Peter Waldkirch is a second year LL.B. student at the University of Ottawa.

Over the holidays the Supreme Court of Canada released two decisions – Grant v. Torstar Corp and Quan v. Cusson – that have attracted considerable attention in the media. This is natural, since the decisions both directly address the ambit of media speech and, in the process, establish a new defence against defamation: responsible communication. The defence, detailed in Grant v. Torstar, has been hailed in the press with headlines such as “Top court favours freedom of press” and “A landmark for free speech”. So just how does this new defence work?

Grant v. Torstar concerned an article printed in the Toronto Star that related a local controversy about Peter Grant's attempts to gain regulatory approval for the construction of a golf course on his private property – approval for which his neighbours were convinced was certain due to Grant's ties to the former Ontario government of Mike Harris. The Star reported on this and Grant sued for defamation, in particular focusing on the comment of one neighbour who believed that approval for the golf course was a “done deal”. Grant won at trial, where the defendants attempted to rely upon an expanded idea of qualified privilege derived from recent English cases (privileged communications are those in which society has an interest in ensuring the unrestricted exchange of information and in which there is some duty imposed on the “speaker”, such as in legal proceedings or job references). The trial judge rejected this as it was felt that the report concerned only a local matter, and so the case went to the jury with only the defences of justification – that the “done deal” comment was true – and fair comment. The end result was a judgment of $1.475 million for the plaintiff, including $1 million in punitive damages.

The case went to the Ontario Court of Appeal, which in the meantime had itself decided Cusson v. Quan in which the defence of responsible journalism was established. Applying Cusson, the Court of Appeal found several errors in the trial judge's charge to the jury and ordered a new trial. Both Cusson and Grant were appealed to the Supreme Court, which took the opportunity to release both of its decisions concurrently and firmly establish the new defence.

In a decision written by Chief Justice McLachlin, the Supreme Court held unanimously that the defence of responsible communication (I'll return in a moment to the name) existed and that it could apply to Grant, agreeing with the Court of Appeal that a new trial was required. The defence has two elements. These are spelled out clearly at paragraph 98: “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.”  To help evaluate the term “responsible”, the Supreme Court gave a list of non-exhaustive factors to consider: the seriousness of the allegation; the public importance of the matter; the urgency of the matter; the status and reliability of the source; whether the plaintiff's side of the story was sought and accurately reported; whether the inclusion of the defamatory statement was justifiable; whether the defamatory statement's public interest lay in the fact that it was made rather than its truth (“reportage”); and any other relevant circumstances.

The decision itself is very clearly written and gives an excellent overview of the law of defamation in Canada and other jurisdictions, as well as giving further clarity to the relationship between the existing “repetition rule” (that repeating a defamatory comment is subject to defamation claims) and the new defence.

Although the Supreme Court was unanimous in finding the defence of responsible communication exists, Justice Abella wrote a separate opinion differing in the application of the defence. The majority held that the first stage of the analysis – determining whether the matter is of public interest – is a question for the judge, while the question of whether the communication was responsible is for the jury. Justice Abella argued that both questions should be left to the judge, as they involve a balancing of interests that is fundamentally legal in character. The majority seems to have been concerned with preserving the historic importance of the jury to defamation suits (which has been enshrined in several provincial statutes and rules of procedure).

While the media has celebrated the decision as a major victory for free speech, there are potentially some concerns. Alan Shanoff at the Law Times, for example, notes that several key terms, such as “public interest”, “relevant circumstances”, and “responsible” itself are too vague to provide meaningful guidance to publishers. While this is accurate, I would suggest that it is natural for there to be some uncertainty whenever a new defence such as this is established, especially one that is fundamentally concerned with preserving a balance of broad values and interests (such as between free speech and protecting personal reputations). The mere availability of the defence is itself a strong statement by the Supreme Court in favour of freedom of speech and a loosening of the overly-strong protection of reputation Canadian law had previously afforded.

Besides the general interest and importance of Grant there is an aspect to the case that should be of great interest to those interested in technology law, and which has been overlooked in most of the coverage of the case. The Ontario Court of Appeal referred to the defence as “responsible journalism”, the nomenclature which was used by the Star in its arguments. The Supreme Court ultimately settled on the term “responsible communication”. The Court notes at paragraph 96 that, “...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.” In fact, blogs are specifically mentioned several times. With the declining fortunes of print newspapers, the future role of bloggers continues to be hostly contested. In Grant, the Supreme Court would seem to recognize the importance and legitimacy of bloggers as media outlets – while also putting them on notice that they will be held to a similar standard as their print media cousins.