V01870 Victoria Registry Court of Appeal for British Columbia BETWEEN: FRANCISCO NOTA MOISES PLAINTIFF (APPELLANT) AND: CANADIAN NEWSPAPER COMPANY LIMITED doing business as THE TIMES-COLONIST DEFENDANT (RESPONDENT) Before: The Honourable Mr. Justice Carrothers The Honourable Madam Justice Newbury The Honourable Mr. Justice Williams D. H. Christie Counsel for the Appellant B. T. Gibson Counsel for the Respondent Place and Date of Hearing Vancouver, British Columbia February 21, 1996 Place and Date of Judgment Vancouver, British Columbia June 3, 1996 Written Reasons by: The Honourable Mr. Justice Williams Concurred in by: The Honourable Mr. Justice Carrothers The Honourable Madam Justice Newbury Court of Appeal for British Columbia Francisco Nota Moises - v. - Canadian Newspaper Company Limited doing business as the Times-Colonist Reasons for Judgment of the Honourable Mr. Justice Williams I 1 On November 23, 1988, the respondent ("Times-Colonist") published an article about the appellant ("Moises") under the headline, "Ottawa still questioning why terrorist official living in Victoria". Moises sued for libel, claiming that the headline and the article referring to him as a "terrorist official" were false, malicious, and damaging to his reputation. The trial judge dealt with the defences of truth and qualified privilege which were raised by the Times-Colonist. He made no finding on the defence of truth, but found that the article was published on an occasion of qualified privilege. Moises appeals from the dismissal of his action. II 2 At the time the impugned article was published, Mozambique had been engaged in civil war for approximately 15 years. There were two factions in the country, the government party known as Frelimo, a "Marxist-Leninist" party supported by the U.S.S.R., and an anti- government party known as "Renamo", a "democratic" party founded in the former Rhodesia. 3 Moises was a refugee from Mozambique who had for some time been living in Victoria, B.C. He was a supporter of Renamo, and, in a letter published in the Globe and Mail on 6 May 1988, he identified himself as the "Secretary" of Renamo's "Department of Information". In addition, he had written a number of letters to other Renamo supporters and had intended to take on the role of fundraiser for the organization, although, it should be noted, he did not in fact do so. 4 The civil conflict in Mozambique allegedly involves ambushes and night attacks using Soviet-Block Mig A.K. 47 and other Soviet made weaponry. As part of his efforts to assist Renamo, Moises wrote to a colleague in Washington claiming that Renamo needed uniforms, boots, medicine and sophisticated anti-aircraft missiles. 5 In April 1988, one Robert Gersony, a consultant to the U.S. State Department's Bureau for Refugee Programs, submitted a report to the Director entitled "Summary of Mozambican Refugee Accounts of Principally Conflict-Related Experience in Mozambique" (the "Gersony Report"). In the course of studying the refugee situation, Mr. Gersony visited refugee camps in several countries in Central and Southern Africa and found that, although some of the refugees came from areas dominated by Frelimo, others came from areas controlled by Renamo. Although Gersony's report focussed on the refugee problem, he offered his opinion, on the basis of refugee reports, that 100,000 civilian deaths were attributable to Renamo. He also reported that serious complaints had been made about abuses by Frelimo government soldiers, although such complaints were fewer in number than complaints concerning Renamo. On 22 April 1988, an article appeared in the Globe and Mail highlighting the Gersony Report which attributed a massacre to Renamo. 6 In response to that article, Moises wrote a critical letter which was published by the Globe on 6 May 1988. In that letter, Moises claimed that the earlier article had been based on Frelimo propaganda. He claimed that Renamo had liberated approximately 85 per cent of Mozambique while Frelimo had killed hundreds of thousands of its own nationals. He criticized the Gersony Report as a ploy by Frelimo supporters to secure support from the United States Government. The letter was signed: Francisco Nota Moises Secretary Department of Information of Renamo Victoria, B.C. 7 Following this letter, some 16 articles were written by the Times-Colonist from 17 June 1988 to 15 December 1990. These articles questioned why Moises had been accorded refugee status, given the information contained in the Gersony Report. In the articles leading up to 23 November 1988, Renamo was characterized by the Times-Colonist as a "terrorist group" and "an African resistance group" and Moises was referred to its "Chief Information Officer". 8 On 23 November 1988, the Times-Colonist published the impugned article, the headline and first paragraph of which read as follows: Ottawa still questioning why terrorist official living in Victoria Ottawa is still investigating the granting of refugee status to an official of a Mozambican terrorist organization living in Victoria. The article went on to cite the Gersony Report which, as noted above, attributed the massacre of 100,000 citizens to Renamo. 