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R. v. Lucas, [1998] 1 S.C.R. 439

 

John David Lucas and Johanna Erna Lucas                                    Appellants

 

v.

 

Her Majesty The Queen                                                                   Respondent

 

and

 

The Attorney General of Canada, the

Attorney General for Ontario, the Attorney

General of Manitoba and the Canadian Civil

Liberties Association                                                                         Interveners

 

Indexed as:  R. v. Lucas

 

File No.:  25177.

 

1997:  October 15; 1998: April 2.

 

Present:  Lamer C.J. and L’Heureux‑Dubé, Sopinka,* Gonthier, Cory, McLachlin, Iacobucci, Major and Bastarache JJ.

 

on appeal from the court of appeal for saskatchewan

 


Constitutional law ‑‑ Charter of Rights ‑‑ Freedom of expression ‑‑ Accused convicted of defamatory libel ‑‑ Whether defamatory libel provisions in Criminal Code infringe right to freedom of expression ‑‑ If so, whether infringement justifiable ‑‑ Canadian Charter of Rights and Freedoms, ss. 1, 2(b) ‑‑ Criminal Code, R.S.C., 1985, c. C‑46, ss. 298, 299, 300.

 

Constitutional law ‑‑ Charter of Rights ‑‑ Fundamental justice ‑‑ Vagueness ‑‑ Accused convicted of defamatory libel ‑‑ Whether defamatory libel provisions in Criminal Code so vague that they violate principles of fundamental justice ‑‑ Canadian Charter of Rights and Freedoms, s. 7 ‑‑ Criminal Code, R.S.C., 1985, c. C‑46, ss. 298, 299, 300.

 

Criminal law ‑‑ Defamatory libel ‑‑ Mens rea ‑‑ Offence of defamatory libel requiring knowledge of falsity and intention to defame -- Trial judge erroneously holding that mens rea requirement satisfied by proof that accused should have known that statements were false -- Whether there is sufficient evidence that accused had subjective knowledge of falsity of defamatory statements to uphold their convictions.

 


A police officer investigated allegations of sexual abuse made by three children.  As a result of the investigation, criminal charges were laid against a number of individuals, but many of the charges were subsequently withdrawn or stayed.  During the course of his investigation, the officer had been informed that one of the children had sexually assaulted his sisters on numerous occasions and that the people who ran the special care foster home where the children had been placed were unable to stop him.  However, as a result of his reliance upon the opinion of the children’s therapist, the officer kept them together in the same home.  The appellant Mr. L was active in a prisoners’ rights group.  Four of the individuals whose charges had been stayed provided him with all of the information and documentation they possessed regarding the charges.  On the basis of these documents, the appellants apparently understood that one of the children had raped, sodomized and tortured one of his sisters and repeatedly participated in sexual activities with the other sister.  They concluded that the officer had knowledge of what was transpiring and that he had a duty to intervene.  As a result, the appellants and a small group of others picketed outside the provincial court and the police headquarters where the officer worked.  Mrs. L was carrying a sign prepared by her husband which read on one side:  “Did [the officer] just allow or help with the rape/sodomy of an 8 year old?”  and on the other side:  “If you admit it [officer] then you might get help with your touching problem.”  She was arrested and charged with defamatory libel under ss. 300 and 301 of the Criminal Code.  The following day, Mr. L again picketed in front of the provincial court and police headquarters.  This time, he carried a sign with a similar statement.  He was subsequently arrested and also charged under ss. 300 and 301.  At trial, the appellants argued that their freedom of expression as guaranteed by s. 2(b) of the Canadian Charter of Rights and Freedoms had been infringed.  The trial judge agreed but concluded that s. 300 was saved by s. 1 of the Charter.  He found both of the appellants guilty of defamatory libel under s. 300 and held that they should have known that the statements on their placards were false.  The Court of Appeal upheld the convictions.

 

Held (McLachlin and Major JJ. dissenting on Mrs. L’s appeal):  The appeals should be dismissed.

 


Per Lamer C.J. and Gonthier, Cory, Iacobucci and Bastarache JJ.:  The defamatory libel provisions in ss. 298, 299 and 300 of the Code are not so vague that they infringe s. 7 of the Charter.  The wording of the sections makes it abundantly clear what kind of conduct is the subject of legal restrictions.  Section 298 specifies the types of published matter which are targeted, while s. 299 restricts liability to specific modes of publication.  As well, ss. 298 to 300 give a sufficient indication as to how prosecutorial decisions must be reached.  Nor are the impugned sections too vague to constitute a limit prescribed by law within the meaning of s. 1 of the Charter.

 

While, as properly conceded by the Crown, ss. 298, 299 and 300 of the Code contravene the guarantee of freedom of expression provided by s. 2(b) of the Charter since the very purpose of these sections is to prohibit a particular type of expression,  subject to the severance of part of s. 299(c) they can be upheld as a justifiable limit under s. 1 of the Charter.

 

The objective of the impugned provisions, which is the protection of the reputation of individuals, is a pressing and substantial one in our society.  The protection of an individual’s reputation from wilful and false attack recognizes both the innate dignity of the individual and the integral link between reputation and the fruitful participation of an individual in Canadian society.  As well, the measures adopted are rationally connected to the objective in question.

 


With respect to minimal impairment, it is particularly important at this stage to bear in mind the negligible value of defamatory expression, which significantly reduces the burden on the Crown to demonstrate that the provision is minimally impairing.  While on its face s. 300 requires but one form of mens rea, namely knowledge of falsity, and there is no express requirement that an accused have an intention to defame, a historical review of the application of mens rea in the context of defamatory libel and the application of traditional principles of statutory interpretation lead inevitably to the conclusion that such an intention is required and that s. 300 should be read accordingly.  The Crown can thus only make out the offence of defamatory libel if it proves beyond a reasonable doubt that the accused intended to defame the victim.  This requirement places a sufficiently onerous burden on the Crown to make the mens rea aspect of the provision minimally intrusive.  The defamatory libel provisions in the Code are not overbroad as a result of the civil remedy in libel which also protects the reputation of individuals.  The harm addressed by s. 300 is so grave and serious that the imposition of a criminal sanction is not excessive but rather an appropriate response.   However, s. 299(c) of the Code provides that a defamatory libel is published when the defamatory statement is shown or delivered “with intent that it should be read or seen by the person whom it defames”.  This portion of the defamatory libel scheme is too broad.  Clearly, the fundamental element of libel is publication to a person other than the one defamed.  Section 299(c) is so contrary to this principle that it cannot be justified.  The phrase “by the person whom it defames or” should therefore be severed from s. 299(c) so that it reads “A person publishes a libel when he . . . shows or delivers it, or causes it to be shown or delivered, with intent that it should be read or seen by any other person”.  Obviously, the phrase “any other person” will not pertain to the situation where only the person defamed is shown the defamatory libel.

 

When freedom of expression is at issue, it is logical that the nature of the violation should be taken into consideration in determining whether an appropriate balance has been struck between the deleterious effects of the impugned legislative provisions on the infringed right and the salutary goals of that legislation.  The further a particular form of expression departs from the values underlying freedom of expression, the lower will be the level of constitutional protection afforded to it.   Defamatory libel is so far removed from the core values of freedom of expression that it merits but scant protection.  The laudable objective of the defamatory libel provisions and their salutary effects on the protection of reputation far outweigh any negative impact on freedom of expression.

 


The placards displayed by the appellants fall within those parts of ss. 298 and 299 which are constitutionally valid:  that is to say they were publicly displayed and objectively likely to injure a person’s reputation.  While the trial judge erred when he held that the mens rea requirement for s. 300 was satisfied by proof that the appellants should have known that the statements they published were false, there is ample evidence that the appellants had the requisite knowledge of falsity to uphold their conviction under s. 300.

