In a dramatic and historic shift from the principles laid out by the Supreme Court of Canada in Hill v. Church of Scientology of Toronto, the same court determined in Grant v. Torstar Corp. that Canadian law needs a new rule that "gives greater scope to freedom of expression while offering adequate protection of reputation." The parameters of a new defence of "responsible communication on matters of public interest" were set out and justified on the basis that traditional defamation law "does not give adequate weight to the constitutional value of free expression." The following brief analysis will elucidate the shift in principles of the Supreme Court and outline the broad tenets of the new defence. The facts will not be commented on.
The contrast with Hill was marked and unambiguous, commencing with a new perspective on the value of defamatory communications in the context of Charter values. In Hill, Justice Cory held that defamatory communications were "inimical to the search for truth," and "very tenuously related to the core values" that underlie freedom of expression. In Grant, Chief Justice McLachlin recited the three core rationales or purposes of freedom of expression set out in Irwin Toy c. Quebec: democratic discourse, truth-finding and self-fulfillment, and found that only the third — self-fulfillment — was of "dubious relevance to defamatory communications on matters of public interest." The court held that a free flow of information engenders truth-finding and is critical in a democracy on matters of public interest: "It is simply beyond debate that the limited defences available to press-related defendants may have the effect of inhibiting political discourse and debate on matters of public importance, and impeding the cut and thrust of discussion necessary to discovery of the truth." The statements in Hill "must be read in the context of that case."
The decisions differed on the utility of the defences of justification and qualified privilege from a media perspective. Whereas the court had opined in Hill that it was "not requiring too much of individuals that they ascertain the truth of the allegations they publish," Chief Justice McLachlin critiqued the defence of justification on exactly that basis in Grant. According to the court, freedom of expression encompasses more than just statements that can be proven to be substantially accurate in a court of law after the fact, and more than communications that do not injure reputation. Requiring publishers to be certain of their ability to prove statements in a court of law before publication may have a chilling effect on communications.
Conservative interpretations of qualified privilege often leave the defence unavailable to the media, held McLachlin. Qualified privilege requires, inter alia, the existence of an occasion in which there is a compelling public duty or private interest justifying the making of a communication, and also that the recipient of the communication have a corresponding interest in receiving it. In a media context, where communications are made to the "world at large" rather than to a narrower audience with a particular stake in the communication, there was uncertainty about "when, if ever, a media outlet can avail itself" of the defence.
Privacy should not be conflated with the protection of reputation, the court held, in a further shift from Hill. Privacy rights had been relied upon in Hill to fortify the sturdy protection granted to reputation in the decision. However, in Grant, the Supreme Court found that the purpose of defamation law is to "provide recourse against false injurious statements," while privacy law "typically focuses on keeping true information from the public gaze" [court's italics].
Charter values, as distinct from a direct application of Charter rights, drove the analysis in Grant, and the finding that the common law must be amended to reflect such values. The Supreme Court's conclusion in Hill that freedom of expression and protection of reputation are "twin values" and "equally important rights" has given way to recognition of the primacy of freedom of expression in a public interest context as long as there is "adequate" protection for reputation.
On that basis, the court recognized a new defence, "responsible communications on matters of public interest," named thus in order to capture a broader class of defendants than traditional media. It is available to "anyone who publishes material of public interest in any medium." The defence will apply where the publication is on a matter of "public interest" and the publisher was diligent in attempting to verify the allegation, having regard to: (a) the seriousness of the allegation, (b) the public importance of the matter, (c) the urgency of the matter, (d) the status and reliability of the source, (e) whether the plaintiff's side of the story was sought and accurately reported, (f) whether the inclusion of the defamatory statement was justifiable, (g) whether the defamatory statement's public interest lay in the fact that it was made rather than its truth, and (h) any other relevant circumstances. The threshold question of "public interest" is principally, but not exclusively, a question of law. Mere curiosity or prurient interest is not enough to meet the "public interest" test. Some segment of the public must have a "genuine stake" in the matter.
McCarthy Tétrault Notes
Interestingly, Justice McLachlin, as she then was, sat on the panel of Supreme Court Justices concurring with Justice Cory in the 1995 decision of Hill.
In Grant, the Supreme Court elected not to recognize the new defence as an extension of the defence of qualified privilege. Qualified privilege attaches to a particular occasion rather than to a speaker or a communication. It is the exigency of the occasion and the public duty or private interest that defines the scope of the communication that will be protected. On the other hand, the new defence applies to communications where there is a public interest in the communication and the speaker has been diligent in attempting to verify the allegations made.
Chief Justice McLachlin expressly recognized in Grant the shift in emphasis away from the falsity of a defamatory communication to the conduct and diligence that led to the publication of the same. She acknowledged that the law had to take a "balanced approach" reflecting the interests of both plaintiffs and defendants, and agreed with the Ontario Court of Appeal decision in Cusson v. Quan that the shift was an "acceptable price to pay for free and open discussion" in a democracy.
The court was not persuaded by the argument that a defence based on the defendant's conduct could lead to costly and protracted litigation over journalistic practices about which the plaintiff would have no advance knowledge. Procedural objections could not negate the shortcomings of the traditional law.
The court recognized the "reportage" exception to the principle that repeating another party's allegations (the "Repetition Rule") is not a defence to defamation. Where the "dominant public interest" lies in the fact that a communication was made, rather than in the truth of its contents, the reportage exception will apply.
A communication is defamatory if: (1) the impugned words would tend to lower the plaintiff's reputation in the eyes of a reasonable person; (2) the words did in fact refer to the plaintiff; and (3) the words were published, meaning that they were communicated to at least one person other than the plaintiff.
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