prorogue [prəˈrəʊg]

prorogue [prəˈrəʊg]
vb
(Law / Parliamentary Procedure) to discontinue the meetings of (a legislative body) without dissolving it
[from Latin prorogāre literally: to ask publicly, from prō- in public + rogāre to ask]
prorogation [ˌprəʊrəˈgeɪʃən] n
hc_dict()
Collins English Dictionary – Complete and Unabridged 6th Edition 2003. © William Collins Sons & Co. Ltd 1979, 1986 © HarperCollins Publishers 1991, 1994, 1998, 2000, 2003

Braidwood Inquiry 1 RCMP 0.

COURT OF APPEAL FOR BRITISH COLUMBIA
Citation:
Bentley v. Braidwood,

2009 BCCA 604
Date: 20091229
Docket: CA037241; CA037246;
CA037251

Docket No.: CA037241
Between:
Constable William Bentley,A Member of the Royal Canadian Mounted Police
Appellant
(Petitioner)
And
Thomas R. Braidwood, Q.C., Commissioner andAttorney General of British Columbia
Respondents
(Respondents)
Docket No.: CA037246
Between:
Constable Kwesi Millington,A Member of the Royal Canadian Mounted Police
Appellant(Petitioner)
And:
Thomas R. Braidwood, Q.C., Commissioner andAttorney General of British Columbia
Respondents (Respondents)
Docket No.: CA037251
Between:
Constable Gerry Rundel,A Member of the Royal Canadian Mounted Police
Appellant (Petitioner)
And:
Thomas R. Braidwood, Q.C., Commissioner andAttorney General of British Columbia
Respondents (Respondents)

Before:
The Honourable Madam Justice Saunders
The Honourable Mr. Justice Chiasson
The Honourable Mr. Justice Groberman
On Appeal from: Supreme Court of British Columbia, July 17, 2009(Rundel v. British Columbia – Braidwood Commission, 2009 BCSC 814,Docket Nos. S09251, S09252, S09253 and S09377)
Counsel for the Appellant,Cst. Bentley:
D. ButcherA. Srivastava
Counsel for the Appellant,Cst. Millington:
R. Hira, Q.C.B. Morley
Counsel for the Appellant,Cst. Rundel:
G. Beaubier
Counsel for the Respondent,T. Braidwood, Q.C.:
P. McGowanA. Vertlieb, Q.C.
Counsel for the Respondent,Attorney General of British Columbia:
C. JonesK. Wolfe
Place and Date of Hearing:
Vancouver, British Columbia
December 4, 2009
Place and Date of Judgment:
Vancouver, British Columbia
December 29, 2009

