2 Comments

The Watchdogs

It takes a special breed of lawyer to deliver us from libel

“Has this been lawyered?” How often in newspaper, radio and TV newsrooms, in magazine offices, does this clarion call go out on any given day? Lawyering may be a clunky term, but it’s become as much a part of publishing and broadcasting as copy and tape editing. So much so, in fact, that some lawyers spend a chunk of their working week sitting in newsrooms combing stories for defamation. They practise a hybrid specialty called media law, which combines criminal, constitutional and tort law. Their job, as the best of them see it, is not so much to keep us out of legal trouble as to find creative ways to publish in the face of defamation, contempt or other such risks. “There is almost always a way to run a news story that’s in the public interest,” says Stuart Robertson, one of four media lawyers profiled here, all of whom – despite markedly different styles – are dedicated to getting the word out.

BERT BRUSER

A lifelong campaign to broaden freedom of the press

A diminutive, bearded lawyer sits Gandhi-like on a small table in the centre of a large auditorium stage. In soft, carefully chosen words – quite a few of them profane – he captivates students in his media law class at Ryerson with wit and smarts. Many of the leading cases he describes are his own: fighting the publication ban at Karla Homolka’s murder trial or defending the CBC in a libel action brought by the veterans of Bomber Command, who tried to prevent the network from airing The Valour and the Horror. Bert Bruser’s authoritative serenity is based on 26 years as a litigator and media lawyer for The Toronto Star, numerous publishers and other media. Still, there’s something more. Is it his passion for freedom of the press? Undoubtedly. But the essence of Bruser is his intellect. He is, says fellow media lawyer Stuart Robertson, “smarter than God.”

Yet for all his success at law – he heads the five-lawyer media law department at Blake, Cassels & Graydon – Bruser always wanted to be a journalist. In fact, he stumbled into law while trying to make himself a better reporter. He’d started out writing sports for the old Winnipeg Tribune while he was still in high school and, after getting a philosophy degree at Princeton, returned to the Trib as a general assignment reporter. He’d gone on from there to Columbia for his masters in journalism and later to work as a reporter for Canadian Press in New York and Toronto.

“At Columbia, I got interested in journalists who became specialists,” he says. “If you wanted to write about economics, you should be an economist. If you wanted to write about science, you should be a scientist. I now think that’s insane. But when I was a kid, that’s what I believed. So I went to law school thinking I’d write about law as a journalist. Then I came to Blake’s to article and got corrupted by the profession. I started out working on very complicated litigation cases and enjoyed it. As time goes by, you lose your ability to go back. Particularly if you start earning a lot of money. It’s hard to give it up.”

Bruser’s office is on the 27th floor of Commerce Court West in downtown Toronto. The pastel green walls are bare, though a pile of framed photographs lies on the floor. An air purifier whirrs noisily on a windowsill, sucking up Bruser’s illegal cigarette smoke. Stacked cardboard filing cases serve as end tables for a couple of black leather couches that look as though nobody’s ever sat on them. Bruser lost interest in decorating the place after he moved in about a year ago. Even so, there’s something noticeably missing: no computer. Bruser speculates that he’s the only one of the 400-plus lawyers in the firm without one. That’s because he hates them. He doesn’t use a dictaphone either. He writes longhand. “My letters tend to be terse: Dear John, Fuck you. Bert.”

He shows me the pictures on the floor: a mock front page of the Star with an eye-catching photo of himself playing hockey for Princeton surrounded by stories lampooning him; it was presented to him five years ago as a 50th-birthday present. Then a 1992 photo of his son’s baseball team with a clean-shaven Bruser as coach. And finally, a 1972 shot of a tousle-haired young guy in a rumpled sports jacket receiving the U of T law school’s Dean’s Key – when the photo was taken, Bruser was stoned on booze and pot. Not your typical Bay Street lawyer.

For the past five years, Bruser has spent Tuesdays and Thursdays at the Star going to story conferences, consulting on future pieces (especially long-term investigative ones) and scouring copy for libel. He wants the paper to be aggressive, but leaves the final decisions to the editors.

Just the same, some reporters say he oversteps his legal role. Columnist Rosie DiManno, for one, has clashed with Bruser over changes in her copy: the worst flare-up came in 1995. “Bert told me to fuck off and then hung up the phone,” DiManno says. “What prompted that reaction was that Bert, besides making lawyerly cuts, had tried to tell me how to write a certain passage. I said, ‘So, are you a copy editor now, too?’ That sent him over the top.” She calls him a “frustrated journalist,” but adds, “Bert has gone from being an archenemy to being one of my most favourite people, but don’t tell him that.”