9 Moises testified at trial that Renamo is an organization seeking to liberate the Mozambican people from the "Marxist- Leninist" forces of Frelimo and that the terrorism which occurred in Mozambique was carried out by Frelimo forces. He denied that he was a "terrorist official" or "terrorist group officer" but admitted he was an information officer or spokesman for Renamo, which he denied is or was a terrorist organization. His evidence was that the Times-Colonist's story of 23 November 1988 devastated his reputation in his community such that he could no longer go to his church. The church had supported his claim for refugee status. 10 The Times-Colonist called as an expert Dr. Maureen Covell, Associate Professor, Department of Political Science, Simon Fraser University. Although Dr. Covell had never been to Mozambique or many other East African countries, she professed an expertise in the field of East African revolutionary regimes, including Mozambique. Moises challenged Dr. Covell's credentials but the trial judge qualified her to testify in the area of revolutionary regimes and to express her opinion that Renamo could properly be described as a "terrorist organization." 11 Dr. Covell referred to the Gersony Report. Moises objected to its admissibility, challenged its contents and submitted that Mr. Gersony should be called so that he could be cross-examined. The trial judge allowed the report to be entered as an exhibit as a study referred to by Dr. Covell and declined to require that Gersony be called. 12 The trial judge dismissed Moises's action on the basis that the publication attracted qualified privilege. He concluded that Moises could correctly be described as a Renamo official, but declined to decide whether or not it had been demonstrated that Moises was a terrorist: In my view, however, it is unnecessary for me to determine the issue of justification or truth as the alternative defence advanced by the defendant is one which may be addressed without a determination of truth. 13 The trial judge went on to explain how the articles written by the Times-Colonist had raised questions as to why Moises was permitted to remain in Canada as a refugee in light of the Gersony Report and other commentaries surrounding Renamo. He then said: All these matters which occurred prior to the report of November 23, 1988, give rise to a common interest between the defendant and its readers in respect of the administration of the Immigration Department and the proper administration of procedures to be followed within that department and the public service generally in regard to the admission of political refugees. In that respect, I am satisfied on a balance of probabilities that the words were uttered on a privileged occasion. * * * The various articles concerning the plaintiff and his connection with Canada and Renamo raise serious questions as to whether public officials in Canada properly carried out their duties. In my view, that creates a circumstance from which one should conclude that the defendant had a duty and an interest in the subject matter and a corresponding public interest in matters involving immigration. Accordingly, I am satisfied that the publication made by the defendant, which although injurious to the character of the plaintiff, was made on an occasion of qualified privilege ... III14 The trial judge made no finding concerning the truth of the statements made by the Times-Colonist in the article of 23 November. In the case at bar, there is no question that labelling Moises as a "terrorist official" was defamatory. Neither the headline nor the story placed those words in italics or quotation marks. Nor was the phrase "alleged terrorist official" used. This would certainly have "softened the blow", and, as counsel for Moises indicated, would have made this a very different case. But irrespective of the manner in which the Times-Colonist chose to publish the story, they are entitled to argue, as they do, that the article was published on an occasion of qualified privilege. Mr. Moises, in order to succeed on this appeal, must establish that the trial judge erred in that regard. 15 The defence of qualified privilege is simple enough to define, but difficult in its application. This is particularly so when it is advanced by a newspaper since it clearly pits freedom of expression and freedom of the press, on the one hand, against the right of an individual to protect his good reputation on the other. 16 The Times-Colonist argues that newspapers may avail themselves of the defence in three sets of circumstances. First, where the words are published in the fulfillment of a duty to respond to a proper and legitimate interest on the part of the community to receive information of genuine public interest; second, where "special circumstances" exist; and third, where the words are published in good faith and the publisher carried out its duties in a responsible fashion and published a fair and balanced story. As part of its third point, the Times-Colonist argues that the common law, which forbids the republication of defamatory statements, must be modified and brought into harmony with s. 2(b) of the Charter by expanding the ambit of qualified privilege. 