Written Reasons by:
The Honourable Madam Justice Saunders
Concurred in by:
The Honourable Mr. Justice Chiasson
The Honourable Mr. Justice Groberman
Reasons for Judgment of the Honourable Madam Justice Saunders:
[1] This appeal concerns the jurisdiction of Thomas R. Braidwood, Q.C., Commissioner, to issue Notices of Misconduct to the appellants advising them he may make certain findings affecting them, in the course of issuing his report on the death of Robert Dziekanski. They appeal from the order of Mr. Justice Silverman dismissing their petitions for judicial review in which they sought to quash the Notices of Misconduct, to prohibit and enjoin the Commissioner from making such findings, and, in the alternative, to receive further particulars of the potential findings that could be made against them.
[2] The roots of this appeal lie in the events of October 14, 2007. In the early hours of that day, Mr. Dziekanski, a new arrival to Canada, died in the International Lounge of the Vancouver International Airport. His death followed the deployment of a conducted energy weapon by a member of the Royal Canadian Mounted Police, one of four officers who responded to a call from the airport for assistance.
[3] The Province of British Columbia appointed Thomas R. Braidwood, Q.C. a Commission under the Public Inquiry Act, S.B.C. 2007, c. 9 to inquire into and report on the death of Mr. Dziekanski.
[4] The Commissioner heard evidence from 87 witnesses between January 19 and May 26, 2009, including from the four officers who attended at the Vancouver International Airport on October 14, 2007 in response to the airport’s call.
[5] On April 30, 2009 documents entitled “Notice of Misconduct” signed by the Commissioner were delivered to each of the four officers. Although individually crafted to each recipient, the notices bear common hallmarks: they were delivered on a confidential basis; they state “the Commissioner may make” certain findings that “may amount to misconduct within the meaning of s. 21 of the [Public Inquiry] Act”; they contain some common allegations; and, after listing the allegations in relation to the recipient, they advise it is possible another participant may “make one or more allegations of misconduct against you,” in which case the recipient will have an opportunity to respond.
[6] Each of the four officers demanded particulars of the misconduct alleged and the standard against which it would be measured. The Commissioner issued a ruling on the notices, at that stage confidential, in the main concluding the Notices of Misconduct were sufficiently particularized with the exception of one allegation, which he more clearly defined.
[7] The Notices of Misconduct as amended contain four allegations common to all appellants, with the Notice of Misconduct directed to Constable Millington containing three additional allegations. Mr. Justice Silverman accurately described all the allegations at issue by paraphrasing them at para. 17:
1. failing to properly assess and respond to the circumstances faced in relation to Mr. Dziekanski;
2. deploying the taser in circumstances that did not justify such deployment;
3. after deploying it, failing to adequately reassess the situation before further deploying it;
4. making further deployments of the instrument when they were not justified in the circumstances;
5. misrepresenting facts in notes and statements which had been made;
6. misrepresenting facts in evidence given before the Commission;
7. providing misleading information of the witness’ notes and statements in the evidence before the Commission.
[8] The four officers each applied to the Commissioner to quash their Notice of Misconduct. When those applications were dismissed, each officer commenced a proceeding under the Judicial Review Procedure Act, R.S.B.C. 1996, c. 241 to quash the Notice. The petitions sought orders in the nature of certiorari and prohibition, injunctions, declarations and orders in the nature of mandamus compelling production of particulars.
[9] On June 15, 2009 Mr. Justice Silverman dismissed the petitions.
[10] In this appeal three of the officers, the appellants Constables Millington, Bentley and Rundel, contend the judge erred in failing to quash the Notices of Misconduct. They say the Notices of Misconduct are beyond the jurisdiction of the Commissioner because:
1. the allegations require an analysis of their conduct against criminal law standards, and thereby infringe upon federal jurisdiction over criminal law; and
2. the allegations require an analysis of their conduct measured against RCMP training and policy, and thereby infringe upon federal jurisdiction to manage and administer the RCMP, and to discipline members of the RCMP.
[11] The appellants further contend Mr. Justice Silverman erred in declining to compel further particulars of the allegations set out in the Notices of Misconduct.
New Evidence
[12] In support of the appeal the appellants seek to adduce new evidence. The Commissioner also applies to adduce new evidence. The new evidence is a transcript of some of the proceedings before Mr. Justice Silverman, and evidence of submissions and further proceedings before the Commissioner subsequent to the Supreme Court of British Columbia hearing, including those addressing the Notices of Misconduct.
[13] Strictly speaking, I do not consider the new evidence meets the criteria for admission set out in cases such as Scott v. Scott, 2006 BCCA 504, 61 B.C.L.R. (4th) 9. It is not capable of affecting the appeal, which may be fully answered on the record as it now stands. In particular, I would not rely upon the appellants’ submissions as evidence that particulars are, or are not, required. To do so is to delve more deeply into the Commission’s workings than is appropriate for this Court. The appeal must be resolved, in my view, on the material that was before Mr. Justice Silverman.
[14] I would dismiss the applications to adduce new evidence.
The Statutory Framework For the Commission
[15] The Commission is proceeding under the authority of the Public Inquiry Act. Section 9 of that Act provides:
9(1) Subject to this Act and the commission's terms of reference, a commission has the power to control its own processes and may make directives respecting practice and procedure to facilitate the just and timely fulfillment of its duties.
...
(5) A commission may make an order in respect of any matter for which a directive has been made, or may be made, under this Act.
[16] Section 11 of the Act provides for participation in these terms.
11(1) A person may act as a participant if the person
(a) is provided with notice under subsection (2), or
(b) is accepted as a participant under subsection (4).
(2) If a hearing commission intends to make a finding of misconduct against a person, or intends to make a report that alleges misconduct by a person, the hearing commission must first provide the person with
(a) reasonable notice of the allegations against that person, and
(b) notice of how that person may respond to the allegations.
(3) A person other than one described in subsection (2) may apply to be a participant by applying to a commission in the manner and form it requires.
(4) On receiving an application under subsection (3), a commission may accept the applicant as a participant after considering all of the following:
(a) whether, and to what extent, the person's interests may be affected by the findings of the commission;
(b) whether the person's participation would further the conduct of the inquiry;
(c) whether the person's participation would contribute to the fairness of the inquiry.
[17] Section 12 sets out powers of the Commission in respect to persons who are participants under s. 11 of the Act:
12(1) Subject to section 13 [rights of participants], a commission may make orders respecting
(a) the manner and extent of a participant's participation,
(b) the rights and responsibilities of a participant, if any, and
(c) any limits or conditions on a participant's participation.
(2) In making an order under subsection (1), a commission may
(a) make different orders for different participants or classes of participants, and
(b) waive or modify one or more of its orders as necessary.
(3) In making an order under subsection (1), a hearing commission must ensure that a participant who responds to a notice under section 11 (2) has a reasonable opportunity to be heard by the commission before the commission makes a finding of misconduct against the participant, or makes a report that alleges misconduct by that participant.
[18] Section 13 protects participants and prevents their evidence from being used in subsequent proceedings:
13(1) A participant may
(a) participate on his or her own behalf, or
(b) be represented by counsel or, with the approval of the commission, by an agent.
(2) A participant
(a) has the same immunities as a witness who appears before the court, and
(b) is considered to have objected to answering any question that may
(i) incriminate the participant in a criminal proceeding, or
(ii) establish the participant's liability in a civil proceeding.
(3) Any answer provided by a participant before a commission must not be used or admitted in evidence against the participant in any trial or other proceedings, other than a prosecution for perjury in respect of the answer provided.
[19] Section 21, referred to in the Notices of Misconduct, provides:
21(1) Subject to this Act and the commission's terms of reference, a hearing commission may engage in any activity necessary to effectively and efficiently fulfill the duties of the commission, including doing any of the following:
(a) issuing directives respecting any of the matters set out in subsection (2);
(b) holding written, oral and electronic hearings;
(c) receiving submissions and evidence under oath or affirmation;
(d) making a finding of misconduct against a person, or making a report that alleges misconduct by a person.
...
[20] Each appellant applied to be and was accepted as a participant pursuant to ss. 11(3) and (4) of the Act.
[21] The parties have all proceeded on the basis the Notices of Misconduct were issued in compliance with s. 11 of the Act.
Discussion
1. Jurisdiction
[22] I turn to the issues. First is the jurisdiction of the Commissioner to make findings in the terms posited in the Notices of Misconduct. The appellants advance two propositions: that the Notices of Misconduct reflect an exercise in criminal law beyond the jurisdiction of a provincially appointed commission, and that they reflect an exercise that interferes with the management or administration of a federally created agency, the Royal Canadian Mounted Police, also beyond the jurisdiction of a provincially appointed commission.
[23] The Commissioner concluded in his ruling that his Notices of Misconduct did not stray beyond his jurisdiction. Mr. Justice Silverman agreed. In reaching this determination Mr. Justice Silverman concluded the standard of review he must bring to the issue of jurisdiction was correctness. Applying this standard, he found the Commissioner was correct in ruling that the issuance of the notices was within the commission’s jurisdiction.
[24] In matters of jurisdiction, the standard is, as confirmed in Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, correctness, and Mr. Justice Silverman applied the proper standard. The question for us then is whether he was correct in his conclusion that the Notices of Misconduct are within the constitutional jurisdiction of the Commission.
a) Do the Notices of Misconduct Infringe Federal Jurisdiction Over Criminal Law and Procedure?
[25] The Commissioner addressed the appellants’ complaint that his Notices of Misconduct trench upon the federal power over criminal law and procedure, concluding that even if the “misconduct” described in the notices is substantiated, they would not equate to a finding of criminal liability. At his para. 37 he said:
It is important to bear in mind the purpose underlying these allegations. I have neither the mandate nor desire to make determinations respecting whether the Applicant committed one or more criminal offences. These allegations are made in order to give the Applicant reasonable notice that I may make findings respecting his credibility, and the basis for any such findings. I am satisfied that the allegations have been drafted in a manner that is consistent with the principles enunciated in Krever, supra, including Cory J.’s statement that “commissioners should not be expected to perform linguistic contortions to avoid language that might conceivably be interpreted as imparting a legal finding” (para. 52).
[26] Consideration of the constitutionality of the Notices of Misconduct must start, I consider, with recognition that both levels of government have some authority over matters related to criminal justice. By s. 92(14) of the Constitution Act the province is assigned authority over the “administration of justice” within the province, and by s. 92(16) over matters of a “merely local or private nature”. On the other hand, by s. 91(27) the federal government is assigned authority over the criminal law including procedure in criminal matters.
[27] The appellants contend the Notices of Misconduct demonstrate that the Commissioner will be determining whether the appellants have committed a criminal offence, and thus evince more than an incidental effect on the criminal law power. While the appellants do not contest the terms of reference of the Commission, they say that in framing the Notices of Misconduct the Commissioner has stepped off his constitutionally permitted ground and strayed impermissibly onto exclusive federal territory. They say Mr. Justice Silverman erred in law in failing to recognize this essential characteristic of the notices, and they urge this Court to correct that error. In making this submission they rely upon Re Nelles and Grange (1984), 46 O.R. (2d) 210, 9 D.L.R. (4th) 79 (C.A.) and Starr v. Houlden, [1990] 1 S.C.R. 1366, 68 D.L.R. (4th) 641.
[28] The respondents defend the Notices of Misconduct, submitting they do not engage the Commissioner in the sort of inquiry found to be unconstitutional in Nelles and Starr. Rather, they submit, the notices are properly within the Commissioner’s mandate as set out, in a constitutionally correct fashion, in his terms of reference. They say this appeal is analogous to cases such as O’Hara v. British Columbia, [1987] 2 S.C.R. 591, 45 D.L.R. (4th) 527, Canada (Attorney General) v. Canada (Commission of Inquiry on the Blood System), [1997] 3 S.C.R. 440, 151 D.L.R. (4th) 1 (“Krever”), Phillips v. Nova Scotia (Commission of Inquiry into the Westray Min Tragedy), [1995] 2 S.C.R. 97, 124 D.L.R. (4th) 129, and Consortium Developments (Clearwater) Ltd. v. Sarnia (City), [1998] 3 S.C.R. 3, 165 D.L.R. (4th) 25.
[29] The commission of inquiry considered in Nelles was established to determine who was responsible for infant deaths at the Hospital for Sick Children in Toronto. The inquiry was formed after a prosecution in relation to some of the deaths had failed at the preliminary inquiry stage and while police investigation into the deaths continued. The terms of reference of the commission authorized the commissioner to inquire into and report on how the infants died without expressing a conclusion of law on criminal or civil liability. The commissioner stated a question for the court, asking whether he could express an opinion that the death of a child was the result of any named person. The Ontario Court of Appeal held the commissioner could not do so. In reaching this conclusion the court focused upon the consequences that would flow on the naming of a person as having administered a lethal dose of digoxin to the infants.
[30] In Starr the commission of inquiry was constituted by the Province of Ontario to inquire into the relationship between a named person and other parties including elected and unelected public officers, in language akin to that in the Criminal Code. The Supreme Court of Canada held the commission of inquiry was devoid of any broad policy basis and was rather, in pith and substance, a substitute police investigation and preliminary inquiry into a specific offence defined in the Criminal Code. Consequently, the Court held, the commission of inquiry was ultra vires the province. In his reasons for judgment for the majority Justice Lamer observed at 1401-02:
... the pith and substance of a commission must be firmly anchored to a provincial head of power, and that it cannot be used either purposely or through its effect, as a means to investigate and determine the criminal responsibility of specific individuals for specific offences.
[31] Between Nelles and Starr the Supreme Court of Canada rendered judgment in O’Hara, a case addressing the scope of a provincial commissioner’s inquiry into injuries sustained by a person while in police custody. There Chief Justice Dickson for the majority of the Court said at 610:
... A province has a valid and legitimate constitutional interest in determining the nature, source and reasons for inappropriate and possibly criminal activities engaged in by members of police forces under its jurisdiction. At stake is the management of the means by which justice is administered in the province. That such activity may later form the basis of a criminal charge and thus engage federal interests in criminal law and criminal procedure, does not, in my view, undermine this basic principle.
[32] In Krever the Supreme Court of Canada again addressed the jurisdiction of a commission of inquiry. In reasons for judgment for the court, Justice Cory said at paras. 43-44, with reference to Nelles:
... The appellants rely upon this statement to support their position that a commissioner cannot make findings which would appear in the eyes of the public to be determinations of legal liability.
I cannot accept this position. The test set out above is appropriate when dealing with commissions investigating a particular crime. However, it should not be applied to inquiries which are engaged in a wider investigation, such as that of the tragedy presented in this case. I agree with the Federal Court of Appeal that if the comments made in Nelles were taken as a legal principle of law applicable to every inquiry, the task of many if not most commissions of inquiry would be rendered impossible.
Justice Cory observed that the court in Nelles “clearly viewed the proceedings as tantamount to a preliminary inquiry into a specific crime” and stated Starr could be similarly distinguished. At para. 47 he said:
Clearly, those two inquiries were unique. They dealt with specific incidents and specific individuals, during the course of criminal investigations. Their findings would inevitably reflect adversely on individuals or parties and could well be interpreted as findings of liability by some members of the public. In those circumstances, it was appropriate to adopt a strict test to protect those who might be the subject of criminal investigations. However, those commissions were very different from broad inquiries such as an investigation into the contamination of Canada's blood system, as presented in this case.
Last, he concluded at para. 51:
Clearly, the findings that may be made in Phillips and that were made in O'Hara and Keable would fail the strict test set out in Nelles and referred to in Starr. Yet each of these commissioners has made or may make findings of misconduct, as authorized by the Act. This they could not and cannot do without stating findings of fact that are likely to have an adverse effect on the reputation of individuals. Nonetheless, the inquiries were upheld by this Court. It follows that the strict test advanced by the appellants cannot be of general application. A more flexible approach must be taken in cases where inquiries are general in nature, and are established for a valid public purpose and not as a means of furthering a criminal investigation.
[33] In Phillips a challenge was brought to a provincially constituted inquiry on the basis that certain compellable witnesses were, at the time of the inquiry, facing criminal charges for failing to oversee proper safety practices. The Court allowed the inquiry to proceed even though the criminal proceedings were not concluded.
[34] The themes from Krever were reiterated in Consortium Developments, with the Supreme Court of Canada addressing the issue of public inquiries, in a case concerning a municipally authorized judicial inquiry into alleged conflicts of interest and irregularities in certain land transactions. The Court commented upon the exceptional nature of Starr, and affirmed the broad scope generally given to provincial inquiries.
[35] There are, in an inquiry into events such as these, several relationships, several applicable standards, and several consequences to be appreciated by the Commissioner, with the Commissioner understanding he may speak on some relationships, some standards and some consequences, but not on others. There is, for example, and focusing here only on the appellants to the exclusion of other persons who have a direct interest in the outcome of the inquiry such as airport personnel and immigration officials: the relationship between the appellants and the state as reflected in criminal law; the relationship between the appellants and the Royal Canadian Mounted Police as reflected in their employment and professional relationship; the relationship between the appellants and those present during the incident including Mr. Dziekanski and his family; and the relationship between the appellants and the community, including in the term ‘community’ the appellants themselves.
[36] Applicable to those relationships is the criminal law, employment law, civil law, statutory authority, and the general moral standards of the community. Consequences to the appellants directly arising from such matters may range from legal consequences under the criminal law, civil law, and employment law, to non-legal but important consequences through gathered experience and education, and moral and ethical growth. Consequences to the community may be broad or narrow, depending upon the wisdom that may be gleaned and reported by the Commissioner and appreciated by the community.
[37] Yet language, flexible and nuanced as it is, does not arrogate words of general application to any one relationship or standard. So, for example, ”misconduct”, without more, may suggest a number of things: a failure to comport with the standard considered, or a performance default that may lead to discipline, or a default that may attract liability.
[38] A description of possible findings in common, non-technical language as was provided here in the Notices of Misconduct, does not transmute a public inquiry into a criminal investigation, or a public inquiry process into an end-run around criminal procedure. It is the substance of the inquiry and the scope of possible findings that are relevant to the determination of the vires of the Commissioner’s action, viewing the matter from the attitude that where, as here, the challenge is anticipatory, the Commissioner will adhere to his jurisdiction.
[39] The substance of the allegations are summarized above. For the purposes of argument it was suggested that findings by the Commissioner in the terms set out in the allegations will be tantamount to findings of criminal conduct. Having reviewed their language, I do not see such an equivalency and I reject that characterization.
[40] The Commissioner is charged with making a full report on the circumstances of Mr. Dziekanski’s death. Inherently in that process he must assess credibility of witnesses where evidence conflicts, and as part of his responsibility to his terms of reference, make comment on material conflicts in the evidence. Further, as his inquiry is made in the interests of administration of justice, it seems to me he is entitled to comment, if comment be warranted, on the response of public officials to the events and to his process, thereby to advance the public interest of confidence in the administration of justice.
[41] There is, as well, an aspect of speculation that hovers over this submission. By the terms of his ruling the Commissioner has demonstrated awareness of his constitutional limitations. He expressed again his view, set out in the Notices of Misconduct themselves, that they give notice only of the potential for adverse findings, providing the recipient the opportunity to make comment before he prepares his report.
[42] At this stage of the inquiry process I consider any review of the ruling of the Commissioner should proceed on the basis he will keep within the boundaries he accurately has described.
[43] I would not accede to the appellants’ submissions on jurisdiction as it relates to the criminal law power.
b) Do the Notices of Misconduct Infringe Federal Powers Over the Royal Canadian Mounted Police?
[44] The RCMP in British Columbia has a contract with British Columbia to act as the provincial police force, and to act as the municipal police in most municipalities. The four officers were acting under that contract when they responded to the airport’s call on the night of Mr. Dziekanski’s death.
[45] Policing, in general, is a matter assigned to provincial jurisdiction by s. 92(14) of the Constitution Act. To the extent, however, that the provincial function is performed by the RCMP, a police force created by federal legislation (the Royal Canadian Mounted Police Act, R.S. 1985, c. R-10), the province is limited from interfering in or directing its management or administration: Attorney General of Quebec and Keable v. Attorney General of Canada, [1979] 1 S.C.R. 218, 90 D.L.R. (3d) 161; Attorney General of Alberta v. Putnam, [1981] 2 S.C.R. 267, 123 D.L.R. (3d) 257.
[46] In Keable the Supreme Court of Canada addressed the constitutional competence of a province to investigate and report on allegedly illegal or reprehensible incidents or acts involving various police forces, including the RCMP, associated with events in Quebec in October 1972. Relying upon Di Iorio v. Warden of the Montreal Jail, [1978] 1 S.C.R. 152, 73 D.L.R. (3d) 491, Faber v. The Queen, [1976] 2 S.C.R. 9, 65 D.L.R. (3d) 423 and R. v. Coote (1873), L.R. 4 P.C. 599, Justice Pigeon, writing for the majority, affirmed provincial competency to establish a commission to report on matters of general scope but held the authority did not extend to intrusion into RCMP management, saying at p. 242:
... Parliament's authority for the establishment of this force and its management as part of the Government of Canada is unquestioned. It is therefore clear that no provincial authority may intrude into its management. While members of the force enjoy no immunity from the criminal law and the jurisdiction of the proper provincial authorities to investigate and prosecute criminal acts committed by any of them as by any other person, these authorities cannot, under the guise of carrying on such investigations, pursue the inquiry into the administration and management of the force.
[47] In Putnam the Supreme Court of Canada again addressed provincial competence in respect to the RCMP, this time in a situation where the RCMP acted as the police force pursuant to an agreement between the municipality of Wetaskiwin, Alberta and the federal government. An issue arose concerning the applicability of a citizen’s complaint procedure under the provincial Police Act to the RCMP. The Supreme Court of Canada held the provincial complaint procedure did not apply to the RCMP because it interfered with federal disciplinary control of the force. At p. 278 Chief Justice Laskin, writing for the majority, referred to Keable, saying:
I should like to say, before disposing of this appeal, that I recognize that there is a provincial interest in policing arrangements under this or any other contract between the Province and the R.C.M.P. The Province, by this contract, has simply made an en bloc arrangement for the provision of policing services by the engagement of the federal force rather than establishing its own force directly or through a municipal institution. The performance of the parties under the agreement of their respective roles is, of course, a matter of continuing interest to the parties if for no other reason than the constant contemplation of renewal negotiations. The Province of Alberta, for example, must have a valid concern in the efficacy of the arrangement, not only from an economic or efficiency viewpoint, but also from the point of view of the relationship between the Government of Alberta through its policing arrangements and the community which is the beneficiary of those police service arrangements. This, however, is a far cry from the right of one contracting party to invade the organization adopted by the other contracting party in the delivery of the services contracted for under the arrangement. This is so apart altogether from any constitutional impediment so clearly raised here as it was in Keable, supra. I say this not so as to narrow the impact of the observations on the issue directly raised in this appeal, but to contrast the position of the R.C.M.P. as a federal institution with the provincial interest in the provision of policing services throughout the Province. ...
[48] In this case the Commissioner, in his ruling on the appellants’ applications to quash the Notices of Misconduct, recognized the limitations on provincial authority to interfere with RCMP administration. He said:
51. In my view, an allegation of misconduct respecting the Applicant’s notes, statements to investigators or evidence given at the Commission are not an intrusion into the management and supervision of the RCMP. In Keable, the Court struck down the phrase “and the frequency of their use” where it appeared in the inquiry’s terms of reference, because it would have required an inquiry into the methods used by the RCMP, which are essential aspects of its administration. No such inquiry into the RCMP’s management or administration is contemplated in this commission of inquiry. We are embarked on a narrowly-focused inquiry into the events at the Vancouver International Airport on October 13/14, 2007, leading to the death of Mr. Dziekanski. The Applicant and the three other officers are compellable witnesses as to what they said and did that evening. As with any witness, they may be examined as to what are alleged to be prior inconsistent statements, and I must take all that evidence into account in determining what happened.
[49] Mr. Justice Silverman, approved the Commissioner’s view on this issue:
[54] ... In other words, he understands that there are aspects of the RCMP, particularly those of a management or supervisory nature, which are within federal jurisdiction. He goes on to express the view, that in this case the allegations of misconduct are not an intrusion into the management and supervision of the RCMP.
[50] I agree with both the Commissioner and Mr. Justice Silverman that the Notices of Misconduct do not tread impermissibly into management or administration of the RCMP.
[51] The Public Inquiry Act under which the Commission is established expressly permits a commissioner to report on misconduct. In my view, the larger view of the administration of justice permits a provincially appointed commission to reflect on matters that bear upon public confidence in the administration of justice of which the response of the police officers in this situation is a significant consideration. As Mr. Justice Silverman observed, the terms of reference of the commission are broad and engage more than an inquiry into the validity of actions taken by the four police officers who attended. Although the actions of the officers are a critical component to understanding the events, the inquiry is neither a discipline investigation nor an inquiry into RCMP policies or training.
[52] Again, in his ruling, the Commissioner has demonstrated an appreciation of the limit upon his constitutional authority arising from the character of the officers as members of the RCMP. I would not anticipate he will stray over that line of demarcation, and I see no basis upon which to interfere, for reasons associated with the federal nature of the RCMP, with the order of Mr. Justice Silverman.
[53] We are urged by the appellants to view the Supreme Court of Canada jurisprudence as reserving more latitude for a provincially appointed commission to inquire into matters involving an agency within provincial power, than exists to consider matters involving a federal agency.
[54] It seems to me the jurisprudence cannot be stated so simply or the cases distinguished on this basis. Any analysis must be directed to the substance of the Commission’s action or anticipated action in order to determine its vires. Thus, as demonstrated by the cases I have referred to, a provincial inquiry may not be engaged as an alternate to the criminal procedures provided by the federal government. Nor may a provincial inquiry trench upon areas of management or administration of a federal agency. However, where such a direct focus or effect is not present, I see no basis on which to curtail what is otherwise a proper inquiry directed by the Province, under the terms of valid provincial legislation enacted under the province’s constitutional authority over the administration of justice in the province.
[55] Accordingly, I see no basis upon which to interfere with the order declining to interfere with the Notices of Misconduct for jurisdictional reasons.
2. The Issue of Particulars
[56] In the alternative, the appellants contend the Commissioner failed to provide adequate particulars. (As submissions have now been made by the appellants to the Commission absent particulars, they seek an order prohibiting the Commissioner from making any findings of misconduct against them.)
[57] In his reasons for judgment Mr. Justice Silverman suggested the Commissioner’s ruling on the applications for more particulars should be reviewed on a reasonableness standard, but held that in any event the Commissioner’s decision on the issue was correct. In the course of reaching that conclusion he observed:
[34] In my view, the fact that the petitioners were represented by counsel, throughout the proceedings and heard, either themselves or by other agents sitting in for them, all of the evidence or have a transcript available to them of all of the evidence from the witnesses at the inquiry, those factors fall into and must be considered in light of the comments I have just referred to from Morneault. That is, the question of whether a reasonable person has been given enough information to know what aspect of his or her conduct the decision-maker is considering. Again, these witnesses know everything about the evidence that the Commissioner knows, since they have heard or have available to them all of the evidence. In some circumstances, that may not be sufficient, and it is never going to be a complete answer to such an application for particulars in every case because the question of particulars and what will be reasonable notice will vary with the circumstances of the case.
[58] The appellants contend Mr. Justice Silverman erred in finding the standard of review was reasonableness, and in finding his decision was both reasonable and correct. They contend the Commissioner was required to provide procedural fairness, and that he was required to be correct in his view of the need for particulars considering the high value that is placed on procedural fairness. They contend further that the allegations did not meet the requirements set out in Krever and Morneault v. Canada (Attorney General) (1998), 150 F.T.R. 28, 10 Admin L.R. (3d) 251 (F.C.) rev’d in part (2000), [2001] 1 F.C. 30, 189 D.L.R. (4th) 96 (C.A.), because the Notices of Misconduct are not “as detailed as possible”.
[59] There is difficulty in applying the language of standard of review, ‘correctness’ and ‘reasonableness’, to issues of procedural fairness. Whether the tribunal has the alleged duty, in respect to procedural fairness, is a matter on which the courts have the final say. However, subject to any express statutory requirements, a tribunal typically enjoys broad discretion as to how it will fulfill the requirements of procedural fairness, and there will rarely be a single correct answer.
[60] This distinction is important to an understanding of this Court’s treatment of the issue in Martin v. Vancouver (City), 2008 BCCA 197, 293 D.L.R. (4th) 37. In Martin Madam Justice Levine said, concerning a challenge to rescission of appointments of the City of Vancouver Board of Variance, at para. 46:
The abolition of the “patent unreasonableness” standard of review by the Supreme Court of Canada in Dunsmuir does not change the analysis of the issues arising on this appeal. The issues before the chambers judge were matters of jurisdiction, procedural fairness, and bad faith. On any analysis, the proper standard of review by a reviewing court for such issues is correctness. The chambers judge did not expressly refer to the standard of review, but he properly applied the correctness standard.
[61] That statement, made in the context of a case in which the issue was whether the City was required to give notice and an opportunity to be heard, did not address the degree of the duty, but rather the existence of the alleged duty.
[62] In the case before us, where there is a statutory duty (in s. 11) to provide a notice of misconduct, the real question for a reviewing court is whether the notice reviewed is sufficient to provide the procedural fairness required.
[63] On that question, Mr. Justice Silverman, having recognized the discretion available to the Commissioner in constructing the Notices, found that the Commissioner’s decision on their content was correct in that enough had been provided to permit the recipients to respond. To focus on Mr. Justice Silverman’s tentative articulation of the standard of review, therefore, is to take something of a side trail, and I turn accordingly to his conclusion that enough was said in the Notices to fulfill their purpose.
[64] The basis for notices of jeopardy is discussed at length in Krever. Describing the content of procedural fairness in the setting of a broad ranging inquiry, where there are no parties as in civil and criminal proceedings, where civil and criminal responsibility may not be determined, and yet where damage to reputation or interests may be inflicted, the Supreme Court of Canada emphasized the high importance of procedural fairness. It then applied that principle of fairness to the issue of notices of misconduct. (Such notices were statutorily required in Krever by s. 13 of the Inquiries Act, R.S.C. 1985, c. 1-11, just as they are mandated here by s. 11 of the Public Inquiries Act). Justice Cory made this comprehensive statement on the content of notices at para. 56:
That same principle of fairness must be extended to the notices pertaining to misconduct required by s. 13 of the Inquiries Act. A commission is required to give parties a notice warning of potential findings of misconduct which may be made against them in the final report. As long as the notices are issued in confidence to the party receiving them, they should not be subject to as strict a degree of scrutiny as the formal findings. This is because the purpose of issuing notices is to allow parties to prepare for or respond to any possible findings of misconduct which may be made against them. The more detail included in the notice, the greater the assistance it will be to the party. In addition, the only harm which could be caused by the issuing of detailed notices would be to a party's reputation. But so long as notices are released only to the party against whom the finding may be made, this cannot be an issue. The only way the public could find out about the alleged misconduct is if the party receiving the notice chose to make it public, and thus any harm to reputation would be of its own doing. Therefore, in fairness to witnesses or parties who may be the subject of findings of misconduct, the notices should be as detailed as possible. Even if the content of the notice appears to amount to a finding that would exceed the jurisdiction of the commissioner, that does not mean that the final, publicized findings will do so. It must be assumed, unless the final report demonstrates otherwise, that commissioners will not exceed their jurisdiction.
[65] The appellants have invoked Morneault in support of their submission the notices were inadequate. In Morneault the notices contained certain references to transcripts, but the report of the commission found misconduct beyond those references. On an application to quash certain findings, the Federal Court found reasonable notice had not been provided, and declared the findings of misconduct invalid. The Federal Court of Appeal overturned this finding, holding sufficient notice was provided.
[66] The appellants refer to Morneault as an example of the particulars required in order to withstand scrutiny for procedural fairness.
[67] In my view, Mr. Justice Silverman demonstrated no error in concluding the Notices of Misconduct provided sufficient particulars to withstand the appellants’ challenge.
[68] It is instructive, as observed by the Attorney General in his factum, that Mr. Justice Cory in Krever approved a notice of misconduct in terms more terse and more generalized than the Notices of Misconduct issued in this case. I do not propose to compare each allegation of the impugned notices. However it is useful to compare a notice approved in Krever to one of the allegations that the appellants contend is insufficient. In Krever that notice provided:
1. After becoming aware in 1982 and thereafter of the possibility or likelihood that its factor concentrates transmitted the causative agent of AIDS, Baxter failed to take adequate steps to notify consumers and physicians of the risks associated with the use of its products and to advise that they consider alternative therapies.
[69] In the case at bar an allegation common to all appellants is:
2. In the notes you made and the statements you gave to IHIT investigators regarding your interaction with Mr. Dziekanski, you misrepresented Mr. Dziekanski’s behaviours and the manner in which events unfolded at the Airport on the morning of October 14, 2007, for the purpose of justifying your actions and those of your fellow officers.
[70] The allegation in this case appears to be more precise and more directed than the notice in Krever. The notice in this case focuses upon two aspects: the recipient’s notes and their statements to investigators as to events that occurred in a limited number of minutes. The record of the inquiry reveals intensive cross examination on both aspects. It appears to me the Notices of Misconduct are sufficient to direct the recipient to the area of their evidence, and the potential reputational effect the report may have on him, for the purpose of making a full submission.
[71] Likewise the other allegations in the Notices of Misconduct of behaviours or actions, up to the time of the appellants’ participation in the inquiry hearings, are each directed to a particular aspect of behaviour in respect to a time-limited occurrence, and each describes the potential adverse conclusion that may be drawn. The first set of allegations, directed to all appellants, concern behaviour of the officers upon arrival at the airport – allegations of failing to make the proper assessment of circumstances, of failing to obtain information about Mr. Dziekanski from people in the vicinity, of failing to develop an appropriate plan of action, of acting inappropriately aggressively in their initial approach to Mr. Dziekanski and of failing to take reasonable steps to restrain him at specific moments in time. The allegations unique to Constable Millington all concern his actions in deploying the conducted energy weapon and appear to be directed to discrete portions of the short time of police interaction with Mr. Dziekanski. The appellants were all directed to these events in their testimony. It appears to me the appellants and their counsel would be fully capable of appreciating these specific allegations so as to make a full response.
[72] There are two further allegations in the Notices of Misconduct, one relating to the testimony of the appellants concerning Mr. Dziekanski’s behaviour and one relating to the testimony of the appellants concerning the notes and statements they made before the hearing.
[73] The appellants testified at length concerning the events. I see no prospect they could be unclear as to those portions of their evidence that may attract analysis on the issues described in the Notices of Misconduct.
[74] Counsel for Constable Millington also contends that the Commissioner’s reasons on his ruling on his application for particulars are insufficient. With respect, this complaint does not address the relief sought. The Commissioner issued the Notices of Misconduct and decided in his ruling they were, in the main, sufficient. The appellants, as they were entitled, challenged the Notices of Misconduct. In the course of doing so they referred to the ruling of the Commissioner, but it seems to me the niceties of the ruling is not the focus of the petition, rather the focus is the Notices of Misconduct. It is the order of Mr. Justice Silverman dismissing the petition that is appealed. As I have explained above, I see no basis upon which Mr. Justice Silverman should have interfered with the Notices of Misconduct issued by the Commissioner as failing to satisfy the principle of procedural fairness.
Conclusion
[75] I would dismiss the appeals and all applications to adduce new evidence.
“The Honourable Madam Justice Saunders”
I AGREE:
“The Honourable Mr. Justice Chiasson”
I AGREE:
“The Honourable Mr. Justice Groberman”

den katolska kyrkan kommer inte att bli lycklig!.