Bruser seldom goes to court these days. He thinks of himself more as the team’s quarterback. He called the plays, for example, in Silva v. TorStar, an important recent case triggered by a series of investigative pieces documenting the abuse of elderly tenants in a Toronto seniors’ home. The stories quoted the tenants’ allegations and named Anabela Silva as the home’s manager. She sued. At trial, Mr. Justice W.P. Somers was sympathetic to the plight of the seniors and the Star‘s role in exposing their abusive treatment. In his reasons for judgement, dated October 7, 1998, he wrote: “This article does not in my opinion repeat libellous statements. Rather, it advises its readers that the tenants…had strong views about their building and stated them publicly.” Though under appeal, the case could establish the principle that newspapers can report libellous statements without necessarily laying themselves open to lawsuits by repeating the libel.

As Bruser hands me a copy of the unpublished case, I can see how proud he is of it. It promises to be another important step in his lifelong campaign to broaden freedom of the press. Journalism’s loss, in his case, was clearly journalism’s gain.

STUART ROBERTSON

“The best lawyers are dedicated to telling the story”

Twenty years ago, in the stacks of the University of Ottawa law library, a young lawyer stumbled upon an obscure case which would become a milestone in Canadian media law. Researching his first book, Stuart Robertson had examined hundreds of cases in row after dusty row of law reports. But he sensed that this case, though overlooked for nearly 30 years, merited a closer look.

It had taken place in the 1950s, when a reporter for the old Calgary Albertan had missed an important trial and the magistrate had refused the journalist access to his notes. The Albertan sought, and won, a court order to see them. In granting the application, the judge cited 46 Edward III, a 1372 British statute written in Norman French, the statutory language of the day. Robertson located the ancient law, which said everything in the King’s courts should be available for inspection and copying. The statute had been repealed in England in 1871, but since Canada adopted British law in 1867, it was still in force here.

Robertson wasn’t sure whether to include such an arcane law in Courts and the Media (published 1981) until he got an SOS phone call from a lawyer for the TV newsmagazine, The MacIntyre Report. Linden MacIntyre was working on a story about an RCMP investigation of political fundraising including kickbacks in liquor licensing. He believed the Mounties might have raided the homes of senior politicians, but he needed the search warrants. The court office refused to release them without the attorney general’s consent, which wasn’t forthcoming.

Robertson realized that 46 Edward III had a bearing on the case and supplied his notes and a copy of the old law to lawyers Gordon Proudfoot and Robert Murrant in Halifax. They brought an application, MacIntyre v. Attorney General of Nova Scotia, to force the court office to deliver the material MacIntyre wanted. They won. Within two days, the attorney general appealed. They won again.

As Robertson tells me this story, his round, bespectacled face lights up with childish glee and his red bow tie bobs up and down. “Well, now all the attorneys general in Canada were saying, ‘This is a disaster, for God’s sake. If people can come in and look at the search warrants, oh Jesus, it’s going to affect policing and everything across Canada.’ There was this amazing scene of all these people getting copies of this stuff.”

The attorney general appealed to the Supreme Court of Canada – but the CBC’s lawyers won again. Robertson calls the outcome “the first real freedom of information decision. It was the one in which the Supreme Court said the courts are open. It was a huge decision.”

It’s a little hard to believe that the man who found the key to that decision and went on to be one of Canada’s pre-eminent media lawyers once led a blues-rock band called Touie and the Fourskins. When Robertson was born in 1947, Touie was the closest his toddler sister could come to pronouncing his name – and the nickname stuck. At Lower Canada College in Montreal, Touie wrote poetry and played drums in the cadet band. The poetry led him into honours English at Bishop’s University. The drumming led him to form the blues-rock group with four musician friends. Touie and the Fourskins played the Eastern Townships, Sherbrooke nightclubs and a few CBC gigs.

After graduation, he enrolled at Leeds University in England to pursue a masters degree in 18th-century literature and bibliography. His thesis dealt with a publisher named Andrew Millar, whose copyright battles sparked Robertson’s interest in both publishing and law. Unable to choose, he applied for a job with a book publisher and to law school at Queen’s University. Even though the publisher’s offer came first, he chose law.