 

Per L’Heureux-Dubé J.:  Subject to agreement with McLachlin J.’s analysis under s. 1 of the Charter, Cory J.’s analysis and conclusions were concurred with.

 

Per Major J. (dissenting in part):  Cory J.’s reasons are agreed with except with respect to the disposition of Mrs. L’s appeal.  It has long been established that an appellate court should exercise caution in upholding a conviction where, as here, the trial judge erred in applying an objective mens rea test when the Criminal Code required a subjective standard.  There was no direct evidence that Mrs. L had subjective knowledge that the message portrayed on the placard she carried was false.  If the trial judge had found that her knowledge was in fact based solely on the reports obtained by her husband, it might have been possible to infer that she had subjective knowledge of falsity.  However, no such finding of fact was made.  It is possible that Mrs. L’s knowledge might have derived at least in part from what she was told by Mr. L, and she may therefore have believed that the message was true even though in fact it was not.  In the absence of findings of fact by the trial judge related to subjective knowledge, there is insufficient evidence before this Court to prove beyond a reasonable doubt that Mrs. L knew that the messages on the placard she carried were false.  Accordingly, her conviction must be set aside and, in light of the Crown’s statement that in the circumstances the Crown would not proceed with a new trial, an acquittal directed.


Per McLachlin J. (dissenting in part):  Cory J.’s reasons are agreed with  except with respect to how the value of the expression at issue figures in the s. 1 analysis and with respect to the disposition of Mrs. L’s appeal, which should be allowed for the reasons given by Major J.  The content of the expression and its value fall for consideration only at the final stage of the proportionality analysis.  To allow the perceived low value of the expression to lower the bar of justification from the outset is to run the risk that a judge’s subjective conclusion that the expression at issue is of little worth may undermine the intellectual rigour of the Oakes test.  Justice is better served if the Crown is required to demonstrate a pressing and substantial objective, rational connection and minimal impairment independent of the perception that the content of the expressive activity is offensive or without value.  At the third and final stage of the proportionality analysis the judge is required to consider both the benefits and the detriments of limiting the expression in issue.  Legislative limits on expression that falls far from the core values underlying s. 2(b) of the Charter are easier to justify, not because the standard of justification is lowered, but rather because the beneficial effects of the limitation more easily outweigh any negative effects flowing from the limitation.  In this case the objective of the impugned provisions, which is to protect reputation against deliberate attack using statements that are known to be false, passes the first stage of the s. 1 analysis.  The limit on expression is also rationally connected to this pressing and substantial objective and meets the minimal impairment test.  Finally, the balancing process envisaged by the last step of the Oakes test leads inexorably to the conclusion that the benefits gained from the limitation on expression outweigh by far any detriment.  This conclusion rests not on the low value of the expression (although this figures in the analysis), but on the fact that the benefits of limiting the right exceed any benefits that might flow from leaving it untrammelled.

 


Cases Cited

 

By Cory J.

 

Referred to:  R. v. R. (D.), [1996] 2 S.C.R. 291; Gleaves v. Deakin, [1979] 2 All E.R. 497; Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927; R. v. Stevens (1995), 96 C.C.C. (3d) 238, aff’g (1993), 82 C.C.C. (3d) 97; Edmonton Journal v. Alberta (Attorney General), [1989] 2 S.C.R. 1326; R. v. Keegstra, [1990] 3 S.C.R. 697; R. v. Zundel, [1992] 2 S.C.R. 731; Libman v. Quebec (Attorney General), [1997] 3 S.C.R. 569; R. v. Nova Scotia Pharmaceutical Society, [1992] 2 S.C.R. 606; R. v. Oakes, [1986] 1 S.C.R. 103; Canadian Broadcasting Corp. v. New Brunswick (Attorney General), [1996] 3 S.C.R. 480; R. v. Holbrook (1878), 4 Q.B.D. 42; Law Society of Upper Canada v. Skapinker, [1984] 1 S.C.R. 357; R. v. Wigglesworth, [1987] 2 S.C.R. 541; Skoke‑Graham v. The Queen, [1985] 1 S.C.R. 106; R. v. Kelly, [1992] 2 S.C.R. 170; RJR‑MacDonald Inc. v. Canada (Attorney General), [1995] 3 S.C.R. 199; R. v. Laba, [1994] 3 S.C.R. 965; R. v. Lord Abingdon (1794), 1 Esp. 226, 170 E.R. 337; R. v. Burdett (1820), 4 B. & Ald. 95, 106 E.R. 873; Sweet v. Parsley, [1970] A.C. 132; R. v. Sault Ste. Marie (City), [1978] 2 S.C.R. 1299; R. v. Vaillancourt, [1987] 2 S.C.R. 636; R. v. Collins, [1987] 1 S.C.R. 265; Canada (Attorney General) v. Canada (Commission of Inquiry on the Blood System), [1997] 3 S.C.R. 440; Schachter v. Canada, [1992] 2 S.C.R. 679; United States of America v. Cotroni, [1989] 1 S.C.R. 1469; Hill v. Church of Scientology of Toronto, [1995] 2 S.C.R. 1130; R. v. Jorgensen, [1995] 4 S.C.R. 55.

 


By McLachlin J. (dissenting in part)

 

R. v. Oakes, [1986] 1 S.C.R. 103; Edmonton Journal v. Alberta (Attorney General), [1989] 2 S.C.R. 1326; Canadian Broadcasting Corp. v. New Brunswick (Attorney General), [1996] 3 S.C.R. 480.

 

Statutes and Regulations Cited

 

Act respecting the Crime of Libel, S.C. 1874, c. 38.

 

Act to amend the Law respecting defamatory Words and Libel (U.K.), 6 & 7 Vict., c. 96 [Lord Campbell’s Act].

 

American Convention on Human Rights, O.A.S.T.S. No. 36, at 1, art. 13.

 

Canadian Charter of Rights and Freedoms, ss. 1, 2(b), 7.

 

Criminal Code, R.S.C., 1985, c. C‑46, ss. 46, 71, 182(b), 264 [rep. c. 27 (1st Supp.), s. 37; ad. 1993, c. 45, s. 2], 264.1, 298, 299, 300, 301, 323, 708.

 

Criminal Code, S.C. 1892, c. 29.

 

European Convention for the Protection of Human Rights and Fundamental Freedoms, 213 U.N.T.S. 221, art. 10.

 

International Covenant on Civil and Political Rights, Can. T.S. 1976 No. 47, art. 17.

 

Universal Declaration of Human Rights, G.A. Res. 217 A (III), U.N. Doc. A/810, at 71 (1948), art. 12.

 

Authors Cited

 

Australian Capital Territory.  Community Law Reform Committee.  Defamation Report.  Canberra:  The Committee, 1995.

 

Cameron, Jamie.  “The Past, Present, and Future of Expressive Freedom Under the Charter” (1997), 35 Osgoode Hall L.J. 1.

 

Carter‑Ruck on Libel and Slander, 5th ed. By Peter F. Carter-Ruck and Harvey N. A. Starte.  London:  Butterworths, 1997.

 


Gatley on Libel and Slander, 9th ed. By Patrick Milmo and W. V. H. Rogers.  London:  Sweet & Maxwell, 1998.

 

Ireland.  Law Reform Commission.  Consultation Paper on the Crime of Libel.  Dublin:  The Commission, 1991.

 

Nouveau Petit Robert.  Paris: Le Robert, 1996, “outrage”, “outrager”.

 

Stephen, Sir James Fitzjames.  A History of the Criminal Law of England, vol. 2.  London:  Macmillan, 1883.

 

Williams, Glanville.  Criminal Law: The General Part, 2nd ed.  London:  Stevens & Sons, 1961.

