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PAGE 6 COMMENT Law Times Group Publisher ....... Karen Lorimer Editorial Director ....... Gail J. Cohen Editor ........... Gretchen Drummie Associate Editor ......... Robert Todd Staff Writer ............. Glenn Kauth Copy Editor ......... Heather Gardiner CaseLaw Editor ...... Jennifer Wright Art Director .......... Alicia Adamson Production Co-ordinator . . Catherine Giles Electronic Production Specialist ............. Derek Welford Advertising Sales .... Kimberlee Pascoe . . . . . . . . . . . . . . . . . . . . . . . . . . Kathy Liotta Sales Co-ordinator ......... Sandy Shutt ©Law Times Inc. 2009 All rights reserved. No part of this publication may be reprinted or stored in a retrieval system without written permission. The opinions expressed in articles are not necessarily those of the publisher. Information presented is compiled from sources believed to be accurate, however, the publisher assumes no responsibility for errors or omissions. Law Times Inc. disclaims any warranty as to the accuracy, completeness or currency of the contents of this publication and disclaims all liability in respect of the results of any action taken or not taken in reliance upon information in this publication. Editorial Obiter L ivent co-founders Garth Drabin- sky and Myron Gottlieb should be spared time behind bars for fraud. Instead, the disgraced duo should pack up their old kit bags, take the show on the road with a speaking tour, and lecture students across the country. No, that's not the outline for a revival of the Hope-Crosby buddy movies. It's part of the sentencing proposal made by their law- yers Edward and Brian Greenspan to Justice Mary Lou Benotto. The lawyers urged con- ditional sentences for the men of two years less a day, three years probation, and 240 hours each of community service, of which the lectures would be a component. Drabinsky and Gottlieb were found guilty in March of two counts of fraud and one of forgery for defrauding in- vestors of millions. For that, Crown attorney Alex Hrybinsky has called for an eight to 10 year penitentiary term — JuLy 13/20, 2009 • Law Times Law Times Inc. 240 Edward Street, Aurora, ON • L4G 3S9 Tel: 905-841-6481 • Fax: 905-727-0017 www.lawtimesnews.com President: Stuart J. Morrison Publications Mail Agreement Number 40762529 • ISSN 0847-5083 Law Times is published 40 times a year by Law Times Inc. 240 Edward St., Aurora, Ont. L4G 3S9 • 905-841-6481. lawtimes@clbmedia.ca CIRCULATIONS & SUBSCRIPTIONS $141.75 per year in Canada (GST incl., GST Reg. #R121351134) and US$266.25 for foreign addresses. Single copies are $3.55 Circulation inquiries, postal returns and address changes should include a copy of the mailing label(s) and should be sent to Law Times Inc. 240 Edward St., Aurora, Ont. L4G 3S9. Return postage guaranteed. Contact Kristen Schulz-Lacey at: kschulz-lacey@clbmedia.ca or Tel: 905-713-4355 • Toll free: 1-888-743-3551 or Fax: 905-841-4357. ADVERTISING Advertising inquiries and materials should be directed to Sales, Law Times, 240 Edward St., Aurora, Ont. L4G 3S9 or call Karen Lorimer at 905-713-4339 klorimer@clb- media.ca, Kimberlee Pascoe at 905-713-4342 kpascoe@clbmedia.ca, or Kathy Liotta at 905- 713- 4340 kliotta@clbmedia.ca or Sandy Shutt at 905-713-4337 sshutt@clbmedia.ca Law Times is printed on newsprint containing 25-30 per cent post-consumer recycled materials. Please recycle this newspaper. The Producers nearly the top of the range. Edward Greenspan said that as part of his conditional sentence, his cli- ent Drabinsky would go on a tour of theatre schools to discuss the craft and "the avoidance of unethical conduct." Brian Greenspan also noted that a number of Canadian business schools would be interested in his client Gottlieb attending to speak on professional and business integrity. If the lectures amount to less than 240 hours the remnant of the community service hours could be done volunteering at Mount Sinai Hospital. Drabinsky could fundraise $50,000 for scholarships for kids wanting to study performing arts, his lawyer added. It's a great idea. In fact, they should do all of these things; passing on their lessons learned. After they get out of the hoosgow. Doing this with no custody attached sounds as silly as a proposal that the boys hook up with Conrad Black and Bernie "Made off with your Money" and mount a revival of "Ain't Misbe- havin'" or "Dirty Rotten Scoundrels." Or how about a new production of "Grease," or "Wicked." A short run of "Captains Courageous," and "Fame — The Musical" would be too much like art imitating life, but how about a stage version of "Free to Be . . . You and Me," or "I'm Getting My Act Together and Taking it On the Road." Again, a bit too much reality show-ish? "He would teach students the disci- pline of the craft, the enormous role that integrity and honesty play in the theatre, the importance of fulfilling contractual responsibilities [and] the avoidance of unethical conduct," said Edward Green- span of Drabinsky. Gottlieb's lectures would cover top- ics like corporate governance, entrepre- Supreme Court of Canada has already reformed one of the def- amation defences and is consid- ering the Ontario Court of Ap- peal's newly created responsible journalism defence. Last year the OCA quashed a contempt cita- tion against a Hamilton Specta- tor reporter while acknowledg- ing the chilling effect of forcing