By Julie Payne
“Among a small handful of dedicated lawyers expanding the envelope of free expression in the media, Brian has consistently been at the forefront of arguments at the Supreme Court and elsewhere.”
— Ivor Shapiro, Chair of Ryerson University’s School of Journalism
If you want to learn about the evolution of Canadian free expression law over the past 30 years, there is no better place to look than the career of lawyer Brian MacLeod Rogers.
Brian’s reputation as a champion of free expression is built on a rock-solid foundation. His career encompasses defamation and libel law, journalists’ right to protect their sources and the principle of open courts. He has been a driving force behind organizations such as Ad IDEM/Canadian Media Lawyers Association and Canadian Journalists for Free Expression (CJFE), and he is tireless in his efforts to pass on his knowledge to new journalists and lawyers.
In September 2014, I met Brian in his downtown Toronto office with its impressive Bay Street view. After shifting a few of the towering stacks of files to make room for my laptop, I took in the bookcases filled with books that he has vetted and the many pictures of family on the walls. I noticed among them a faded certificate. Brian explained it commemorates the calling to the bar of his great-great-grandfather in Massachusetts in 1870.
Brian was a natural for the law: his family counts five generations of lawyers. But after graduating from Queen’s University in Kingston in 1971, he was determined to forge a new path.
In 1972, he sold his worldly possessions and headed south to Mexico. Travelling mainly by bus and improving his rusty Spanish along the way, he spent a year wandering through Central America, Colombia, Ecuador, Peru, Bolivia, Argentina and Chile.
It was the perfect antidote to the ivory tower, but his money finally ran out and he returned to Canada. He tried his hand at various jobs, including a three-month stint at CBC Radio. Journalism was starting to feel like the right fit, but as a backup he applied to and was accepted by the University of Toronto’s law school. He specialized in media law. Upon graduating, he went to work full time for The Globe and Mail.
But the job didn’t feel right. He lacked confidence in his abilities as a journalist, and he wasn’t sure the newsroom gave him the freedom he craved.
And so Brian returned to the law. He was called to the Ontario Bar in 1979 and soon began working at Blake, Cassels & Graydon, a Toronto-based firm that specialized in media law. His timing was fortuitous: on April 17, 1982, the Canadian Charter of Rights and Freedoms was signed into law. It would have a seismic impact.
Making Waves
Significant for Brian, and for all Canadians concerned with free expression, is the Charter’s Section 2(b) which guarantees Canadians the fundamental right to “freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication.”
Within a week of the Charter coming into force, Brian had his first Charter case. Doctors at Toronto’s Hospital for Sick Children were charged with misconduct in the death of eight-year-old patient Steven Luz. Brian used the Charter to successfully fight for a public hearing.
Brian recalls the experience vividly: “I felt like I was a surf rider riding this very exciting wave of Charter litigation.”
The Charter was a game changer. Lawyers could, for the very first time in Canada, argue a case not only on previous case law but also on first principles. Overnight, lawyers gained access to new tools that they would use to shape and build the free expression laws we enjoy today.
Over the next three decades, Brian worked on many landmark free expression cases. Some of the most important involved libel and defamation law. Today, Brian is regarded as a leading expert in this area, which he describes as “the invisible hand
of censorship.”
In Canada, there’s a balance between the citizens’ right to free expression and the defamation and libel laws that protect citizens against the spread of false information that could damage their reputations. At stake is the need for citizens to be able to discuss and criticize people, corporations and governments without fear of excessive retribution.
In 1995, Brian represented interveners in Hill v. Scientology which reached the Supreme Court of Canada. The case was a first and disappointing attempt to use the Charter in common libel law.
Brian explains that “it created a right to reputation where none existed in the Charter and made it equal to the specific protection offered to freedom of expression.” However, by affirming that the Charter did apply to common libel law, the court’s decision opened the door to future cases.
More than a decade would pass before Brian got the perfect opportunity to push for revolutionary change. He gathered together media organizations to intervene in two important cases: Quan v. Cusson and Grant v. Torstar. In both cases, he would argue for a new responsible journalism defence before the Supreme Court of Canada.
In the first case, Danno Cusson, an Ontario Provincial Police officer, sued Douglas Quan, a reporter for the Ottawa Citizen, for defamation. Shortly after the 9/11 attacks, Cusson had travelled with his pet dog Ranger to New York City to help. Quan’s three newspaper articles about Cusson claimed that he had misrepresented himself as an RCMP officer who was trained in search and rescue.
In the second case, Peter Grant, a businessman in Ontario, sued the Toronto Star for defamation. Grant had planned to build a private golf course on his estate. Bill Schiller’s newspaper article noted that Grant’s neighbours had claimed that Grant’s political connections would influence the approval of the development plans.
On December 22, 2009, the Supreme Court of Canada ruled on the cases, created a new defence of responsible communication and brought Canada’s libel law into line with the rest of the Commonwealth. It was a victory for free expression advocates. The decision changed the focus from a statement’s truth to the intention of the writer and the efforts taken to report matters of public interest in a responsible and ethical manner.
