PUBLIC INTEREST CASE STUDY


This is a transcript from a mock trial presentation of Douglas v. CBC. The content of this presentation is to highlight the challenges of the notion of public interest, and does not reflect the opinion of the presenters. Some of the facts are NOT accurate, and were added to better include the academic material revolving around public interest we were asked to present. To our knowledge, there is no lawsuit or complaint whatsoever right now revolving around this story.

INTRODUCTORY REMARKS – Presented by Gustavo Vieira

Good morning all.

Our presentation will be the mock trial of Justice Lori Douglas v. Canadian Broadcasting Corporation.

Lori Douglas was the associate chief justice at the family division of the Manitoba Court of Queen's Bench. On August 31, the CBC aired a news report on national television and on its website showing, among other things, that a man named Alex Chapman had filed a formal complaint against J. Douglas with the Canadian Judicial Council, which is in charge of supervising federal judges in Canada.

According to the news report, Chapman’s complaint alleges that in 2003, J. Douglas’ husband had harassed Chapman into having sex with her by showing Chapman sexually explicit photos of her on a website that specializes in white women soliciting sex with black men. Less than two years later, J. Douglas was appointed to the federal bench.

Douglas brought this case against the CBC for defamation, alleging that it was not in the public interest to broadcast the story on television nor post it online. The CBC rebuts those assertions.

The facts have lots of twists and turns and are so convoluted that before each of the parties make their case before this court, we had better watch the CBC story.

Before we pass on to the two parties, I just would like to make it clear that this is not a full-on case of determining defamation, it is merely a determination of whether the CBC’s story was in the public interest or not.

PLAINTIFF

I will argue that the publication is not in the public interest because it is not balanced. The whole of the broadcast is more damaging to my client’s reputation than it is of public interest.

Let me begin by referring to a very important 2009 ruling. In Grant v. Torstar Corp, the Supreme Court of Canada outlined four provisions that the statement or story in our case should contain. They are:

1. The report attributes the statement to a person, preferable identified, thereby avoiding total unaccountability
2. The report indicates, expressly or implicitly, that its truth has not been verified
3. The report sets out both sides of the dispute fairly
4. The report provides the context in which the statements were made

This report claims to be about the questionable manners in which the Office of the Commissioner for Federal Judicial Affairs Canada reviews judicial appointments. Yet their side of the story was not mentioned at any point in the story. It leaves the viewer with ambiguous conclusions, if any conclusion at all.

The report fails to answer key questions:

1. Did Madame Douglas actually reveal this information about her on her judicial application, when asked the question --- Is there anything in your past or present which could reflect negatively on yourself or the judiciary, and which should be disclosed?

2. Did the Office of the Commissioner for Federal Judicial Affairs Canada know about this affair?
And at this point, I’d like you to take a few seconds to read the following quotation from Marissa Dragani’s story on The National, August 31, 2010:

SEBASTIEN GRAMMOND – University of Ottawa:

“It raises issues as to whether she's fit to stay as a judge. If you want people to have confidence in judges and in the justice system in general, there has to be some, you know, perception of integrity of the judges. And if judges engage in conduct that is considered by a large majority of the population as being improper, then how can you expect people to be confident in the ability of those people to sit in on cases and to render judgment? That's the problem.”

Now when hearing such a quote, one can’t be blamed for assuming that Madame Douglas was more than a mere victim in all this.

Without a proper answer to these questions, the reports contained in the story -- such as this quotation from the Dean of the University of Ottawa Law School -- are very damaging innuendos for my client. They fail to answer concepts of responsible journalism, such as the principle of fairness.

Perhaps the CBC exercised “responsible journalism” in researching this story, and every fact was responsibly checked. But without the other side of the story, I would argue, the CBC had no way of establishing whether this story is or isn’t of public interest.

Furthermore, the report is damaging to my client’s reputation because it focuses too much on the pictures.

One good example of this “spill-over effect” this story has had can be found in a story that was published on Global Winnipeg website, where Mr. Alex Chapman is quoted as saying "I got it out there to let them know we can't have a judge in our system who's a porn star."

The way the story was reported puts the pictures at the front and centre of the report. It drifts away from the crucial matter of judicial appointments. Are these matters, which include pornography, depression and solicitation within an individual’s private life of public interest? Perhaps they are of public interest. But the fact of the matter is that these matters were also settled in a confidentiality agreement, which was broken for the purpose of this story. In all fairness, the report does explain why the confidentiality agreement was broken.