Unga svenska kvinnor mer benägna att ha sex med varandra: studie Publicerad: 23 December 09 13:39 CETOnline: http://www.thelocal.se/24026/20091223/ Ordbok verktyg Dubbelklicka på ett ord för att få en översättning Unga svenskar har allt mer flytande definitioner av kön och sexualitet, enligt en ny studie från Malmö högskola i södra Sverige. I synnerhet kvinnor är mer benägna att utöva sexuella aktiviteter med andra av samma kön. Vi ser en större öppenhet bland ungdomar, särskilt bland unga kvinnor. Det finns ett ökande intresse av att experimentera och tänja gränser, och ett växande motstånd mot att definiera sig som heterosexuella, homosexuella eller bisexuella, säger Sven-Axel Månsson, ett Malmö högskola sociologi, till Dagens Nyheter (DN) tidningen. Månsson och kollega Kristian Daneback tillfrågade 855 ungdomar i åldrarna 18 och 24 via en webbenkät. Undersökningen visade att 31 procent av de unga kvinnorna och 7 procent av de unga männen sade att de var oftast sexuellt attraherad av personer av motsatt kön, men ibland är de drogs till människor deras eget kön. Trettionio procent av kvinnorna och 8 procent av männen uppgav att de hade sexuella fantasier om båda könen. Unga kvinnor var också betydligt mer benägna än sina manliga kolleger att agera på samma kön fantasier, med 13 procent av de kvinnliga respondenterna och 3 procent av de manliga respondenterna rapporterar att de har haft sex med både män och kvinnor. "Flickor är mindre bundna av normer än vad killarna är, det är inte lika tabu för dem att ha sex med (andra kvinnor)," Månsson till DN. Han tillade att siffrorna för kvinnor att ha sex med andra kvinnor var "uppseendeväckande hög". "Många vill inte längre vara bundet i att styva sexuella identiteter, de vill vara öppna och fria som människor och som sexuella varelser. Det är min tolkning , säger Månsson.

the catholic church is not going to be happy!.

Young Swedish women more likely to have sex with each other: study
Published: 23 Dec 09 13:39 CETOnline: http://www.thelocal.se/24026/20091223/
Dictionary tool Double click on a word to get a translation
Young Swedes have ever more fluid definitions of sex and sexuality, according to a new study from Mälmö University in southern Sweden. Women in particular are more likely to pursue sexual activities with others of the same gender.

We are seeing a greater openness among young people, particularly among young women. There is an increasing interest in experimenting and pushing boundaries, and a growing resistance to defining oneself as heterosexual, homosexual or bisexual,” Sven-Axel Månsson, a Mälmö University sociology professor, told Dagens Nyheter (DN) newspaper. Månsson and colleague Kristian Daneback surveyed 855 young people between the ages of 18 and 24 via an online questionnaire. The survey showed that 31 percent of young women and 7 percent of young men said that they were most often sexually attracted to people of the opposite sex, but sometimes they were attracted to people of their own gender. Thirty-nine percent of the women and 8 percent of the men reported having sexual fantasies about both genders. Young women were also far more likely than their male counterparts to act on their same-sex fantasies, with 13 percent of female respondents and 3 percent of male respondents reporting that they have had sex with both men and women. “Girls are less bound by norms than guys are; it is not as taboo for them to have sex with (other women),” Månsson told DN. He added that the figures for women having sex with other women were "strikingly high"."Many no longer wish to be tied in to rigid sexual identities, they want to be open and free as people and as sexual beings. That is my interpretation," said Månsson.

a good day for canadian journalism p2.

Source: http://scc.lexum.umontreal.ca/en/2009/2009scc61/2009scc61.html

SUPREME COURT OF CANADA


Citation: Grant v. Torstar Corp., 2009 SCC 61

Date: 20091222
Docket: 32932

Between:
Peter Grant and Grant Forest Products Inc.
Appellants / Respondents on cross‑appeal
and
Torstar Corporation, Toronto Star Newspapers Limited,
Bill Schiller, John Honderich and Mary Deanne Shears
Respondents / Appellants on cross‑appeal
‑ and ‑
Ottawa Citizen, Canadian Newspaper Association,
Ad IDEM/Canadian Media Lawyers’ Association,
RTNDA Canada/Association of Electronic Journalists,
Magazines Canada, Canadian Association of Journalists,
Canadian Journalists for Free Expression,
Writers’ Union of Canada, Professional Writers Association
of Canada, Book and Periodical Council,
PEN Canada, Canadian Broadcasting Corporation,
Canadian Civil Liberties Association and Danno Cusson
Interveners

Coram: McLachlin C.J. and Binnie, LeBel, Deschamps, Fish, Abella, Charron, Rothstein and Cromwell JJ.


Reasons for Judgment:
(paras. 1 to 141)

Concurring Reasons:
(paras. 142 to 146)


McLachlin C.J. (Binnie, LeBel, Deschamps, Fish, Charron, Rothstein and Cromwell JJ. concurring)

Abella J.
Note: This document is subject to editorial revision before its reproduction in final form in the Canada Supreme Court Reports.
______________________________
grant v. torstar corp.

Peter Grant and
Grant Forest Products Inc. Appellants/Respondents on cross‑appeal

v.

Torstar Corporation,
Toronto Star Newspapers Limited,
Bill Schiller, John Honderich and
Mary Deanne Shears Respondents/Appellants on cross‑appeal

and

Ottawa Citizen, Canadian Newspaper Association,
Ad IDEM/Canadian Media Lawyers’ Association,
RTNDA Canada/Association of Electronic Journalists,
Magazines Canada, Canadian Association of Journalists,
Canadian Journalists for Free Expression,
Writers’ Union of Canada,
Professional Writers Association of Canada,
Book and Periodical Council, PEN Canada,
Canadian Broadcasting Corporation,
Canadian Civil Liberties Association
and Danno Cusson Interveners

Indexed as: Grant v. Torstar Corp.

Neutral citation: 2009 SCC 61.

File No.: 32932.

2009: April 23; 2009: December 22.

Present: McLachlin C.J. and Binnie, LeBel, Deschamps, Fish, Abella, Charron, Rothstein and Cromwell JJ.

on appeal from the court of appeal for ontario

Torts — Defamation — Defences — Responsible communication on matters of public interest — Newspaper and reporter being sued for libel after article was published concerning proposed private golf course development — Whether traditional defences for defamatory statements of fact are inconsistent with values underlying freedom of expression — Whether law of defamation should be modified to recognize defence of responsible communication on matters of public interest.

Torts — Defamation — Defences — Responsible communication on matters of public interest — Elements of defence — Respective roles of judge and jury.

Torts — Defamation — Defences — Fair comment — Newspaper and reporter being sued for libel after article was published concerning proposed private golf course development — Whether trial judge erred in his charge to jury on fair comment.

G and his company brought a libel action against a newspaper and reporter after an article was published concerning a proposed private golf course development on G’s lakefront estate. The story aired the views of local residents who were critical of the development’s environmental impact and suspicious that G was exercising political influence behind the scenes to secure government approval for the new golf course. The article quoted a neighbour who said that “everyone thinks it’s a done deal” because of G’s influence. The reporter, an experienced journalist, attempted to verify the allegations in the article, including asking G for comment, which G chose not to provide. At trial, without rejecting the possibility of an expanded qualified privilege defence based on a concept of public interest responsible journalism, the trial judge ruled that the defence would not apply in these circumstances and the case went to the jury essentially on the defences of truth and fair comment. The jury rejected these defences and awarded the plaintiffs general, aggravated and punitive damages. The Court of Appeal concluded that the trial judge had erred in failing to leave the new responsible journalism defence with the jury. It also concluded that the jury instructions were flawed, and ordered a new trial. G and his company appealed to reinstate the jury verdict. The newspaper defendants cross‑appealed, asking the Court to apply the new defence in this case, and dismiss the action. In the alternative, they asked the Court to dismiss the action on the basis of fair comment.

Held: The appeal and the cross‑appeal should be dismissed.

Per McLachlin C.J. and Binnie, LeBel, Deschamps, Fish, Charron, Rothstein and Cromwell JJ.: The law of defamation should be modified to provide greater protection for communications on matters of public interest. The current law with respect to statements that are reliable and important to public debate does not give adequate weight to the constitutional value of free expression. The first two rationales for the freedom of expression guarantee in s. 2(b) of the Canadian Charter of Rights and Freedoms — the proper functioning of democratic governance and getting at the truth — squarely apply to communications on matters of public interest, even those which contain false imputations. Freewheeling debate on matters of public interest is to be encouraged and the vital role of the communications media in providing a vehicle for such debate is explicitly recognized in the text of s. 2(b) itself. While the law must protect reputation, the current level of protection — in effect a regime of strict liability — is not justifiable. The law of defamation accords no protection for statements on matters of public interest published to the world at large if they cannot be proven to be true. To insist on court‑established certainty in reporting on matters of public interest may have the effect not only of preventing communication of facts which a reasonable person would accept as reliable and which are relevant and important to public debate, but also 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. Although the right to free expression does not confer a licence to ruin reputation, when proper weight is given to the constitutional value of free expression on matters of public interest, the balance tips in favour of broadening the defences available to those who communicate facts it is in the public’s interest to know. A consideration of the jurisprudence of other common law democracies also favours replacing the current Canadian law with a rule that gives greater scope to freedom of expression while offering adequate protection of reputation. A defence 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 represents a reasonable and proportionate response to the need to protect reputation while sustaining the public exchange of information that is vital to modern Canadian society. The law of defamation should therefore be modified to recognize a defence of responsible communication on matters of public interest. [7] [47] [52‑53] [57‑58] [65‑66] [85‑86]

The proposed change to the law should be viewed as a new defence, leaving the traditional defence of qualified privilege intact. To be protected by the defence of responsible communication, first, the publication must be on a matter of public interest. Second, the defendant must show that publication was responsible, in that he or she was diligent in trying to verify the allegation(s), having regard to all the relevant circumstances. [95] [98‑99]

In determining whether a publication is on a matter of public interest, the judge must consider the subject matter of the publication as a whole. The defamatory statement should not be scrutinized in isolation. To be of public interest, the subject matter must be shown to be one inviting public attention, or about which the public, or a segment of the public, has some substantial concern because it affects the welfare of citizens, or one to which considerable public notoriety or controversy has attached. Public interest is not confined to publications on government and political matters, nor is it necessary that the plaintiff be a “public figure”. [101] [105‑106]

The judge determines whether the impugned statement relates to a matter of public interest. If public interest is shown, the jury decides whether on the evidence the defence of responsible communication is established. The following factors may aid in determining whether a defamatory communication on a matter of public interest was responsibly made: (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 (“reportage”); and (h) any other relevant circumstances. [110] [126] [128]

While the “repetition rule” holds that repeating a libel has the same legal consequences as originating it, under the reportage exception, the repetition rule does not apply to fairly reported statements whose public interest lies in the fact that they were made rather than in their truth or falsity. If a dispute is itself a matter of public interest and the allegations are fairly reported, the report will be found to be responsible even if some of the statements made may be defamatory and untrue, provided: (1) the report attributes the statement to a person, preferably identified, thereby avoiding total unaccountability; (2) the report indicates, expressly or implicitly, that its truth has not been verified; (3) the report sets out both sides of the dispute fairly; and (4) the report provides the context in which the statements were made. [119‑120]

The evidence in this case revealed a basis for three defences: justification, fair comment, and responsible communication on a matter of public interest. All three defences should have been left to the jury. It was open to the jury to consider the statement attributed to a neighbour that “everyone thinks it’s a done deal” as a comment, or statement of opinion. This would raise the defence of fair comment. While the defence was left to the jurors, the trial judge failed to instruct them that since the reporter was the conduit for the comment and not its maker, the fact that he did not honestly believe it could not be used as a foundation for finding malice unless in the context of the article, he had adopted the comment as his own. Additionally, the “fair‑minded” component of the traditional test should not form part of a charge on fair comment. These problems in the trial judge’s charge could have led the jury to wrongly conclude that the fair comment defence had been defeated by malice. It was also open to the jury to consider the critical “done deal” remark as a statement of fact. Read literally, this statement can be taken as an assertion that government approval for the development was actually already sealed, either formally behind closed doors or by tacit understanding. This raises the defence of responsible communication on a matter of public interest. The trial judge did not leave this defence or any similar defence to the jury. Taken together, the errors set out amount to a substantial wrong or miscarriage of justice and require a new trial pursuant to s. 134(6) of the Ontario Courts of Justice Act. [136‑140]

Per Abella J.: The majority’s reasons for adding the “responsible communication” defence to Canadian defamation law were agreed with, as was their view that determining the availability of this defence entails a two‑step analysis. However, the jury should not decide the second step. Deciding whether the applicable standard of responsibility has been met in a given case is, like the public interest analysis in the first step, a matter for the judge to determine. The responsible communication analysis requires that the defendant’s interest in freely disseminating information and the public’s interest in the free flow of information be weighed against the plaintiff’s interest in protecting his or her reputation. This exercise involves balancing freedom of expression, freedom of the press, the protection of reputation, privacy concerns, and, the public interest. Weighing these often competing interests is a legal determination, thereby taking the defence beyond the jury’s jurisdiction except for disputed facts, and squarely into judicial territory. [142‑143]

Cases Cited

By McLachlin C.J.

Referred to: Cusson v. Quan, 2007 ONCA 771, 231 O.A.C. 277; WIC Radio Ltd. v. Simpson, 2008 SCC 40, [2008] 2 S.C.R. 420; Horrocks v. Lowe, [1975] A.C. 135; Toogood v. Spyring (1834), 1 C.M. & R. 181, 149 E.R. 1044; Ross v. New Brunswick Teachers’ Assn., 2001 NBCA 62, 201 D.L.R. (4th) 75; Douglas v. Tucker, [1952] 1 S.C.R. 275; Globe and Mail Ltd. v. Boland, [1960] S.C.R. 203; Banks v. Globe and Mail Ltd., [1961] S.C.R. 474; Jones v. Bennett, [1969] S.C.R. 277; Parlett v. Robinson (1986), 5 B.C.L.R. (2d) 26; Grenier v. Southam Inc., [1997] O.J. No. 2193 (QL); Leenen v. Canadian Broadcasting Corp. (2000), 48 O.R. (3d) 656, aff’d (2001), 54 O.R. (3d) 612; Young v. Toronto Star Newspapers Ltd. (2003), 66 O.R. (3d) 170, aff’d (2005), 77 O.R. (3d) 680; Reference re Alberta Statutes, [1938] S.C.R. 100; Saumur v. City of Quebec, [1953] 2 S.C.R. 299; Switzman v. Elbling, [1957] S.C.R. 285; Hill v. Church of Scientology of Toronto, [1995] 2 S.C.R. 1130; New York Times Co. v. Sullivan, 376 U.S. 254 (1964); R. v. Salituro, [1991] 3 S.C.R. 654; Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927; R. v. Keegstra, [1990] 3 S.C.R. 697; R. v. Zundel, [1992] 2 S.C.R. 731; R. v. Lucas, [1998] 1 S.C.R. 439; R. v. Dyment, [1988] 2 S.C.R. 417; R. v. O’Connor, [1995] 4 S.C.R. 411; Ballina Shire Council v. Ringland (1994), 33 N.S.W.L.R. 680; Curtis Publishing Co. v. Butts, 388 U.S. 130 (1967); Lange v. Australian Broadcasting Corp. (1997), 145 A.L.R. 96; Lange v. Atkinson, [1998] 3 N.Z.L.R. 424; Lange v. Atkinson, [2000] 1 N.Z.L.R. 257; Lange v. Atkinson, [2000] 3 N.Z.L.R. 385; Du Plessis v. De Klerk, 1996 (3) S.A. 850; National Media Ltd. v. Bogoshi, 1998 (4) S.A. 1196; Reynolds v. Times Newspapers Ltd., [1999] 4 All E.R. 609; Jameel v. Wall Street Journal Europe SPRL, [2006] UKHL 44, [2007] 1 A.C. 359; Seaga v. Harper, [2008] UKPC 9, [2008] 1 All E.R. 965; Charman v. Orion Publishing Group Ltd., [2007] EWCA Civ 972, [2008] 1 All E.R. 750; Theophanous v. Herald & Weekly Times Ltd. (1994), 124 A.L.R. 1; N.M. v. Smith, [2007] ZACC 6, 2007 (5) S.A. 250; Khumalo v. Holomisa, [2002] ZACC 12, 2002 (5) S.A. 401; Mthembi‑Mahanyele v. Mail & Guardian Ltd., [2004] ZASCA 67, 2004 (6) S.A. 329; Loutchansky v. Times Newspapers Ltd., [2001] EWCA Civ 1805, [2002] 1 All E.R. 652; London Artists, Ltd. v. Littler, [1969] 2 All E.R. 193; Simpson v. Mair, 2004 BCSC 754, 31 B.C.L.R. (4th) 285; Miller v. Associated Newspapers Ltd., [2005] EWHC 557 (BAILII); Galloway v. Telegraph Group Ltd., [2004] EWHC 2786 (BAILII); “Truth” (N.Z.) Ltd. v. Holloway, [1960] 1 W.L.R. 997; Al‑Fagih v. H.H. Saudi Research & Marketing (U.K.) Ltd., [2001] EWCA Civ 1634 (BAILII); Prince Radu of Hohenzollern v. Houston, [2007] EWHC 2735 (BAILII); Roberts v. Gable, [2007] EWCA Civ 721, [2008] 2 W.L.R. 129; Bonnick v. Morris, [2002] UKPC 31, [2003] 1 A.C. 300; Pizza Pizza Ltd. v. Toronto Star Newspapers Ltd. (1998), 42 O.R. (3d) 36; Jameel v. Wall Street Journal Europe SPRL, [2005] EWCA Civ 74, [2005] 4 All E.R. 356; Scott v. Fulton, 2000 BCCA 124, 73 B.C.L.R. (3d) 392.