“You need a flow of information and it doesn’t have to be perfect to be valuable in a democracy,” Brian says.
Lawyer Daniel Henry, who attended law school with Brian, believes that his work on these defamation cases is one of his greatest contributions to free expression. “His arguments have had a lasting impact on the law.”
By the late 1990s, Brian had left Blake, Cassels & Graydon to pursue “non-billable things that I thought were important.” He set up an independent practice working for publishers and smaller news organizations, including The Hamilton Spectator. The case of Ken Peters came to his attention.
In 1995, Peters, a Spectator journalist, had written a story about poor conditions at a nursing home. In 2004, when he was asked to name a confidential source in Ontario’s Superior Court, Peters refused. Justice David S. Crane held him in contempt and fined him $31,600. Brian Rogers, who represented Peters, described the ruling as “devastating.”
The ability to keep their sources confidential is critical to journalists. Without it, journalists believe that whistleblowers would not come forward in matters of public interest. Confidential sources have been behind some of the media’s most important stories, including the Watergate and Liberal sponsorship scandals.
Brian was determined to prove that the judge had made a bad decision. Perhaps most importantly, the judge had failed to consider the journalist’s right to protect a confidential source against the trial’s need for the evidence. In March 2008, the Ontario Court of Appeal agreed and struck down the contempt charge and fine. Peters was vindicated.
Jim Poling, the Spectator’s managing editor, explains why this case was so important to Brian. “He’s fighting in the public interest. He wants stories told.”
This philosophy is also evident in Brian’s pre-publication work. He helps journalists, documentary filmmakers and writers prepare for publication and broadcast while minimizing their risk of being successfully sued.
Poling says that Brian is not only a great lawyer, but also an excellent editor and journalist. “His approach is, what story do you want to tell and we’ll find a way to tell it. He truly believes in truth, justice and jour-nalism and building a better society.”
Brian is humble about his successes inside and outside the courtroom. “I’ve been very fortunate,” he says. He smiles and his eyebrows (fantastical appendages that make him resemble Santa Claus) rise slightly. “I’ve had clients who have paid me to do the stuff I care about.”
Building Blocks
Despite his many courtroom victories, some of his colleagues believe that his most important contributions to free expression lie elsewhere. In 1994, Brian, along with Daniel Henry and Marc-André Blanchard (now a justice in the Superior Court of Quebec), co-founded Ad IDEM/Canadian Media Lawyers Association.
Ad IDEM, which means “meeting of the minds,” brings together media lawyers from across the country to discuss and debate the latest developments in law and free expression. Although Ad IDEM’s work on legislation and major law cases has been significant, Brian believes that it most importantly “provides a chance for lawyers to get to know each other, so they feel comfortable picking up the phone and talking to lawyers across the country. Those lines of communication have been invaluable.”
Brian also contributes to the free expression community in other ways. For many years, he was a valued member of the board and committees of CJFE, and for more than 20 years he has taught media law and ethics at Toronto’s Ryerson School of Journalism. Ivor Shapiro, the school’s chair, explains that Brian not only teaches pro bono, but also provides free legal advice to the school and its students.
Shapiro praises the lawyer for his commitment. “Your instinct is to protect them [volunteers like Brian] and to feel bad about asking for their time. … You’re taking away billable hours. I never ever feel that way with Brian. He just makes it clear that he wants you to call and ask him stuff. … I’ve never heard of him refusing a request to talk with a student.”
Brian also finds time to work on parliamentary committees—most recently the three-member Ontario Advisory Panel on Legislation Against SLAPPs (strategic litigation against public participation). He is also a member of the Media Law Resource Center, an international organization based in the United States.
Despite his demanding workload, Brian doesn’t exactly kick back during downtime. He enjoys spending time with his wife, Jessica Hill, and two adult children at their farm north of Toronto. He relaxes by cycling, sea kayaking, fly-fishing, mushroom hunting and back-country skiing.
Jim Poling says, “He knows his Criminal Code, his legal definitions and his fly hatches.”
After more than 35 years of work in the law, Brian is not slowing down. He’s defending Dale Askey, a librarian who works at McMaster University in Hamilton, in a libel lawsuit. In 2010, while working in Kansas, Askey criticized the Edwin Mellen Press in New York State on a blog post. Herbert Richardson, the company’s founder, is suing him in Ontario for $3.5 million.
Brian is quietly confident about the lawsuit, despite its glacial pace, and believes absolutely that Askey is the person wronged.
At the end of our interview, Brian pauses thoughtfully. “The moments of doing battle are fewer,” he says. “There’s some great investigative reporting going on, but it seems like there’s less. There are fewer journalists covering the courts. This naturally leads to fewer battles. We’ve accomplished a lot, but we shouldn’t sit back on our laurels. There are lots more battles left.”
Canadians are fortunate to have an advocate like Brian MacLeod Rogers: brilliant, steadfast and dedicated to the cause of free expression.
Julie Payne is the editor of Freedom to Read. In past years, she and Rogers worked together at CJFE in Toronto.
Reprinted from Freedom to Read 2015.