Law Times

Law Times • OcTOber 17, 2016 Page 7 www.lawtimesnews.com COMMENT Look closely at libel law BY ALAN SHANOFF I n 2009, it became apparent that our libel laws were in serious need of repair. With the release of Grant v. Torstar Corp., [2009] 3 SCR 640 and Quan v. Cusson, [2009] 3 SCR 712, the Supreme Court of Canada unleashed the new de- fence of responsible communication. This new defence changed the land- scape of libel law. In these decisions, the SCC recognized the difficulty in establishing the truth of factual assertions in court often years after publication and granted defendants the ability to defend their publications notwithstanding the inability to prove the truth of serious factual assertions. But this new defence notwithstanding, libel law continues to provide an inap- propriate balance between the conf licting values of freedom of expression and pro- tection of reputation. Libel is a strict liability tort. A plain- tiff need not establish negligence or fault of any kind. Indeed, a plaintiff need only establish (a) the words complained of were published to at least one person other than the plaintiff, (b) the words were referable to the plaintiff and (c) the words were capable of lowering the reputation of the plaintiff in the eyes of right-thinking members of society. There is no need to establish actual harm to reputation, let alone pecuniary damages. It is sufficient that others might think less of the plaintiff. Having established these three ele- ments, the cause of action for libel has been established. The onus falls to the defendant to establish a defence. But worse for the defendant are the legal presumptions that automatically arise upon the plaintiff establishing a cause of action. The law presumes that all factual assertions complained of are false. The plaintiff need not establish the falsity of the words in issue. As well, the law presumes the plaintiff has suffered ac- tual harm to his or her repu- tation. Damage to reputation need not be established. With these presumptions we have seen the need to prove historical facts concerning the Holocaust in litigation commenced by Holocaust denier David Irving against Professor Deborah Lip- stadt in respect of her book, Denying the Holocaust. This took place in a London courtroom in 2001 under English common law with the same presumptions against defen- dants as ours. But the worst feature of libel law for me is the treatment of corporations as humans. Corporations are given the same protection as humans under our libel laws. That leads to ridiculous litigation such as the infamous McLibel litigation in England in which McDonald's sued five activists for handing out leaf lets critical of the business practices of the company. Three apologized, but two refused and ended up defending themselves in a marathon libel action resulting in a small damage award in fa- vour of the plaintiff notwith- standing findings that the defendants had established defences for most of the items complained of. Other jurisdictions — the United Kingdom and Austra- lia — have curtailed the right of corporations to sue for li- bel. We need to do the same. There is no reason to main- tain the fiction that a corpora- tion is deserving of the same protection as people under libel law. But it isn't just our laws that cause concern; it is the application of the laws. Courts — judges and juries — seem to be too eager to find libellous meanings. In the Grant case, the articles com- plained of referred to a friend of the then- premier of Ontario attempting to pur- chase Crown land to extend a private golf course. The articles were taken to mean that Grant was using his friendship with the premier to obtain approval of the pur- chase notwithstanding widespread objec- tions by nearby residents. This was taken by the jury as being highly libellous leading to a massive jury award. But even if local residents did believe Grant was using his inf luence to get the deal done, why would others think less of Grant? Why shouldn't the public be entitled to express a wide variety of non- f lattering views about the potential sale of Crown lands to expand a private golf course? Of course, Grant would have been em- barrassed by the articles, but would others really think less of him as a result of the articles? Then there's the WIC Radio Ltd. v. Simpson 2008 SCC 40 case where three levels of courts wrestled with a radio edi- torial attacking a well-known social activ- ist with "a public reputation as a leader of those opposed to schools teaching accep- tance of a gay lifestyle." Her speeches referenced a "war" with "militant homosexuals." Figurative or not, this invited public criticism of an extreme nature. Yet it seemed to be taken for granted that expressing an opinion that the plain- tiff might or would condone violence toward gays was capable of lowering the plaintiff 's reputation. But aside from theoretical consider- ations, was there ever a real threat oth- ers would think less of the plaintiff as a result of the opinion having been ex- pressed? While libel law requires reform, so, too, does the court's propensity to conclude every criticism, regardless of context, is ca- pable of harming reputation. The Law Commission of Ontario is currently studying libel law and intends to issue a consultation paper addressing a range of issues and options for reform in 2017. LT u Alan Shanoff was counsel to Sun Media Corp. for 16 years. He currently is a free- lance writer for Sun Media and teaches media law at Humber College. His e-mail address is ashanoff@gmail.com. Lessons from Ashley's