 

APPEALS from a judgment of the Saskatchewan Court of Appeal (1996), 137 Sask. R. 312, 107 W.A.C. 312, 104 C.C.C. (3d) 550, [1996] S.J. No. 55 (QL), affirming the decisions of the Court of Queen’s Bench ruling on constitutional issues (1995), 129 Sask. R. 53, 31 C.R.R. (2d) 92, [1995] S.J. No. 62 (QL), and convicting the appellants on charges of defamatory libel, [1995] S.J. No. 336 (QL).  Appeal of John Lucas dismissed.  Appeal of Johanna Lucas dismissed, McLachlin and Major JJ. dissenting.

 

Clayton C. Ruby and John Norris, for the appellants.

 

Graeme G. Mitchell, for the respondent.

 

Robert Frater, for the intervener the Attorney General of Canada.

 

M. David Lepofsky, for the intervener the Attorney General for Ontario.

 

Shawn Greenberg, for the intervener the Attorney General of Manitoba.

 


John B. Laskin and Sarah L. MacKenzie, for the intervener the Canadian Civil Liberties Association.

 

 

//Cory J.//

 

The judgment of Lamer C.J. and Gonthier, Cory, Iacobucci and Bastarache JJ. was delivered by

 

1                        Cory J. -- Sections 298, 299 and 300 of the Criminal Code, R.S.C., 1985, c. C‑46, impose criminal sanctions for the deliberate publication of defamatory lies which the publisher knows to be false.  It must be determined whether these provisions infringe the right to freedom of expression guaranteed by s. 2(b) of the Canadian Charter of Rights and Freedoms and if so, whether the violation can be justified under s. 1 of the Charter.  It must, as well, be decided whether ss. 298, 299 and 300 are so vague that they violate the principles of fundamental justice entrenched in s. 7 of the Charter.  If the sections are found to be constitutionally valid, then the nature of the requisite mens rea must be considered.

 

Factual Background

 


2                        A police officer investigated allegations of sexual abuse made by three children, Michael R. and his twin sisters Michelle R. and Kathleen R.  The children alleged that they had been sexually abused by their birth parents, their foster parents (Mr. and Mrs. K.), and several members of their foster parents’ family.  The children initially disclosed the abuse to their therapist, Mrs. Bunko‑Ruys, and to Mr. and Mrs. T., who ran a special care foster home where the children had been placed after they were moved out of the home of Mr. and Mrs. K.

 

3                        As a result of the investigation, criminal charges were laid against 16 people including the children’s natural parents, their foster parents (Mr. and Mrs. K.) and members of the K.s’ extended family.  With the exception of Peter K., the father of the complainants’ foster father, who pled guilty to charges of sexual assault, all of the charges against the K. family were either withdrawn or stayed.  The children’s natural parents were convicted but on appeal a new trial was ordered.  See R. v. R. (D.), [1996] 2 S.C.R. 291.

 

4                        During the course of his investigation, the police officer was informed by Mr. and Mrs. T. that the children had been openly displaying inappropriate sexual behaviour.  He was told that they were sexually active with each other and that the family dog had been subjected to sexual acts.  Moreover, the police officer had been informed that Michael had sexually assaulted his sisters on numerous occasions and that Mr. and Mrs. T., despite their efforts, were unable to stop him.  The acts of sexual abuse were also recounted to the officer during the course of his interviews with the three children.  However, as a result of his reliance upon the opinion of the children’s therapist, the officer kept them together in the same special care foster home.  This, it was believed, would make the children easier to treat.

 


5                        Mr. Lucas was active in a Saskatoon prisoners’ rights group.  He was contacted by four of the individuals whose charges had been stayed.  They were seeking advice as to how to cope with the impact that these allegations were having on their lives even though the charges had been stayed.  The individuals maintained that they were innocent and agreed to provide John Lucas with all of  the information and documentation they possessed regarding the charges.  This consisted of transcripts, reports prepared by the children’s therapist and notes prepared by Mrs. T. which described, in vivid detail, the sexual activities of the three children.

 

6                        On the basis of these documents, the appellants apparently understood that Michael had raped, sodomized and tortured his sister Kathy and repeatedly participated in sexual activities with his other sister, Michelle.  They concluded that the officer had knowledge of what was transpiring and that as a police officer, he had a duty to intervene.  Consequently, they could not understand why he had not done so.  Several complaints were made to the Police Commission, the Premier’s office and the office of the Attorney General, but the appellants did not obtain their desired response.

 

7                        As a result, on September 20, 1993, the appellants and a small group of others picketed outside the Provincial Court of Saskatchewan and the police headquarters where the officer worked.  Mrs. Lucas was carrying a sign prepared by Mr. Lucas which read on one side:  “Did [the police officer] just allow or help with the rape/sodomy of an 8 year old?”  and on the other side:  “If you admit it [officer] then you might get help with your touching problem.”  Mrs. Lucas was arrested and charged with defamatory libel under ss. 300 and 301 of the Code.  Mr. Lucas was warned that if he continued to carry signs naming individuals, he too would be charged.

 


8                        The following day, Mr. Lucas again picketed in front of the Provincial Court and police headquarters.  This time, he carried a sign which, on one side, read: “Did [the police officer] help/or take part in the rape & sodomy of an 8 year old.  The T[] papers prove [the officer] allowed his witness to rape”; and on the other side:  “The T[] papers prove [the officer] allowed the false arrest & detention of Mrs. Lucas, with a falsified information”.  Mr. Lucas was subsequently arrested and charged under ss. 300 and 301 of the Code.

 

9                        At trial, the appellants argued that their freedom of expression as guaranteed by s. 2(b) of the Charter had been infringed.  The trial judge agreed but concluded that s. 300 was saved by s. 1 of the Charter.  He found both of the appellants guilty of defamatory libel under s. 300 and held that the appellants should have known that the statements on their placards were false.  Mr. Lucas was sentenced to imprisonment for two years less a day, and Mrs. Lucas was sentenced to imprisonment for 22 months.  The appellants appealed to the Court of Appeal.  Their appeals against conviction were dismissed, but their appeals against sentence were allowed, and the sentences were reduced to 18 months and 12 months respectively.

 

Relevant Statutory Provisions

 

10                      The relevant legislative and Charter provisions are as follows:

 

Criminal Code, R.S.C., 1985, c. C‑46

 

298. (1)  A defamatory libel is matter published, without lawful justification or excuse, that is likely to injure the reputation of any person by exposing him to hatred, contempt or ridicule, or that is designed to insult the person of or concerning whom it is published.

 

(2)  A defamatory libel may be expressed directly or by insinuation or irony

 

(a)  in words legibly marked on any substance; or

 

(b)  by any object signifying a defamatory libel otherwise than by words.

 

299.  A person publishes a libel when he

 


(a)  exhibits it in public;

 

(b)  causes it to be read or seen; or

 

(c)  shows or delivers it, or causes it to be shown or delivered, with intent that it should be read or seen by the person whom it defames or by any other person.

 

300.  Every one who publishes a defamatory libel that he knows is false is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years.

 

Canadian Charter of Rights and Freedoms

 

1.  The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

 

2.  Everyone has the following fundamental freedoms:

 

                                                                   . . .

 

(b)  freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication;

 

                                                                   . . .

 

7.  Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

 

Judgments Below

 

Saskatchewan Court of Queen’s Bench (1995), 129 Sask. R. 53

 

(i)    The Voir Dire on the Constitutionality of ss. 298 to 300 of the Code

 


11                      During the course of their trial, the appellants applied for an order that ss. 300 and 301 of the Code were unconstitutional.  Hrabinsky J. noted at the outset the difference between the two sections, namely that pursuant to s. 300 there was a duty to demonstrate that the person charged knew that the published defamatory libel was false, whereas falsity was not a required element under s. 301.  Consequently, a person could be found guilty of publishing a defamatory libel under s. 301 even if the statements made were found to be true. It was argued by the appellants, and conceded by the respondent, that ss. 298 and 299, which set out the definitions of defamatory libel, were overly broad and encompass a broad range of trivial or innocuous material.  Hrabinsky J. agreed with this submission but observed that in Gleaves v. Deakin, [1979] 2 All E.R. 497 (H.L.), it had been held that criminal sanctions for defamatory libel should still be available for serious libels.