journalists to reveal names of their confidential sources and the SCC is considering a shield law for journalists. And let's not forget that in November the SCC will be hearing argument on the validity of the mandatory bail hearing publication ban law. It all sounds too good to be true, and sadly, it is. Let's start with the SCC deci- T sion in Simpson v. Mair and WIC Radio Ltd. The Supreme Court fixed a defect in the fair comment defence but the requirement that a comment be one that any per- son could "honestly" hold leaves it open for a jury to reject the de- fence on the basis of an objective test. This exacerbates the problem his has to be one of the most exciting times to be a media lawyer. The created by the incorrect name of the defence. Comments need not be "fair." They need be a) based on underlying true or privileged facts and b) on a matter of public interest. Keeping the "honestly" ele- ment can confuse juries and allow a fairness element to creep into their decisions. While the SCC grapples with a Media law in flux Social Justice By Alan Shanoff responsible journalism defence in 2009 when considering the Cus- son v. Ottawa Citizen and Grant v. Torstar Corporation cases don't for- get that English journalists have benefitted from a similar defence since the 2001 House of Lords de- cision in Reynolds v. Times News- papers Limited and Others. Aus- tralian journalists have enjoyed an expanded qualified privilege via the Theophanous v. The Herald and the Weekly Times Limited and An- other case since 1994. And let's not forget the New York Times Co. v. Sullivan decision of the United States Supreme Court of 1964 which our SCC rejected in its 1995 Hill v. Church of Scien- tology of Toronto decision. The real problem in defama- tion law is that all published de- famatory factual statements are presumptively false and damage to reputation is presumed to have resulted from any defama- tory publication. There must be more latitude for the media to publish an erroneous state- ment of fact beyond current inadequate laws on qualified privilege. While the responsible journalism defence is a positive development, it does not go far enough. It is vague and uncer- tain in its application and effec- tively allows judges and juries to enter the newsroom and make editorial decisions on newswor- thiness. Although the OCA held that a responsible journalism de- fence wasn't properly put to the jury in the Grant case, it is by no means clear that such a defence would have succeeded. While journalists worry about establishing truth to succeed in www.lawtimesnews.com neurship, shareholder rights, and con- flicts of interest. But here's a question: how does one really lecture kids on stuff like ethics, honesty, integrity, and corporate gover- nance when one has been convicted of fraud and forgery? What are they going to call the series: "How to Succeed in Business Without Really Trying." Hrybinsky was understandably op- posed to the scheme: "When I was as- signed the case . . . I never imagined that the discussion would at the end of the day be a lecture series." While this is not a U.S. court where they hand out dumb terms like 150 years to peo- ple like Madoff, a strong message of deter- rence should be sent in the form of prison time to our white-collar criminals. Otherwise: "Stop the World — I Want to Get Off." — Gretchen Drummie a defamation action, they also worry that proving truth is irrel- evant in an invasion of privacy action. This tort, indeed if it is a tort, has been debated for de- cades and we are no closer to un- derstanding its elements. At the same time journalists are boxed in by the breach of confidence tort, which also creates liability for the publication of accurate facts even about matters of public inter- est. I suppose I shouldn't complain seeing as I'm in a Common Law province. Truth isn't a defence in a Quebec defamation action. Yes, it is comforting to see that the court will be review- ing the mandatory bail hearing publication bans but how can anyone justify a complete ban on the publication of any informa- tion explaining why an accused wife killer or terrorist has been released on bail? Yet, that's what occurred in the two cases headed to the Supreme Court. Worse, while we await the decision in R. v. National Post, the current law as stated by the OCA holds that law enforcement needs will almost always trump a journalist's ability to protect a source. At the same time, media law- yers battle court administrators who make it time-consuming and expensive to obtain court exhibits and government offi- cials who wrongly resist the re- lease of documents under access to information laws. The Toron- to Star recently concluded an almost five-year battle merely to obtain information on fees paid to outside lawyers and consul- tants in a civil action. And let's not forget that some Human Rights Commissions and their tribunals have snuck into the editorial side of journal- ism as indicated by the Maclean's decisions of 2008. I appreciate that complete free- dom of expression is neither pos- sible nor desirable but courts need to do more to better balance this enshrined right. Remember the words of Louis Brandeis, "Sun- light is the best disinfectant." LT Alan Shanoff was counsel to Sun Me- dia Corp. for 16 years. He currently is a freelance writer for Sun Media and teaches media law at Hum- ber College. His e-mail address is ashanoff@gmail.com.