A hush fell over the ballroom when Governor-General Adrienne Clarkson stepped onto the dais at Rideau Hall one evening in May to announce the winner of the Michener Award, one of the greatest honours in Canadian journalism.
The nominees were assembled on-stage around Clarkson, who was looking regal in flowing black robes and a pink skirt. Everyone held their breath when she took the microphone and then paused for effect. The recipient of the country's most prestigious award for outstanding public-service journalism was . . . CBC's the fifth estate, one of the most celebrated and revered investigative news shows in Canada. It won for a series of hard-hitting reports on police and the justice system.
It was a touching moment. In her old incarnation as television presenter, Clarkson herself had hosted the very first edition of the fifth estate when it aired in September, 1975. She was full of praise for her former employer and the other finalists at the gala ceremony, saying the night reminded her of "journalism's true and real purpose, journalism's glory." She praised "the journalists who got the story and gave it to us, the public, because we have the right to know."
Basking in the praise, the fifth estate's executive producer David Studer accepted the award for his team, and kept his speech short. "These reports provided Canadians with a unique insight into the workings of the police and justice systems in this country," Studer said, then took his seat, the Michener in hand.
It was a heady night, another in a long line of coups for the fifth estate. No program on Canadian TV could match its track record of excellence: Over 200 awards in its 26 years, including an Oscar, several Emmys, more than two dozen Geminis, and numerous other prizes from around the world. Who can forget John Kastner's 1983 documentary, Just Another Missing Kid, about an Ottawa family seeking closure in their son's murder, which won an Academy Award for best feature-length documentary; or the 1994 report Odd Man Out, whichhelped clear the name of Guy Paul Morin, who had been wrongfully convicted of murder?
But the CBC's high was short-lived.
A few weeks later the venerable show learned it had lost two appeals in two related libel cases that carried with them a more dubious award: The highest libel damages in Canadian history. Last month, the Ontario Court of Appeal upheld two trial decisions that ordered the CBC to pay close to $3-million in damages plus legal costs to two Ontario physicians the fifth estate defamed in a 1996 report. It was a devastating blow to CBC bosses, who had not only hoped for a sympathetic hearing from the appeals court, but had blown the chance, years before, to settle the cases out of court for just $35,000.
It was just as big a blow to taxpayers, who will effectively pick up the tab. As a Crown corporation, the CBC carries no libel insurance.
Amazingly, the CBC is not ruling out risking even more money and pain by appealing yet again -- this time to the Supreme Court. Senior management at the public broadcaster have until Sept. 10 to apply for leave to appeal and sources at the broadcaster say there's a good chance CBC will stick its neck out one more time.
Why? Ostensibly, it seems, to overturn court decisions that it feels were biased against the media, not to mention unduly harsh -- one judge called the fifth estate's team "parasitic sensationalists." People close to the fifth estate say its staff feel publicly humiliated by the scathing court judgments.
But should the CBC fight on? Perhaps a better question would be: Should things have ever been allowed to get this far? The story starts in 1995, when a freelance journalist, Nicholas Regush, came to the fifth estate pitching what he said was a sensational story about corruption in the drug regulatory business. Regush, a former medical writer at the Montreal Gazette, and an independent television producer, wrote two books in the 1980s that slammed Canada's regulatory agency, the federal Health Protection Branch (HPB) and the drug industry. He'd heard about a 1995 study by Dr. Bruce Psaty, a University of Washington professor of medicine, that suggested that a controversial heart drug known as nifedipine, a product on the Canadian market since 1981, might be endangering the lives of heart patients who used it for the treatment of angina and hypertension.
