Defenders of the Pen

Canada’s media lawyers wage war on “libel chill” and the power of the purse

By Stevie Cameron, author and journalist

National Magazine, Canadian Bar Association, May 1993

“Reputation is an idle and most false imposition; oft got without merit, and lost without deserving.” William Shakespeare; Othello II, iii, 270

Because he’s a gentleman, Toronto lawyer Julian Porter isn’t crowing over the downfall of the Reichmann brothers whose once-vast real estate empire has collapsed in Britain, in Canada and the United States. Still, as he reads the negative press the brothers are getting now, he must be allowing himself the occasional twitch of satisfaction.

Porter, as you may remember, lost a big one in 1991 when the Reichmanns sued his clients, Toronto Life magazine and writer Elain Dewar for $102-million over a 55,000-word article she wrote in 1988 about the family’s history after the Second World War. It was one of the most notorious and certainly one of the most costly libel cases in Canadian history. On private detectives alone, the Reichmanns spent over $3-million just to retrace Dewar’s research. Toronto Life fought back, first exhausting $1-million in libel insurance and then spending hundreds of thousands more. The settlement, which came after years of grueling discoveries, forced the publishers to apologize and donate a substantial sum of money to charity.

“It was a difficult time,” Porter acknowledges, “a little like being in the trenches in the First World War. Every time you lifted your head, there’d be a sniper firing at you.”

The Reichmann case scared the liver and lights out of every journalist in Canada. Just tickle the reputation of a rich man, the theory went, and he would spend you into ruin. Truth, fair comment and absence of malice would be as nothing before the might of his chequebook. “Libel chill” became the media’s newest bugaboo and it wasn’t long before a number of other very wealthy men started waving writs around with some success. One was media tycoon Conrad Black, who sued several times and wrung several groveling apologies from the media, and another was Bill L’Heureux of the Hees-Edper group, who was successful in stopping the planned publication of a company history by Globe and Mail reporter Kimberly Noble.

“Libel chill” did more than put writers, publishers and broadcasters on guard. As the issue permeated the Canadian mindset, it brought a number of Canadian lawyers to the public’s attention. A few, such as Porter and Vancouver’s Peter Butler, were already famous. (Butler won a celebrated 1986 action against Maclean’s magazine and Allen Fotheringham for comments about wife-swapping.) But as the “libel chill” debate took hold, a whole new generation of men and women stepped into the legal limelight as well.

Sandy Beverage is one example. His professional home is Daley, Black & Moreira in Halifax. His pre-occupation is keeping the reporters at The Chronicle-Herald out of trouble. His motto might well be “an ounce of prevention”. His ambition is to provide journalists with the skills they need to stay out of court. He uses an effective video, made by New York law firm Debevoise and Plimpton, to convince verbose journalists to say no more than they must during examinations for discovery.

In Montreal, Mark André Blanchard of Lafleur, Brown, de Grandpré, works with Gazette reporters. He’s kept busy with the paper’s three-man investigative unit made up of Bill Marsden, Rod MacDonnell and Andrew McIntosh.

Gowling, Strathy and Henderson’s Richard Dearden works closely with Southam news and The Ottawa Citizen reporters in the nation’s capital. One memorable case involved Robert Coates, Brian Mulroney’s defence minister, who resigned over a sex-and-scrutiny scandal in 1986. He sued the Citizen and the case, which was finally settled out of court, cost the paper close to $1-million.

The Thomson chain retains Sheila Block, head of the litigation department at Tory Tory DesLauriers & Binnington, for its libel work, while The Toronto Star and Southam News in Toronto rely on Brian Rogers and Bert Bruser at Blake, Cassels & Graydon. Alan Shanoff, considered one of Canada’s most brilliant libel specialists, does The Toronto Sun’s libel work. To vet its stories, Saturday Night magazine uses David Potts who began his career with Porter but has recently joined the litigation department at Lang, Michener, Lawrence & Shaw.

For several years, The Globe and Mail has depended on a team of lawyers at Paterson MacDougall, a firm which has developed a specialty in libel law. The team includes Bruce MacDougall, Peter Jacobsen, Carol McCall, Stuart Robertson, Janice Blackburn and Vivian Bercovici.

“These are all the baby boomers,” explains David Potts, “but Porter and Butler were the trailblazers.”

Potts has a great affection for Porter, the man who brought him to Porter, Posluns & Harris as a raw graduate in 1982. They wrote a book together in 1986 for Butterworths (Porter and Potts on Canadian Libel Practice) and went through many adventures including the Reichmann trial; but Potts left in 1991. “It was time to go,” he explains. “As long as I stayed there, I knew I would always be seen as Julian’s junior.” After a couple of years at Blaney McMurtry Stapells, Potts has settled in at Lang Michener to put together a special offshoot of libel law that he calls “reputational management,” which deals with attacks on organizations’ and individuals’ reputations from a number of different sources: the media, disgruntled employees, unions, competitors and shareholders.

Potts says he owes a lot to the education he got at Porter Posluns. “The day I started,” he recalls, “Julian told me, ‘I expect you to read all the mail.’ So I was reading stuff from Peter Lougheed and Bill Davis and the TTC [Porter was chairman of the Toronto Transit Commission from 1979 to 1987] and you’d have to be a half-wit not to absorb a lot of politics and policy and public affairs.”

A voracious reader of Anthony Trollope and other Victorian writers as well as contemporary authors, Porter also drummed a lot of literature into his junior’s head. “If we’d go out,” says Potts, “we’d never talk about law, we’d talk about books and politics. He had this great library in his office, books about interesting libel cases, but no one else in the firm used it. I read them all.