 

12                      He noted that the respondent conceded that the purpose and effect of ss. 300 and 301 was to render a form of “expression” a criminal offence because of its content.  As a result he concluded that in light of the decision in Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927, there was necessarily an infringement of s. 2(b) of the Charter.  He then considered whether this infringement could be justified under s. 1 of the Charter.

 

13                      Hrabinsky J. adopted a contextual approach and recognized that freedom of expression cannot be absolute, and that unrestricted freedom of expression may interfere with legitimate interests in privacy and reputation.  He observed that in determining whether s. 300 could be justified as a reasonable limit prescribed by law in a free and democratic society, he had to consider all expression that was potentially restricted.

 


14                      Starting with what he identified as the “threshold test”, Hrabinsky J. set out to determine whether s. 300 constituted a “limit prescribed by law”.  Relying on Irwin Toy, supra, he held that s. 300 provided a sensible construction and “an intelligible standard according to which the judiciary must do its work” (p. 59).  He further held that s. 298 defined defamatory libel in a manner that provided an intelligible standard of conduct.  He concluded that ss. 298, 299 and 300 constitute a limit prescribed by law.

 

15                      Hrabinsky J. found that the objective of s. 300 is the protection of individuals from false defamatory attacks on their privacy and reputation.  This was held to be a pressing and substantial objective.  A person’s reputation is a fundamental value which involves respect for the dignity and worth of all persons, and defamatory remarks may cause psychological harm.

 

16                      Hrabinsky J. stated that a balance must be struck between the value of freedom of expression and the value of reputation.  The prohibition of the publication of false defamatory libel is rationally connected to the objective of protecting privacy and reputation.  Sections 298, 299 and 300 minimally impair the s. 2(b) right.  The fact that the Crown must prove the mens rea elements of the offence, including knowledge of falsity, reaffirmed his conclusion that the objective of s. 300 impairs freedom of expression as little as possible.  Hrabinsky J. noted that defamatory expression is far removed from the core of s. 2(b) values.  The limitation imposed on freedom of expression by s. 300 is negligible, and so it does not outweigh the importance of the legislative objective.  He concluded that s. 300 should be upheld under s. 1 of the Charter.

 


17                      With respect to s. 301 of the Criminal Code, Hrabinsky J. found that unlike s. 300, there was no obligation on the Crown to prove knowledge of falsity.  As a result, the limitation imposed on s. 2(b) by s. 301 did not meet the minimal impairment criteria of the s. 1 test, nor was there proportionality between the effects of the limiting legislation and the objective.  As a result he found s. 301 to be unconstitutional and no appeal has been taken from this finding.

 

(ii)  Merits of the Case

 

18                      Hrabinsky J. noted that s. 300 of the Code requires the Crown to demonstrate that the person charged knew that the published defamatory libel was false.  In this case, Mr. Lucas had testified that he believed that the publications were true while Mrs. Lucas did not testify at all.  Despite his earlier reference to the need to apply a subjective test Hrabinsky J. applied an objective test and held that the messages on the placards were false and the appellants ought to have known them to be so.  As a result, both Mr. and Mrs. Lucas were convicted of defamatory libel by insinuation, and were sentenced to imprisonment for two years less a day and 22 months, respectively.

 

Saskatchewan Court of Appeal (1996), 137 Sask. R. 312

 

19                      There were two issues before the Court of Appeal which must be considered:  first, the constitutionality of s. 300, and second, whether the respondent proved all the elements of the offence beyond a reasonable doubt.

 

20                      The Court held that the constitutional issue was resolved by the decision of the Manitoba Court of Appeal in R. v. Stevens (1995), 96 C.C.C. (3d) 238, which found s. 300 of the Criminal Code to be constitutionally valid.  Thus, the first ground of appeal was dismissed.

 


21                      As for the second ground, the Court held that the burden was on the respondent to prove the publication of a false defamatory statement and that the appellants intended to publish the defamatory libel knowing it to be false with the intention to defame.  The Court was of the view that the respondent had proved all the essential elements of the offence beyond a reasonable doubt with respect to both appellants.  Therefore, this ground of appeal was also dismissed.

 

Issues

 

22               1.    Do ss. 298, 299 or 300 of the Code, separately or in combination, violate s. 2(b) of the Charter?

 

2.                Do ss. 298, 299 or 300 of the Code, separately or in combination, violate s. 7 of the Charter?

 

3.                Can ss. 298, 299 and 300 of the Code be upheld under s. 1 of the Charter?

 

4.                Is there sufficient evidence that the appellants had subjective knowledge of the falsity of the defamatory statements they displayed to uphold their convictions despite the trial judge’s erroneous application of an objective test?

 

Analysis

 


23                      This is not the first case in which the defamatory libel provisions of the Code have come under attack.  In Stevens, supra, the Manitoba Court of Appeal concluded that s. 300 and its defining provisions, although violative of s. 2(b), were justified under s. 1 of the Charter.  Although I do not entirely agree with the reasoning of the majority in Stevens, the judgment of Twaddle J.A. includes an extensive review of the history of the defamatory libel provisions and a thorough and very helpful analysis of proportionality.

 

Do ss. 298, 299, or 300 of the Code, Separately or in Combination, Violate s. 2(b) of the Charter?

 

24                      Decisions of this Court have stressed the vital and fundamental importance of freedom of expression in our democratic society.  Indeed, in Edmonton Journal v. Alberta (Attorney General), [1989] 2 S.C.R. 1326, at p. 1336, it was noted that “a democracy cannot exist without that freedom to express new ideas and to put forward opinions about the functioning of public institutions”.  This right must be accorded vigilant protection in order to ensure that it is only restricted in clearly appropriate circumstances.

 

25                      The respondent very properly conceded that ss. 298, 299 and 300 of the Code contravene the guarantee of freedom of expression provided by s. 2(b) of the Charter since the very purpose of these sections is to prohibit a particular type of expression.  Counsel for the Attorney General of Ontario argued forcefully that defamatory libel is not worthy of constitutional protection.  This submission cannot be accepted.  It runs contrary to the long line of decisions, beginning with Irwin Toy, supra, which have held that freedom of expression should be given a broad and purposive interpretation.  This Court has consistently held that all expression is protected, regardless of its content, unless the form in which the expression is manifested is such that it excludes protection (as, for example, a violent act).  As Dickson C.J. wrote in R. v. Keegstra, [1990] 3 S.C.R. 697, at p. 729:

 


Apart from rare cases where expression is communicated in a physically violent form, the Court thus viewed the fundamental nature of the freedom of expression as ensuring that “if the activity conveys or attempts to convey a meaning, it has expressive content and prima facie falls within the scope of the guarantee” (p. 969).  In other words, the term “expression” as used in s. 2(b) of the Charter embraces all content of expression irrespective of the particular meaning or message sought to be conveyed.

 

26                      Further, in R. v. Zundel, [1992] 2 S.C.R. 731, it was held that even deliberate lies and falsehoods are protected by s. 2(b) of the Charter.  At p. 753 McLachlin J. stated:

 

In determining whether a communication falls under s. 2(b), this Court has consistently refused to take into account the content of the communication, adhering to the precept that it is often the unpopular statement which is most in need of protection under the guarantee of free speech. . . .