Regush contacted Dr. Michelle Brill-Edwards, then a physician working as a drug reviewer at HPB. The two had known each other some time. Brill-Edwards had harsh words for Canada's drug-regulatory process, and she'd had disputes with HPB and appeared before the labour board because she'd been passed over for promotion. Regush had intended to produce a documentary dealing with the regulatory agency, but the nifedipine controversy and Brill-Edwards's zealous concerns about the safety of the drug (and HPB's allegedly lax efforts to warn the public) changed his mind. Regush pitched the piece to the CBC as the story of Canada's worst drug disaster. He described an exposé about killer drugs, kickback schemes and secret files. Executive producer David Studer, who mainly knew the freelancer by word-of-mouth reputation, paid Regush $16,500. Then Regush, who had long believed HPB was in the pocket of multinational drug companies, got to work. He was teamed up with Trish Wood, an unflinching interviewer known for her take-no-prisoners style; researcher Paul Webster, a fairly junior person on the fifth estate totem pole; and technician Garry Akenhead, who was to edit the piece. Studer's senior producer, Susan Teskey, had some involvement in the show early on, but then got wrapped up in other programs and stepped back from the piece. The reins of control were left with Studer as chief point man.
Regush and his team had four-and-a-half months to pull the piece together. The production team worked like fiends, interviewing scores of medical professionals about the much-debated hazards and benefits of nifedipine. Brill-Edwards was the central character of the piece.
CBC insiders say there were times that the team disagreed on the script, the tone, and what was cut from the story. Wood reportedly complained to Studer on a few occasions that she was uncomfortable with some production decisions, but was told to work it out. According to court documents, it wasn't until near the end of the documentary that the executive producer got more actively involved.
When the piece was complete, it was vetted by Studer, the rest of the production team, and CBC lawyer Michael Hughes. A long-time fifth estate employee described the vet as "rigorous," and said that tempers got out of hand, but added that this was not unusual, given the personalities involved. "Regush and Wood are notoriously strong-willed," the staffer said, "and that's putting it mildly." The piece, called The Heart of the Matter, was given the green light. No one inside the CBC gave the documentary much more thought. While the piece was hard-hitting, it hardly seemed the most contentious or controversial subjects the fifth estate had tackled.
Two doctors, Dr. Frans Leenen, a respected medical researcher and director of the Hypertension Unit of Ottawa's famous Heart Institute, and Dr. Martin Myers, a cardiologist at Toronto's Sunnybrook Hospital, were not portrayed in the best light. But legal counsel and the executive producer had been assured the chief source was reliable, the facts indisputable, and the presentation fair. No alarm bells went off. Indeed, The Heart of the Matter was considered a relatively low lawsuit risk.
The program aired Feb. 27, 1996. The CBC devoted its entire one-hour program to this issue, something it does only about 25 per cent of the time.
Myers sat down that night to watch it with his wife, Patricia. The promo for the show was a voice clip saying: "People are dying, people who don't need to die are dying." What followed left the doctor feeling violently ill.
Myers would later testify to being devastated and shocked by what was said. He had given the fifth estate a four-hour interview, let them take shots around his hospital ministering to patients.
He felt he had given an interview based on science and had been blind-sided as to the program's real intentions. He said he was portrayed as a villain who defended a drug killing tens of thousands of people.
Leenen was in Egypt at an advisory-board meeting of Pfizer, a major pharmaceutical company, delivering two lectures and chairing a session, when the show was broadcast. He was warned by a colleague that he might not like it. That was an understatement. If Myers was devastated, Leenen was crushed.
It wasn't until he returned to Ottawa from Egypt that he saw a videotape of the show. He later described, in court documents, feeling "totally empty. The only previous time that I ever had that feeling so extensively was when I was a graduate student and I got a phone call that my sister had been in a very bad car accident and actually died an hour later at the age of 23. She was very close to me and it still creates emotions for me.
"That's the way I felt. I felt that something very dear had been taken away from me. I was gone. I was like in a black hole. It was a disaster for me. Like a nightmare. That your reputation, your integrity that is so crucial for a scientist, is suddenly gone."