After being called to the bar in 1974, Robertson worked in the CBC’s legal department and eventually became director of litigation. He later joined firms specializing in media law in Toronto and Ottawa before founding the partnership, O’Donnell, Robertson & Sanfilippo in 1994. Today, Robertson represents Canadian Press and the National Post, as well as many magazines and broadcasters.

“The delights you get in this business aren’t necessarily court victories,” he says. “The fun is in the editing. To me, the essence of an effective media lawyer is somebody who’s absolutely devoted to getting the story told. It takes editing skills, a literary sense and an understanding of the factual underpinnings of the case. Plus a sense of defamation law, contempt law, privacy, confidentiality – all that important stuff.” And, of course, a sense of when a 14th-century statute might shake up 20th-century law.

MARK BANTEY

“You’re facing judges who don’t appreciate the press”

Mark Bantey grew up in an ink-stained household. His father, Bill, was a reporter for 30 years, first in Quebec City, then in Montreal. Mark still remembers the time, when he was six or seven, that his father first took him to the newsroom at Montreal’s The Gazette. “Those were the old days of clattering typewriters, jangling telephones and clouds of cigarette and cigar smoke,” he says. They were also the days of brothels and blind pigs, political payoffs and police corruption. “When he was on the police beat, my father would come home with some pretty grisly stories,” Bantey recalls.

Even though his father urged him to avoid journalism because there wasn’t enough money in it, newspapers remained central to his life. At French primary school, he taught himself to read English by poring over The Gazette and The Montreal Star (“starting with the comics, of course”). And that routine has never changed. “I’m still an incorrigible newspaper junkie, reading every paper in sight and stacking them when I don’t have time to read them,” he says. “Much to my wife’s despair, there’s newsprint everywhere on the walls and doors of our home.” Yet another ink-stained household.

Newspapers would also become central to Bantey’s professional life, though it didn’t seem so in the beginning. As an undergraduate at Brown University in Providence, Rhode Island, he fell in love with philosophy, graduating magna cum laude. He moved on to the University of Michigan in Ann Arbor, where he completed his MA with a treatise on the analytic philosopher Ludwig Wittgenstein. He started a PhD program, but then, as a teaching assistant, discovered to his dismay that he didn’t like teaching. He bailed out when his hoped-for career in philosophy evaporated and returned home to start law school at l’Universit? de Montr?al.

Bantey, a self-professed rabble-rouser, who in the late 1960s wore shoulder-length hair and protested the Vietnam War, hated his law courses and only “went through the motions” until graduation. After the bar admission course, he articled at Lafleur Brown in Montreal, where he began practising media law almost immediately with Keith Ham, whose major client was The Gazette. “I sought him out because obviously it was fun stuff,” says Bantey. “Keith was quite a character and a great guy to work with. He was no legal scholar by any means, but he really knew how reporters thought and worked.”

Bantey is still at Lafleur Brown, a mid-sized firm with 60 lawyers, and spends about 70 per cent of his time on media law, both consulting with his clients before publication and representing them in court. He enjoys consulting more (except for the late Friday night phone calls from The Gazette over something worrisome in the Saturday paper). Litigation, though, gives him fits. “Court can be frustrating,” he says. “You’re often faced with judges who don’t really appreciate the role of the press, who, in fact, resent the press. When you walk into court, you already have one strike against you because you’re representing the media.”

Still, Bantey, who has appeared several times in the Supreme Court, doesn’t shy away from litigation. In 1996, representing Southam, he successfully applied for an order requiring the Quebec Bar Association to publish disciplinary matters, including the nature of the complaints and the names of the lawyers involved. (That got Bantey a terse call from the president of the bar association, asking “How dare you sue your own bar?”) And last year, Bantey was prominent in two highly publicized cases: a partially successful fight against a publication ban when Karla Homolka sued Correctional Services of Canada for prison passes, and the unsuccessful defence of a libel suit against Richard Lafferty, who compared Jacques Parizeau and Lucien Bouchard to Hitler. Bantey says he’ll appeal all the way to the top court.

But maybe the uncertainties of litigation were most apparent in the libel suit brought by Valery Fabrikant against the Gazette. After the professor of engineering was convicted of murdering four of his colleagues in 1992, the Gazette ran a ten-page supplement explaining who Fabrikant was and, in Bantey’s words, “what a fraud he was.” From prison, Fabrikant sued for a couple of million dollars and conducted his case without a lawyer, which meant there was no possibility of negotiating for a settlement. Bantey won the case for theGazette in the end, but for the entire week of trial, he would wake up in the middle of the night worrying about the outcome: “I sure as hell would hate to be the first lawyer in Canada to lose a libel suit brought by a mass murderer.”