 

In the dissenting reasons as well, at p. 802, it was stressed that s. 2(b) should be broadly interpreted:

 

. . . constitutional protection under s. 2(b) must therefore be extended to the deliberate publication of statements known to be false which convey meaning in a non‑violent form.  Freedom of expression is so important to democracy in Canada that even those statements on the extreme periphery of the protected right must be brought within the protective ambit of s. 2(b).

 

27                      Most recently this liberal approach to s. 2(b) was reaffirmed in Libman v. Quebec (Attorney General), [1997] 3 S.C.R. 569, at para. 31:

 

Unless the expression is communicated in a manner that excludes the protection, such as violence, the Court recognizes that any activity or communication that conveys or attempts to convey meaning is covered by the guarantee of s. 2(b) of the Canadian Charter.

 


28                      These sections of the Code seek to restrict a limited type of expression which comes within the ambit of protected expression.  They constitute a limit on freedom of expression within the meaning of s. 2(b) of the Charter.  Before determining whether the sections can be justified under s. 1 of the Charter, it will be helpful to now consider whether the impugned sections contravene s. 7 of the Charter.

 

Do ss. 298, 299 or 300 of the Code, Separately or in Combination, Violate s. 7 of the Charter?

 

29                      The appellants contended that the defamatory libel provisions are so vague that they infringe s. 7 of the Charter.  I cannot accept this submission.  There are two principles applicable in considering vagueness.  First, a law is vague if it does not provide “an intelligible standard according to which the judiciary must do its work” (Irwin Toy, supra, at p. 983).  Secondly, “[a] vague provision does not provide an adequate basis for legal debate, that is for reaching a conclusion as to its meaning by reasoned analysis applying legal criteria.  It does not sufficiently delineate any area of risk, and thus can provide neither fair notice to the citizen nor a limitation of enforcement discretion” (R. v. Nova Scotia Pharmaceutical Society, [1992] 2 S.C.R. 606, at p. 639, emphasis added).  On the issue of notice, Gonthier J. writing for the Court in Nova Scotia Pharmaceutical, stated at pp. 634‑35:

 

The substantive aspect of fair notice is therefore a subjective understanding that the law touches upon some conduct, based on the substratum of values underlying the legal enactment and on the role that the legal enactment plays in the life of the society.

 

 . . . fair notice to the citizen comprises a substantive aspect, that is an understanding that certain conduct is the subject of legal restrictions.

 

The wording of ss. 298 to 300 makes it abundantly clear what kind of conduct is the subject of legal restrictions.  Section 298 specifies the types of published matter which are targeted, while s. 299 restricts liability to specific modes of publication.


30                      The requirement of a limitation on the prosecutorial discretion which can properly be exercised in enforcement was also discussed in Nova Scotia Pharmaceutical, at p. 642:

 

What becomes more problematic is . . . terms failing to give direction as to how to exercise this discretion, so that this exercise may be controlled.  Once more, an unpermissibly vague law . . . will not give a sufficient indication as to how decisions must be reached, such as factors to be considered or determinative elements.

 

A charge of defamatory libel requires, as an element of the offence, physical publication of the allegedly defamatory matter.  Section 299 requires that the matter alleged to be libellous be published in one of three specific manners.  Further, the Crown must prove that the matter in question was objectively defamatory ‑‑ that it was “likely to injure the reputation of any person by exposing him to hatred, contempt or ridicule”, or that it was “designed to insult the person of or concerning whom it is published” (s. 298(1)).  It must also prove both that the accused knew the defamatory libel was false and that there was intent to defame.  There is no doubt that, with these requirements, ss. 298 to 300 “give a sufficient indication as to how [prosecutorial] decisions must be reached”.  In my view the sections do not infringe s. 7 of the Charter.  It is now appropriate to consider whether they can be justified pursuant to s. 1 of the Charter.

 

Can ss. 298, 299 and 300 of the Code Be Upheld Under s. 1 of the Charter?

 

31                      Whether the infringement of a Charter right or freedom can be justified under s. 1 will become apparent from an analysis based upon the test suggested by Dickson C.J. in R. v. Oakes, [1986] 1 S.C.R. 103.  It requires a review of three issues:

 

(i)  is the limit on the right prescribed by law;


(ii)  is the objective for which the legislation was enacted sufficiently pressing and important to override a Charter freedom; and

 

(iii)  is there a proportionality between the effects of the measures which are responsible for limiting the Charter freedom and the objective which has been identified as of “sufficient importance”.

 

32                      The third question requires the consideration of a number of factors.  First, is there a rational connection between the objective of the legislation and the means chosen to achieve it?  Second, do the means chosen minimally impair the right protected by the Charter?  Finally, do the deleterious effects of the restriction outweigh its salutary effects?

 

Context

 

33                      This Court has stressed the importance of a contextual approach in determining the appropriate balance between individual rights and state interests under s. 1.  See Edmonton Journal, supra, at pp. 1355‑56.  It follows that when freedom of expression is at issue, the nature of the s. 2(b) violation must be considered in determining whether the restriction can be “demonstrably justified in a free and democratic society”.  This was emphasized in Keegstra, supra, at pp. 759‑60, and will be considered at greater length in the proportionality discussion.

 


34                      Quite simply, the level of protection to which expression may be entitled will vary with the nature of the expression.  The further that expression is from the core values of this right the greater will be the ability to justify the state’s restrictive action.  This approach was approved by La Forest J. in Canadian Broadcasting Corp. v. New Brunswick (Attorney General), [1996] 3 S.C.R. 480.

 

Prescribed by Law

 

35                      The appellants submitted that ss. 298, 299 and 300 of the Code are too vague to constitute a limit prescribed by law.  I cannot agree.

 

36                      While the sections in question may not be perfectly drafted it must be remembered that words and phrases cannot always be measured with scientific precision.  This concept was ably captured by Gonthier J. in Nova Scotia Pharmaceutical Society, supra, at p. 639:

 

Language is not the exact tool some may think it is.  It cannot be argued that an enactment can and must provide enough guidance to predict the legal consequences of any given course of conduct in advance.  All it can do is enunciate some boundaries, which create an area of risk.  But it is inherent to our legal system that some conduct will fall along the boundaries of the area of risk; no definite prediction can then be made.

 

37                      It follows that merely because ss. 298 to 300 may be subjected to various shading of interpretation does not mean they are unacceptably vague.

 

38                      In considering this issue, the trial judge found that the definition of defamatory libel in s. 298 is set out in words of common usage capable of interpretation.  In his view the section provides “an intelligible standard according to which the judiciary must do its work”, pursuant to the test laid out in Irwin Toy, supra.  He found that it defines defamatory libel in a manner that provides an intelligible standard of conduct.  In my view, the trial judge applied the proper tests and arrived at the correct result.


39                      Any imprecision that may exist in these sections is properly addressed under the proportionality test.  As Gonthier J. noted in Nova Scotia Pharmaceutical, at p. 627, “[t]he Court will be reluctant to find a disposition so vague as not to qualify as ‘law’ under s. 1 in limine, and will rather consider the scope of the disposition under the ‘minimal impairment’ test”.

 

Is the Objective Pressing and Substantial?

 

The Objective of the Offence of Defamatory Libel

 

40                      Once it is established that the offence constitutes a limit prescribed by law, it is necessary to determine whether that limit is a justifiable one in a free and democratic society.  In order to do so it is first necessary to identify the aim or objective of the challenged sections at the time they were enacted.  In Zundel, supra, at p. 761, it was emphasized that the application and interpretation of objectives may vary over time.  However, a court must look to the intention of Parliament when the section was enacted, and cannot assign objectives according to the perceived reality of the challenged section.

 

41                      The provisions pertaining to defamatory libel date back to the earliest versions of the Code, which codified the existing English law.  The law in England had existed for several centuries.  A brief historical inquiry is therefore necessary to discover the objective of those laws and the intention of the Canadian Parliament in adopting them.