17 The defence of qualified privilege recognizes that there are certain limited occasions upon which a person may publish untrue, defamatory statements about another with impunity. In Gatley on Libel and Slander, 8th ed. by Philip Lewis (London: Sweet & Maxwell, 1981), the defence is explained as follows, at pp. 185-86: There are occasions upon which, on grounds of public policy and convenience, a person may, without incurring legal liability, make statements about another which are defamatory and in fact untrue. On such occasions a man, stating what he believes to be the truth about another, is protected in so doing, provided he makes the statement honestly and without any indirect or improper motive. These occasions are called occasions of qualified privilege, for the protection which the law, on grounds of public policy, affords is not absolute but depends on the honesty of purpose with which the defamatory statement is made. The rule being founded on the general welfare of society, new occasions for its application will necessarily arise with continually changing conditions. 18 Clearly, the categories of situations in which a qualified privilege will arise are not closed and the determination of whether or not the defence should succeed can be a difficult matter. As stated by Lindley L.J. in Stuart v. Bell, [1891] 2 Q.B. 341 at 346 (C.A.): The reason for holding any occasion privileged is common convenience and welfare of society, and it is obvious that no definite line can be so drawn as to mark off with precision those occasions which are privileged, and separate them from those which are not. RECIPROCAL INTEREST AND DUTY 19 The law protects the publisher of an otherwise defamatory statement under the defence of qualified privilege provided the publisher is able to establish that he or she had an interest or a duty to communicate certain information and that the recipient had a corresponding duty or interest to receive the information. This was made clear in Adam v. Ward, [1917] A.C. 309 at 334 (H.L.), where Lord Atkinson stated: ... a privileged occasion is, in reference to qualified privilege, an occasion where the person who makes a communication has an interest or a duty, legal, social, or moral, to make it to the person to whom it is made, and the person to whom it is so made has a corresponding interest or duty to receive it. This reciprocity is essential. There are a number of factors which a court must consider when deciding whether or not any given occasion is one of qualified privilege. In Sapiro v. Leader Publishing Co. Ltd., [1926] 2 W.W.R. 268 at 271, 20 Sask. L.R. 449 (Sask. C.A.), Lamont J.A. said: In determining whether or not it is so privileged, the Judge will consider the alleged libel, who published it, why, and to whom, and under what circumstances. He will also consider the nature of the duty which the defendant claims to discharge, or the interest which he claims to safeguard, the urgency of the occasion, and whether or not he officiously volunteered the information, and determine whether or not what has been published was germane and reasonably appropriate to the occasion. 20 It must be remembered that it is the occasion that is privileged and not the parties. The qualified privilege that might otherwise attach to an occasion may be defeated by actual or express malice or where the limits of the duty or interest have been exceeded. 21 The mere fact that a publisher of defamatory matter is a newspaper, as opposed to an individual, in no way alters the interest/duty analysis. In Banks v. The Globe and Mail Ltd., [1961] S.C.R. 474 at 482, Cartwright J. quoted the following passage from Arnold v. The King Emperor (1914), 30 T.L.R. 462: The freedom of the journalist is an ordinary part of the freedom of the subject, and to whatever lengths the subject in general may go, so also may the journalist, but apart from statute law, his privilege is no other and no higher. The responsibilities which attach to his power in the dissemination of printed matter may, and in the case of a conscientious journalist do, make him more careful; but the range of his assertions, his criticisms, or his comments, is as wide as, and no wider than, that of any other subject. No privilege attaches to his position. 22 Furthermore, as he had done earlier in Globe and Mail Ltd. v. Boland, [1960] S.C.R. 203, Cartwright J. stated that, although newspapers enjoy the same right as all other citizens to report truthfully and comment fairly upon matters of public interest, that right must not be confused with the sort of duty that gives rise to an occasion of qualified privilege. In Boland, at p. 209, he stated that the public interest and the interests of newspapers find adequate protection in the defence of fair comment: The interest of the public and that of the publishers of newspapers will be sufficiently safeguarded by the availability of the defence of fair comment in appropriate circumstances. 23 In reference to the scope of the defence, it was again Cartwright C.J. in Jones v. Bennett, [1969] S.C.R. 277 at 284 who stated that the defence cannot succeed where the publication is unduly wide: In view of the unanimous judgments of this Court in Douglas v. Tucker ... and in Globe & Mail Ltd. v. Boland, it must be regarded as settled that a plea of qualified privilege based on a ground of the sort relied on in the case at bar cannot be upheld where the words complained of are published to the public generally or, as it is sometimes expressed, "to the world". 