By Abella J.

Referred to: Edmonton Journal v. Alberta (Attorney General), [1989] 2 S.C.R. 1326; Canadian Broadcasting Corporation v. New Brunswick (Attorney General), [1991] 3 S.C.R. 459; Hill v. Church of Scientology of Toronto, [1995] 2 S.C.R. 1130; WIC Radio Ltd. v. Simpson, 2008 SCC 40, [2008] 2 S.C.R. 420; Australian Broadcasting Corp. v. Reading, [2004] NSWCA 411 (WL); Jameel v. Wall Street Journal Europe SPRL, [2005] EWCA Civ 74, [2005] 4 All E.R. 356.

Statutes and Regulations Cited

Canadian Charter of Rights and Freedoms, ss. 1, 2(b).
Courts of Justice Act, R.S.O. 1990, c. C.43, ss. 108, 134(6).
Jury Act, R.S.A. 2000, c. J‑3, s. 17(1).
Libel Act, 1792, (U.K.), 32 Geo. 3, c. 60.
Libel and Slander Act, R.S.O. 1990, c. L.12, s. 14.
Privacy Act, R.S.B.C. 1996, c. 373, s. 1(1).
Privacy Act, R.S.M. 1987, c. P125, s. 2(1).
Privacy Act, R.S.N.L. 1990, c. P‑22, s. 3.
Privacy Act, R.S.S. 1978, c. P‑24, s. 2.
Supreme Court Rules, B.C. Reg. 221/90, r. 39(27).

Authors Cited

Anderson, David A. “Is Libel Law Worth Reforming?” (1991‑1992), 140 U. Pa. L. Rev. 487.

Beattie, Kate. “New Life for the Reynolds ‘Public Interest Defence’? Jameel v Wall Street Journal Europe”, [2007] E.H.R.L.R. 81.

Boivin, Denis W. “Accommodating Freedom of Expression and Reputation in the Common Law of Defamation” (1997), 22 Queen’s L.J. 229.

Bonnington, Alistair J. “Reynolds Rides Again” (2006), 11 Comms. L. 147.

Brown, Raymond E. The Law of Defamation in Canada, vols. 2 and 3, 2nd ed. Scarborough, Ont.: Carswell, 1999 (loose‑leaf updated 2007, release 4).

Gatley on Libel and Slander, 11th ed. by Patrick Milmo and W.V.H. Rogers. London: Sweet & Maxwell, 2008.
Hooper, David. “The Importance of the Jameel Case”, [2007] Ent. L.R. 62.

Kenyon, Andrew T. “Lange and Reynolds Qualified Privilege: Australian and English Defamation Law and Practice” (2004), 28 Melb. U. L. Rev. 406.

New South Wales. Law Reform Commission. Report 75: Defamation. September 1995 (online: http://www.lawlink.nsw.gov.au/lrc.nsf/pages/R75CHP3).

Smolla, Rodney A. “Balancing Freedom of Expression and Protection of Reputation Under Canada’s Charter of Rights and Freedoms”, in David Schneiderman, ed., Freedom of Expression and the Charter. Scarborough, Ont.: Thomson Professional Publishing Canada, 1991, 272.

Weaver, Russell L., et al. “Defamation Law and Free Speech: Reynolds v. Times Newspapers and the English Media” (2004), 37 Vand. J. Transnat’l L. 1255.

APPEAL and CROSS‑APPEAL from a judgment of the Ontario Court of Appeal (Rosenberg, Feldman and Simmons JJ.A.), 2008 ONCA 796, 92 O.R. (3d) 561, 301 D.L.R. (4th) 129, 243 O.A.C. 120, 61 C.C.L.T. (3d) 195, 71 C.P.R. (4th) 352, [2008] O.J. No. 4783 (QL), 2008 CarswellOnt 7155, setting aside a decision of Rivard J. and a jury award and ordering a new trial. Appeal and cross‑appeal dismissed.

Peter A. Downard, Catherine M. Wiley and Dawn K. Robertson, for the appellants/respondents on cross‑appeal.

Paul B. Schabas, Erin Hoult and Iris Fischer, for the respondents/appellants on cross‑appeal.

Richard G. Dearden and Wendy J. Wagner, for the intervener the Ottawa Citizen.

Brian MacLeod Rogers and Blair Mackenzie, for the interveners the Canadian Newspaper Association, Ad IDEM/Canadian Media Lawyers’ Association, RTNDA Canada/Association of Electronic Journalists, Magazines Canada, the Canadian Association of Journalists, the Canadian Journalists for Free Expression, the Writers’ Union of Canada, the Professional Writers Association of Canada, the Book and Periodical Council, and PEN Canada.

Daniel J. Henry, for the intervener the Canadian Broadcasting Corporation.

Patricia D. S. Jackson, Andrew E. Bernstein and Jennifer A. Conroy, for the intervener the Canadian Civil Liberties Association.

Ronald F. Caza and Jeff Saikaley, for the intervener Danno Cusson.

The judgment of McLachlin C.J. and Binnie, LeBel, Deschamps, Fish, Charron, Rothstein and Cromwell JJ. was delivered by

The Chief Justice —

I. Introduction

[1] Freedom of expression is guaranteed by s. 2(b) of the Canadian Charter of Rights and Freedoms. It is essential to the functioning of our democracy, to seeking the truth in diverse fields of inquiry, and to our capacity for self-expression and individual realization.

[2] But freedom of expression is not absolute. One limitation on free expression is the law of defamation, which protects a person’s reputation from unjustified assault. The law of defamation does not forbid people from expressing themselves. It merely provides that if a person defames another, that person may be required to pay damages to the other for the harm caused to the other’s reputation. However, if the defences available to a publisher are too narrowly defined, the result may be “libel chill”, undermining freedom of expression and of the press.

[3] Two conflicting values are at stake — on the one hand freedom of expression and on the other the protection of reputation. While freedom of expression is a fundamental freedom protected by s. 2(b) of the Charter, courts have long recognized that protection of reputation is also worthy of legal recognition. The challenge of courts has been to strike an appropriate balance between them in articulating the common law of defamation. In this case, we are asked to consider, once again, whether this balance requires further adjustment.

[4] Peter Grant and his company Grant Forest Products Inc. (“GFP”) sued the Toronto Star in defamation for an article the newspaper published on June 23, 2001, concerning a proposed private golf course development on Grant’s lakefront estate. The story aired the views of local residents who were critical of the development’s environmental impact and suspicious that Grant was exercising political influence behind the scenes to secure government approval for the new golf course. The reporter, an experienced journalist named Bill Schiller, attempted to verify the allegations in the article, including asking Grant for comment, which Grant chose not to provide. The article was published, and Grant brought this libel action.

[5] The trial proceeded with judge and jury. The jury found the respondents (the “Star defendants”) liable and awarded general, aggravated and punitive damages totalling $1.475 million.

[6] The Star defendants argue that what happened in this trial shows that something is wrong with the traditional law of libel: a journalist or publisher who diligently tries to verify a story on a matter of public interest before publishing it can still be held liable in defamation for massive damages, simply because the journalist cannot prove to the court that all of the story was true or bring it within one of the “privileged” categories exempted from the need to prove truth. This state of the law, they argue, unduly curbs free expression and chills reporting on matters of public interest, depriving the public of information it should have. The Star defendants ask this Court to revise the defences available to journalists to address these criticisms, following the lead of courts in the United States and England. Mr. Grant and his corporation, for their part, argue that the common law now strikes the proper balance and should not be changed.

[7] For the reasons that follow, I conclude that the common law should be modified to recognize a defence of responsible communication on matters of public interest. In view of this new defence, as well as errors in the jury instruction on fair comment, a new trial should be ordered.

II. Facts

[8] Peter Grant owns and operates a successful forestry business, GFP, in Northern Ontario. GFP’s executive offices and Grant’s home are located on a lakefront estate on the Twin Lakes near New Liskeard, Ontario. In the mid-1990s, Grant decided to build a private three-hole golf course on the property, which he named Frog’s Breath. In 1998, he began to host an annual charitable golf tournament and decided to expand the course to nine holes. For this he needed to purchase some adjacent Crown land and secure various government approvals.

[9] Neighbouring cottagers and local residents opposed the development, citing environmental impact on the lake and quality-of-life concerns. They sent letters of objection to the Ontario Ministry of Natural Resources (“MNR”), which had the ultimate say on approving Grant’s plan, and retained an environmental consultant who evaluated the plan. The consultant substantiated their fears of a detrimental impact on the lake and its surroundings, disputing the positive claims made by Grant’s own experts.

[10] On January 13, 2001, the Hudson Lakes Association (“HLA”) held a public meeting at which Grant’s representatives explained the proposal and tried to assuage local concerns. Suspicion about the integrity of the approval process was already widespread, however. Grant was a long-time supporter of the Ontario Progressive Conservative Party, and a personal friend of Mike Harris, who was then the premier of the province. While he endeavoured to maintain a low public profile, his wealth and close ties to the government attracted the notice of watchers of the Ontario business and political scene.

[11] Coincidentally, on the same day as the HLA’s public meeting on the Grant development, the Toronto Star had published an article by veteran reporter Bill Schiller headlined “Slicing through the rules: Genesis of a land deal — How Harris friends overcame fish habitat controls to build their dream”. The article told of how another of Harris’ friends, Peter Minogue, had withstood MNR objections and secured approval for a golf course and resort development called Osprey Links after complaining at “political levels” about the delay. Though Peter Grant had nothing to do with the Osprey Links development, the reports of political interference in the approval of a comparable development also involving a Harris friend heightened local concerns and was the subject of much discussion at the HLA public meeting.

[12] A representative of the MNR was on hand at the meeting to assure the residents that the approval would go through normal bureaucratic channels and that no final decision had yet been made. But given the appearance of the Osprey Links article that very day, this assurance was not well received by the assembled group. One resident, holding up the newspaper, demanded to know “whether, given today’s article in the Toronto Star, the final answer will come from North Bay or Queen’s Park”. In other words, whether the decision would be made by Ministry bureaucrats themselves or by their political masters in Toronto. Another resident expressed the concern that approval might already be a “done deal”.

[13] Dr. Lorrie Clark, a professor of English at Trent University in Peterborough who has a cottage on the Twin Lakes, attended the meeting. Following the meeting, Clark sent Bill Schiller an email advising him that the Osprey Links story had “hit New Liskeard like a bombshell” and that the similarities between Osprey Links and the events surrounding Grant’s golf course development were “extraordinary”. She explained the situation giving rise to the public meeting and described the sentiments of local cottagers in the following manner:

Basically, the situation is this: Peter Grant, multimillionaire owner of Grant Forest Products in Englehart and Mike Harris supporter and crony, is trying to buy 40 acres of Crown Land behind his “cottage” on Twin Lakes, just west of New Liskeard, for a private golf course… . Everyone thinks it’s a done deal, because of Grant’s influence (he employs 10,000 people in Northern Ontario) but most of all his Mike Harris ties. . . .

There has been a constant sense from the beginning that this is, as one cottager put it last night, “a done deal,” and that nothing we can do to stop a development that is NOT in the public interest — but obviously only a very private one — will make any difference. Everyone suspects — although I do grant that this is perhaps all unfounded — that there may be political pressure on the MNR people to give Mr. Grant what he wants. [A.R., vol. X, at p. 78]

Schiller received other communications from cottagers critical of Grant’s proposal and suspicious of his influence. The story captured his attention — in his words, it was a “classic public interest story” — and he decided to investigate.

[14] Schiller began by examining records from Elections Ontario, which confirmed a history of large political contributions by Grant and GFP to the provincial PC Party and Mike Harris. He then went to New Liskeard and met with several local residents. He received information about the proposed development, listened to the residents’ concerns, and learned more about Peter Grant and his prominence in the community. He spoke with MNR representatives and collected an array of documents dealing with the project. Schiller also attempted on several occasions to interview Grant in order to “get both sides” of the story, but was repeatedly rebuffed. When, in June, Schiller again wrote to Grant, putting to him some of the cottagers’ objections and asking for a response, Grant’s lawyer responded by threatening a libel suit.

[15] In early June, the Star sent a photographer named Mike Slaughter to take photos of Grant’s property for the newspaper article. Slaughter photographed Grant’s property from a canoe in the lake. He also took photos of the golf course, parking by the side of a public road and walking a few steps on to the course in the process. Noticing the photographer and suspecting that he was from the Star, Grant instructed an employee, Ted Webster, to go and find out who the photographer was and try to detain him. Apparently, Grant wanted Webster to keep Slaughter there until the police responded to his trespass complaint. In any event, Webster parked his truck on the road in front of Slaughter’s car in an attempt to block him in. Slaughter nonetheless drove around him, narrowly missing driving into a ditch. Webster followed him in his truck, with another Grant employee joining in the chase, but Slaughter escaped. Accounts of this event vary widely between the parties and became a significant issue at trial. According to Grant, the event constituted an egregious trespass by the Star; according to the Star, it demonstrated Grant’s ruthless desire to suppress all scrutiny, and his aggressive posture toward the press.

[16] The article, headlined “Cottagers teed off over golf course — Long‑time Harris backer awaits Tory nod on plan”, was finally published on June 23, 2001. Its full text is reproduced in full in the Appendix to these reasons. (Two follow-up articles were also published, but they are not the subject of this action.) The June 23 article detailed Grant’s ties to Harris and the PC Party, explained the background to the controversy and gave voice to the cottagers’ concerns over the development itself and the possibility of political interference. It noted that Grant had refused to comment and mentioned that one of Grant’s employees had “tried to drive the photographer’s vehicle off a public road”. The article included the following paragraph, which became the centerpiece of this litigation:

“Everyone thinks it’s a done deal because of Grant’s influence — but most of all his Mike Harris ties,” says Lorrie Clark, who owns a cottage on Twin Lakes.

All in all, the article gave greater credence and prominence to the cottagers’ side of the story than to Grant’s. It did not paint Grant in a flattering light. However, its constituent facts were largely true, depending on whether the quote from Dr. Clark that “[e]veryone thinks it’s a done deal” is seen as a statement of fact or opinion — a matter to which I will return.

[17] As promised, Grant and GFP sued Schiller, the Star and affiliates of the paper, and Lorrie Clark. Dr. Clark settled before trial.

III. Judicial History

A. Superior Court of Justice (Rivard J. sitting with a jury)

[18] At trial, the principal focus was on the “done deal” statement attributed to Dr. Clark, which the plaintiffs said contained the core of the article’s defamatory import. The plaintiffs contended that the article effectively accused Grant of improperly using his influence to obtain government favours. The defendants countered that the article simply aired the real and legitimate concerns of local residents without actually levelling any allegation of impropriety against Grant.

[19] In the alternative, the defendants, relying on recent English jurisprudence, argued that an expanded qualified privilege defence based on a concept of public interest responsible journalism should apply. Without rejecting the possibility of such expansion, the trial judge ruled that the defence would not apply in these circumstances because the story was primarily one of local import and had a “very negative tone”.

[20] Accordingly, the case went to the jury essentially on the defences of truth and fair comment. The jury rejected these defences and awarded the plaintiffs general, aggravated and punitive damages totalling $1.475 million. Punitive damages alone were assessed at $1 million.

B. Court of Appeal for Ontario (Rosenberg, Feldman and Simmons JJ.A.) (2008 ONCA 796, 92 O.R. (3d) 561)


[21] Fortified by the intervening decision of the Ontario Court of Appeal in Cusson v. Quan, 2007 ONCA 771, 231 O.A.C. 277 (reasons on appeal in this Court released concurrently; Quan v. Cusson, 2009 SCC 62), which recognized a new defence of responsible journalism, the Star defendants appealed the jury verdict on both liability and quantum of damages.

[22] Writing for the Court of Appeal, Feldman J.A. affirmed the new responsible journalism defence elaborated in Quan, and concluded that the trial judge had erred in failing to leave this defence with the jury. Feldman J.A. held that the trial judge had applied an inappropriately narrow conception of the public interest: he should have found as a matter of law that the subject of the article was in the public interest and gone on to assess responsibility on that basis. On the issue of responsibility, Feldman J.A. took the view that the trial judge had inaccurately downplayed the extent to which Schiller actually attempted to verify the allegations. She also held that the jury should have been required to answer a preliminary question as to the meaning of the statement, since it could be interpreted in different ways.

[23] On the defence of fair comment, Feldman J.A. identified additional problems with the trial judge’s charge to the jury. Because the trial took place prior to this Court’s decision in WIC Radio Ltd. v. Simpson, 2008 SCC 40, [2008] 2 S.C.R. 420, the trial judge understandably instructed the jury that a fair comment must be one that a “fair‑minded” person could hold — a proviso that was rejected in WIC Radio. Further, on the issue of malice which defeats fair comment, the trial judge instructed the jury that the key question was Schiller’s honest belief in the defamatory statements, the “done deal” remark chief among them. But, as Feldman J.A. noted, this comment was attributed to Dr. Clark. Schiller’s honest belief in it could only be relevant if he had adopted it as his own. This confusion meant that the jury may have found malice on improper grounds.

[24] Concluding that the jury instructions were flawed, the Court of Appeal ordered a new trial.

[25] Mr. Grant and his corporation appeal to this Court to reinstate the jury verdict. The Star defendants cross-appeal, asking the Court to apply the new defence in this case and dismiss the action. In the alternative, they ask the Court to dismiss the action on the basis of fair comment.

IV. Issues

[26] While both fair comment and public interest responsible communication remain live issues on appeal, the principal legal question before us is whether the protection accorded to factual statements published in the public interest should be strengthened and, if so, how. This suggests the following analytical framework:

1. Should the common law provide a defence based on responsible communication in the public interest?

2. If so, what are the elements of the new defence?

3. If so, what procedures should apply? In particular, what are the respective roles of the judge and jury?

4. Application to the case at bar
(a) Fair comment
(b) Responsible communication

V. Analysis

A. Should the Common Law Provide a Defence Based on Responsible Communication in the Public Interest?

[27] I will first examine the current law, and then consider the arguments for and against change.

(1) The Current Law

[28] A plaintiff in a defamation action is required to prove three things to obtain judgment and an award of damages: (1) that the impugned words were defamatory, in the sense that they would tend to lower the plaintiff’s reputation in the eyes of a reasonable person; (2) that the words in fact referred to the plaintiff; and (3) that the words were published, meaning that they were communicated to at least one person other than the plaintiff. If these elements are established on a balance of probabilities, falsity and damage are presumed, though this rule has been subject to strong criticism: see, e.g., R. A. Smolla, “Balancing Freedom of Expression and Protection of Reputation Under Canada’s Charter of Rights and Freedoms”, in D. Schneiderman, ed., Freedom of Expression and the Charter (1991), 272, at p. 282. (The only exception is that slander requires proof of special damages, unless the impugned words were slanderous per se: R. E. Brown, The Law of Defamation in Canada (2nd ed. (loose-leaf)), vol. 3, at pp. 25-2 and 25-3.) The plaintiff is not required to show that the defendant intended to do harm, or even that the defendant was careless. The tort is thus one of strict liability.