The documentary, in contrast, depicted Brill-Edwards as a tireless moral crusader; a champion of the people who was justifiably suspicious of the big drug companies, HPB, and doctors like Myers and Leenen who, the program alleged, seemed to be conspiring to keep the drug on the market despite the fact that a number of red flags had been raised in the United States, Canada and Britain.
There was one touching scene showing Brill-Edwards and her daughter watching cardinals out their kitchen window. She was portrayed as an exceptionally ethical civil servant who resigned in protest from HPB over the government's handling of the issue. There was no clip of Leenen or Myers watching birds.
One million people saw the program, which was subsequently rebroadcast on CBC's Newsworld. Six weeks after it aired, Myers and Leenen sued for libel. Folks at the fifth estate were caught off guard. The show's producer, Regush, and host Wood, stood by their story. Myers asked for an apology plus $25,000. Leenen asked for an apology plus $10,000. The CBC turned them down. Three years later, the Myers case went to trial.
The CBC was subpoened to submit all personal memos and all "field tapes" that had not ended up in the final edit. That evidence, never intended for public consumption, was damning. In one outtake, Regush is heard telling Wood to ask her question with her "famous sneering feeling." The court also heard how Regush instructed Webster to find out who Leenen's "big sugar daddy is." When the crew goes to HPB to grill committee members, Webster is heard on tape describing the people there as "sleazy" and "fucking classic." In its defence, the CBC argued that this is fairly typical newsroom chatter, meant more in jest, and certainly not to be taken literally. Unfortunately the trial judge, Justice J. Bellamy, did not see the joke.
In November, 1999, Justice Bellamy concluded that no "fair-minded person, nor indeed any reasonable person, could have come to hold the views about Dr. Myers which were conveyed in the program, given all the facts (reported and unreported) available to the defendants. From my review of the detailed transcripts and the tapes, including the parts which were not used in the program, I find that CBC dramatically simplified a complex medical debate by seriously mischaracterizing Dr. Myers's position. The CBC set him up quite unfairly as a 'bad guy' in the debate, made it look as if he realized nifedipine was killing thousands of patients and didn't care, and was helping the giant drug company Bayer push a dangerous capsule in Canada."
The judge awarded Myers $200,000 in damages, saying: "Nick Regush, before any research began, hypothesized that the program 'would tell the story of Canada's drug disaster.' In my view, the defendants had this thesis or angle in mind right from the start, and were unable to waiver from it, even as the research unfolded."
Next up was the trial on Leenen's lawsuit. If the first trial judge's written decree had caused consternation in the CBC's corridiors of power, the Leenen decision, six months later, was a knockout blow. The CBC's lawyer, Philip Tunley, had argued the program was protected by qualified privilege and fair comment, telling the court that the CBC, and the fifth estate,had a statutorily mandated duty to tell the Canadian public about a potential health hazard and to raise concerns about the integrity of Canada's drug regulatory system.
Judge Douglas Cunningham, in an 85-page judgment, disagreed. He said the CBC took an eminent research scientist and presented him as a "devious, dishonest, bumbling fool in order to advance a story line." The program had characterized a Pfizer meeting in Egypt that Leenen was to attend as a "cruise down the Nile," and insinuated the trip was a drug-company reward for his support. It had accused Leenen of violating conflict-of-interest guidelines that he had never heard of. Other omissions, the judge ruled, included the fact that the U.S. Food and Drug Administration had recently conducted a full review of this class of drug, concluded that it was not unsafe, and had guidelines for its use that were essentially identical to Canada's.
Justice Cunningham awarded Leenen general, aggravated and punitive damages totalling $950,000, together with costs, and ruled that the journalists twisted the facts and acted with malice. In a highly unusual measure, he slapped the host, producer, researcher and executive producer with hefty punitive and aggravated damages. He called Studer "the absent executive producer who arrived at the last minute when the program was ready to air." But he laid most of the blame at Regush's feet, adding: "This was Regush's show. There was no quest for the truth here. The quest was for sound bites sufficient to fit the story line." The CBC, he ruled, had used a "scorched-earth policy" from start to finish.