As it is mentioned in the piece, Alex Chapman’s concerns were filed in a complaint to the Canadian Judicial Council. And that is why CBC can legally report on the matter. But is this complaint legitimate? Are Mr. Chapman’s concerns legitimate? Those are areas that only the Canadian Judicial Council can assess. And until the Canadian Judicial Council has properly assessed the validity of Mr. Chapman’s complaint, the photographs and bad history remain a matter of Madame Douglas’s private life.

Regardless of the facts of this story, I am concerned about the form of this broadcast: Mr. Alex Chapman and his potentially invalid concerns. First, the broadcast shows an effort from the part of the journalist to detach themselves from the main character of the story. This is a concept we explored in the Tuchman reading. The reporter and the news organization “must be able to protect himself to state -- I am an objective professional.” One of these procedures is the use of quotations to “indicate that the reporter is not making a truth-claim.” Alex Chapman has a clear agenda, and the broadcast doesn’t try to hide it. But the whole story revolves around Mr. Chapman’s agenda, and despite the effort, I feel the broadcast failed to properly report and analyze the news outside of this agenda.

In the context of public interest, it raises two key questions. First, Mr. Chapman is the first and seemingly only person to complain about the matter. If this was an isolated incident, is it truly worth reporting? This point also goes back to the point made earlier, that Mr. Chapman’s complains are not necessarily valid and reliable. Secondly, the CBC says they have been investigating the matter “for months”, giving the viewer a sense of responsibility in the reporting. But what about the sense of urgency? If this judge posed a serious threat to citizens, shouldn’t have they reported on the matter quicker?

Hence, by failing to seek out the “other side of the story” and by running a story based on a man’s concerns before they were even deemed valid by an appropriate authority, the CBC story opened a flood gate for such defamatory statements without answering some basic questions. It causes more harm to her reputation than benefits to the society. To a certain extent, one can even argue that it makes the rest of public figures in Canada more vulnerable to such --as the head of the Manitoba Bar Association calls it --“tabloid journalism”.

With that, I conclude that the CBC publication of August 31, 2010 is defamatory. It is misleading and does not contain enough factual evidence to constitute public interest. The Office of the Commissioner for Federal Judicial Affairs Canada’s side of the story was not properly sought out. Nor was that of Madame Douglas or Mr. King. And if it was sought, it was not properly reported. The story about how judges are appointed in Canada got lost in this report. The viewer’s attention was undeniably taken towards the graphic nature of the pictures, which is a private matter. A proper report on this would’ve focused on the Office of the Commissioner for Federal Judicial Affairs Canada’s reaction to the matter, as opposed to a legal expert. In failing to answer the key questions surrounding this story, the CBC did not meet professional standards.

Until the questions are clearly answered, the report causes more harm to my client’s reputation, and remains a private matter. It leaves the viewer to draw all sorts of baseless conclusion, and that constitutes defamation in the plaintiff’s perspective.

DEFENDENT – Presented by Ramya Jegatheesan

This is not a story we aired lightly. We do not like to play with people’s reputations. We recognize the harm stories can do. This story was the work of a month. We consulted more than a dozen legal experts. We not only spoke to Chapman, who has as you know lodged complaints with the Canadian Judicial Council and the Manitoba Law Society against King and Douglas, but we also spoke to King and Douglas. Douglas has told us this is a private matter. It is always easy in hindsight to find faults with a story or areas that could have been fleshed out. We don't claim this is the complete story, nor can we blamed when King and Douglas refuse to say more than they did.

Here are the players. King is a lawyer who violated the trust between an attorney and a client when he tried to involve Chapman in his intimate life with his wife, including sending Chapman nude photos of her. Then there's King’s firm Thompson Dorfman Sweatman. What disciplinary action did the firm undertake, if any? And was that enough given King’s actions? The same can be said of the Manitoba Law Society and the judicial selection committees. How much did they know and what did they do about it?

Then we come to Justice Lori Douglas. She is a public official, and not just any public official. She is one who represents and metes out the law; she presides over cases in the family division. These are important questions regarding the conduct of people who run our justice system, which depends on the credibility and integrity of those involved. If people invested with the public trust do not have integrity and cannot be held accountable then how can we expect them to advocate for and rule in judgment over us? How can the public have confidence in the system?

There are already signs that that confidence may be eroding. A woman has launched an appeal of a decision made by Justice Douglas. It was a divorce case in which Douglas refused to grant a prevention order. The woman had presented a psychiatrist report which detailed her husband’s interest in fetishistic sex (bondage & S &M) and her battered women’s syndrome. The husband had been suspended by the Law Society of Alberta for sexual harassment in 2007. Whether Justice Douglas decided rightly is not what is pertinent here. What is of concern, is that this is a sign that Justice Douglas may be losing public confidence and trust.