24 Nevertheless, there are several decisions of this Court which make it clear that the principle enunciated in Jones is not absolute. For example, in Parlett v. Robinson (1986), 5 B.C.L.R. (2d) 26, 30 D.L.R. (4th) 247 (C.A.), the defendant was the official N.D.P. spokesperson on the affairs of the Ministry of the Solicitor General. He sought to persuade the Minister to hold a public inquiry into allegations that a Correctional Service official was profiting from an inmate's work. Having failed to persuade the Minister, the defendant held a press conference and expressed his concern over the absence of effective controls in the Correctional Service. In the course of that conference, and later on television, he defamed the plaintiff, whose subsequent action was successful. 25 On appeal, Hinkson J.A. considered Jones and noted, at p.37, that the defendant in Jones "was under no duty to communicate the concern he had about the plaintiff to anyone". In contrast, Hinkson J.A. found, at p.39, that the defendant in Parlett had a "duty to ventilate the subject matter and the electorate [had] an interest in knowing of the matter." The requisite mutuality of duty and interest having been established, Hinkson J.A. considered whether the publication "to the world" was too broad and held that the publication was not unduly wide since the group with a "bona fide interest in the matter was the electorate in Canada." 26 In Baumann v. Turner (1993), 82 B.C.L.R. (2d) 362, 105 D.L.R. (4th) 37 (C.A.), Legg J.A. approved of Parlett and stated at p.386 that "[t]he decision in Parlett v. Robinson states a qualification to the principle stated in Jones v. Bennett that a qualified privilege cannot be upheld where there is a publication to the public of the words complained of." 27 Similarly, in the much earlier decision in Wade & Wells Co. Ltd. v. Laing (1957), 11 D.L.R. (2d) 276, this Court found that defamatory comments made by an elected politician at two political meetings at which newspaper reporters were present attracted qualified privilege because the politician had a public duty to report to his constituents that, in his opinion, there was waste in the execution of a government contract. 28 Another qualification to the principle that publication "to the world" will exceed the privilege attaching to the occasion may be found in Adam, supra, where a false charge had been published "to the world" and it was held that in refuting that charge, the defendant was entitled to address the same audience. (See also Camporese v. Parton (1983), 47 B.C.L.R. 78.) 29 Although the Times-Colonist cited Adam in support of its position, it is my view that the circumstances in Adam bear few, if any, similarities to the facts of the present appeal. 30 The Times-Colonist relied heavily on the fact that Moises had himself "come into the fray" by publishing his letter of 6 May in response to the Globe and Mail article. Entering the fray may, in some circumstances, be an important fact in a defamation case. Anyone who raises an issue and charges another should expect a counter-charge of equal or even greater force. But that is not what occurred in this case. Here, Moises responded to a Globe and Mail article by letter, and, in response to that letter, the Times- Colonist published some 16 articles concerning him. Freedom of expression includes the right to speak out by writing letters to the editor of a newspaper. However, if the mere act of writing a letter to the editor could automatically clothe a subsequent defamatory statement with qualified privilege, even greater intrusion on freedom of expression would result than that which concerns the Times-Colonist. 31 The issue remains, was this an occasion of qualified privilege? Suppose a neighbour of Moises had gone out on the street with a loudhailer and, without malice, shouted "Francisco Nota Moises is a terrorist official". Even if the neighbour had followed this hail by statements similar to those contained in the impugned article, could it be said, merely because of the immigration controversy which had occurred earlier in the year, that this was an occasion of qualified privilege? I think not. If the neighbour could not avail himself of the defence in such circumstances, it follows that the Times-Colonist would not be entitled to the defence despite the controversy that swirled in the press for a number of months. 32 I am not satisfied that, even if the public had a legitimate interest in receiving the information concerning Moises, the Times- Colonist was under a duty to publish the impugned article. This was not, after all, a situation where either Moises or Renamo presented any threat to Canada, or to anyone in Victoria. SPECIAL CIRCUMSTANCES 33 The "special circumstances" aspect of the defence was argued on the basis of a statement made by Cartwright J. in Banks, at p.484: The decision of the learned trial judge in the case at bar, quoted above, appears to involve the proposition of law, which in my opinion is untenable, that given proof of the existence of a subject matter of wide public interest throughout Canada without proof of any other special circumstances any newspaper in Canada (and semble therefore any individual) which sees fit to publish to the public at large statements of fact relevant to that subject-matter is to be held to be doing so on an occasion of qualified privilege. [Emphasis added] 34 The Times-Colonist argues that this passage permits the defence of qualified privilege to succeed where there are "special circumstances" and that such circumstances exist in the case at bar. However, the facts relied on by the newspaper as constituting "special circumstances" are essentially the same as those relied upon in connection with the defence based on the reciprocal interest/duty relationship. 