[29] If the plaintiff proves the required elements, the onus then shifts to the defendant to advance a defence in order to escape liability.

[30] Both statements of opinion and statements of fact may attract the defence of privilege, depending on the occasion on which they were made. Some “occasions”, like Parliamentary and legal proceedings, are absolutely privileged. Others, like reference letters or credit reports, enjoy “qualified” privilege, meaning that the privilege can be defeated by proof that the defendant acted with malice: see Horrocks v. Lowe, [1975] A.C. 135 (H.L.). The defences of absolute and qualified privilege reflect the fact that “common convenience and welfare of society” sometimes requires untrammelled communications: Toogood v. Spyring (1834), 1 C.M. & R. 181, 149 E. R. 1044, at p. 1050, per Parke B. The law acknowledges through recognition of privileged occasions that false and defamatory expression may sometimes contribute to desirable social ends.

[31] In addition to privilege, statements of opinion, a category which includes any “deduction, inference, conclusion, criticism, judgment, remark or observation which is generally incapable of proof” (Ross v. New Brunswick Teachers’ Assn., 2001 NBCA 62, 201 D.L.R. (4th) 75, at para. 56, cited in WIC Radio, at para. 26), may attract the defence of fair comment. As reformulated in WIC Radio, at para. 28, a defendant claiming fair comment must satisfy the following test: (a) the comment must be on a matter of public interest; (b) the comment must be based on fact; (c) the comment, though it can include inferences of fact, must be recognisable as comment; (d) the comment must satisfy the following objective test: could any person honestly express that opinion on the proved facts?; and (e) even though the comment satisfies the objective test the defence can be defeated if the plaintiff proves that the defendant was actuated by express malice. WIC Radio expanded the fair comment defence by changing the traditional requirement that the opinion be one that a “fair‑minded” person could honestly hold, to a requirement that it be one that “anyone could honestly have expressed” (paras. 49-51), which allows for robust debate. As Binnie J. put it, “[w]e live in a free country where people have as much right to express outrageous and ridiculous opinions as moderate ones” (para. 4).

[32] Where statements of fact are at issue, usually only two defences are available: the defence that the statement was substantially true (justification); and the defence that the statement was made in a protected context (privilege). The issue in this case is whether the defences to actions for defamatory statements of fact should be expanded, as has been done for statements of opinion, in recognition of the importance of freedom of expression in a free society.

[33] To succeed on the defence of justification, a defendant must adduce evidence showing that the statement was substantially true. This may be difficult to do. A journalist who has checked sources and is satisfied that a statement is substantially true may nevertheless have difficulty proving this in court, perhaps years after the event. The practical result of the gap between responsible verification and the ability to prove truth in a court of law on some date far in the future, is that the defence of justification is often of little utility to journalists and those who publish their stories.

[34] If the defence of justification fails, generally the only way a publisher can escape liability for an untrue defamatory statement of fact is by establishing that the statement was made on a privileged occasion. However, the defence of qualified privilege has seldom assisted media organizations. One reason is that qualified privilege has traditionally been grounded in special relationships characterized by a “duty” to communicate the information and a reciprocal “interest” in receiving it. The press communicates information not to identified individuals with whom it has a personal relationship, but to the public at large. Another reason is the conservative stance of early decisions, which struck a balance that preferred reputation over freedom of expression. In a series of judgments written by Cartwright J. (as he then was), this Court refused to grant the communications media any special status that might have afforded them greater access to the privilege: Douglas v. Tucker, [1952] 1 S.C.R. 275; Globe and Mail Ltd. v. Boland, [1960] S.C.R. 203; Banks v. Globe and Mail Ltd., [1961] S.C.R. 474; Jones v. Bennett, [1969] S.C.R. 277.

[35] In recent decades courts have begun to moderate the strictures of qualified privilege, albeit in an ad hoc and incremental way. When a strong duty and interest seemed to warrant it, they have on occasion applied the privilege to publications to the world at large. For example, in suits against politicians expressing concerns to the electorate about the conduct of other public figures, courts have sometimes recognized that a politician’s “duty to ventilate” matters of concern to the public could give rise to qualified privilege: Parlett v. Robinson (1986), 5 B.C.L.R. (2d) 26 (C.A.), at p. 39.

[36] In the last decade, this recognition has sometimes been extended to media defendants. For example, in Grenier v. Southam Inc., [1997] O.J. No. 2193 (QL), the Ontario Court of Appeal (in a brief endorsement) upheld a trial judge’s finding that the defendant media corporation had a “social and moral duty” to publish the article in question. Other cases have adopted the view that qualified privilege is available to media defendants, provided that they can show a social or moral duty to publish the information and a corresponding public interest in receiving it: Leenen v. Canadian Broadcasting Corp. (2000), 48 O.R. (3d) 656 (S.C.J.), at p.695, aff’d (2001), 54 O.R. (3d) 612 (C.A.), and Young v. Toronto Star Newspapers Ltd. (2003), 66 O.R. (3d) 170 (S.C.J.), aff’d (2005), 77 O.R. (3d) 680 (C.A.).

[37] Despite these tentative forays, the threshold for privilege remains high and the criteria for reciprocal duty and interest required to establish it unclear. It remains uncertain when, if ever, a media outlet can avail itself of the defence of qualified privilege.

(2) The Case for Changing the Law
[38] Two related arguments are presented in support of broadening the defences available to public communicators, such as the press, in reporting matters of fact.

[39] The first argument is grounded in principle. It asserts that the existing law is inconsistent with the principle of freedom of expression as guaranteed by s. 2(b) of the Charter. In the modern context, it is argued, the traditional rule has a chilling effect that unjustifiably limits reporting facts, and strikes a balance too heavily weighted in favour of protection of reputation. While the law should provide redress for baseless attacks on reputation, defamation lawsuits, real or threatened, should not be a weapon by which the wealthy and privileged stifle the information and debate essential to a free society.

[40] The second argument is grounded in jurisprudence. This argument points out that many foreign common law jurisdictions have modified the law of defamation to give more protection to the press, in recognition of the fact that the traditional rules inappropriately chill free speech. While different countries have taken different approaches, the trend is clear. Recent Canadian cases, most notably the decision of the Ontario Court of Appeal in Quan, have affirmed this trend. The time has arrived, it is argued, for this Court to follow suit.

a) The Argument From Principle

[41] The fundamental question of principle is whether the traditional defences for defamatory statements of fact curtail freedom of expression in a way that is inconsistent with Canadian constitutional values. Does the existing law strike an appropriate balance between two values vital to Canadian society — freedom of expression on the one hand, and the protection of individuals’ reputations on the other? As Binnie J. stated in WIC Radio, “An individual’s reputation is not to be treated as regrettable but unavoidable road kill on the highway of public controversy, but nor should an overly solicitous regard for personal reputation be permitted to ‘chill’ freewheeling debate on matters of public interest” (para. 2).

[42] Freedom of expression and respect for vigorous debate on matters of public interest have long been seen as fundamental to Canadian democracy. Many years before the Charter this Court, in the Reference re Alberta Statutes, [1938] S.C.R. 100, per Duff C.J., suggested that the Canadian Constitution contained an implied right of free expression on political matters. That principle, affirmed in cases like Saumur v. City of Quebec, [1953] 2 S.C.R. 299, and Switzman v. Elbling, [1957] S.C.R. 285, has stood the test of time.

[43] In 1982, the Charter, through s. 2(b), confirmed and expanded constitutional protection for free expression, specifically extending it to the press: “Everyone has . . . freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication”.

[44] The constitutional status of freedom of expression under the Charter means that all Canadian laws must conform to it. The common law, though not directly subject to Charter scrutiny where disputes between private parties are concerned, may be modified to bring it into harmony with the Charter. As Cory J. put it in Hill v. Church of Scientology of Toronto, [1995] 2 S.C.R. 1130, at para. 97, “Charter values, framed in general terms, should be weighed against the principles which underlie the common law. The Charter values will then provide the guidelines for any modification to the common law which the court feels is necessary”.

[45] The argument that the Charter requires modification of Canadian defamation law was considered in Hill. Writing for a unanimous Court on this point, Cory J. declined to adopt the American “actual malice” rule from New York Times Co. v. Sullivan, 376 U.S. 254 (1964), which provides immunity for defamation of public officials except where malice is shown. Cory J. did, however, undertake a modest expansion of the recognized qualified privilege for reports on judicial proceedings.

[46] While Hill stands for a rejection of the Sullivan approach and an affirmation of the common law of defamation’s general conformity with the Charter, it does not close the door to further changes in specific rules and doctrines. As Iacobucci J. observed in R. v. Salituro, [1991] 3 S.C.R. 654, at p. 670, “[j]udges can and should adapt the common law to reflect the changing social, moral and economic fabric of the country”. It is implicit in this duty that the courts will, from time to time, take a fresh look at the common law and re-evaluate its consistency with evolving societal expectations through the lens of Charter values.

[47] The guarantee of free expression in s. 2(b) of the Charter has three core rationales, or purposes: (1) democratic discourse; (2) truth-finding; and (3) self-fulfillment: Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927, at p.976. These purposes inform the content of s. 2(b) and assist in determining what limits on free expression can be justified under s. 1.

[48] First and foremost, free expression is essential to the proper functioning of democratic governance. As Rand J. put it, “government by the free public opinion of an open society . . . demands the condition of a virtually unobstructed access to and diffusion of ideas”: Switzman, at p. 306.

[49] Second, the free exchange of ideas is an “essential precondition of the search for truth”: R. v. Keegstra, [1990] 3 S.C.R. 697, at p. 803, per McLachlin J. This rationale, sometimes known as the “marketplace of ideas”, extends beyond the political domain to any area of debate where truth is sought through the exchange of information and ideas. Information is disseminated and propositions debated. In the course of debate, misconceptions and errors are exposed. What withstands testing emerges as truth.

[50] Third, free expression has intrinsic value as an aspect of self-realization for both speakers and listeners. As the majority observed in Irwin Toy, at p. 976, “the diversity in forms of individual self‑fulfillment and human flourishing ought to be cultivated in an essentially tolerant, indeed welcoming, environment not only for the sake of those who convey a meaning, but also for the sake of those to whom it is conveyed”.

[51] Of the three rationales for the constitutional protection of free expression, only the third, self-fulfillment, is of dubious relevance to defamatory communications on matters of public interest. This is because the plaintiff’s interest in reputation may be just as worthy of protection as the defendant’s interest in self-realization through unfettered expression. We are not talking here about a direct prohibition of expression by the state, in which the self-fulfillment potential of even malicious and deceptive expression can be relevant (R. v. Zundel, [1992] 2 S.C.R. 731), but rather a means by which individuals can hold one another civilly accountable for what they say. Charter principles do not provide a licence to damage another person’s reputation simply to fulfill one’s atavistic desire to express oneself.

[52] By contrast, the first two rationales for free expression squarely apply to communications on matters of public interest, even those which contain false imputations. The first rationale, the proper functioning of democratic governance, has profound resonance in this context. As held in WIC Radio, freewheeling debate on matters of public interest is to be encouraged, and must not be thwarted by “overly solicitous regard for personal reputation” (para. 2). Productive debate is dependent on the free flow of information. The vital role of the communications media in providing a vehicle for such debate is explicitly recognized in the text of s. 2(b) itself: “freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication” (emphasis added).

[53] Freedom does not negate responsibility. It is vital that the media act responsibly in reporting facts on matters of public concern, holding themselves to the highest journalistic standards. But to insist on court-established certainty in reporting on matters of public interest may have the effect of preventing communication of facts which a reasonable person would accept as reliable and which are relevant and important to public debate. The existing common law rules mean, in effect, that the publisher must be certain before publication that it can prove the statement to be true in a court of law, should a suit be filed. Verification of the facts and reliability of the sources may lead a publisher to a reasonable certainty of their truth, but that is different from knowing that one will be able to prove their truth in a court of law, perhaps years later. This, in turn, may have a chilling effect on what is published. Information that is reliable and in the public’s interest to know may never see the light of day.

[54] The second rationale — getting at the truth — is also engaged by the debate before us. Fear of being sued for libel may prevent the publication of information about matters of public interest. The public may never learn the full truth on the matter at hand.

[55] Against this, it is argued that false statements cannot advance the purposes of s. 2(b). This contention, however, is belied by the fact the existing defence of privilege concedes: sometimes the public interest requires that untrue statements should be granted immunity, because of the importance of robust debate on matters of public interest (e.g. Parliamentary privilege), or the importance of discussion and disclosure as a means of getting at the truth (e.g. police reports, employment recommendations).

[56] The argument also overlooks the fact that the Charter’s s. 2(b) protection is not confined to statements that a person can ultimately prove are true. As Professor Boivin puts it:

Those who argue that false and defamatory publications have a weak claim to Charter protection omit to mention that it is only at trial, usually several years after publication, that a trier of fact determines whether a defence of justification is well founded. Moreover, it is only then that the defamatory nature of the publication is assessed. Surely freedom of expression encompasses more than statements which, after the fact, are either proven factually accurate or do not injure someone’s reputation. [Emphasis added.]

(Denis W. Boivin, “Accommodating Freedom of Expression and Reputation in the Common Law of Defamation” (1997), 22 Queen’s L.J. 229, at p. 270.)


[57] I conclude that media reporting on matters of public interest engages the first and second rationales of the freedom of expression guarantee in the Charter. The statement in Hill (at para. 106) that “defamatory statements are very tenuously related to the core values which underlie s. 2(b)” must be read in the context of that case. 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.

[58] This brings me to the competing value: protection of reputation. Canadian law recognizes that the right to free expression does not confer a licence to ruin reputations. In assessing the constitutionality of the Criminal Code’s defamatory libel provisions, for example, the Court has affirmed that “[t]he protection of an individual’s reputation from wilful and false attack recognizes both the innate dignity of the individual and the integral link between reputation and the fruitful participation of an individual in Canadian society”: R. v. Lucas, [1998] 1 S.C.R. 439, per Cory J., at para. 48. This applies both to private citizens and to people in public life. People who enter public life cannot reasonably expect to be immune from criticism, some of it harsh and undeserved. But nor does participation in public life amount to open season on reputation.

[59] Related to the protection of reputation is a concern for personal privacy. This Court has recognized that protection of personal privacy is “intimately related” to the protection of reputation: Hill, at para. 121. While in other contexts privacy protection has been recognized as “essential for the well‑being of the individual” (R. v. Dyment, [1988] 2 S.C.R. 417, at p. 427, per La Forest J.) and “an essential component of what it means to be ‘free’” (R. v. O’Connor, [1995] 4 S.C.R. 411, at para. 113, per L’Heureux‑Dubé J.), it does not figure prominently in defamation jurisprudence. One reason for this is that defamation law is concerned with providing recourse against false injurious statements, while the protection of privacy typically focuses on keeping true information from the public gaze. Legislation in several provinces provides a separate cause of action for the violation of privacy: see Privacy Act, R.S.B.C. 1996, c. 373, s. 1(1); The Privacy Act, R.S.S. 1978, c. P‑24, s. 2; The Privacy Act, R.S.M. 1987, c. P125, s. 2(1); Privacy Act, R.S.N.L. 1990, c. P‑22, s. 3. This said, protection of privacy may be a factor complementing the protection of reputation in the development of defamation law (see paras. 102 and 111 below).

[60] The Grant appellants argue that a defence based on the conduct of the defendant devalues the plaintiff’s ability to vindicate reputation. A plaintiff’s concern, it is said, is with the falsity of the libel, not the responsibility of the journalistic practices that led to its publication. To the extent that a revised defence shifts the focus of the litigation from the truth or falsity of the defamatory statements to the diligence of the defendant in verifying them, the plaintiff’s very reason for bringing the suit is obscured.

[61] The answer to this argument lies in the fact that a balanced approach to libel law properly reflects both the interests of the plaintiff and the defendant. The law must take due account of the damage to the plaintiff’s reputation. But this does not preclude consideration of whether the defendant acted responsibly, nor of the social value to a free society of debate on matters of public interest. I agree with Sharpe J.A. that the partial shift of focus involved in considering the responsibility of the publisher’s conduct is an “acceptable price to pay for free and open discussion” (Quan, C.A. reasons, at para. 142).

[62] The protection offered by a new defence based on conduct is meaningful for both the publisher and those whose reputations are at stake. If the publisher fails to take appropriate steps having regard to all the circumstances, it will be liable. The press and others engaged in public communication on matters of public interest, like bloggers, must act carefully, having regard to the injury to reputation that a false statement can cause. A defence based on responsible conduct reflects the social concern that the media should be held accountable through the law of defamation. As Kirby P. stated in Ballina Shire Council v. Ringland (1994), 33 N.S.W.L.R. 680 (C.A.), at p. 700: “The law of defamation is one of the comparatively few checks upon [the media’s] great power”. The requirement that the publisher of defamatory material act responsibly provides accountability and comports with the reasonable expectations of those whose conduct brings them within the sphere of public interest. People in public life are entitled to expect that the media and other reporters will act responsibly in protecting them from false accusations and innuendo. They are not, however, entitled to demand perfection and the inevitable silencing of critical comment that a standard of perfection would impose.

[63] It is also argued that a defence based on the conduct of the defendant may lead to costly and lengthy litigation over questions of journalistic practice about which claimants can have no advance knowledge: see Andrew T. Kenyon, “Lange and Reynolds Qualified Privilege: Australian and English Defamation Law and Practice” (2004), 28 Melb. U. L. Rev. 406, at p. 425. Of the relevant factors (see discussion of Reynolds below, at paras. 69-71) only the opportunity to respond to the allegation prior to publication is likely to lie within the plaintiff’s knowledge, making it hard for a potential plaintiff to judge the strength of her case, it is said.

[64] Again, the objection goes not so much to principle as to the particular test and procedures adopted. Whatever defence is accepted, it must be workable and fair to both plaintiff and defendant, as discussed in greater detail below. Procedural objections, however, do not negate the conclusion that the traditional test fails to protect reliable statements that are connected to the democratic discourse and truth-finding rationales for freedom of expression.