"Regush has a reputation as a passionate investigator of corporate interference in the public good," said a well-known Toronto journalist recently. "I honour him for that. He had a point in this story, but he hit it home with a sledgehammer. I think their paper trail and audiotapes were devastating. It's a salutary lesson to everyone in the business." The CBC was embarrassed by the judgments and some staff members were distraught. Insiders say Studer felt personally attacked by Cunningham's judgment.
A few days later, a meeting of CBC senior management was hastily called at Maison de Radio-Canada in Montreal, including president Robert Rabinovitch, vice-president of English Television Harold Redekopp, and the head of TV news, current affairs and Newsworld, Tony Burman.
The CBC brass had congregated to ponder an appeal. A few at the table, like Alex Frame (head of English Radio) raised concerns that perhaps Regush and his team had not been adequately supervised. Rabinovitch was assured the documentary had been rigorously vetted, that not only had Studer and Hughes gone over the piece with a fine-tooth comb, but that the then-head of news and current affairs, Bob Culbert (now at CTV), and Teskey had been involved in the vetting process as well. (It turned out a few weeks later that Culbert and Teskey had in fact never been in the screening room to go over the final version before it was broadcast.)
After the Montreal pow-wow, CBC management decided to go ahead with the appeal. It concluded that the decisions of the trial judges were biased; that the courts, which were inherently distrustful of the media, used the CBC's pre-eminent newsmagazine show as a whipping boy to teach the media a lesson. Sources say CBC lawyers thought there was a good chance, at least, that the damages would be reduced.
They were in for a shock. Instead, on June 12 of this year, the three appeal court judges sided with the trial judges, and actually increased Myers's award by $150,000. The appeals court extended only one olive branch to the public broadcaster. It ruled that conclusions of malice against the fifth estate in the Leenen case were not well-founded. That aside, the three-person panel agreed this was a "very serious libel" and that the awards did not "shock the conscience of this court."
After the appeal decision came down, sources say senior management at the CBC debated whether to go on a media offensive. Wood, who left the CBC three years ago under not entirely happy circumstances (she left following an alleged appearance of a conflict-of-interest issue involving a personal relationship with lawyer James Lockyer, a figure in stories she was working on for the program), wanted to defend herself.
Wood told friends that the subpoened field tapes had been misinterpreted. That the so-called malicious comments on the outtakes is typical banter between journalists and that the judge was wrong to assume she and her team were hell bent on getting the doctors. She told The Globe and Mail last year that the show "said what it said for valid journalistic reasons." She was adamant malice played no part in the shaping of the broadcast. "Our job is to get people in positions of power on the record on issues of public policy. We did it without malice."
Burman, too, wanted to go on a media offensive. Eventually, the broadcaster decided against it, fearing it could backfire. Still, Burman was given permission to send a letter to The Globe after columnist Margaret Wente wrote a piece harshly condemning the program. Burman defended the appeal, arguing that the judgment effectively prescribed a he said/she said formula of journalism that neutered hard-hitting, investigative work. He also abused the notion that managers must make themselves privy to the contents of conversations among journalists. "The judgment suggests that Regush, the freelance producer, who brought the story to the program, was left entirely unsupervised to conduct a reckless tirade. This is contrary to evidence of all the CBC employees who testified about how the program was prepared." Burman said it was not the case that one whistle blower was the foundation for the fifth estate's story. "A team of journalists conducted research over several months, many dozens of people were contacted, cross-checked and interviewed," he stated.
Requests for interviews with senior management at the broadcaster were turned down. Spokeswoman Ruth-Ellen Soles said the CBC could not comment on the trial judgments, and added the Crown corporation had not yet made a decision on the leave to appeal to the Supreme Court. "We are exploring our options," she said.