 


42                      This analysis was undertaken in some detail by the Manitoba Court of Appeal in Stevens, supra, especially in the reasons of Twaddle J.A. at pp. 286‑94.  He found that while the offence was originally enacted as a means of preventing duels fought in defence of the honour of defamed parties, and thus preventing breaches of the public peace, this initial purpose had long since been eclipsed by another objective:  that of protecting personal reputation.

 

43                      This conclusion was based in large part on the fact that the “modern” Canadian offence of defamatory libel is derived from a law first adopted by Parliament in 1874 (An Act respecting the Crime of Libel, S.C. 1874, c. 38), which was merely an adoption of the law of England as it existed at the time of Confederation.  By that time, the original English offence of defamatory libel had been supplanted by an 1843 statute often referred to as Lord Campbell’s Act.  Its preamble asserted that the purpose of the Act was “For the better Protection of private Character”.  The comments of Lord Campbell himself, quoted at p. 105 of the report of the select House of Lords committee which formulated the recommendations that were ultimately reflected in Lord Campbell’s Act, are revealing:

 

On Principle, I think that Defamation is a crime like Theft or Battery of the Person; It is doing an Injury to a Member of Society, who is entitled to the Protection of the Law, and the Person who perpetrates that Injury ought to be punished as an Example to others to prevent a repetition of the Offence.

 

44                      Significantly this preamble was reproduced verbatim in the 1874 Canadian legislation.  In addition the careful review undertaken by Twaddle J.A. of parliamentary debates concerning the enactment of this legislation revealed that the specific intention of Parliament was to adopt the objective of the English law, namely the protection of reputation (Stevens, supra, at pp. 291‑92).

 


45                      It is clear that by the time of the enactment of Lord Campbell’s Act, the prevention of breaches of the peace was no longer the objective underlying the offence of defamatory libel.  As Twaddle J.A. acknowledged, there remained a persistent judicial tendency throughout the 19th century to advert to the breach‑of‑peace requirement (see e.g. R. v. Holbrook (1878), 4 Q.B.D. 42).  However, in light of all the circumstances surrounding the enactment of the statute, this could not have been the intention of the British Parliament at the time.  The history of the law is indeed relatively clear.  This was as well the view put forward by the House of Lords in Gleaves, supra.

 

46                      Apart from the historical evidence supporting the position that the protection of reputation was the principal goal of the crime of defamatory libel, there is also convincing evidence of the original legislative purpose in the Code itself.  The current s. 300 describes substantially the same offence as that of aggravated defamatory libel included in the first Criminal Code, S.C. 1892, c. 29.  Then, as now, it was included under the heading “Offences Against the Person and Reputation”.  Indeed, the inclusion of “reputation” in the original heading could only have referred to defamatory libel, as it was the only offence of that nature contained in that part of the first Code.

 

47                      Headings in a statute can properly be taken into account in determining the intentions of Parliament (Law Society of Upper Canada v. Skapinker, [1984] 1 S.C.R. 357, at p. 377; R. v. Wigglesworth, [1987] 2 S.C.R. 541).  Indeed they have been used in interpreting Criminal Code provisions (Skoke‑Graham v. The Queen, [1985] 1 S.C.R. 106, at pp. 119‑21; R. v. Kelly, [1992] 2 S.C.R. 170, at p. 189).  The placement of s. 300 in this part of the Code can be contrasted with the “spreading false news” provision, which, as noted in Zundel, supra, at p. 763, was placed under the heading  “Nuisances”.  Finally, the fact that there is a specific provision to prevent duelling (s. 71) under Part II “Offences Against Public Order” confirms that Parliament’s primary aim in enacting s. 300 was the protection of reputation rather than that of preventing breaches of the peace.


The Importance of the Objective of Protecting Reputation

 

48                      Is the goal of the protection of reputation a pressing and substantial objective in our society?  I believe it is.  The protection of an individual’s reputation from wilful and false attack recognizes both the innate dignity of the individual and the integral link between reputation and the fruitful participation of an individual in Canadian society.  Preventing damage to reputation as a result of criminal libel is a legitimate goal of the criminal law.

 

49                      In Hill v. Church of Scientology of Toronto, [1995] 2 S.C.R. 1130,  it was emphasized that it is of fundamental importance in our democratic society to protect the good reputation of individuals.  On behalf of a unanimous court it was observed at p. 1175:

 

Although much has very properly been said and written about the importance of freedom of expression, little has been written of the importance of reputation.  Yet, to most people, their good reputation is to be cherished above all.  A good reputation is closely related to the innate worthiness and dignity of the individual.  It is an attribute that must, just as much as freedom of expression, be protected by society’s laws. . . .

 

Democracy has always recognized and cherished the fundamental importance of an individual.  That importance must, in turn, be based upon the good repute of a person. . . . A democratic society, therefore, has an interest in ensuring that its members can enjoy and protect their good reputation so long as it is merited.

 


50                      That a number of international conventions, ratified by Canada, contain explicit limitations of freedom of expression in order to protect the rights and reputations of individuals, further supports the conclusion that this constitutes a pressing and substantial objective.  For example the International Covenant on Civil and Political Rights, 19 December 1966, Can. T.S. 1976 No. 47, art. 17 provides that everyone has the right to the protection of the law against attacks on his or her honour and reputation.  Similarly, the Universal Declaration of Human Rights, G.A. Res. 217 A (III), U.N. Doc. A/810, at 71 (1948), art. 12 states that “[n]o one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation.  Everyone has the right to the protection of the law against such interference or attacks.”  Other conventions, including the European Convention for the Protection of Human Rights and Fundamental Freedoms, 4 November 1950, 213 U.N.T.S. 221, art. 10, and the American Convention on Human Rights, O.A.S.T.S. No. 36, at 1, art. 13, provide expressly that freedom of expression is subject to laws necessary for the protection of the reputation of individuals.  The existence of these provisions reflects a consensus within the international community that the protection of reputation is an objective sufficiently important to warrant placing some restrictions upon freedom of expression.

 

51                      Finally, it is significant that many other free and democratic societies have criminal libel laws, including Australia, Belgium, Denmark, France, The Netherlands, Norway, Sweden and Switzerland: Carter‑Ruck on Libel and Slander (5th ed. 1997), chs. 27 and 29‑33.  Clearly, the protection of reputation is widely recognized as an important legislative endeavour.

 

Proportionality

 

Rational Connection

 


52                      In Oakes, supra, at p. 139, Dickson C.J. defined the rational connection requirement of the s. 1 analysis as ensuring that the measures adopted are “carefully designed to achieve the objective in question.  They must not be arbitrary, unfair or based on irrational considerations”.

 

53                      As Iacobucci J. aptly observed in RJR‑MacDonald Inc. v. Canada (Attorney General), [1995] 3 S.C.R. 199, at p. 352, “[r]ational connection is to be established, upon a civil standard, through reason, logic or simply common sense”.  A common sense approach to the analysis of s. 300 and its defining provisions reveals that a rational connection does indeed exist.  In order to protect individuals from wilful and false attacks on their reputations, Parliament has chosen to enact a law which prohibits the publication of injurious or insulting statements concerning another individual which are known to be false.  The provision specifically addresses a targeted mischief.

 

54                      I agree with Twaddle J.A.’s conclusion in Stevens, supra, that the offence of defamatory libel was carefully designed.  He stated at pp. 295‑96:

 

I cannot think of a more rational way to protect the reputation of individuals from wilful and false attack than the creation of the aggravated offence crafted by the committee.  It is narrowly defined and catches only the most odious offenders.  Yet it does offer substantial protection by deterring those very offenders from committing their outrageous offences.  The impugned measure is thus rationally connected to its objective.