But apart from Justice Douglas posing for the photos and the photos ending up on the internet, there is a more important issue and that is disclosure. Applicants are asked whether there is “anything in your past or present which could reflect negatively on yourself or the judiciary, and which should be disclosed?”

Did Justice Douglas disclose these details to the judicial selection committee? If so, how did the committee arrive at the decision to make her a judge? If Justice Douglas failed to disclose these details to the selection committee, it is a serious breach of trust and integrity. And there is precedent to back this. In 2001, the Supreme Court of Canada decided that Judge Richard Therrien’s (and I quote) “failure to be candid and to disclose relevant information when he was a candidate for the office of judge sufficiently undermined public confidence that he was incapable of performing the duties of his office.”

The judge in question had failed to disclose a criminal record for which he had been pardoned for. The Supreme Court emphasized that it wasn’t his previous trouble with the law that resulted in his removal as a judge, but that he lied about it. The decision made the point that the appointment of a judge is a sign of confidence in him or her personally and that a failure to disclose betrays that confidence. They quoted Professor Gall in the Canadian Legal System as saying, “The dictates of tradition require the greatest restraint, the greatest propriety and the greatest decorum from the members of our judiciary. We expect our judges to be almost superhuman in wisdom, in propriety, in decorum, and in humanity. There must be no other group in society which must fulfill this standard of public expectation and, at the same time accept numerous constraints. At any rate, there is no question that a certain loss of freedom accompanies the acceptance of an appointment to the judiciary."

The judicial selection process in Canada is not transparent. Judges here are not elected, yet the standards set for their behaviour are higher than almost anyone performing a public function. People do not get to pick and choose the judge that will hear their case. This only means that the selection and disciplinary process should be stringent and beyond doubt. It should be clear who can be a judge and who can’t and what measures will be taken when a judge or even a lawyer behaves in a manner that is at odds with the conduct required of their profession.

And if there's even a hint of impropriety, it is in the public's interest to know. Otherwise, there would be no accountability. In this instance, Judge Douglas is a part of the same body (the Canadian Judicial Council), which is now to judge her. In such instances, it is only natural that the public should have and want an impartial third party acting as a watchdog.

What we know is that privacy is changing in the time of the internet. Sometimes, our entire lives can be documented online -- from everything as prosaic as a resume and photos at a graduation to drunken photos and sex videos on YouTube. In these times, there is no guarantee of privacy for anyone let alone Justice Douglas, who as a judge must be held to a higher standard than the average member of the public. There is a responsibility and a need for discretion that comes with certain roles. It’s unfortunate, but true.

And yes, the state and the public have no business in the bedrooms of the nation, but when the business of the bedroom is posted on the internet and used to solicit a client for sexual favours, and a lawyer and a judge are involved, it becomes the public's interest. When King put those photos online and solicited Chapman, he made it the public's interest.

Now the public needs to know not only how the Manitoba Law Society and King's law firm responded and how much they knew, but also what Justice Douglas’s involvement was in all this and how much she disclosed or didn’t disclose when she submitted her judicial applications.

And if the selection committee was aware of her past, was their decision to make her a judge the right one? Yes, Justice Lori Douglas may turn out to an innocent party, but then again, she may not. She is one person, the public is not. Here, the larger issues give the public a stake in the truth. And that is what is in question here.

DECISION – Presented by Gustavo Vieira

So, let’s move on to the determination of whether the CBC’s report is on a matter of public interest that can help defend against the claim of defamation from J. Douglas.

The current state of the law of defamation in Canada requires a plaintiff to show:

(1) that the words or images were defamatory, in the sense that they would tend to lower the plaintiff’s reputation in the eyes of a reasonable person;
(2) that the words in fact referred to the plaintiff; and
(3) that the words were published, meaning that they were communicated to at least one person other than the plaintiff.

Let’s see. The defendant’s news report is clearly defamatory, it referred to J. Douglas undoubtedly and it was broadcast on national television and online. J. Douglas is therefore not required to show that the CBC intended to do harm, or even that it was careless.

When a plaintiff fulfills these requirements, which is the case here, the burden is on the defendant, in this case the CBC, to come up with a defence in order to escape liability. The available defences against defamation under Canadian law are: privilege and fair comment for statements of opinion; which is not the case here. This is a case where the CBC made statements of fact and on these matters there are only three defences available to the CBC:

a) proving that the statement was substantially true (justification);
b) or that the statement was made in a protected context (privilege);
c) responsible communication on matters of public interest.