So who went too far? The fifth estate -- or the judges? There are some in the media who agree with the CBC that these judges relished going after journalists, that the judgments will exacerbate the spread of "libel chill" that is affecting the industry and effectively gagging anyone who dares to take a stand on contentious or unpopular issues in the press. Insiders say the CBC feels maligned and is smarting from the lack of support from other media outlets.
Now, there is heated debate inside the broadcaster about the wisdom of throwing more taxpayer money at this case. Given the volatile, strong-willed personalities involved in the program, many believe the show was a disaster waiting to happen. Others say the CBC has a moral duty to fight this case to the death, primarily because of the monstrous-sized settlement.
According to one fifth estate sympathizer, it sets a terrifying precedent in libel law. "Not only could that put most smaller news-gathering operations out of business," he said, "but it sends a strong signal to journalists everywhere. Don't bother sticking your neck out on stories that might get you sued because you won't be able to afford the damages if you lose," he added. "The CBC is supposed to be leaders for the whole profession of journalism. It's our mandate to lead by example, to defend the professionalism of journalists and advance the collective interests of our industry."
Leenen's lawyer Richard Dearden strongly disagrees. "To me, they were making a movie, they weren't doing investigative journalism."
In the Myers case, the Court of Appeal agreed that the selectivity of the reporting did establish malice and supported the trial judge when she said that the program had taken clips of Myers's remarks out of context and presented them in a "good guy-bad guy" format, making the doctor's position look much more extreme than it actually was.
Media lawyer Bert Bruser also sides with the court rulings. "The courts found that the thrust of the story on the fifth estate was untrue and obviously in those circumstances the damages were large," says Bruser, the long-time libel lawyer for The Toronto Star. "I think the lessons to be learned from these cases is that if you want to expose wrongdoing then you better be fair and accurate and get both sides honestly. The rulings confirm what the courts in this country have always said, and that is you've got to be fair in circumstances where you're saying, as a matter of fact, that people did wrong. That's not libel chill."
A long-time CBC employee says it's "flabbergasting and disgusting to a lot of people inside the CBC that management is considering appealing. It's costing 'real' money. There could still be some heads rolling because of this legal debacle. But many people I work with are stunned no one's been fired, that no one at the CBC seems to have been held accountable."
He adds: "It's quite an astonishing story. It's the biggest libel award in Canadian history and everybody at the CBC has their head in the sand. No one wants to touch this with a barge pole. It's classic CBC culture: If you stick your head in the sand, and don't see your critics, then they won't see you. Someone has to be accountable here. We're talking about $3-million worth of taxpayer's money. People are entitled to ask some questions and get some straight answers."
CBC's Soles says the show has only been taken to court three times.
It lost twice; small settlements, under $100,000. Others, too, take the program's illustrious wall of awards as proof it has done its job well.
Dearden says Leenen had to mortgage his house to push ahead with the lawsuit. He says the physician faced $1-million in costs against him if he lost the appeal. That, the Ottawa-based lawyer adds, might have something to do with the fact that the fifth estate's rarely been dragged into court. "To me the analogy of the fifth estate is like a first-time offender who comes before a criminal judge and says I've never been guilty before, so you can't find me guilty now." Many people close to the fifth estate believe the venerable program may never completely recover from this legal bombshell.
Although there have been no apologies from CBC management, no firings, and no blame laid, they say the show's been rocked.
It has been widely noticed that there's been a tremendous amount of money and attention thrown at the new show, Disclosure, coming this fall on CBC and hosted by Wendy Mesley and Diana Swain. There is speculation that this investigative program is being groomed to replace the fifth estate. If that's the case, it would be a sad exit for a proud Canadian institution. -*** -***
CORRECTION
John Zaritsky won an Oscar for his 1983 documentary Just Another Missing Kid. Incorrect information was published in the July 28 edition of The Globe and Mail.
Gayle MacDonald