‘A huge sea change’ in libel law

Ted FairhurstCBC journalist Harvey Cashore called December 22 “the most important day
in the history of media law” at a Toronto event debating the Supreme
Court decision that created a new libel defence.
Ted Fairhurst reports.

“I never thought this day could come.”

That’s how one of Canada’s top investigative journalists opened his remarks this week at the Canadian Journalism Foundation’s public forum on the newly created libel defence, responsible communication on matters of public interest.

Harvey Cashore
Head of the CBC Investigative Unit Harvey Cashore

Harvey Cashore then drew some chuckles when he turned to fellow panelist Paul Schabas and talked of giving the prominent media lawyer a hug.

Schabas was on the panel along with another Toronto lawyer, Peter Downard. They were courtroom combatants in the case of Grant v. Torstar Corp., one of two the Supreme Court of Canada ruled on when it ushered in a new era in defamation law last December.

The court ruled people who publish defamatory statements on matters of public interest have a defence even if they are unable to prove every fact they report. The key question is whether publishers can satisfy a court that they acted responsibly in preparing the statements for publication.

The decisions were handed down Dec. 22 and Cashore said it’s the most important day in the history of Canadian media law. Over his years with CBC’s the fifth estate, Cashore has produced several major stories; going back to the allegations of sexual abuse against a former Nova Scotia premier, Gerald Regan, to his investigation into the Airbus Affair and the cash in an envelope given to former Prime Minister Brian Mulroney.

Cashore said until the landmark rulings, Canada’s laws stood against the public’s right to know; a situation that weakened the country’s media and its democratic institutions.


In a lawsuit that resulted from the CBC story on the allegations against Regan, Cashore said the court ordered notes of his conversation with a confidential source be handed over to the plaintiff. He described the experience as “an awakening for me of the detrimental effects of the law for journalists.”  The source never spoke to him again.

Paul Schabas
Media lawyer Paul Schabas

In his opening remarks, Schabas said the rulings are the most significant change since libel law replaced dueling as a method of settling disputes. A bit of an exaggeration, he readily admitted, but still “a huge sea change” in media law. “A recalibration” is how he ultimately put it, with a nod to Prime Minister Stephen Harper.

The other good news, said Schabas, is that the highest court is showing a strong interest in the role of the press. He noted about a dozen cases the court has decided to consider in the past year and a half. Schabas said it’s been almost 30 years since the Charter was adopted and, over that period, media rights haven’t been the focus of the court’s attention. That appears to be changing.

Two of the cases pending are about the rights of journalists to protect confidential sources. One arose from a document delivered to Andrew McIntosh, then working for the National Post. The RCMP say the document is a forgery; and they want to know McIntosh’s source in the hope that the information will help them solve the crime.

Another case focuses on the Access to Information law. Media lawyers hope the Supreme Court will declare freedom of information a constitutional right – a right the government cannot “revoke at whim,” said Schabas.

CJF Libel Panel
Representatives from all sides of the argument discuss recent and upcoming Supreme Court rulings on libel and confidential sources at a Canadian Journalism Foundation event. From left to right: Moderator and journalist Geoffrey Stevens, defamation counsel Peter Downard, media lawyer Paul Schabas and investigative reporter Harvey Cashore.

Downard agreed, echoing the term “recalibration.” He said it has taken the Supreme Court “perhaps too long” to develop jurisprudence on freedom of speech. But now, “more explicitly than ever,” we see a careful balancing of interests between protecting a person’s reputation and also protecting free expression.

On the issue of confidential sources, Downard said 20 years ago, lawyers representing journalists were “looking steeply uphill.” But now, free expression values must be taken into account; and that’s the message he expects to hear again when the highest court rules on the issue later this year.


Still, says Downard, no one on either side is expecting a “carte blanche.” Journalists should take every step to obtain separate verification before publishing facts from confidential sources.

An audience member asked what impact the new defamation defence might have on the profession. Both lawyers said they’re hopeful the change will lead to better journalism. Schabas said placing standards right inside the defence is going to force journalists to work harder to be diligent and fair, as they determine what is in the public interest and, ultimately, get their stories published.


He added that journalists must be even more conscious about “getting it right” because they will be subject to even more scrutiny. Downard said he’s hopeful that everyone will benefit, if the media make sure that what gets published is prepared in a responsible fashion.

This week’s forum was part of the foundation’s series of monthly discussions on major issues in the profession.

WATCH a video of the Canadian Journalism Foundation panel.

Ted Fairhurst is coordinator of the Joint Program in Journalism at Centennial College/UTSC in Toronto.

(Images by Roger Cullman.)