Speech in Canada is now freer, and public debate more wide open than it ever was. The news media - and any blogger at her computer - have a new defence against defamation lawsuits, known as responsible communication in the public interest. No longer is it necessary to prove, in court, the truth of a factual statement. A diligent, fair-minded attempt to verify the truth will be enough.
A skeptic may ask why the principle of free speech should protect false statements. One answer set out by Chief Justice Beverley McLachlin in the Supreme Court's unanimous ruling yesterday is that defamation law already grants absolute privilege to the reporting of all statements, true or false, made in Parliament, because of society's interest in unfettered political debate. "Sometimes the public interest requires that untrue statements should be granted immunity," she writes. (The court created the new defence in tossing out libel awards in two separate cases involving the Toronto Star and Ottawa Citizen.)
The principle goes to the core of the Chief Justice's longstanding belief in the "marketplace of ideas": Too-zealous attempts to keep out untruths will inevitably muzzle the truth. "Government by the free public opinion of an open society ... demands the condition of a virtually unobstructed access to and diffusion of ideas," she says, quoting from a 1957 ruling of Supreme Court judge Ivan Rand. The free exchange of ideas is an "essential precondition of the search for truth," and "in the course of debate, misconceptions and errors are exposed. What withstands testing emerges as truth."
From a practical standpoint, not all truth is provable in court, as she points out. Many stories of vital public interest have been left unpublished, or denuded of key facts, because they might not have been provable - say, for instance, because the sources might have moved away, and been unavailable to testify.
The ruling is a welcome change for Canada, a logical and evolutionary step rather than a radical one. It has been 27 years since the Charter of Rights and Freedoms took effect. It has been 15 years since the Supreme Court stressed the public's right to know what goes on in courtrooms, in R. v. Dagenais. As long ago as 1938, the court suggested the Canadian Constitution contained an implicit right of free expression on political matters. Britain, New Zealand, Australia and South Africa have all adopted a responsible journalism defence in recent years.
The ruling does not mean a free-for-all. Canada is now midway between the conservative gatekeeper it was and the wide-open gates of the United States, in which nearly anything may be said about public figures in relation to their official conduct, barring malice.
The protection of reputation still matters, but the right to inquire and publish freely, in a responsible way, is at last on firm ground.