 


55                      The appellants argued that the provisions cannot be an effective way of achieving the objective.  They contended that this was apparent from the fact that criminal prosecutions for defamation are rare in comparison to civil suits.  However, it has been held that “[t]he paucity of prosecutions does not necessarily reflect on the seriousness of the problem”, rather it “might be affected by a number of factors such as the priority which is given to enforcement by the police and the Crown” (R. v. Laba, [1994] 3 S.C.R. 965, at p. 1007 (emphasis added)).  There are numerous provisions in the Code which are rarely invoked, such as theft from oyster beds provided for in s. 323 or high treason in s. 46.  Yet, the infrequency of prosecutions under these provisions does not render them unconstitutional or ineffective.  I agree that the small number of prosecutions under s. 300 may well be due to its effectiveness in deterring the publication of defamatory libel (Stevens, supra, at p. 310).

 

56                      In my view s. 300 is rationally connected to the legislative objective of protecting the reputation of individuals.

 

Minimal Impairment

 

57                      The minimal impairment analysis requires a determination as to whether ss. 298‑300 of the Code limit freedom of expression as little as possible (Oakes, supra).  It is particularly important at this stage to bear in mind the negligible value of defamatory expression.  This significantly reduces the burden on the respondent to demonstrate that the provision is minimally impairing.

 

Mens Rea Requirement

 


58                      On its face, s. 300 requires but one form of mens rea, namely knowledge of falsity.  There is no express requirement that an accused have an intention to defame.  The appellants forcefully contend that such a deficiency would not minimally impair freedom of expression, and may indeed constitute a separate unjustifiable s. 7 infringement, because it would unreasonably extend the offence to apply to persons honestly believing the words they used are not defamatory and to those repeating another’s defamatory words in order to inform the public.  However, a historical review of the application of mens rea in the context of defamatory libel and the application of traditional principles of statutory interpretation lead inevitably to the conclusion that such an intention is indeed required and that s. 300 should be read accordingly.

 

59                      Early English cases dealing with defamatory libel clearly stated that there is a requirement that an intention to defame must be demonstrated.  A thorough review of these cases was undertaken by Judge Giesbrecht of the Manitoba Provincial Court in R. v. Stevens (1993), 82 C.C.C. (3d) 97, at pp. 134 et seq., and by Twaddle J.A., on appeal.  In R. v. Lord Abingdon (1794), 1 Esp. 226, 170 E.R. 337, at p. 228, Lord Kenyon, Chief Justice of the King’s Bench, in dealing with an issue of defamatory libel was reported as saying:

 

That in order to constitute a libel, the mind must be in fault, and shew a malicious intention to defame, for, if published inadvertently, it would not be a libel; but where a libellous publication appeared unexplained by any evidence, the jury should judge from the overt act, and where the publication contained a charge slanderous in its nature, should from thence infer that the intention was malicious.

 

60                      Twaddle J.A. noted that the second part of Lord Kenyon’s remarks could explain why many English cases never expressly dealt with intention to defame.  He observed that “[t]he presumption that a person intends the natural consequences of his or her actions was seen as a legal one” (Stevens, supra, at p. 300) and that it was not until 1967 that this presumption was “relegated to an inference of fact which a jury might, but need not, make”.  It follows therefore that a person proved to have published defamatory material was presumed to have intended to defame.

 

61                      Other English cases have held that there was a necessity to prove that there was an intention to defame (see e.g. Holbrook, supra, at p. 50, and R. v. Burdett (1820), 4 B. & Ald. 95, 106 E.R. 873, at p. 126).


62                      It is apparent that by the end of the 19th century in England proof of intention to defame was a necessary ingredient of criminal libel (although, this was often presumed from the defamatory nature of the publication).  This view is supported by English authors.  For instance, Sir James Stephen in A History of the Criminal Law of England, vol. 2 (1883), at pp. 358‑59, wrote:

 

The effect of the Libel Act [Fox's] and of the discussions which led to it, was thus to embody in the definition of the crime of seditious libel the existence of some kind of bad intention on the part of the offender. . . . [T]he Libel Act does not say whether the averments as to the specific intentions of the defendant in such cases are or are not material.  It no doubt, however, assumes them to be so, and the law has ever  since been administered upon the supposition that they are.

 

Similarly, Glanville Williams in Criminal Law: The General Part (2nd ed. 1961) states at p. 67, § 29 that:

 

Libel requires mens rea at least in the sense that the defendant (or, as we shall see, his servant) must have intended to defame, or been reckless as to the defamatory meaning of his words.

 

63                      In Canada, there is relatively little authority dealing with the mens rea requirement of the offence of defamatory libel.  However, I find the historical approach to mens rea taken in England persuasive.  It is also helpful to consider principles of interpretation.

 

64                      Sound guidance and an excellent point of commencement are provided by Lord Reid in Sweet v. Parsley, [1970] A.C. 132 (H.L.), at p. 148:

 


Sometimes the words of the section which creates a particular offence make it clear that mens rea is required in one form or another.  Such cases are quite frequent.  But in a very large number of cases there is no clear indication either way.  In such cases there has for centuries been a presumption that Parliament did not intend to make criminals of persons who were in no way blameworthy in what they did.  That means that whenever a section is silent as to mens rea there is a presumption that, in order to give effect to the will of Parliament, we must read in words appropriate to require mens rea.

 

Canadian courts have held that, in the absence of an express legislative provision, it should be presumed that proof of subjective mens rea is a requirement of criminal offences (R. v. Sault Ste. Marie (City), [1978] 2 S.C.R. 1299 per Dickson J. (as he then was); R. v. Vaillancourt, [1987] 2 S.C.R. 636).  That principle is applicable in this case.  The goal of minimally impairing free expression cannot be achieved without imposing a mens rea requirement of an intention to defame.

 

65                      As Twaddle J.A. pointed out in Stevens, supra, at p. 303, it is appropriate to read a criminal statute so that it conforms with Charter principles:

 

Now, not only jurisdictional concerns would dictate reading a mens rea requirement into a criminal statute; Charter concerns would also do so.  Thus, in  Metropolitan Stores (MTS) Ltd. v. Manitoba Food & Commercial Workers, Local 832 (1987),  38 D.L.R. (4th) 321 at p. 331, [1987] 1 S.C.R. 110, 87 C.L.L.C. ¶14,015, Beetz J., delivering the judgment of the court, said:

 

Still another meaning of the "presumption of constitutionality" is the rule of construction under which an impugned statute ought to be construed, whenever possible, in such a way as to make it conform to the Constitution.

 

66                      Similarly, in Nova Scotia Pharmaceutical, supra, at p. 660, it was held that where two possible interpretations of a provision are possible, it is the one that embodies the Charter values that should be adopted.  It follows that the Crown must prove that the accused intended to defame.

 


67                      It would be contrary to constitutional principles to interpret s. 300 as requiring anything less than a subjective intent to defame.  That proof of intent to defame is required by the section is also readily ascertainable from the historical treatment of similar provisions.

 

68                      Accordingly, the Crown can only make out the offence of defamatory libel if it proves beyond a reasonable doubt that the accused intended to defame the victim.  This requirement places a sufficiently onerous burden on the Crown to make the mens rea aspect of the provision minimally intrusive.

 

The Criminal/Civil Law Dichotomy

 

69                      The next issue raised by the appellants which is related to minimal impairment is whether the defamatory libel provisions in the Code are overbroad as a result of the civil remedy in libel which also protects the reputation of individuals.  The appellants argued that the protection of reputation can be adequately achieved through the use of civil law with the result that the use of the punitive criminal sanctions is not minimally impairing.  I cannot agree with this submission.

