 000903 
 
SENSITIVE 
SIPDIS 
 
E.O. 12958: N/A 
TAGS: PHUM PGOV CA
SUBJECT: Canada's Supreme Court strengthens free speech 
constitutional protections 
 
¶1.  (U) Summary:  A Supreme Court of Canada ruling on December 22 
has added greater protections for journalists against claims of 
defamation in striking down two separate findings of libel against 
two newspapers.  Stating that "current [defamation] law does not 
give adequate weight to the constitutional value of free 
expression," the Supreme Court created a new "responsible 
communication" defense to libel claims on matters of public 
interest in which a journalist's attempts to report fairly and 
accurately are of greater importance than a discovery of false 
allegations.  This defense will also be applicable to internet 
media, including bloggers.  The Supreme Court compared Canada's 
defamation laws specifically to those of the U.S. and Commonwealth 
countries, and struck a balance between the need for "productive 
debate" and the right of individuals to protect their reputations. 
End Summary. 
 
 
 
THE CASES 
 
 
 
¶2.  (U)  Peter Grant v. Torstar Corp.:   the "Toronto Star" had 
examined allegations that a private businessman used political 
influence to secure a prime location for a private golf course. 
The article quoted local residents critical of the development's 
environmental impact and suspicious that Grant was working behind 
the scenes to circumvent zoning and environmental laws and secure 
government approval.  Grant refused to comment on the subject to 
the reporter.  In the provincial court, the trial judge had ruled 
that a defense of "public interest responsible journalism" would 
not apply and sent the case to the jury on the defense of the truth 
of the statements.  The jury found for the plaintiff and awarded 
Grant general, aggravated, and punitive damages.  The Court of 
Appeal subsequently found in favor of the "Toronto Star" on the 
basis of flawed instructions to the jury and the dismissal of the 
responsible journalism defense. 
 
 
 
¶3.  (U) Quan v. Cusson:  the "Ottawa Citizen" had printed a series 
of articles alleging that Danno Cussan, an Ontario police officer, 
misrepresented himself to New York authorities and interfered with 
rescue operations following the 9/11 attacks by claiming that he 
and his dog were a trained Royal Canadian Mounted Police (RCMP) 
sniffer-dog team.  At trial in Ontario in 2006, the defense did not 
rely on the "responsible journalism" argument often used in the 
United Kingdom but not recognized by any Canadian court at that 
time.  The jury found that many but not all of the allegations in 
the article were true and awarded Cusson general damages of 
C$100,000 ($94,500).  The Court of Appeal subsequently upheld the 
decision but also took the opportunity to establish a responsible 
journalism defense under Ontario law. 
 
 
 
THE RULINGS 
 
 
 
¶4.  (U)  Citing the Canadian Charter of Rights and Freedoms in the 
9 - 0 decision, Chief Justice Beverly McLachlin explicitly 
recognized the "vital role of communications media" in providing 
"freewheeling debate" on issues of public interest.  Calling the 
current defamation law a "regime of strict liability," the Supreme 
Court found that the current levels of protection for free 
expression are not "justifiable" even with the necessary "value" of 
protecting reputations.  The Chief Justice underscored the 
importance in Canadian law and culture in protecting individuals 
from public harm to their names, while adding that , "although the 
right to free expression does not confer a license to ruin 
reputation, ... the balance tips in favour of broadening the 
defences available to those who communicate facts it is in the 
public's interest to know."  The ruling defined such a defense as 
one that would "allow publishers to escape liability if they can 
establish that they acted responsibly in attempting to verify the 
information on a matter of public interest,"  reasoning that this 
would be a "reasonable and proportionate response to the need to 
protect reputation while sustaining the public exchange of 
information." 
 
 
 
¶5.  (U)  In Quan v. Cusson, the Supreme Court ordered a new trial 
in which a "defence of responsible communication on matters of 
public interest ... is applicable."  This ruling, also 9 - 0, 
immediately followed that of Peter Grant v. Torstar Corp. and drew 
 
 
upon it for precedent.  The Chief Justice ruled that "the public 
interest test is clearly met 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 
ruling specified that the issue of liability in this instance rests 
upon whether the defendants were "diligent" in trying to verify the 
allegations prior to publication and emphasized that any factual 
mistakes in the articles are "largely immaterial." 
 
 
 
¶6.  (U)  The Supreme Court ruling compared existing Canadian law to 
those of the U.S. and other common law democracies, and found that 
such a comparison "favours replacing the current Canadian law with 
a rule that gives greater scope to freedom of expression while 
offering adequate protection of reputation."  Citing the "Sullivan" 
case from U.S .Supreme Court rulings, the Supreme Court noted that 
the U.S. standard of proving actual malice has made it "extremely 
difficult" to sue successfully for defamation.   Although 
Commonwealth countries have rejected the precise balance struck in 
"Sullivan," the Supreme Court of Canada admitted that the law has 
begun to shift in favor of broader defenses for the press in the 
United Kingdom, Australia, New Zealand, and South Africa.  The 
Chief Justice noted that the Supreme Court was seeking a "third 
option" for Canada - one that allows for far greater protection for 
reputation than the U.S. model, but one that also sustains the "cut 
and thrust" necessary to public discourse. 
 
 
 
¶7.  (U)  The Supreme Court ruling also specifically extended the 
new responsible communication defense to the internet media, 
including bloggers, making no distinction among journalists working 
in print media, broadcast media, or internet media, or anyone 
"publishing material of public interest in any medium." 
 
 
 
COMMENT:  THE IMPACT 
 
 
 
¶8.  (SBU)  With weak protections protecting investigative 
journalism of public figures, Canadian media commentators had 
complained that news stories can be "watered down" or even thrown 
away due to concerns of losing an expensive law suit.  This ruling 
will significantly help to protect journalists and publishers from 
law suits by those who are simply unhappy with an unflattering 
portrayal, and places the onus of proof on the plaintiff to show 
that the journalist acted irresponsibly and unprofessionally in 
researching the story.  While the Supreme Court sought to place its 
ruling between the U.S. and Commonwealth countries' standards, the 
new Canadian standard brings it far more closely in line with U.S. 
law than that of the U.K.  However, Canadian law continues to place 
a higher value on protection of reputation than the U.S. does for 
public figures. 
BREESE