death BY REBECCA JAREMKO BROMWICH T his Oct. 19, it will be precisely one year since the federal Liberal government took office under Prime Minister Justin Trudeau's leadership. The date is also an anniversary of a more sombre kind. On Oct. 19, 2007, 19-year-old Ashley Smith died in a segregation cell at Grand Valley Prison in the custody of Federal Corrections. The coincidence of these two anniversaries should prompt us to ref lect on how far we still have to go to- ward improving the functions of the criminal justice and correctional systems, particularly as they are de- ployed in relation to girls. Ashley Smith never committed a serious crime, yet she died in prison. The index offence for which Smith began her time as an inmate was throwing apples at a postal worker. The Smith case matters today for judges and lawyers because it reveals problems not just with the correction- al system but with sentencing practices, in particular adult sentencing provisions, and youths' rights to coun- sel under the Youth Criminal Justice Act. Before she died, Smith had been repeatedly tasered, pepper-sprayed, restrained, subjected to forced medical treatment, including forced injections, and assaulted. She died alone, while guards watched, after having been relegated to solitary confinement for periods of time greatly in excess of those permitted by law. In the four years she spent in prison between the ages of 15 and 19, first as a youth, then transferred to an adult custody, she was almost always in a medical gown in a solitary cell. Hundreds of charges were laid against her while she was in custody, nearly all for defying guards' orders, mostly by self-harming. A 2013 inquest into Ashley Smith's death rendered a shocking homicide verdict. This was the first time an inquest in Canada had ever ruled a death in custody to be a homicide without attributing fault for the death to another offender. The strong implication of the verdict was that it was neither an accidental death nor a suicide — it was a killing for which the system and actors within it were at fault. The incendiary effect of this verdict was muted, however, by a disappointing 2014 CSC response to the inquest verdict. In the fall of 2015, Prime Minister Justin Trudeau assigned to the Department of Justice the mandate of addressing issues brought to light by the Smith case. Advocates for abolition of segregation in prisons have suggested that this mandate should properly be with Public Safety. However, I think the prime minister has it, at least partially, right. My research about the Smith case found that the clearest and most direct path to preventing prison ho- micides like that inf licted on Smith is justice system reform and, specifically, reforms to the bail, sentencing and youth criminal justice systems. The vast majority of the hundreds of criminal offences for which Smith received guilty verdicts were administration of justice offences. While it may reveal that Smith had mental health problems at least after a certain point during her time in custody, before she was incarcerated, mental health pro- fessionals her family consulted did not diagnose Smith with mental illness. Smith's mother, Coralee Smith, too, has maintained that her daughter became mentally ill while in prison. The pattern of escalating administration of justice offences being laid against Smith is consistent with longstanding criticisms of the use of administration of justice offences against girls. Further investigation of the extent to which not only girls continue to be treated differently from boys but, more broadly, the effects of different embodiments of diversely identified accused youths (indigenous, black, gender non-conforming, otherwise unusual, disabled) under the current youth criminal justice system is warranted. By law, the focus of the inquest in the Smith case was limited to the 11 months she spent in federal custody. However, without absolving CSC for responsibility in her death, it is important to remember that much of what went wrong in the Smith case reveals problems with how she got there. YCJA sentencing and pre-trial detention generally are as much a part of the story of what led to the homicide of Ashley Smith as is solitary confinement. Had she lived, Smith would now be 28 years old. Her affidavit, filed in transfer proceedings that led to her placement in an adult penitentiary, expresses her belief and hope that she could "get better and do some- thing productive with my life." We will never know what she could have done. As Canadians, we should be haunted by this loss and rec- ognize that it should drive the energies of those of us working as lawyers and in other capacities related to the criminal justice system toward advocacy for bail, sen- tencing and YCJA reform. Ashley Smith's case reveals problems within the correctional system generally, and solitary confine- ment in particular, that continue to be relevant today. However, especially for lawyers, it would be a mistake not to remember also what happened earlier in Smith's life, and how she ended up in adult prison in the first place. LT uRebecca Jaremko Bromwich is director of the Gradu- ate Diploma in Conf lict Resolution Program and teaches at Carleton University's Department of Law and Legal Studies. Bromwich also teaches at the University of Ot- tawa's Faculty of Law and is the author of Looking for Ashley: What the Smith Case Reveals About the Gov- ernance of Girls, Mothers and Families in Canada. u SPEAKER'S CORNER Social Justice Alan Shanoff

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