[65] Having considered the arguments on both sides of the debate from the perspective of principle, I conclude that the current law with respect to statements that are reliable and important to public debate does not give adequate weight to the constitutional value of free expression. While the law must protect reputation, the level of protection currently accorded by the law — in effect a regime of strict liability — is not justifiable. The law of defamation currently accords no protection for statements on matters of public interest published to the world at large if they cannot, for whatever reason, be proven to be true. But such communications advance both free expression rationales mentioned above — democratic discourse and truth-finding — and therefore require some protection within the law of defamation. When proper weight is given to the constitutional value of free expression on matters of public interest, the balance tips in favour of broadening the defences available to those who communicate facts it is in the public’s interest to know.

b) The Argument on the Jurisprudence

[66] A consideration of the jurisprudence of other common law democracies favours replacing the current Canadian law governing redress for defamatory statements of fact on matters of public interest, with a rule that gives greater scope to freedom of expression while offering adequate protection of reputation. Different countries canvassed have taken different approaches. Most, however, give more weight to the value of freedom of expression and robust public debate than does the traditional Canadian approach.

[67] In Sullivan, the United States Supreme Court applied the First Amendment’s free speech guarantee to hold that a “public official” cannot recover in defamation absent proof that the defendant was motivated by “actual malice”, meaning knowledge of falsity or reckless indifference to truth. In subsequent cases, the “actual malice” rule was extended to apply to all “public figures”, not only people formally involved in government or politics: Curtis Publishing Co. v. Butts, 388 U.S. 130 (1967). Sullivan and its progeny have made it extremely difficult for anyone in the public eye to sue successfully for defamation. In the contest between free expression and reputation protection, free expression decisively won the day.

[68] Commonwealth courts have rejected the precise balance struck in Sullivan between free expression and protection of reputation. However, the law has begun to shift in favour of broader defences for press defendants, most prominently in England, but also in Australia (Lange v. Australian Broadcasting Corp. (1997), 145 A.L.R. 96 (H.C.)), New Zealand (Lange v. Atkinson, [1998] 3 N.Z.L.R. 424 (C.A.) (“Lange v. Atkinson No. 1”); Lange v. Atkinson, [2000] 1 N.Z.L.R. 257 (P.C.) (“Lange v. Atkinson No. 2”); Lange v. Atkinson, [2000] 3 N.Z.L.R. 385 (C.A.) (“Lange v. Atkinson No. 3”)), and South Africa (Du Plessis v. De Klerk, 1996 (3) S.A. 850 (C.C.); National Media Ltd. v. Bogoshi, 1998 (4) S.A. 1196 (S.C.A.)).

(i) United Kingdom

[69] Reynolds v. Times Newspapers Ltd., [1999] 4 All E.R. 609, marked a decisive departure from the traditional pro-reputation orientation of defamation law in England. The case involved allegations of improper dealing by an Irish politician. The House of Lords, for the first time, recognized that “freedom to disseminate and receive information on political matters is essential to the proper functioning of the system of parliamentary democracy”, (p. 621) and that the news media plays a vital role in furthering that interest. It followed that the law of defamation should provide greater protection to publications made on matters of public interest. A new standard was pronounced — responsible journalism. Effectively, the House of Lords recognized a compelling duty on the press to publish such reports and a corresponding interest on the part of the public in receiving them.

[70] In order to determine whether a publication should be covered by responsible journalism, Lord Nicholls provided a list of considerations which have come to be known as the “Reynolds factors” (at p 626):

(1) The seriousness of the allegation. The more serious the charge, the more the public is misinformed and the individual harmed, if the allegation is not true. (2) The nature of the information, and the extent to which the subject matter is a matter of public concern. (3) The source of the information. Some informants have no direct knowledge of the events. Some have their own axes to grind, or are being paid for their stories. (4) The steps taken to verify the information. (5) The status of the information. The allegation may have already been the subject of an investigation which commands respect. (6) The urgency of the matter. News is often a perishable commodity. (7) Whether comment was sought from the plaintiff. He may have information others do not possess or have not disclosed. An approach to the plaintiff will not always be necessary. (8) Whether the article contained the gist of the plaintiff’s side of the story. (9) The tone of the article. A newspaper can raise queries or call for an investigation. It need not adopt allegations as statements of fact. (10) The circumstances of the publication, including the timing.


Lord Nicholls made clear that the ultimate determination of responsibility would be a legal question for the judge, though he allowed that any dispute of “primary fact” would be decided by the jury (p. 626).

[71] Reynolds was quickly recognized as a “media-friendly” development. In practical terms, however, Reynolds only partially succeeded in changing the landscape. The ten Reynolds factors proved difficult to apply. Some courts saw them as merely an illustrative list of possible considerations, while others viewed them as a complete code for what constitutes responsible journalism. Journalists and publishers, for their part, found it difficult to anticipate what kind of conduct would satisfy the Reynolds criteria, applied with the benefit of judicial hindsight. (See, e.g. R. L. Weaver, et al., “Defamation Law and Free Speech: Reynolds v. Times Newspapers and the English Media” (2004), 37 Vand. J. Transnat’l L. 1255, at pp. 1303-07.) As one commentator has observed:

. . . the Reynolds defence virtually never succeeded because the 10 pointers of responsible journalism were treated by the judges as hurdles to be surmounted. The judges applied a dollop of hindsight, finding something which they, as a responsible editor or journalist, would have done differently. The Reynolds defence spawned satellite litigation where, often for understandable reasons, the underlying facts could not be proved and much time and money had to be spent on analysing how the story was constructed. Anonymous sources tended to be viewed with suspicion and juries were given a complex list of factual issues to decide, sometimes with confusing directions as to the presumption of falsity which served to push them in the direction of disbelieving what the journalists said.

(D. Hooper, “The Importance of the Jameel Case”, [2007] 18 Ent. L.R. 62, at p. 62. See also A. J. Bonnington, “Reynolds Rides Again” (2006), 11 Comms. L. 147)


[72] The House of Lords addressed this uncertainty in Jameel v. Wall Street Journal Europe SPRL, [2006] UKHL 44, [2007] 1 A.C. 359. The defendant Wall Street Journal Europe had published an article, shortly after September 11, 2001, revealing that the bank accounts of certain prominent Saudi Arabian businessmen, including the plaintiff, were being monitored for possible terrorist connections by Saudi authorities at the behest of the U.S. government, citing anonymous sources. The tone of the article was neutral and unsensational, and the article bore the indicia of responsible journalism. Nonetheless, the trial judge denied the defendants access to the Reynolds privilege, and the Court of Appeal upheld that denial on the sole ground that the paper had not waited long enough to hear back from the plaintiff before running the story.

[73] The House of Lords reversed the judgment of the Court of Appeal and held that the responsible journalism defence applied. It criticized the lower courts for applying the Reynolds factors restrictively as “a series of hurdles to be negotiated by a publisher” (para. 33, per Lord Bingham), rather than as an illustrative guide to what might constitute responsible journalism on the facts of a given case. Given that the defence was meant to foster free expression and a free press, its requirements should not be pitched so high as to make its availability all but illusory. The House of Lords also emphasized that the assessment of responsible journalism is not an invitation for courts to micro-manage the editorial practices of media organizations. Rather, a degree of deference should be shown to the editorial judgment of the players, particularly professional editors and journalists. For instance, a court should be slow to conclude that the inclusion of a particular defamatory statement was “unnecessary” and therefore outside the scope of the defence. As Lord Hoffmann put it:

The fact that the judge, with the advantage of leisure and hindsight, might have made a different editorial decision should not destroy the defence. That would make the publication of articles which are, ex hypothesi, in the public interest, too risky and would discourage investigative reporting. [para. 51]

The House of Lords also made clear that the defence is available to “anyone who publishes material of public interest in any medium”, not just journalists or media companies: Jameel, per Lord Hoffmann, at para. 54; Seaga v. Harper, [2008] UKPC 9, [2008] 1 All E.R. 965.

[74] Jameel has been welcomed as re‑affirming the liberalizing tone of Reynolds and providing much-needed guidance for its application: see, e.g. K. Beattie, “New Life for the Reynolds ‘Public Interest Defence’? Jameel v Wall Street Journal Europe”, [2007] E.H.R.L.R. 81. But questions remain.

[75] One unresolved issue is whether the new defence is a species of privilege or a distinct defence. If the former, a further issue arises of whether it could be defeated by malice. The judges in Jameel discussed these issues but reached no consensus.

[76] Another unresolved issue is the status of so-called “reportage”. “Reportage” refers to defamatory statements clearly attributed to someone other than, and not adopted by, the defendant. On one view, reportage is simply the accurate reporting of facts — the fact of what someone said. Such reportage is essential, the media argue, to comprehensive coverage of public debate. Charges flung back and forth between contending factions in a dispute are themselves, it is argued, an essential part of the story, and will be understood by the public as such. However, the reporting of defamatory statements is barred by the “repetition rule” of defamation law, which holds that someone who repeats a defamatory statement is no less liable than the person who originated it. Recent cases suggest that this rule has been attenuated in the context of actions brought against media outlets, although whether as a distinct defence or as one of the factors to consider in applying the responsible journalism standard remains unclear: Charman v. Orion Publishing Group Ltd., [2007] EWCA Civ 972, [2008] 1 All E.R. 750. I will return to this question below.

(ii) Australia

[77] Despite the absence of a constitutional bill of rights guaranteeing freedom of expression, the High Court of Australia has increased the protection afforded to the media on factual reports. In Lange v. Australian Broadcasting Corp., a case involving a former prime minister of New Zealand, the High Court confirmed the existence of a qualified privilege for publications on “government and political matters”, established earlier in Theophanous v. Herald & Weekly Times Ltd. (1994), 124 A.L.R. 1. The High Court held that “each member of the Australian community has an interest in disseminating and receiving information, opinions and arguments concerning government and political matters that affect the people of Australia [a category that, while broad, does not extend to all matters of public interest]. The duty to disseminate such information is simply the correlative of the interest in receiving it” (p. 115). Lange defined “government and political matters” relatively narrowly to cover matters within the sphere of electoral politics, whether at a local, state, or federal level, adding that “discussion of matters concerning the United Nations or other countries may be protected by the extended defence of qualified privilege” (p. 115).

[78] The burden rests on the defendant to show that publishing the information was reasonable in the circumstances. The defendant’s conduct “will not be reasonable unless the defendant had reasonable grounds for believing that the imputation was true, took proper steps, so far as they were reasonably open, to verify the accuracy of the material and did not believe the imputation to be untrue” (Lange, at p. 118). “Reasonableness” may also require the publisher to seek a response from the person being defamed.

[79] In its focus on reasonableness, Lange resembles Reynolds and Jameel. There are indications, however, that Lange’s reasonableness requirement has been applied more stringently than the responsibility test under its English counterparts: see Kenyon, at p. 432.

(iii) New Zealand

[80] New Zealand’s courts have modified the common law defence of qualified privilege in a manner broadly similar to the Australian approach. Coincidentally, the leading New Zealand cases also involved former prime minister David Lange as plaintiff: see Lange v. Atkinson Nos. 1, 2 and 3. In Lange v. Atkinson No. 1, the Court of Appeal announced a qualified privilege for “generally‑published statements which directly concern the functioning of representative and responsible government, including statements about the performance or possible future performance of specific individuals in elected public office” (p. 468), basing their decision largely on New Zealand’s democratic traditions and the specific dictates of the Bill of Rights Act 1990. Contrary to the Australian position, however, the court imposed no reasonableness requirement on the prima facie availability of the defence. Rather, evidence of irresponsibility can be adduced by the plaintiff to show that the privilege has been misused.

[81] In Lange v. Atkinson No. 3, on remand from the Privy Council, the Court of Appeal re‑affirmed its earlier decision, rejecting Reynolds as ill-suited to New Zealand’s needs and realities. Among the court’s criticisms of Reynolds was the view that it devalued the traditionally central role of the jury in libel trials by placing the key determination in the hands of the judge, a concern that also arises in the case at bar. More fundamentally, the court opined that “the Reynolds decision appears to alter the structure of the law of qualified privilege in a way which adds to the uncertainty and chilling effect almost inevitably present in this area of law” (para. 38). The Court of Appeal’s solution was to reject any requirement of reasonableness or diligence in determining the scope of the privilege itself. In the result, the scope of privileged subject matter in New Zealand is narrower than in the United Kingdom, but within that domain New Zealand law may offer stronger protection.

(iv) South Africa

[82] Developments in South Africa have generally parallelled those in the other jurisdictions just discussed, the U.K. most particularly. In Du Plessis, the Constitutional Court of South Africa considered and rejected an argument that the common law of defamation should be liberalized and constitutionalized along the lines of Sullivan. The court held that s. 15 of the Constitution — the free expression guarantee — did “not mandate any particular rule of common law” (p. 885) because the guarantee does not apply directly to disputes between private litigants. However, echoing the Canadian “Charter values” approach, it held that the common law ought to be developed by courts in a manner consistent with constitutional values.

[83] The Supreme Court of Appeal subsequently adopted a responsible journalism defence in Bogoshi. Writing for the court, Hefer J.A. held that “the publication in the press of false defamatory allegations of fact will not be regarded as unlawful if, upon a consideration of all the circumstances of the case, it is found to have been reasonable to publish the particular facts in the particular way and at the particular time” (p. 1212). Approving of this approach in the Constitutional Court, Sachs J. recently commented that “[i]n Bogoshi the SCA developed in a way that was sensitive to contemporary concerns and realities, a well-weighted means of balancing respect for individual personality rights with concern for freedom of the press”: N.M. v. Smith, [2007] ZACC 6, 2007 (5) S.A. 250 (C.C.), at para. 203. See also, Khumalo v. Holomisa, [2002] ZACC 12, 2002 (5) S.A. 401 (C.C.); Mthembi-Mahanyele v. Mail & Guardian Ltd., [2004] ZASCA 67, 2004 (6) S.A. 329 (S.C.A.).

[84] The effect of Bogoshi has been to establish in South African law a reasonableness defence resembling Reynolds in most respects, but naturally with its own distinctive features elaborated in the jurisprudence.

c) Conclusion

[85] A number of countries with common law traditions comparable to those of Canada have moved in recent years to modify the law of defamation to provide greater protection for communications on matters of public interest. These developments confront us with a range of possibilities. The traditional common law defence of qualified privilege, which offered no protection in respect of publications to the world at large, situates itself at one end of spectrum of possible alternatives. At the other end is the American approach of protecting all statements about public figures, unless the plaintiff can show malice. Between these two extremes lies the option of a defence 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. This middle road is the path chosen by courts in Australia, New Zealand, South Africa and the United Kingdom.

[86] In my view, the third option, buttressed by the argument from Charter principles advanced earlier, represents a reasonable and proportionate response to the need to protect reputation while sustaining the public exchange of information that is vital to modern Canadian society.

[87] What remains to be decided is how, consistent with Charter values, the new defence should be formulated.

B. The Elements of the Defence of Responsible Communication

(1) Preliminary Issues

[88] The first preliminary issue is whether the defence should be considered a new defence or an extension of the traditional defence of qualified privilege.

[89] In Reynolds, the House of Lords saw itself as extending the traditional law of qualified privilege in a manner appropriate to the realities of contemporary media and the imperative of free expression. Effectively, the Law Lords decided that the media has a “duty” to report on a matter of public interest and the public has a corresponding “interest” in receiving such a report. Whether the duty and interest had crystallized into a privilege in the particular case depended on whether the defendant had acted responsibly, having regard to Lord Nicholls’ non-exhaustive list of factors.

[90] The introduction of the Reynolds factors into the analysis, amounting in effect to a due diligence test, produced an uneasy fit with the traditional model of qualified privilege, which looked only to the occasion on which the communication was made. The conduct of the defendant was only relevant after the privilege had already been established, to show whether it was defeated by malice. By contrast, under Reynolds, the defendant’s conduct became the dominant focus of the inquiry.

[91] This led some courts and commentators to argue that Reynolds had introduced a substantially new defence into the law of defamation. For instance, in Loutchansky v. Times Newspapers Ltd., [2001] EWCA Civ. 1805, [2002] 1 All E.R. 652, at para. 35, Lord Phillips M.R. (as he then was) opined that the Reynolds privilege is “a different jurisprudential creature from the traditional form of privilege from which it sprang”.

[92] The majority of the Law Lords in Jameel maintained the view that “Reynolds privilege” or “responsible journalism” rests at least notionally on the duty/interest analysis associated with qualified privilege. However, Lord Hoffmann, with the concurrence of Baroness Hale, insisted that responsible journalism could not be assimilated to traditional qualified privilege, adopting Lord Phillips’ view that it is “a different jurisprudential creature”. It is not the occasion which is protected by the new defence, but the published material itself. (See also Brown, vol. 4, at pp. 27-45 and 27-46, fn. 116.) Furthermore, it makes little sense to speak of an assertion of responsible journalism being defeated by proof of malice, because the absence of malice is effectively built into the definition of responsible journalism itself.

[93] Characterizing the change to the law as introducing a new defence is also supported by the fact that many forms of qualified privilege would not be well served by opening up the privilege to media publications. The duties and interests of people communicating and receiving job references or police reports are definable with some precision and involve a genuine reciprocity. The reciprocal duty and interest involved in a journalistic publication to the world at large, by contrast, is largely notional.

[94] The traditional duty/interest framework works well in its established settings of qualified privilege. These familiar categories should not be compromised or obscured by the addition of a broad new privilege based on public interest. Further, qualified privilege as developed in the cases is grounded not in free expression values but in the social utility of protecting particular communicative occasions from civil liability.

[95] I therefore conclude that the proposed change to the law should be viewed as a new defence, leaving the traditional defence of qualified privilege intact.

[96] A second preliminary question is what the new defence should be called. In arguments before us, the defence was referred to as the responsible journalism test. This has the value of capturing the essence of the defence in succinct style. However, the traditional media are rapidly being complemented by new ways of communicating on matters of public interest, many of them online, which do not involve journalists. These new disseminators of news and information should, absent good reasons for exclusion, be subject to the same laws as established media outlets. I agree with Lord Hoffmann that the new defence is “available to anyone who publishes material of public interest in any medium”: Jameel, at para. 54.

[97] A review of recent defamation case law suggests that many actions now concern blog postings and other online media which are potentially both more ephemeral and more ubiquitous than traditional print media. While established journalistic standards provide a useful guide by which to evaluate the conduct of journalists and non-journalists alike, the applicable standards will necessarily evolve to keep pace with the norms of new communications media. For this reason, it is more accurate to refer to the new defence as responsible communication on matters of public interest.

(2) Formulating the Defence of Responsible Communication on Matters of Public Interest


[98] This brings us to the substance of the test for responsible communication. In Quan, Sharpe J.A. held that the defence has two essential elements: public interest and responsibility. I agree, and would formulate the test as follows. First, the publication must be on a matter of public interest. Second, the defendant must show that publication was responsible, in that he or she was diligent in trying to verify the allegation(s), having regard to all the relevant circumstances.

a) Was the Publication on a Matter of Public Interest?

