The John Furlong defamation case and Canadian libel law

There was a sharp intake of breath across Vancouver when veteran journalist Laura Robinson's bombshell article about former VANOC CEO John Furlong hit the Georgia Straight last week.
 
Robinson alleged that John Furlong had, during a completely unknown period of residence in Canada, physically and emotionally abused aboriginal elementary students in Burns Lake over 40 years ago. She backed that up with eight sworn affidavits outlining multiple incidents, including one person who stated he was knocked unconscious by a blow from Furlong while in elementary school.
 
Mr. Furlong's response was swift. Armouring himself with one of the finest trial lawyers west of Toronto, he called an accusatory press conference and categorically denied it all, cast aspersions on the professional ethics of the Georgia Straight, and announced that he'll sue.
 
The resulting mediagasm nearly broke Twitter. Many speculated immediately that this was a disaster for the Straight, that it must have taken leave of its senses, and that the piece would be flushed from the site within hours.
 
But Robinson herself took to the airwaves, making a compelling case for public disclosure of the allegations and her own journalistic integrity. And she shot back, announcing her own defamation lawsuit against Furlong.
 
Now, we all have to sit back and wait for the commencement of court actions, now going both ways. BC might fix the our court backlog overnight just from overwhelming public demand to get this trial onto the docket lickety-split.
 
The following is a basic guide to the ground rules of that trial:
 
John Furlong will have to show that Robinson's article damaged his reputation in his community in the estimation of reasonable persons. That should take about five minutes. Once he has done that, the onus shifts to the defence to establish (on the balance of probabilities) one of the available defences. 
 
The cardinal rule in defamation is that truth is an absolute defence. In Canada, the onus lies with the defendant to prove its statement is true.
 
Cue the witnesses--not only the eight who swore affidavits, but others who are apparently willing to come forward as well. The cross-examinations will be searing and brutal, given that Mr. Furlong has eliminated the possibility of a middle ground--one where, for example, he was a very young man in an unfamiliar environment, and he may have been a bit too rough with young kids. Furlong has taken that option away. According to him, all the statements about the abuse in Burns Lake are complete falsehoods.
 
That puts the case in an uncomfortable zone of "he said, she said". As a practical reality, the trial judge may try to avoid a stark decision on whether the allegations are true or false, because he or she probably doesn't have to make a ruling on this question.
 
Rather, this case will most likely be decided on the completely new defense to defamation actions that the Supreme Court of Canada set out in December, 2009 in the landmark decision of Grant vs. Torstar Corp.
 
Peter Grant was a Ontario land developer whose land re-zoning application was suspected by local residents to be the subject of behind-the-scenes deal-making. The Toronto Star printed the comment of one neighbour who declared (about the re-zoning): "Everybody thinks it's a done deal."
 
So Grant sued the Star for defamation.
 
That the neighbour's statement could not be proven would, under the old law of defamation, be fatal to the Star's case. But these facts brought two critical issues into sharp focus: the old law of defamation was in conflict with Charter protections of freedom of expression and of the press; and that Canada needed to grant more robust media protections against libel chill.
 
In writing for the majority, Chief Justice Beverley McLachlin said (in paragraph 57):
 
"It is simply beyond debate that the limited defences available to press-related defendants may have the effect of inhibiting political discourse and debate on matters of public importance, and impeding the cut and thrust of discussion necessary to discovery of the truth..."

"The law of defamation currently accords no protection for statements on matters of public interest published to the world at large if they cannot, for whatever reason, be proven to be true. When proper weight is given to the constitutional value of free expression on matters of public interest, the balance tips in favour of broadening the defences available to those who communicate facts it is in the public’s interest to know."

And further at paragraph 61:
 
"The answer to this argument lies in the fact that a balanced approach to libel law properly reflects both the interests of the plaintiff and the defendant. The law must take due account of the damage to the plaintiff’s reputation. But this does not preclude consideration of whether the defendant acted responsibly, nor of the social value to a free society of debate on matters of public interest. I agree with Sharpe J.A. that the partial shift of focus involved in considering the responsibility of the publisher’s conduct is an “acceptable price to pay for free and open discussion” (Quan, at para. 142).
 
Consequently, the Supreme Court took the extraordinary step of creating a new defence for the press of responsible communication on matters of public interest. The press is specifically permitted to publish statements which may turn out to be unverifiable if the communication was responsibly made. There are many elements to the test, but essentially the publisher must be diligent in attempting to verify the truth of the statements and give full opportunity to the injured party (i.e. the plaintiff) to respond to them.
 
In the Furlong case, the Georgia Straight and Robinson will be called upon to prove that their story was a matter of public interest, that they made every effort to verify the claims made, and that they gave Furlong full opportunity to answer the claims.
 
If Furlong argues that the issue is not a matter of public interest, he may be faced with an uphill battle. He is a public figure, published his own memoir and gives public lectures essentially founded on his inspirational character. He has put his character in issue.
 
As for verification, given the passage of time, there will be almost no evidence beyond the recollection of the witnesses. For this reason, taking the precaution of having statements sworn in affidavit form is significant. Someone who knowingly swears a false affidavit is subject to a criminal charge of perjury. The Straight may argue that this essentially constitutes the best verification available.
 
It will be for the court to decide if it accepts this and if it accepts that the Straight made adequate attempts to offer Mr. Furlong the opportunity to defend himself.
 
There will be other issues, but this case will be decided on the principles of responsible journalism, and not what John Furlong did or didn't do 40-odd years ago. We will all wait (a very long time) for the court to decide this case, and for the inevitable and lengthy appeals process. But this is no slam-dunk for the plaintiff.
 
The press does not serve democracy unless it fulfills its obligation to report the news. It is for that reason that, alone among all other professions and vocations, the press enjoys constitutional protection. When the weak and vulnerable ask to be heard, the press should not participate in silencing them.
 
The Supreme Court took notice of the serious problem of libel chill, and corrected it so that more voices could be heard. Astonishingly, nobody paid attention, least of all the major media outlets. 
 
We don't know -- nor can we ever -- what really took place in Burns Lake 40 years ago when John Furlong was an 18 year old kid alone in a foreign country. That he is today an extraordinary team leader who put on a spectacular 2010 Olympic Games is undeniable.
 
But whatever we think of the claims on either side of this case, it's doubtful that we really do want our media to be prevented from reporting what the people in Burns Lake have to say.
 
That's what this case is all about.

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