35 The Times-Colonist appears to take the position that, in Banks, supra, Cartwright J. recognized a discrete "category" of qualified privilege which might be successfully invoked without requiring the court to engage in an interest/duty analysis. 36 I do not agree. 37 In my view, Cartwright J. was simply recognizing that there is no general privilege available to the media at common law and that "special circumstances" will be required before the public's interest in any given matter will be strong enough to impose a duty upon a newspaper to publish defamatory matter. Special circumstances as such do not override the need for a reciprocal interest/duty relationship before qualified privilege will attach. 38 However, since the Times-Colonist has argued "special circumstances" as a separate category, I will deal with the argument in the same manner. 39 It would appear to me that special circumstances may well exist where there is an urgent need to "ventilate the subject matter" such as in Parlett, supra, or perhaps where there is a health scare such as in Camporese v. Parton, supra. In both of these cases, of course, the decisions were still predicated on the basis of a duty/interest relationship. 40 No "special circumstances" have been shown here which would permit the Times-Colonist to invoke the defence of qualified privilege. FAIR REPORT PRIVILEGE 41 The third aspect of the defence raised by the Times-Colonist is the so-called "fair report" privilege. Under this heading in its factum, the Times-Colonist makes several interrelated arguments. Broadly speaking, its position appears to be that the common law rule that holds the media responsible for republishing libellous statements on matters of public interest is an unjustified restriction on freedom of expression since, in particular, the difficulties involved in verifying the truth of allegations made by others has a "chilling effect" upon the willingness of newspapers to publish statements that are, in fact, true. The Times-Colonist asserts that, in order to combat this "chilling effect", qualified privilege should be expanded so as to protect a newspaper which publishes defamatory matter, provided that the publication in question is a "fair report". 42 Because the Times-Colonist's argument consists of several interrelated components, it is easier to understand if those components are analyzed separately. Thus, I propose to divide the argument into four categories: (1) developments in other common law jurisdictions; (2) the Charter and Charter values; (3) republication; and (4) the decision in Parsons v. Windsor Star (1989), 71 O.R. (2d) 5, 63 D.L.R. (4th) 732 (H.C.). OTHER JURISDICTIONS 43 On behalf of the Times-Colonist, Mr. Gibson argues that while the defence of qualified privilege has met with limited success over the last one hundred years or more, times have changed. Statutory amendments now provide greater protection to certain officials, and various law reform commissions have urged legislatures to expand the defence. He argues that the categories are never closed and that the trend in the common law is to expand the rights of newspapers to publish defamatory information in order to protect freedom of expression and freedom of the press. 44 He relies on a number of cases from several countries in the common law world in support of the proposition that the law of defamation "chills" the publication of true statements. 45 In Webb v. Times Publishing Co. Ltd., [1960] 2 Q.B. 535, [1960] 2 All E.R. 789, Pearson J. held that, even though the qualified privilege which traditionally attached to "fair and accurate reports" of judicial proceedings was reserved for domestic proceedings, qualified privilege also attached to reports of foreign judicial proceedings when such reports were of public interest in England. He also suggested that a plea of "fair information on a matter of public interest" could constitute a defence if the information was defamatory. 46 Mr. Gibson argues that decisions such as Webb recognize the need in modern society to provide the public with full information on matters of legitimate and proper interest. 47 However, in Blackshaw v. Lord, [1984] Q.B. 1, [1983] 2 All E.R. 311, the U.K. Court of Appeal considered Webb and decided that, although the decision was supportable on the ground that the privilege "was analogous to the well-established privilege attaching to reports of English judicial proceedings", there is no defence of "fair information on a matter of public interest". 