Nothing in the news report has been proven as substantially true in court. All the CBC had to work with when it published the story was the complaint made by Mr. Chapman at the Judicial Council of Canada. And none of that has yet been confirmed as fact under due process. Privilege on statements of fact has been rejected for the media under the common law in Canada and the courts have not changed that, so the CBC is left with the third option as its only possible defence: the responsible communication on matters of public interest.

Under the new responsible communication defence that the Supreme Court introduced in Grant v. Torstar, the determination of whether a certain publication is in the public interest is the first step. A judge will decide first whether the publication was on a matter of public interest and later a jury will determine whether the communication was responsible. We’ll consider just the first prong of the test. Was the CBC story on a matter of public interest?

The public interest test does not require the publisher to show a "compelling" public interest in publication amounting to a "moral or social duty". It is enough that some segment of the community would have a genuine interest in receiving information on that subject.

The Supreme Court borrowed Raymond Brown’s definition of public interest:

To be of public interest, the subject matter "must be shown to be one inviting public attention, or about which the public has some substantial concern because it affects the welfare of citizens, or one to which considerable public notoriety or controversy has attached (Brown, vol. 2, at pp. 15-137 and 15-138)."

It is however in Grant v. Torstar Corp that Chief Justice McLachlin laid out the current factors for a court to decide whether a certain publication is on a matter of public interest or not. It is interesting that in the absence of a list of factors to decide this issue, the court sought the jurisprudence on “fair comment” which, like I said earlier, also puts the onus on the defendants to prove their comment was on a matter of public interest. First, one must analyze the subject matter of the publication as a whole. The defamatory statement or images should not be examined in isolation.

At the same time, peaking into the private lives of well-known people is not enough to bring a private matter into the public interest for the purposes of defamation law. Public interest may derive from the position of the person, but mere curiosity is not enough. What matters is if some segment of the public has a genuine stake in knowing about the matter published.

Therefore, Britney Spears latest scandal is not of public interest. Or is it?

This is not to say that public figures have no right to protection of their reputation. Canadian law recognizes that the rights of all individuals to a reasonable expectation of privacy. And that is true also to people who enter public life.

When looking at whether a subject matter is private or public, the Supreme Court also warns about framing the issue too broadly or too narrowly. Here, if we think of this case as simply dealing with “the sex life of J. Douglas and her husband", we would be discarding the fact that she is a judge and in family law. By the same token, if we take the suggestion that this is a case about the "Canadian judiciary" we could be giving protection to irresponsible journalism tarnishing the reputation of a federal judge.

Public officers and other people in public life, including judges, cannot reasonably expect to be immune from criticism. But participation in public life does not trump people’s right to protect their reputation. A couple of similar cases may help to enlighten us.

In Quan v. Cusson, the Supreme Court dealt with a defamation lawsuit brought about by an OPP officer, the Supreme Court said “The Canadian public had a vital interest in knowing about the professional misdeeds of those who were entrusted by the state with protecting public safety”. adding that the articles in that case “touched on matters close to the core of the public's legitimate concern with the integrity of its public service”.

In that case, Cst. Cusson had travelled to ground zero completely on his own and represented himself to the New York authorities and the media as an OPP or RCMP officer, what the court then judged it amounted to “sacrificing any claim to be engaged in a purely private matter”.

In Hill v. Scientology, a lawyer’s reputation was at stake and the Supreme Court mentioned that the reputation of a lawyer is of paramount importance to clients, to other members of the profession and to the judiciary.

One of the factors that go into the determination of responsible communication relate to the test for public interest and, particularly in this case, should be considered: The Seriousness of the Allegation. Here’s a complaint that a federal judge had her image taken in sexually explicit photos when she was still a lawyer, then posted by her husband online, who went on to search men to have sex with her and harassed his clients to do so.

While this can be clearly of public interest, it may also go the other way: the harm to her dignity and reputation is certainly higher due to the seriousness of the allegations, but it is really more important because she is not just a public official, she’s a judge.

According to the Supreme Court in Therrien (Re): The judge is the pillar of our entire justice system, and of the rights and freedoms which that system is designed to promote and protect. Thus, to the public, judges not only swear by taking their oath to serve the ideals of Justice and Truth on which the rule of law in Canada and the foundations of our democracy are built, but they are asked to embody them.

Justice Douglas’ career will be forever changed and probably finished after this incident. On the other hand, although her reasonable expectation of privacy is the same as that of any other citizen, being a judge puts her in “a place apart”, according to the Supreme Court in Therrien (Re) where [she] must be and must give the appearance of being an example of impartiality, independence and integrity. What is demanded of [judges] is something far above what is demanded of their fellow citizens.

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