Law Times

Law times • OctOber 6/13, 2008 how so many baby deaths were wrongly diagnosed catches the essence of the problem — and why it is never going to go away. Dr. Charles Smith, who misdiagnosed so many cases, believed that his role was to "make a case look good." He ex- plained that the perception orig- inated, in some measure, from the culture of advocacy that he said prevailed at the Hospital for Sick Children (SickKids in local parlance) at the time. Most pediatric forensic au- topsies in the Toronto area were conducted at SickKids on a fee- for-service basis by pediatric pathologists like Smith. Goudge comments: "In the 1980s and 1990s, there was a mis- placed emphasis on who would lead the practice of pediatric fo- rensic pathology. The prevailing view in Ontario at that time was that pediatric pathologists were best situated to perform forensic autopsies on infants and children. As a result, expertise in pediatric pathology was emphasized over training and qualifications in fo- rensic pathology." But there was another factor T he following excerpts from Justice Stephen Goudge's report into at work. Goudge again: "In the early 1980s, there was a legitimate concern at SickKids that child abuse was under-reported, under- detected, and under-prosecuted. Dr. Smith was a part of that ad- vocacy culture and perceived that his job, at least in part, was to re- verse those trends." In the jargon of the coroner's office, this was "thinking dirty," being suspicious of foul play when a baby died, and it was an attitude that infected many be- yond Smith. Justice Goudge said that 'thinking dirty' Inside This was Queen's Park By Derek Nelson the Orkney Islands and, I would argue, the Brockville 50 among a multitude of others.) In many cases, public servants coached and led the children in their testimony against family, friends, and strangers. The key point is that even professionals are subject to the fads and fashions of our time, or the "madness of crowds," as one observer once put it. Ombudsman André Marin's look at the police oversight agency the Special Investiga- tion's Unit said the same thing in a different way when it criti- cized the submergence of the unit in a pro-cop culture where it doesn't even enforce existing rules for investigations. Both Goudge and Marin said the solutions were both legisla- tive and bureaucratic, and many of their recommendations make sense at a micro level. But one has to wonder about any macro impact. Justice is the one policy field was wrong. The job of a doctor looking at baby deaths is to be disinterested, professional, and not to take sides. While the judge is right that this is the way it should be, in practice human beings are rarely so perfect as to totally divorce themselves from the broader en- vironment in which they live. Smith was part-and-parcel of the climate of his time, when there was an obsession with baby deaths and child sex abuse. At SickKids, nurse Susan Nelles was charged for murder- ing four infants out of 43 deaths deemed suspicious. However, the case was so flimsy the judge threw it out of court at the pre- liminary hearing. Justice Samuel Grange then held an inquiry that went nowhere, the whole process absorbing several years of the early 1980s. In the broader world, the 1980s and 1990s were also the time of the modern Salem witch hunts, where people who took care of children were sent to jail for supposedly committing hor- rendous crimes against them, many ritual or satanic in nature. Many, if not all of those charged, were innocent. (Think Martensville, Manhattan Beach, above all where government car- ries the can. It appoints the judg- es and Crowns, hires the coroners and police, doles out the money for legal aid. Only the private practice lawyer representing his client is not government. And yet the state, with un- limited power and authority within a sphere of its own — no nasty deregulation or private greed here — could not accom- plish such basics as accurately determining the cause of a ba- by's death or getting a police of- ficer to give testimony to an SIU investigator in timely fashion. The reaction of Attorney General Chris Bentley is telling. He speaks of working with his "partners" in reaction to Goudge, again reinforcing this Liberal conceit that the players in the justice system are all inde- pendent agencies not account- able to the executive polity to which Bentley belongs. For the SIU, Bentley's big de- cision has been to sign a memo- randum that further divorces the agency from responding to government oversight, the op- posite of what is needed. It was Justice Patrick Dunn who blew the whistle on Smith and others back in 1991. It was the media who reported it. It was the political level that, for fear of the smear charge "political inter- ference," ducked responsibility for finding out what was going on in the coroner's office long after it be- came clear there were problems. Where is there any indication in Bentley's reaction that anything has changed at the top? LT Derek Nelson is a freelance writer who spent 19 years at Queen's Park. His e-mail is jugurtha@ rogers.com. www.lawtimesnews.com COMMENT we have a long way to go D Defamation law: tions to the detriment of free speech. Two decisions released this year do little to redress the imbalance. Cusson v. Quan et al from the Ontario Court of Appeal and Simpson v. Mair and WIC Radio Ltd. from the Supreme Court of Can- ada don't go far enough to reform defamation laws. These two cases do noth- efamation laws have always favoured the protection of reputa- ing to fix the main defects in defamation laws. First, all factual statements