“And when I started I was like a kid in a candy shop because every day you didn’t know if you were going to get a politician, a great writer or a crank coming in. There wasn’t a lot of competition then.”

Those years brought in plenty of controversial cases. There was the time that wealthy Toronto housewife Carol Rapp sued publisher McClelland & Stewart and author Peter Newman over a line in his book, The Canadian Establishment. The final order of the judge was that each book store had to take a black felt marker to the offending line in each and every copy of the book in stock. On another occasion a judge ordered a Porter client to put stickers over an offensive footnote on Montreal’s Desmarais family. Although Porter fought hard, those were two he lost. “Being a libel lawyer is a little like being a goal tender,” he says cheerfully; “some get past you.”

Another celebrated case had a happier ending. This one arose when Porter’s wife, Anna, one of Canada’s most successful publishers and head of Key Porter Books, was trying to get out a “quickie book” — as Porter describes it — by Heather Bird on the sensational Helmut Buxbaum trial. You may remember that Buxbaum, an Ontario nursing home operator with an addiction to drugs and women, ordered his wife Hanna murdered by a pair of thugs in 1984. After Buxbaum was convicted, Anna Porter commissioned the book but soon hit a roadblock in the person of Gary Gilbert Foshay. He was the man who actually shot Mrs. Buxbaum, but at the time he had not yet been tried. His lawyer brought an injunction application before Mr. Justice Robert Montgomery in March, 1986, to stop distribution of the book. Among other things, Porter argued that if Foshay succeeded, the book (which, by the way, did not name him) would be worth nothing and, therefore, that any injunctive relief granted should contain a stipulation forcing Foshay (should he later be tried and convicted) to pay compensatory damages to Key Porter. “And how” Anna Porter inquired of her lawyer/husband, “could a convicted murderer do that?”

“In the privacy of the matrimonial bed,” as Porter describes it, he attempted to reassure his client/wife: “My dear, if I may call you that, it will take time, a long time, but it can be done. Each and every day that Mr. Foshay stitches up mailbags and stamps out license plates he’ll be setting aside three cents of his prison wages for you.” Then, being the stickler for details that every good barrister must be, he added: “That is, of course, unless he spends the entire five cents on cigarettes.”

Montgomery denied Foshay’s application and Porter still remembers his wife’s reaction from the back of the courtroom. “What a bloody load of nonsense,” he heard her mutter. “The words,” he recalls with a nervous shiver, “trailed like a lazy glider up to the front of the room.” Montgomery, always the gentleman, pretended not to hear.

Foshay is not the only one who has tried to stop Julian Porter’s dearest client. In 1987, Anna published Friends in High Places, Claire Hoy’s tough book on Brian Mulroney. As word of the project circulated, there was plenty of pressure on both Porters from their own friends in high places. If you love the party, they cried, do not publish this book. Anna and Julian refused to back down. Julian considers himself a Tory loyalist (he ran unsuccessfully for the PCs in the 1985 Ontario provincial election) but he’s no “yes” man and his stance cost him some friendships.

“He’s a class act,” Potts says of his old mentor. “Baby boomers like myself have a long way to go before we’ll match the experience, the adventures, the networks and the style of Julian Porter.”

Perhaps, style is the last word that comes to mind when you first walk into Porter’s downtown office. His Dickensian lair is as far removed as one can imagine from the vast expanses of mahogany, and the corporate art collections of the typical big city law factory. Only Sandy Beveridge can begin to match him for mess and décor.

Both men have files piled all over the place, but Beveridge draws the line at the floor; Porter doesn’t. No surface is sacred and he doesn’t hesitate to stack files all over the carpet, leaving himself only a narrow winding path to his desk. Both have nice old furniture, walls of bookcases crammed with case law, texts and references and drawings and cartoons hung wherever there aren’t books or windows.

But Beveridge doesn’t have his father’s little grey wig dangling from a book shelf. The wig was worn in 1953 when Dana Porter, then Attorney General of Ontario, argued a case before the Privy Council in England. Part museum, part archive, Porter’s office should be moved as is to a law school some place after he retires to remind students that the law can be fun. The wig isn’t the only memento from his father’s legal career; there is also his heavy silk gown which Porter wears for good luck in major trials. And there are books everywhere, overflowing the shelves, tumbling out of boxes, stacked, yes, on the floor.

And here, surrounded by the clutter, Porter shares some insights about the people who sue for libel and those who don’t. Given his Friday night deadlines for Maclean’s, there are always tense last-minute decisions to make. One decision is framed in his office — the cover of a recent Maclean’s which was pulled at the last minute and shows two Hees-Edper-Brascan officials under what was deemed to be a libelous headline.

“You have to know your customers; who sues and who doesn’t,” says Porter. “Mel Lastman (the colourful mayor of North York) never sues. But William Vander Zalm would sue and John Crosbie historically sues. In the old days, you’d never mention Igor Gouzenko (the late Soviet cipher clerk who defected in the early 1950’s) because it wasn’t worth it; he’d sue anyone.”

Reading, says Porter, is the reason he loves libel law, which now makes up 75 per cent of his practice. (The rest of his time goes to the nine various professional associations he represents.) “I get paid for reading,” he says happily. “I get paid to deal with literate people. I love reviewing a piece before it goes out; you have to know who the writer is and what kind of notes he or she takes and you have to know how good the editor is.” And then Porter confesses to every reporter’s worst suspicion of libel lawyers; “I love to make suggestions about re-writes.”