48 In addition, Mr. Gibson refers to the decision of the U.S. Supreme Court in New York Times v. Sullivan, 376 U.S. 254 (1964) and the decision in Edwards v. National Audubon Society, 556 F.2d 113 (2d Cir. 1977). In the New York Times case, the defendant newspaper published an advertisement in which untrue and defamatory allegations were made regarding the activities of the police force in Montgomery, Alabama during non-violent protests by civil rights activists. The plaintiff Sullivan, an elected commissioner whose duties included supervision of the police, brought a libel action against the newspaper. Although he was successful at trial and on appeal, the U.S. Supreme Court ruled that the existing common law of defamation violated the guarantee of free speech under the First Amendment of the Constitution and that a citizen's right to criticize public figures is of such fundamental importance in a democratic society that it can only be accommodated through the tolerance of speech which may eventually be determined to contain falsehoods. The court did away with the common law presumptions of falsity and malice that arise when defamatory statements are published and placed the onus on the plaintiff to prove that, at the time the defamatory statements were made, the defendant either knew them to be false or was reckless as to whether or not they were false. 49 The Supreme Court of Canada declined to follow New York Times in its recent decision in Hill v. Church of Scientology of Toronto, [1995] 2 S.C.R. 1130. 50 In Edwards, supra, Judge Kaufman said this: We do not believe that the press may be required under the First Amendment to suppress newsworthy statements merely because it has serious doubts regarding their truth. Nor must the press take up cudgels against dubious charges in order to publish them without fear of liability for defamation. Mr. Gibson does not and could not place a great deal of reliance on these American decisions since they are based on the First Amendment of that country's Constitution. He does, however, argue that they illustrate a trend towards expanding the rights of newspapers to publish defamatory information. 51 Mr. Gibson also relies upon the Australian decision in Theophanous v. Herald & Weekly Times Ltd. (1994), 124 A.L.R. 1 (H.C.) for the proposition that a trend is developing elsewhere in the common law world. In Theophanous, the plaintiff member of the House of Representatives brought an action in response to a letter to the editor of a local newspaper criticizing his views in relation to immigration issues and questioning his fitness for office. The High Court held 4 to 3 that there was an implied freedom of communication in that country's Constitution with respect to the discussion of government and political matters and that this implication could ensure the efficacy of representative democracy, only if it were extended to protect political discussion from exposure to onerous criminal and civil liability. 52 Once again, since the finding in Theophanous was based on a constitutional provision, it is argued as an illustration of the trend. 53 If the cases relied upon by the Times-Colonist do in fact amount to a trend as Mr. Gibson argues, the trend certainly does not appear to have gained much momentum in Canada, where we place a significant value on reputation. Nor, it would seem, has the trend been one which Canadian courts have enthusiastically adopted or followed. We need only consider the judgment in Hill to confirm what our highest court considers Canadian values to be in this regard. Cory J. carefully analyzed the conflict between freedom of expression and the protection of reputation and concluded that, because they are both important values, the common law need not bemodified in order to reduce the "libel chill" at the expense of individual reputation. I agree. CHARTER VALUES 54 With respect to the Charter argument advanced by the Times- Colonist, it must first be stated that, because this case does not involve government action, the Times-Colonist is precluded from arguing that its rights under the Charter have been infringed. However, the Times-Colonist is not precluded from arguing that Charter values should be taken into account and that the common law should be modified and brought into harmony with s.2(b) by extending the privilege accorded to "fair and accurate reports" of certain types of proceedings to the publication of statements made by others on matters of public interest. 55 In Hill, the Court considered an argument that the law of defamation must be modified in accordance with Charter values and, at p.1171, stated that courts should be slow to accede to such arguments: Courts have traditionally been cautious regarding the extent to which they will amend the common law. Similarly, they must not go further than is necessary when taking Charter values into account. Far-reaching changes to the common law must be left to the legislature. 56 The Court considered whether the common law strikes an appropriate balance between reputation and freedom of expression given the values inherent in the Charter and, in doing so, he noted that freedom of expression, although of vital importance, has never been recognized as an absolute right. The Court also observed that defamatory statements are not strongly tied to Charter values: Certainly, defamatory statements are very tenuously related to the core values which underlie s. 2(b). They are inimical to the search for truth. False and injurious statements cannot enhance self-development. Nor can it ever be said that they lead to healthy participation in the affairs of the community. Indeed, they are detrimental to the advancement of these values and harmful to the interests of a free and democratic society. This concept was accepted in Globe and Mail Ltd. v. Boland ... where it was held that an extension of the qualified privilege to the publication of defamatory statements concerning the fitness for office of a candidate for election would be "harmful to that 'common convenience and welfare of society.'" 