ALLAN LEFEVER

“When asked a question, a journalist won’t shut up”

On the morning of April 20, 1982, three days after the Canadian Charter of Rights and Freedoms was proclaimed, investigators from the Combines Investigation Branch barged into the offices of The Edmonton Journal, demanding to search the files, including those of J. Patrick O’Callaghan, the publisher. They refused to say who sent them or what authority they were acting on. Neither the publisher nor the editor was there. So the business manager called Allan Lefever, the local lawyer for the Southam chain.

The instant he got the panicky call, Lefever attacked. By noon, he had served the Combines Investigation Branch with a notice of motion for an interim injunction. In court on May 20, Lefever based his arguments on the new Charter and lost, but eight months later he won on appeal. Mr. Justice H.S. Prowse struck down the search, writing that sections of the Combines Investigation Act “are inconsistent with the provisions of section 8 of the Charter and are therefore of no force or effect.” He ordered the court clerk to return all documents to the Journal within ten days. The case went to the Supreme Court of Canada where Lefever won again. “Hunter v Southam” thus became a cornerstone of media law. The Charter guarantees a broad and general right to be secure from unreasonable search and seizure, Mr. Justice Brian Dickson wrote. In seeking to invade privacy, the state has the onus of demonstrating that its interest is superior to that of the individual.

Though the case made Lefever a high-profile lawyer, he has never lost his small-town values. He grew up in Medicine Hat, Alberta during the ’50s. His father was a freight conductor for Canadian Pacific and his mother, a housewife. In high school, he played football, joined the Army cadets, wrapped bread in a bakery and delivered the Medicine Hat News.

Inspired by his high school teachers, Lefever enrolled in a four-year Bachelor of Education program at the University of Alberta in Edmonton in 1963. He taught junior high for a year, then returned to his alma mater to begin law school. During first year, Lefever studied tort law and became fascinated by defamation; from there media law was only a short step away.

Hurlburt, Reynolds, Stevenson & Agrios, the Edmonton law firm that represented the Southam chain, hired Lefever as an articling student. There he was fortunate to catch the eye of Bill Stevenson, a partner in the firm who went on to become a justice of the Supreme Court of Canada. Stevenson became his mentor, doling out stories to him to check for libel. Lefever was full value for the opportunity; he immediately began the arduous work schedule – which includes three evenings every week and one day on the weekend – that he has maintained throughout his career. Media law occupied about half his practice and consisted mostly of reviewing stories for defamation risk, looking at material reporters had gathered and brainstorming with them.

Though he’s an accomplished litigator, Lefever, like most of his media-law colleagues, considers a case that’s allowed to go to trial as evidence of failure by everybody involved in the process. “Having a dispute resolved at a trial,” he says, “is like having your appendix removed with a rusty hacksaw.” Just the same, he’s come awfully close. One of his settlements came just four days before former Alberta premier Don Getty’s suit against The Globe and Mail was set to go to trial in 1997. Peter Moon, one of the Globe’s investigative reporters whose stories prompted Getty’s lawsuit, recalls Lefever coaching him for cross-examination. “Journalists make the worst witnesses,” Lefever told Moon after the reporter had answered his mock questions at great length. “They won’t shut up. I’d rather question a farmer. He thinks about it for a while, then answers, ‘Yup.'”

Lefever himself is anything but taciturn. In fact, he’s gained a reputation over the years of being something of a court-room jester. In the 1995 trial of Marilyn Tan, who was accused of injecting her lover with HIV, he opposed the Crown’s request for a publication ban of a millionaire witness, dubbed the “fairy godfather.” People who testify “come, warts and all,” Lefever cracked. “If humiliation and financial loss were reasons to ban publication of names, then court services should put a brown-bag dispenser at the door.”

But as of last January 24, Lefever had to button his lip. Decorum became the order of the day. Instead of arguing cases like “Hunter v Southam,” Mr. Justice A.H. Lefever of the Provincial Court of Alberta will be adjudicating them.

by John Jaffey

John Jaffey was the Managing Editor, Circulation for the Spring 2000 issue of the Ryerson Review of Journalism.