The press cannot continue to fearlessly publish tough stories which better society unless the courts modernize the country's archaic libel and defamation laws, the Supreme Court of Canada was told yesterday.
"Awards are now exceeding a million dollars," Ottawa Citizen lawyer Richard Dearden told the court during a major media law test case. "It is stifling and it inhibits free expression."
Mr. Dearden said that editors routinely face situations where their reporters uncover an important story involving solid sources, yet they hesitate to publish because the libel law requires them to be able to prove the truth of every statement.
Mr. Dearden said that the case under appeal - in which former Ontario Provincial Police constable Danno Cusson won a $125,000 jury award - is a classic instance. He said that The Citizen lost despite having substantial evidence that Mr. Cusson and his pet dog hindered search efforts at Ground Zero after the 9/11 attacks in New York City.
"In my submission, that is not only chilling, but frightening," Mr. Dearden said. "What is an editor supposed to do? The public benefits from a vigorous press that performs its watchdog and bloodhound role."
Mr. Dearden and lawyers for many other newspaper and broadcasting organizations - including The Globe and Mail - urged the court to fashion a new defence against defamation, based on whether the subject matter of a report is in the public interest and whether a journalist took responsible steps to gather information.
Patricia Jackson - a lawyer for the Canadian Civil Liberties Association - told the court that it is a reality of responsible news gathering that every statement in an important story cannot necessarily be proved in a court of law. "In reality, truth is not black and white, and it is rarely black and white when it walks into a courtroom," she said. "If you can't prove that it is true, no amount of care will protect you."
However, Ronald Caza, a lawyer for Mr. Cusson, attacked the proposal for reform as being unnecessary and outright harmful to the interests of individuals trying to protect their reputations against half-boiled media smear jobs.
"How can we win by lowering the standards of the news we get in this country so that the media can have more opportunities to publish stories that are not true?" Mr. Caza asked. "If it ain't broken, why are we fixing it?" he asked. "It is a very stimulating intellectual exercise, but there has been no justification given for making changes. All the arguments being raised are the same ones that were raised 50 years ago - except the Internet issue."
The judges grilled representatives of both sides of the argument equally yesterday, several times expressing concerns that any reforms not be to the detriment of those seeking to protect their reputations. "The reputation becomes the roadkill of the public interest," Mr. Justice Ian Binnie interjected. "How can you say that reputations continue to be protected, if you also say that errors are sometimes inevitable, and that you just have to suck it up and move on?"
Mr. Dearden said that the responsible journalism defence would be of little use to sensationalist media whose scribblings are not truly furthering the public good.
He also stressed that it ought to be open to everyone from bloggers to public interest groups that post damning comments on their websites.
"If it is in the public interest, then they have the right to be wrong?" Madam Justice Rosalie Abella summed up.
"If they have acted in the public interest, yes, they would have that right to be wrong," replied Paul Schabas, a lawyer for the Toronto Star.