57 With respect to the importance of individual reputation, the Court said at p.1179: Although it is not specifically mentioned in the Charter, the good reputation of the individual represents and reflects the innate dignity of the individual, a concept which underlies all the Charter rights. It follows that the protection of the good reputation of an individual is of fundamental importance to our democratic society. 58 In the result, the Court held that the law of defamation was neither unduly restrictive nor inhibiting, it declined to import into Canada the decision in New York Times, supra. 59 This Court has had recent occasion to consider an argument based on Charter values that was similar to that advanced in Hill. In Newson (Chief Provincial Firearms Officer for B.C.) v. Kexco Publishing Co. et al (16 November 1995) CA016167, Lambert J.A. for the Court said: I would also reject the argument that the effect of reflecting Charter values in the common law is to extend the common law relating to the defence of qualified privilege to a much wider class of political statements. I do not think that Charter values, properly understood, either demand or encourage that extension. That point was made by Mr. Justice Cory in Hill ... and by Mr. Justice Wood in Derrickson.... So I would not accede to any argument on the substance of the liability issue. 60 In Coates v. Citizen (The) (1988), 44 C.C.L.T. 286, 85 N.S.R. (2d) 146 (T.D.), Richard J. quoted the following passage from Brown's The Law of Defamation in Canada (Toronto: Carswell, 1987) at p.312: Unlike their American colleagues, therefore, our judges have weighed more heavily the value of personal reputation over those of free speech and free press. Thus there occurs in many of their decisions a careful reminder that these freedoms are ones "governed by law" and that there is no "freedom to make untrue defamatory statements". The press in Canada, particularly, has received no special protection in the law of defamation. The courts have been unwilling to recognize any unique prerogatives on the part of the press to communicate matters of public interest or concern to the general public. Thus, Canadian courts have stated emphatically that the press enjoys no privilege of free speech greater than enjoyed by a private individual and that the liberty of the press is no greater than the liberty of every subject. This is not intended as an invidious comparison. Our judges cherish free speech and a free press no less than their American counterparts. They just happen to value personal reputation, particularly the reputation of their public servants, more. 61 What emerges from the foregoing authorities is a justified unwillingness to hold that the common law of defamation is inconsistent with Charter values. Freedom of expression is of fundamental importance in Canada, but so is the dignity of the individual and his or her right to protect and preserve a good reputation. REPUBLICATION 62 As I understand Mr. Gibson's argument, it is that the trend in other countries is to accord a higher priority to freedom of expression than to the protection of individual reputation and to expand qualified privilege. In his submission the defence should be extended to protect the republication in a newspaper of defamatory matter on the basis that newspapers must be able to publish freely in a democratic society where debate and discussion are essential. This concept is referred to in the Times-Colonist's factum as "neutral reportage" and was dealt with by Judge Kaufman in Edwards as follows, at p. 120: At stake in this case is a fundamental principle. Succinctly stated, when a responsible, prominent organization like the National Audubon Society makes serious charges against a public figure, the First Amendment protects the accurate and disinterested reporting of those charges, regardless of the reporter's private views regarding their validity. ... What is newsworthy about such accusations is that they were made. We do not believe that the press may be required under the First Amendment to suppress newsworthy statements merely because it has serious doubts regarding their truth. Nor must the press take up cudgels against dubious charges in order to publish them without fear of liability for defamation. ... The public interest in being fully informed about controversies that often rage around sensitive issues demands that the press be afforded the freedom to report such charges without assuming responsibility for them. 63 Judge Kaufman's decision may well be appropriate in the United States given the First Amendment and the decision in New York Times, but in the absence of legislation in Canada, it cannot be said to accord with the Canadian approach to defamation as expressed by Mr. Justice Cory in Hill. 64 Mr. Gibson conceded, both in his factum and in argument, that "[a]t common law, it was no defence for a newspaper to show that it was merely republishing allegations made by a third party". He then stated that exceptions will be made where a newspaper publishes "fair reports" on judicial and legislative proceedingsand material from public documents. Mr. Gibson argued that this "fair report" privilege should be extended to cover the situation in the case at bar. 65 I am not persuaded that newspapers should be granted such a special