[99] To be protected by the defence of responsible communication, the publication must be on a matter of public interest.

[100] This is a matter for the judge to decide. To be sure, whether a statement’s publication is in the public interest involves factual issues. But it is primarily a question of law; the judge is asked to determine whether the nature of the statement is such that protection may be warranted in the public interest. The judge acts as a gatekeeper analogous to the traditional function of the judge in determining whether an “occasion” is subject to privilege. Unlike privilege, however, the determination of whether a statement relates to a matter of public interest focuses on the substance of the publication itself and not the “occasion”. Where the question is whether a particular communication fits within a recognized subject matter of public interest, it is a mixed question of fact and law, and will therefore attract more deference on appeal than will a pure determination of public interest. But it properly remains a question for the trial judge as opposed to the jury.

[101] In determining whether a publication is on a matter of public interest, the judge must consider the subject matter of the publication as a whole. The defamatory statement should not be scrutinized in isolation. The judge’s role at this point is to determine whether the subject matter of the communication as a whole is one of public interest. If it is, and if the evidence is legally capable of supporting the defence, as I will explain below, the judge should put the case to the jury for the ultimate determination of responsibility.

[102] How is “public interest” in the subject matter established? First, and most fundamentally, the public interest is not synonymous with what interests the public. The public’s appetite for information on a given subject — say, the private lives of well-known people — is not on its own sufficient to render an essentially private matter public for the purposes of defamation law. An individual’s reasonable expectation of privacy must be respected in this determination. Conversely, the fact that much of the public would be less than riveted by a given subject matter does not remove the subject from the public interest. It is enough that some segment of the community would have a genuine interest in receiving information on the subject.

[103] The authorities offer no single “test” for public interest, nor a static list of topics falling within the public interest (see, e.g. Gatley on Libel and Slander (11th ed. 2008), at p. 530). Guidance, however, may be found in the cases on fair comment and s. 2(b) of the Charter.

[104] In London Artists, Ltd. v. Littler, [1969] 2 All E.R. 193 (C.A.), speaking of the defence of fair comment, Lord Denning M.R. described public interest broadly in terms of matters that may legitimately concern or interest people:

There is no definition in the books as to what is a matter of public interest. All we are given is a list of examples, coupled with the statement that it is for the judge and not for the jury. I would not myself confine it within narrow limits. Whenever a matter is such as to affect people at large, so that they may be legitimately interested in, or concerned at, what is going on; or what may happen to them or to others; then it is a matter of public interest on which everyone is entitled to make fair comment. [p. 198]


[105] To be of public interest, the subject matter “must be shown to be one inviting public attention, or about which the public has some substantial concern because it affects the welfare of citizens, or one to which considerable public notoriety or controversy has attached”: Brown, vol. 2, at pp. 15-137 and 15-138. The case law on fair comment “is replete with successful fair comment defences on matters ranging from politics to restaurant and book reviews”: Simpson v. Mair, 2004 BCSC 754, 31 B.C.L.R. (4th) 285, at para. 63, per Koenigsberg J. Public interest may be a function of the prominence of the person referred to in the communication, but mere curiosity or prurient interest is not enough. Some segment of the public must have a genuine stake in knowing about the matter published.

[106] Public interest is not confined to publications on government and political matters, as it is in Australia and New Zealand. Nor is it necessary that the plaintiff be a “public figure”, as in the American jurisprudence since Sullivan. Both qualifications cast the public interest too narrowly. The public has a genuine stake in knowing about many matters, ranging from science and the arts to the environment, religion, and morality. The democratic interest in such wide-ranging public debate must be reflected in the jurisprudence.

[107] Care must be taken by the judge making this determination to characterize the subject matter accurately. Overly narrow characterization may inappropriately defeat the defence at the outset. For example, characterizing the subject matter in this case simply as “Peter Grant’s business dealings” would obscure the significant public interest engaged by the article and thus restrict the legitimate scope of public interest. Similarly, characterizing the subject matter too broadly as “Ontario politics” might render the test a mere rubber stamp and bring unworthy material within the protection of the defence.

[108] The question then arises whether the judge or the jury should decide whether the inclusion of a particular defamatory statement in a publication was necessary to communicating on the matter of public interest. Is this question merely a subset of determining generally whether the publication is in the public interest? Or is it better treated as a factor in the jury’s assessment of responsibility? Lord Hoffmann in Jameel took the view that determining whether a defamatory statement was necessary to communicating on a matter of public interest is a question of law for the judge, conceding, however, that this may require the judge to second-guess editorial judgment, and must be approached in a deferential way (para. 51).

[109] In my view, if the publication read broadly and as a whole relates to a matter of public interest, the judge should leave the defence to the jury on the publication as a whole, and not editorially excise particular statements from the defence on the ground that they were not necessary to communicating on the matter of public interest. Deciding whether the inclusion of the impugned statement was justifiable involves a highly fact-based assessment of the context and details of the publication itself. Whereas a given subject matter either is or is not in law a matter of public interest, the justifiability of including a defamatory statement may admit of many shades of gray. It is intimately bound up in the overall determination of responsibility and should be left to the jury. It is for the jury to consider the need to include particular defamatory statements in determining whether the defendant acted responsibly in publishing what it did.

b) Was Publication of the Defamatory Communication Responsible?

[110] Against this background, I turn to some relevant factors that may aid in determining whether a defamatory communication on a matter of public interest was responsibly made.

(i) The Seriousness of the Allegation

[111] The logic of proportionality dictates that the degree of diligence required in verifying the allegation should increase in proportion to the seriousness of its potential effects on the person defamed. This factor recognizes that not all defamatory imputations carry equal weight. The defamatory “sting” of a statement can range from a passing irritant to a blow that devastates the target’s reputation and career. The apprehended harm to the plaintiff’s dignity and reputation increases in relation to the seriousness of the defamatory sting. The degree to which the defamatory communication intrudes upon the plaintiff’s privacy is one way in which the seriousness of the sting may be measured. Publication of the kinds of allegations traditionally considered the most serious — for example, corruption or other criminality on the part of a public official — demand more thorough efforts at verification than will suggestions of lesser mischief. So too will those which impinge substantially on the plaintiff’s reasonable expectation of privacy.

(ii) The Public Importance of the Matter

[112] Inherent in the logic of proportionality is the degree of the public importance of the communication’s subject matter. The subject matter will, however, already have been deemed by the trial judge to be a matter of public interest. However, not all matters of public interest are of equal importance. Communications on grave matters of national security, for example, invoke different concerns from those on the prosaic business of everyday politics. What constitutes reasonable diligence with respect to one may fall short with respect to the other. Where the public importance in a subject matter is especially high, the jury may conclude that this factor tends to show that publication was responsible in the circumstances. In many cases, the public importance of the matter may be inseparable from its urgency.

(iii) The Urgency of the Matter

[113] As Lord Nicholls observed in Reynolds, news is often a perishable commodity. The legal requirement to verify accuracy should not unduly hamstring the timely reporting of important news. But nor should a journalist’s (or blogger’s) desire to get a “scoop” provide an excuse for irresponsible reporting of defamatory allegations. The question is whether the public’s need to know required the defendant to publish when it did. As with the other factors, this is considered in light of what the defendant knew or ought to have known at the time of publication. If a reasonable delay could have assisted the defendant in finding out the truth and correcting any defamatory falsity without compromising the story’s timeliness, this factor will weigh in the plaintiff’s favour.

(iv) The Status and Reliability of the Source

[114] Some sources of information are more worthy of belief than others. The less trustworthy the source, the greater the need to use other sources to verify the allegations. This applies as much to documentary sources as to people; for example, an “interim progress report” of an internal inquiry has been found to be an insufficiently authoritative source in the circumstances: Miller v. Associated Newspapers Ltd., [2005] EWHC 557 (Q.B.) (BAILII). Consistent with the logic of the repetition rule, the fact that someone has already published a defamatory statement does not give another person licence to repeat it. As already explained, this principle is especially vital when defamatory statements can be reproduced electronically with the speed of a few keystrokes. At the same time, the fact that the defendant’s source had an axe to grind does not necessarily deprive the defendant of protection, provided other reasonable steps were taken.

[115] It may be responsible to rely on confidential sources, depending on the circumstances; a defendant may properly be unwilling or unable to reveal a source in order to advance the defence. On the other hand, it is not difficult to see how publishing slurs from unidentified “sources” could, depending on the circumstances, be irresponsible.

(v) Whether the Plaintiff’s Side of the Story Was Sought and Accurately Reported


[116] It has been said that this is “perhaps the core Reynolds factor” (Gatley, at p. 535) because it speaks to the essential sense of fairness the defence is intended to promote, as well as thoroughness. In most cases, it is inherently unfair to publish defamatory allegations of fact without giving the target an opportunity to respond: see, e.g. Galloway v. Telegraph Group Ltd., [2004] EWHC 2786 (Q.B.) (BAILII), per Eady J., at paras. 166-67. Failure to do so also heightens the risk of inaccuracy, since the target of the allegations may well be able to offer relevant information beyond a bare denial.

[117] The importance of this factor varies with the degree to which fulfilling its dictates would actually have bolstered the fairness and accuracy of the report. For example, if the target of the allegations could have no special knowledge of them, this factor will be of little importance: see Jameel, at paras. 35, and 83-85, where the House of Lords held that the plaintiff (whose group of companies had been put on a terrorism monitoring list) could not realistically have added anything material to the story because the relevant actions of the Saudi and U.S. governments were secret and entirely beyond his control.

(vi) Whether Inclusion of the Defamatory Statement was Justifiable

[118] As discussed earlier (paras. 108-9), it is for the jury to determine whether inclusion of a defamatory statement was necessary to communicating on a matter of public interest. Its view of the need to include a particular statement may be taken into account in deciding whether the communicator acted responsibly. In applying this factor, the jury should take into account that the decision to include a particular statement may involve a variety of considerations and engage editorial choice, which should be granted generous scope.

(vii) Whether the Defamatory Statement’s Public Interest Lay in the Fact That it Was Made Rather Than its Truth (“Reportage”)

[119] The “repetition rule” holds that repeating a libel has the same legal consequences as originating it. This rule reflects the law’s concern that one should not be able to freely publish a scurrilous libel simply by purporting to attribute the allegation to someone else. The law will not protect a defendant who is “willing to wound, and yet afraid to strike”: “Truth” (N.Z.) Ltd. v. Holloway, [1960] 1 W.L.R. 997 (P.C.), at p. 1001, per Lord Denning. In sum, the repetition rule preserves the accountability of media and other reporting on matters of public interest. The “bald retailing of libels” is not in the public interest: Charman, per Sedley LJ., at para. 91. Maintaining the repetition rule is particularly important in the age of the internet, when defamatory material can spread from one website to another at great speed.

[120] However, the repetition rule does not apply to fairly reported statements whose public interest lies in the fact that they were made rather than in their truth or falsity. This exception to the repetition rule is known as reportage. If a dispute is itself a matter of public interest and the allegations are fairly reported, the publisher should incur no liability even if some of the statements made may be defamatory and untrue, provided: (1) the report attributes the statement to a person, preferably identified, thereby avoiding total unaccountability; (2) the report indicates, expressly or implicitly, that its truth has not been verified; (3) the report sets out both sides of the dispute fairly; and (4) the report provides the context in which the statements were made. See Al‑Fagih v. H.H. Saudi Research & Marketing (U.K.) Ltd., [2001] EWCA Civ 1634 (BAILII), at para. 52; Charman; Prince Radu of Hohenzollern v. Houston, [2007] EWHC 2735 (Q.B.) (BAILII); Roberts v. Gable, [2007] EWCA Civ. 721, [2008] 2 W.L.R. 129 (C.A.).

[121] Where the defendant claims that the impugned publication (in whole or in part) constitutes reportage, i.e. that the dominant public interest lies in reporting what was said in the context of a dispute, the judge should instruct the jury on the repetition rule and the reportage exception to the rule. If the jury is satisfied that the statements in question are reportage, it may conclude that publication was responsible, having regard to the four criteria set out above. As always, the ultimate question is whether publication was responsible in the circumstances.

(viii) Other Considerations

[122] As noted, the factors serve as non-exhaustive but illustrative guides. Ultimately, all matters relevant to whether the defendant communicated responsibly can be considered.

[123] Not all factors are of equal value in assessing responsibility in a given case. For example, the “tone” of the article (mentioned in Reynolds) may not always be relevant to responsibility. While distortion or sensationalism in the manner of presentation will undercut the extent to which a defendant can plausibly claim to have been communicating responsibly in the public interest, the defence of responsible communication ought not to hold writers to a standard of stylistic blandness: see Roberts, at para. 74, per Sedley LJ. Neither should the law encourage the fiction that fairness and responsibility lies in disavowing or concealing one’s point of view. The best investigative reporting often takes a trenchant or adversarial position on pressing issues of the day. An otherwise responsible article should not be denied the protection of the defence simply because of its critical tone.

[124] If the defamatory statement is capable of conveying more than one meaning, the jury should take into account the defendant’s intended meaning, if reasonable, in determining whether the defence of responsible communication has been established. This follows from the focus of the inquiry on the conduct of the defendant. The weight to be placed on the defendant’s intended meaning is a matter of degree: “The more obvious the defamatory meaning, and the more serious the defamation, the less weight will a court attach to other possible meanings when considering the conduct to be expected of a responsible journalist in the circumstances” (Bonnick v. Morris, [2002] UKPC 31, [2003] 1 A.C. 300 (P.C.), per Lord Nicholls, at para. 25). Under the defence of responsible communication, it is no longer necessary that the jury settle on a single meaning as a preliminary matter. Rather, it assesses the responsibility of the communication with a view to the range of meanings the words are reasonably capable of bearing.

[125] Similarly, the defence of responsible communication obviates the need for a separate inquiry into malice. (Malice may still be relevant where other defences are raised.) A defendant who has acted with malice in publishing defamatory allegations has by definition not acted responsibly.

(3) Summary of the Required Elements

[126] The defence of public interest responsible communication is assessed with reference to the broad thrust of the publication in question. It will apply where:

A. The publication is on a matter of public interest
and:
B. The publisher was diligent in trying 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 (“reportage”); and
(h) any other relevant circumstances.

C. Procedural Issues: Judge and Jury

[127] As a general rule, the judge decides questions of law, while the jury decides questions of fact and applies the law to the facts. As is the case in other actions, for example negligence trials, issues of fact and law cannot be entirely disentangled. Nevertheless, it is possible to arrive at the following allocation of responsibility on the defence of responsible communication, having regard to whether the issue is predominantly legal or factual, to the traditional allocations of responsibility in defamation trials, and to relevant legislation.

[128] The judge decides whether the statement relates to a matter of public interest. If public interest is shown, the jury decides whether on the evidence the defence is established, having regard to all the relevant factors, including the justification for including defamatory statements in the article.

[129] As in any trial by judge and jury, the judge may, upon motion, rule out the defence on the basis that the facts as proved are incapable of supporting the inference of responsible communication. This is consistent with the power of the judge in existing jurisprudence to withdraw the issue of malice from the jury where there is no basis for an inference of malice on the evidence.

[130] The defence of responsible communication does not require preliminary rulings from the jury on primary meaning, since it does not depend on the supposition of a single meaning. The jury should be instructed to assess the responsibility of the communication in light of the range of meanings the words are reasonably capable of bearing, including evidence as to the defendant’s intended meaning.

[131] The division of responsibility proposed here accords with the general rule that matters of law are for the judge, and matters of fact are for the jury. In preserving a central role for the jury, it is consistent with Canadian tradition and statutory enactments. Traditionally, defamation actions have usually been tried by judge and jury, and many Canadian jurisdictions continue to have special rules for jury trials in defamation cases even as juries in most other kinds of civil actions have become less common: see, e.g., British Columbia Supreme Court Rules, B.C. Reg. 221/90, R. 39(27); Alberta Jury Act, R.S.A. 2000, c. J‑3, s. 17(1). In Ontario, where the case at bar arose, there is no longer any special right to a jury trial in defamation cases. However, s. 14 of the Ontario Libel and Slander Act, R.S.O. 1990, c. L.12, guarantees the right of a jury in a defamation action to render a general verdict (see also, Courts of Justice Act, R.S.O. 1990, c. C. 43, s. 108(5)). Courts have interpreted s. 14 to mean that the jury cannot be required to answer specific questions, and if they are asked to do so they must also be informed of their right to render a general verdict: Pizza Pizza Ltd. v. Toronto Star Newspapers Ltd. (1998), 42 O.R. (3d) 36 (Div. Ct., per Sharpe J., at pp. 43-44). Finally, s. 108 of the Ontario Courts of Justice Act provides that in a defamation action tried by judge and jury, it is for the jury to decide questions of fact and to assess the quantum of damages.

[132] The plaintiffs argue against a central role for the jury. In their view, if a conduct-based defence is recognized, it should be for the judge alone to determine whether it lies and whether it is established on the facts. This, they contend, is the only way to safeguard the nuanced constitutional balance between free expression and the protection of reputation.

[133] This argument cannot be sustained. First, restricting the role of the jury in this manner may run afoul of the statutory rights accorded by s. 108 of the Ontario Courts of Justice Act (it is for the jury to decide questions of fact), and most certainly would violate s. 14 of the Ontario Libel and Slander Act (the jury cannot be required to decide preliminary questions, and must be permitted to render a general verdict). The argument is essentially a plea to the Court to amend the provisions of these Acts. This the Court cannot do.

[134] Second, permitting the jury to have the ultimate say on whether or not the new defence applies, is consistent with the jury’s role with respect to the defence of fair comment. The Reynolds model, where “primary facts” are determined by the jury but the decision on responsible journalism is made by the judge, entails a complex back and forth between judge and jury and may lead to interlocutory rulings, and in due course appeals from those interlocutory decisions. Moreover, confining the jury’s role to preliminary fact-finding would entail seeking jury responses to numerous detailed questions, which may in turn “thwart many of the benefits sought through the doctrinal changes”: Kenyon, at p. 433; see also Lord Phillips in Jameel v. Wall Street Journal SPRL, [2005] EWCA Civ. 74, [2005] 4 All E.R. 356, at para. 70, lamenting the division of roles that has taken shape in English courts under Reynolds.

[135] Third, it is not unusual for juries to render verdicts where constitutionally protected interests are at stake. They do so every day in criminal trials across the country. Sufficient safeguards exist in the proposed division of responsibility to ensure the appropriate constitutional balance is struck. The judge exercises a gatekeeper function in determining the legal issues and evidentiary sufficiency, and instructs the jury on all relevant factors, including the nature and importance of the Charter values of free expression and protection of reputation. The judge’s decisions can be appealed for legal error.