published by a defendant are presumed to be false. Second, expressions of opinion on matters of public interest must satisfy an artificial test. Third, it is remarkably easy to satisfy the legal test of wheth- er words complained of are reasonably capable of lowering one's reputation. Last, damages are presumed; the plaintiff need not call any evidence of actual damages or actual harm to repu- tation. With these principles is it any wonder that libel chill is a real fact of life for publishers? The Cusson decision has of responsible journalism. In addition, we are going to see lengthened examinations for discovery and trials where the conduct of all writers and editors will be examined in ex- cruciating detail to determine if they satisfy the standards of re- sponsible journalism. And, at the Social Justice By Alan Shanoff made available to the media a new defence with which to defend erroneous statements of fact in defamation actions. This new defence is given the name "public interest respon- sible journalism." The media can now, or so it is said, suc- cessfully defend itself merely by showing that it "acted in ac- cordance with the standards of responsible journalism in pub- lishing a story that the public was entitled to hear." In assess- ing the media's conduct we've been given a "non-exhaustive" list of 10 factors. the vagueness of this defence, I doubt this ruling is going to do anything other than cause headaches for the media. Any attempt to use this defence will bring judges and juries into the newsrooms of the nation. Judges and jurors will become editors. As Ontario Court of Appeal Justice Robert Sharpe recognized, "Adopting this de- fence shifts the focus of defam- ation law away from the truth and towards the conduct of the defendant." Experts in journal- ism are going to be the chief beneficiaries of this defence. Each side is going to call its journalism expert to provide ex- pert opinions on the standards Leaving aside for a moment end of the trial, the responsible journalism defence could fail for any one of many reasons. Here's just a sampling of these potential reasons: the language used was too sen- sationalistic; the story wasn't important enough to merit the space; the writer didn't speak to every possible source; the sources used were biased; the writer/editor didn't critic- ally test the information given; more should have been done to verify the information; the other side wasn't adequately reported; the writer rushed to judgment; documents weren't properly interpreted; additional documents should have been obtained; the tone of the article was too shrill. And on and on. So let's see, longer trials, more experts, and a lot of uncer- tainty; that's what I see coming from Cusson. There's nothing to fix the problem of statements of fact being presumed to be false. The SCC decision in Simp- It can poke fun at people turn- ing them into caricatures. In short, the comment need not be "fair," notwithstanding the name of the defence. It's too bad the court didn't change the name of the defence to "com- ment defence." I fear that juries will still be confused by the use of the term "fair" as part of the name of the defence. Unfortunately the in his views — could have "honestly" expressed, based on the known facts. Retain- ing the element of what one could have "honestly" ex- pressed is bound to create confusion and may bring in through the back door an element of reasonableness or fairness. There is no need for an honesty requirement. It should be sufficient that there be a relationship be- tween the underlying facts and the opinion expressed. Another problem with the SCC retained an honesty element to this defence. The comment must be a comment that any person — however "prejudiced, exaggerated or obstinate" son considered fair comment, the defence used to defend defamatory opinions. In dis- missing Simpson's defama- tion action the SCC clarified the defence of fair comment, but didn't go far enough. A re- curring problem with the fair comment defence is the extent to which the comment must be fair or the extent to which the comment must be one that a fair-minded person could hold. Of course, having any re- quirement of fairness destroys the usefulness of the defence save in respect of the most timid opinions. The SCC did well in unequivocally stating that the issue of fairness or what a fair-minded person might think is irrelevant. A comment can be far-fetched, foolish, ex- aggerated, even unreasonable. Simpson case is the lack of attention to the issue of malice. Malice defeats a fair comment defence. While some judges have stated that it is difficult for a plaintiff to establish malice, the concept of malice and the evidence necessary to establish malice is too uncertain. Un- certainty in what constitutes malice reduces the usefulness of the fair comment defence. Fur- ther, statements by Supreme Court Justice Louis LeBel that proof of malice may be intrin- sic, that is "it may be drawn from the language of the asser- tion" and that society should protect "spirited — but not mean-spirited — speech" indi- cates that the malice issue may yet be another way to reintro- duce the concept of fairness. While it's good to see some modernization in defamation law we have a long way to go be- fore the law, strikes a fair balance between protection of reputa- tion and free speech. LT Alan Shanoff was counsel to Sun Media Corp. for 16 years. He currently is a freelance writer for Sun Media and teaches media law at Humber College. His e-mail address is ashanoff@ gmail.com. PAGE 7

• Cover
• SIU Slammed
• Focus On Litigation
• Canadian Legal & Technology Forum