status. Indeed, I have concluded that, given the decisions in Hill, Newson and Coates, the facts of this case do not warrant any such expansion of qualified privilege. Qualified privilege, in my view, still requires a reciprocal interest/duty relationship. THE DECISION IN Parsons v. Windsor Star 66 The only "fair and accurate reporting" Canadian case was Parsons, supra. There, two individuals had alleged that a police officer was drunk on duty and had used a term of racial abuse. They complained to the police. One of them telexed several politicians and newspapers and outlined the allegations. Those allegations were published by the Windsor Star. 67 The police officer sued the individuals and the Windsor Star, charging that the allegations were false to the knowledge of the individuals although not to the knowledge of the newspaper. The two individuals were held liable in damages, but the action against the newspaper was dismissed on the basis that it was protected by qualified privilege. In so finding, Chadwick J. said at pp. 25-26: Applying the law to the facts in this case, I am of the view that the article published by the Windsor Star was a fair and balanced story. If one reviews the story, the headline uses the word "claims" which would indicate that it is only an allegation. The lead-in paragraph reads: "Two area MP's and an MPP have called for an investigation into a Windsor man's claim that a drunken on-duty Windsor policeman called him a 'Paki'." Once again, the lead-in refers to a claim only and does not take any position as to the truth of the allegation. . . . . . The defence called Ron Miller, the chairman of the Ryerson Poltytechnical Institute, Department of Journalism, who was qualified as an expert in the field of journalism. He reviewed the story and was of the opinion that the story was balanced. I accept this evidence and I also share the same view that on all of the facts, this is a balanced story and the Windsor Star acted properly. In view of my findings regarding qualified privilege, I will not deal with the Charter argument. 68 My first observation regarding the Parsons case is that it is distinguishable from the case at bar since Chadwick J. found that the use of the word "claim" made it clear that the newspaper took no position with respect to the report or the allegations. In contrast, the description of Moises in the case at bar as a "terrorist official" and the words used in the opening paragraph of the article were not attributed to any other party; rather, they appeared to the ordinary reader as assertions of fact attributable to the newspaper itself. 69 It is my view that the decision in Parsons should not be followed. No authority was cited for the proposition, set out on p. 25, that in order to be protected by qualified privilege, newspapers need only "act in good faith and carry out their responsibilities". As will be apparent from these Reasons this is not supported by the jurisprudence, and I am not prepared to accept it as a replacement or substitute for the traditional test based upon reciprocal interests and duties. The court did not establish that the newspaper owed any duty to the public strong enough to override the general rule in Jones, supra, and Douglas v. Tucker, [1952] 1 S.C.R. 275 that publication "to the world" will exceed any privilege which might otherwise attach to the occasion. Nor did it consider the decision in Boland where the court stated that courts must not confuse the right which newspapers have in common with all individuals to report truthfully and comment fairly upon matters of public interest, with a duty of the sort which gives rise to an occasion of qualified privilege. 70 Last, I note the following criticism of Parsons found in a footnote in the looseleaf version of Brown's The Law of Defamation in Canada, 2nd ed. (Scarborough: Carswell, 1994) at p. 13-188: It is difficult to follow the precise reasoning of the court, since it uses language borrowed from the defence of fair and accurate reports and the defence of fair comment, as well as that of a common law qualified privilege. However, the fair report privilege and fair comment defence were not applicable. 71 It follows from the foregoing that I reject the Times- Colonist's argument that qualified privilege will attach whenever a newspaper republishes a story in a fair and balanced manner. As earlier stated, Canadian jurisprudence depends upon a reciprocity of interest or duty as the test for qualified privilege. IV 72 I agree with the observations of Cory J., Richard J. and Lambert J.A. that whatever may be the trend elsewhere, Canadian courts should not blindly sacrifice individual reputation on the altar of freedom of expression. They are both of fundamental importance. The Times-Colonist's argument based on freedom of expression might have been stronger had the newspaper indicated in both the headline and the article that Moises was a supporter of Renamo and that Renamo was allegedly a terrorist organization. Instead, it chose to use a more "eye-catching" headline and opening paragraph, and, in my opinion, went beyond permissable standards in reporting. 73 I would allow the appeal and order a new trial on all matters except the issue of qualified privilege. "THE HONOURABLE MR. JUSTICE WILLIAMS" I AGREE: "THE HONOURABLE MR. JUSTICE CARROTHERS" I AGREE: "THE HONOURABLE MADAM JUSTICE NEWBURY"