VI. Application to the Facts of this Case

[136] The evidence revealed a basis for three defences: (1) justification; (2) fair comment; and (3) responsible communication on a matter of public interest. All three defences should have been left to the jury. It is unnecessary to deal further with the defence of justification; no error is alleged in the trial judge’s directions on this defence.

[137] Where the judge retains genuine doubt as to whether a given statement should be characterized as fact or opinion, the question should be left to the jury to decide: Scott v. Fulton, 2000 BCCA 124, 73 B.C.L.R. (3d) 392 (C.A.). In this case, it was open to the jury to consider the statement attributed to Dr. Clark that “[e]veryone thinks it’s a done deal” as a comment, or statement of opinion. The statement could be read as an idiomatic expression of an opinion about the likelihood of something, namely government approval, that had not yet come to pass. This would raise the defence of fair comment.

[138] The defence of fair comment was left to the jury at trial. However, I agree with the Court of Appeal, per Feldman J.A., that the trial judge erred in his charge to the jury on fair comment. He failed to instruct the jury that “since Mr. Schiller was the conduit for the comment and not its maker, the fact that he did not honestly believe it could not be used as a foundation for finding malice unless in the context of the article, he had adopted the comment as his own” (Feldman J.A., at para. 93). This recalls Binnie J.’s observation in WIC Radio that “defamation proceedings will have reached a troubling level of technicality if the protection afforded by the defence of fair comment to freedom of expression (‘the very lifeblood of our freedom’) is made to depend on whether or not the speaker is prepared to swear to an honest belief in something he does not believe he ever said” (para. 35). Additionally, as also held in WIC Radio, the “fair-minded” component of the traditional test should not form part of a charge on fair comment. For the reasons given by Feldman J.A., at paras. 83-94 of her reasons, these problems in the trial judge’s charge could have led the jury to wrongly conclude that the fair comment defence had been defeated by malice.

[139] It was also open to the jury to consider the critical “done deal” remark as a statement of fact. Read literally, it can be taken as an assertion that government approval for the development was actually already sealed, either formally behind closed doors or by tacit understanding. This raises the defence of responsible communication on a matter of public interest. The trial judge did not leave this or any similar defence to the jury.

[140] In Ontario, an appellate court cannot order a new trial in a civil matter “unless some substantial wrong or miscarriage of justice has occurred”: Courts of Justice Act, s. 134(6). Taken together, in my view, the errors I have described rise to this level and require a new trial. Since the facts and submissions on the new trial may differ from those on the first trial, detailed discussion of how the new trial should proceed would be inappropriate. However, on the assumption the evidence will mirror the evidence on the first trial, the following observations may be helpful.

1. The jury should be told that three defences may arise on the facts: (1) justification (truth); (2) fair comment, with respect to any statements of opinion; and (3) responsible communication on a matter of public interest, with respect to any statements of fact.

2. Since the statement most at issue (the “done deal” remark) can be viewed as opinion, the trial judge should instruct the jury on the defence of fair comment in accordance with this Court’s decision in WIC Radio.

3. Since the statement can also be viewed as a statement of fact, raising the defence of responsible communication on a matter of public interest, the trial judge should rule on whether communication of the statement was in the public interest. On the evidence in the first trial, the answer to this question is affirmative. The communication related to issues of government conduct is clearly in the public interest.

4. The jury should be instructed to determine whether publication of the defamatory material was responsible, having regard to the factors enumerated above.

VII. Conclusion

[141] I would dismiss the appeal and the cross-appeal, and affirm the order for a new trial. The respondents should have their costs of the main appeal in this Court.

The following are the reasons delivered by
Abella J. —
[142] I am in complete agreement with the Chief Justice’s reasons for adding the “responsible communication” defence to Canadian defamation law. I also share her view that determining the availability of this defence entails a two-step analysis: the first to determine whether a publication is on a matter of public interest; and the second to determine whether the standard of responsibility is met. Yet while I agree that the first question is a matter of law for the judge to decide, I do not, with great respect, share her view that the jury should decide the second step. I see very little conceptual difference between deciding whether a communication is in the public interest and whether it is responsibly made. While both inquiries engage questions of fact and law, both are nonetheless predominantly legal issues. As a result, in my view the legal character of deciding whether the applicable standard of responsibility has been met in a given case is, like the public interest analysis, a matter for the judge.

[143] The responsible communication analysis requires that the defendant’s interest in freely disseminating information and the public’s interest in the free flow of information be weighed against the plaintiff’s interest in protecting his or her reputation. This is true no less of the second and determinative step as of the first. The exercise as a whole involves balancing freedom of expression, freedom of the press, the protection of reputation, privacy concerns, and the public interest. Each of these is a complex value protected either directly or indirectly by the Canadian Charter of Rights and Freedoms (Edmonton Journal v. Alberta (Attorney General), [1989] 2 S.C.R. 1326, at p. 1336; Canadian Broadcasting Corporation v. New Brunswick (Attorney General), [1991] 3 S.C.R. 459, at p. 475; Hill v. Church of Scientology of Toronto, [1995] 2 S.C.R. 1130, at para. 107; and WIC Radio Ltd. v. Simpson, 2008 SCC 40, [2008] 2 S.C.R. 420, at para. 2). Weighing these often competing constitutional interests is a legal determination. It is, therefore, a determination that the judge should undertake.

[144] I accept that the jury’s participation in defamation cases is firmly entrenched in the psyche of defamation law and that authorizing judges to decide both steps of the responsible communication analysis leaves juries with a limited role. But I am unpersuaded that it is inconsistent with the statutory scheme to leave the legal issues at stake here with the judge and any disputed facts with the jury. It is worth remembering that such a potentially determinative role for the judge already exists when the defence of absolute or qualified privilege is engaged (Raymond E. Brown, The Law of Defamation in Canada, 2nd ed., vol. 2, at pp. 12-289, 13-405 and 16-136). It is also useful to bear in mind the historical basis for the jury’s preeminent role in defamation cases. It was an outgrowth of Britain’s Libel Act of 1792, when juries were seen to be necessary as “watchdogs of democratic rights against unrepresentative governments” (New South Wales Law Reform Commission in Report 75 (1995) ‑ Defamation at [3.2], cited in Australian Broadcasting Corp. v. Reading, [2004] NSWCA 411 at para. 143). More than two centuries later, this rationale is difficult to sustain, as is the primacy of the jury’s role ( Brown,Vol. 3 at p. 17-115; Jameel v. Wall Street Journal Europe SPRL, [2005] EWCA Civ. 74, [2005] 4 All E.R. 356, per Lord Phillips, M.R., at para. 70; Gatley on Libel and Slander (11th ed. 2008), at p. 1241; and D. A. Anderson, “Is Libel Law Worth Reforming?” (1991-1992), 140 U. Pa. L. Rev. 487, at p. 540).

[145] By adopting the responsible communication defence, we are recognizing the sophistication and constitutional complexity of defamation cases involving communications on matters of public interest. What is most important is protecting the integrity of the interests and values at stake in such cases. This defence is a highly complex legal determination with constitutional dimensions. That takes it beyond the jury’s jurisdiction and squarely into judicial territory.

[146] Other than this concern over the proper division of labour between judge and jury, I agree with the Chief Justice’s reasons and with her decision to order a new trial.

APPENDIX




Cottagers teed off over golf course

Long‑time Harris backer awaits Tory nod on plan

Bill Schiller

FEATURE WRITER

Saturday Special

NEW LISKEARD – During the past decade, millionaire lumber magnate Peter Grant — one of the most powerful business people in northern Ontario — has been generous with Mike Harris and the Conservatives.

In 1990, Grant, through his companies, gave Harris more than $14,000 to help him win the Conservative leadership.

In 1999, Grant poured $45,000 into Conservative pockets to speed their re‑election, followed by another $21,000 last year.

Of this $80,000, at least $5,000 went to Natural Resources Minister John Snobelen and his Mississauga riding association.

But Peter Grant also wants something from the government.

Here, on a tiny peninsula on a cottage‑speckled lake, where families have come for generations, Grant wants to take three small golf holes on his property and expand them into a 3,290‑yard, nine‑hole course.

To do so, he needs the Harris government — with the support of Snobelen’s ministry — to sell him 10.5 hectares of crown land and approve the project.

The planned course will be private, so private in fact, it will be for Grant’s own “personal use and enjoyment.”

But in the minds of many who own cottages here on Twin Lakes, about 500 kilometres north of Toronto, Grant’s dream of carving a course out of the northern wilderness for his own pleasure, is a nightmare.
“Herbicides, pesticides, fertilizers, will all wash into our lake,” insists Bonnie Taylor, who might be forgiven for sounding a little proprietary. Her pioneering family first built on this spring‑fed lake nearly 60 years ago.

Last winter, she wrote the province to say she’s worried about the impact the course could have on lake and well water — especially, she said, “with Walkerton still fresh on everyone’s mind.”

For his part, Grant refuses to be interviewed.

“Our client … does not intend to discuss his personal affairs with you,” his lawyers informed The Star by letter.

When a Star photographer went to take pictures at the site this month, men the OPP believe were Grant employees, accused the photographer of trespassing. They then tried to drive the photographer’s vehicle off a public road, and finally followed the photographer out of town for almost 20 kilometres.

But for concerned cottagers back at lakeside — the issue is water.

Grant already has provincial permission to draw as much as 300,000 litres per day from the lake to water his three golf holes.

According to environment ministry guidelines, the same amount of treated water could support a community of 750 to 1,500 people.

And ratepayers worry that if Grant’s plan goes ahead, his need for water will grow.

It’s a worry not without foundation: some 18‑hole golf courses in the north have provincial permits to take as much as 2.2 million litres of water per day.

Grant’s expanded course would also clear trees from almost 23.5 hectares in total: 10.5 hectares of crown land, and another 13 hectares of privately held land he also intends to buy for the project.

Perhaps most worrisome from the cottagers’ perspective, planning documents show the course will use $20,000 worth of pesticides annually, including small amounts of Daconil, a highly effective pesticide that is also highly toxic to fish and invertebrates.

But locals aren’t the only ones concerned about Grant’s plans. Officials from the Ministry of Natural Resources are too. Currently conducting a limited environmental assessment, they’ve informed Grant of at least a dozen concerns they have about the project, from potential effects on water quality, to the impact on lake levels.

Grant’s consultants are preparing a response.
But the ministry’s concerns are small comfort to cottagers.

They know the expressed concerns of government officials don’t always mean much when it comes to development projects led by supporters of the Premier.

“Everyone thinks it’s a done deal because of Grant’s influence — but most of all his Mike Harris ties,” says Lorrie Clark, who owns a cottage on Twin Lakes.

Earlier this year, the local cottagers’ association invited Grant’s consultants, as well as ministry officials to a meeting to discuss Grant’s proposal. A number of cottagers brought copies of a Toronto Star article detailing how the Premier’s best friend Peter Minogue complained “at political levels” to try to get his North Bay golf course and subdivision approved in the face of opposition from the Ministry of Natural Resources.

Minogue’s partners in that venture, known as Osprey Links, included the president of Harris’ riding association and a veritable Who’s Who of Harris’ North Bay friends. Ministry objections were overruled just 12 days after a senior bureaucrat warned by memo that Minogue had begun complaining.

With that experience in mind, lawyer Peter Ramsay, a ratepayer and cottager rose at the public meeting here and put his concerns bluntly.

“Is this (Grant) project going to be decided by the Ministry of Natural Resources?” he asked officials present. “Or is it going to be decided by Queen’s Park?”

A ministry official at the meeting, Greg Gillespie, said he couldn’t speak for what happens at Queen’s Park.

“But we did our job,” he said of the Osprey experience.

Such suspicions and anxiety over the approval process have set the stage for a classic confrontation, which — in the cottagers’ view — pits the public good of ordinary Ontarians, many of whom are senior citizens, against a single, powerful, private interest: Peter Grant.

“This is a development that is not in the public interest,” cottage owner Clark emphasizes, “but only a very private one.”

For an outsider, however, looking at the history of the lake, one might think Grant is fighting an uphill battle.

After all, in 1985 the Ontario Municipal Board shut down a proposal to build a small subdivision on Twin Lakes out of concerns about potential environmental damage.

The board — a kind of court of appeal for developers and citizens who disagree on a development — sided with a consultant who argued that the lake was too sensitive, teetering on overdevelopment with 200 cottages, and any additional building might constitute an environmental hazard.

Those arguments won the day.

But Grant is undaunted.

Today, the same consultant who convinced the board to block that development more than 15 years ago, now consults for Grant.

Michael Michalski argues that Grant’s development can be built with minimum impact and that “everything feasible” will be done to keep contaminants on site.

Not to be outdone, local citizens have hired their own consultants, Gartner Lee. They say neither Michalski nor anyone else can guarantee the lake’s safety.

And so the scientific lines have been drawn in the sand.

But if politics and power were to have any bearing on the matter, some feel Grant would have the upper hand.

In this rough and rugged stretch of northern Ontario, where local economies depend largely on timber and tourism, Grant is a powerful presence.

His company, Grant Forest Products, is an important local employer. The company’s radio ads, which continually remind locals that Grant is “using our forests wisely,” are part of public consciousness. And every autumn, a charity golf tournament Grant holds using two public courses — the tournament culminates at his mini‑course — heralds the high point of this area’s social season. It always makes front‑page news.

So did the Premier’s visit here last fall, when he attended a post‑tournament reception for more than 600 at Grant’s palatial home.

Grant, who has been running the event since 1998, proudly presented a cheque that day for $300,000 to help build a local senior’s home.

Press accounts note that he’s raised about $1 million for local causes, including area golf courses, over three years.

Up north, the charity event has distinguished him.

So has his selection of lobbyists down south at Queen’s Park.

When it comes to looking after business interests there, Grant depends on North Bay lobbyist Peter Birnie. Records at Elections Ontario show Birnie is vice‑president of Harris’ riding association.

Meanwhile, on the personal front, Grant maintains a reputation for living large.

His home and corporate compound in the bush dwarfs the dozens of cottages that surround it.

His 14,500 square‑foot house on 4.5 hectares of lavishly landscaped property, was once appraised at $1.9 million. Neighbours note the occasional helicopter coming and going through the bush.

The seven‑bedroom main house has an indoor squash court with viewing gallery, a fully equipped gymnasium, and a Jacuzzi that can accommodate 15 people.

Outside, tennis courts are equipped with banks of lights that illuminate the night sky. And down on the water, there’s a 1,500‑square‑foot boat house.

There is also his three‑hole mini‑course — that Grant calls Frog’s Breath — which can be configured to play as a tiny five.

Records show these holes were built on almost three hectares of crown land, which the province sold to Grant in April, 1998 for $20,000.

But records also show that two months earlier, in February, 1998, Grant had also applied to buy the 10.5 hectares he’s still pursuing today.

These developments have residents up in arms.

“It’s difficult living here and watching all this go on,” says Nancy Kramp, a mother of four who, like Grant, lives permanently on Twin Lakes.

“It used to be dead silence out here. There was nothing but the sounds of wildlife. Now, there are always (golf course) machines running.”

Kramp can’t comprehend how the provincial government can think of selling 10.5 hectares of land so that one man may build a golf course for his own enjoyment.

She remembers a run‑in she had with the Ministry of Natural Resources not so long ago over a sandbox.

“Around 1994, the ministry told us to move a sandbox we’d erected for our son,” Kramp recalls, “four planks with sand in the middle, because it was on crown land. This sandbox seemed to be interfering with the natural habitat of the area. And now a nine‑hole golf course is okay?”

It’s not okay yet.

The Harris government has not sold the property to him.

Still, local politicians are preparing the way.

Today, five politicians who represent the people of Hudson Township here (population: 501), are scheduled to meet to discuss a motion to amend local zoning bylaws and, according to a published notice, “permit the construction of a personal golf course — for the personal use of the property owner.”

Local councillor Clinton Edwards says he doesn’t really want to say whether he’ll support it.

“I’m in a bit of a bind here,” he says, somewhat haltingly. “My wife works for him (Grant). Employment is very hard to get up here,” he adds.

News of impending zoning changes even before the government has sold Grant the land makes some cottagers distrustful about what might happen next.

“The people on this lake aren’t mega‑millionaires,” says Alexandra Skindra, mother, grandmother and property owner.

“They’re just regular people. Hard‑working people. This shouldn’t be happening.”

Skindra and her husband Arkadis, 68, a retired nuclear plant designer, were planning on spending their retirement on the lake.

“I grew up here,” explains Alexandra. “My kids grew up here. And I was hoping our five grandchildren could come here every summer.”

“We don’t have anything against Peter,” Arkadis offers, hammer in hand as he renovates the front room of their cottage overlooking the water.

“But I can’t see how this can go ahead and not damage the lake and the environment.”

Down the way, Ira and Marion Murphy have spent 56 years on a tiny stretch of land that joins Twin Lakes with neighbouring Frere Lake.

Looking trim at 75, Ira, a retired Hydro supervisor, can point to the shore where he built a two‑storey tree house for his granddaughters 18 summers ago.

For him, lake life is a precious thing, something interwoven with family.

“You know, we’ve known Peter since he was 3 years old,” says Murphy, a handsome, gray‑haired man with a taste for the outdoors.

“We’ve got nothing against him. We’re just concerned about the lake, that’s all.”

Rudi Ptok, 71, says he’s worried about run‑off, and not just with pesticides, he says, but with the 400 kilograms of fertilizers per year that will be needed to keep Grant’s course green too.

“They’re probably going to have to blast out rock to build too,” he says.

Ptok says Grant’s consultants have confirmed they may well have to dynamite.

Looking worriedly out at the lake, Ptok says, “I don’t even want to think about it.”

(A.R., vol. XI, pp. 4-12)

Appeal and cross‑appeal dismissed, with costs of the appeal in this Court to the respondents.

Solicitors for the appellants/respondents on cross‑appeal: Fasken Martineau DuMoulin, Toronto.

Solicitors for the respondents/appellants on cross‑appeal: Blake, Cassels & Graydon, Toronto.

Solicitors for the intervener the Ottawa Citizen: Gowling Lafleur Henderson, Ottawa.

Solicitors for the interveners the Canadian Newspaper Association, Ad IDEM/Canadian Media Lawyers’ Association, RTNDA Canada/Association of Electronic Journalists, Magazines Canada, the Canadian Association of Journalists, the Canadian Journalists for Free Expression, the Writers’ Union of Canada, the Professional Writers Association of Canada, the Book and Periodical Council, and PEN Canada: Brian MacLeod Rogers, Toronto.

Solicitor for the intervener the Canadian Broadcasting Corporation: Canadian Broadcasting Corporation, Toronto.

Solicitors for the intervener the Canadian Civil Liberties Association: Torys, Toronto.

Solicitors for the intervener Danno Cusson: Heenan Blaikie, Ottawa.