 


70                      The continued existence of parallel but distinct civil and criminal laws concerning defamatory libel reflects the view of Parliament that while victims of such wrongs may well deserve to be compensated, perpetrators who wilfully and knowingly publish lies deserve to be punished for their grievous misconduct.  Criminal law and civil law serve different purposes.  It is true they share certain deterrent aspects.  Yet the principal object of criminal law is the recognition of society’s abhorrence of a criminal act and the punishment of criminal behaviour.  Civil law has as its main goal compensation through awards of damages for injuries suffered by an individual at the hands of another.  Further, although many criminal offences make victims of individuals, criminal law treats all crimes as offences against society.  It is the state that prosecutes the offender in a public forum.  The interests of the state are paramount while the interests of victims are peripheral.  On the other hand, the civil process envisions the victim herself seeking vindication and compensation by confronting the individual who wronged her.

 

71                      It has been held that it is appropriate for different branches of the law to recognize different kinds and degrees of harm flowing from the same wrong.  In Wigglesworth, supra, at pp. 566‑67, Wilson J., writing for the majority, adopted the following passage from the reasons of the Court of Appeal:

 

A single act may have more than one aspect, and it may give rise to more than one legal consequence. . . .  For example a doctor who sexually assaults a patient will be liable, at one and the same time, to a criminal conviction at the behest of the state; to a judgment for damages, at the instance of the patient, and to an order of discipline on the motion of the governing council of his profession.

 

72                      The existence of criminal sanctions for acts which are also considered tortious often ensures that those who commit acts which society has deemed egregious are properly punished.  The criminal negligence provisions, for instance, constitute an important deterrent of negligent behaviour and uphold appropriate community standards with respect to activities such as driving.  In cases of criminal negligence, no one would argue that because an individual can seek monetary compensation for the damages occasioned by a negligent person there should be no corresponding public expression of society’s profound disapproval of egregiously negligent conduct.  This can as well be said of acts of assault, sexual assault, fraud, trespass, and indeed murder or manslaughter, all of which may give rise to criminal and civil proceedings.


73                      I believe the same is also true of defamatory libel.  Although it is important to recognize the right of the person defamed to sue for monetary damages it is equally if not more important that society discourage the intentional publication of lies calculated to expose another individual to hatred and contempt.  The harm addressed by s. 300 is so grave and serious that the imposition of a criminal sanction is not excessive but rather an appropriate response.  Defamatory libel can cause long‑lasting or permanent injuries to the victim.  The victim may be forever demeaned and diminished in the eyes of her community.  The conduct which injures reputation by criminal libel is just as blameworthy as other conduct readily accepted as criminal, such as a deliberate assault or causing damage to property.  Moreover, the offence requires an intent to defame and knowledge of the falsity of the publication.  This state of mind is just as culpable and morally blameworthy as that of the perpetrator of many other offences.  The harm that acts of criminal libel can cause is so grievous and the object of the section to protect the reputation of individuals is so meritorious that the criminal offence is of such importance that the offence should be maintained.

 

74                      The other reason for the existence of both a criminal and a civil remedy for defamation lies in a recognition of the problems and weaknesses that exist in civil proceedings in our present society.  Civil proceedings can be prohibitively expensive for many Canadians.  Even if a victim can afford to bring an action before the civil courts, a civil action will have little, if any, deterrent effect on impecunious defendants.  Those whose work makes them especially vulnerable to criminal libel, like social workers, police officers or nurses, require the protection which only the criminal law can provide.  When they are victimized by someone with no means of satisfying a civil judgment, a criminal recourse may be their only means of vindication and the only solution that offers a first step on the road to restoring their good reputation in the community.

 


75                      This reality has been recognized as an important justification for retaining the criminal offence of defamation by the Australian Capital Territory Community Law Reform Committee (in its Defamation Report (1995)):

 

. . . a number of subterfuges have been used to avoid civil liability for defamatory conduct.  Ultimately, a criminal sanction is the only real sanction against someone who has made themselves an uneconomic civil target or who defames a person or body that cannot be expected to take a civil action.

 

Similarly, the English Commission concluded that there is a need for the criminal offence of defamatory libel:

 

. . . there are instances where defamatory publications may cause very serious damage to a person’s life which it is in the public interest to prevent or, where the matter has already been published, to punish.  Provided that the terms of any new offence are not such as to inhibit genuine freedom of speech and conform to the general principles of the criminal law, we consider that, not only can there be no objection in principle, but that such an offence is needed.

 

(Quoted in Law Reform Commission (Ireland), Consultation Paper on the Crime of Libel (1991), at p. 145.)

 

76                      It is true that Canadian Law Reform Commissions have reached a different conclusion on the utility of the criminal defamation provisions.  However, for the reasons noted earlier I cannot accept their position that the civil law adequately protects the reputation of individuals from defamatory attacks.  Further, to accept the position that because offensive conduct can be pursued through private litigation it cannot be prosecuted criminally would seriously undermine Parliament’s authority to determine what conduct amounts to a public wrong.  As far as defamation is concerned, civil and criminal processes can effectively co‑exist.  The criminal offence is not overbroad or ineffectual simply because a civil remedy exists.


Impugned Phrases and Terminology

 

77                      The appellants argued that certain terms and phrases in ss. 298, 299 and 300 cast too wide a net to meet the minimal impairment standards required by s. 1 of the Charter.

 

(1)  Section 298 -- “designed to insult”

 

78                      Section 298 defines those modes of expression which can be characterized as defamatory libel.  Included in that definition is a “matter published . . . that is designed to insult the person of or concerning whom it is published”.  The appellants argued that this phrase encompasses a broad range of expression, much of which would cause no real harm to the reputation of the person insulted.  As the appellants point out, not even the civil law of libel punishes mere insults.

 

79                      I agree that the provision would be overly intrusive if it were to be construed so that mere insults should constitute a criminal offence.  However, the provision must be read in the context of the purpose of the section to protect the reputation of individuals.  As well it must, as a criminal statute, be interpreted so as to give the accused the greatest protection possible.

 


80                      In order to interpret the words “designed to insult” appearing in s. 298, the French version of the section must be considered.  This was the approach carefully adopted by Lamer J. (as he then was) in R. v. Collins, [1987] 1 S.C.R. 265, at p. 287.  There the French version of s. 24(2) of the Charter was utilized to determine the appropriate threshold for the exclusion of evidence.  Although the English version mandates exclusion where the admission of evidence “would bring the administration of justice into disrepute”, he found that the French text used a lower threshold through the words “est susceptible de déconsidérer l’administration de la justice”.  In order to give proper effect to the purpose of s. 24(2) to protect the accused’s right to a fair trial, Lamer J. read s. 24(2) in accordance with the less onerous French text and concluded that the exclusion of evidence was required whenever the admission could bring the administration of justice into disrepute.

 

81                      In this case, the language used in the French text indicates a higher threshold with respect to defamatory insults.  The French version of the Code provides as a definition of defamatory libel a published matter which is “destinée à outrager”.  The use of the word “outrager” rather than the literal translation of “insult” suggests a grave insult is necessary and that anything less will not be sufficient to trigger the defamatory libel provisions.  According to Le Nouveau Petit Robert (1996), “outrager” means “[o]ffenser gravement par un outrage (actes ou paroles)”; “outrage” is defined as “[o]ffense ou injure extrêmement grave (de parole ou de fait)”.  The stronger meaning of the term “outrage” is clear when one notes the other places in the French version of the Code where it is used.  For instance, the offence of contempt of court in s. 708 is referred to as “outrage au tribunal” in the French version.  “Outrage” is also used in s. 182(b) (“outrage . . . envers un cadavre”) which prohibits the offering of any indignity to human remains.

 

82                      When s. 298 is read in the context of the aim of the section and the French text is taken into account it becomes apparent that the phrase “or that is designed to insult the person” should be read as requiring proof of a grave insult.  Thus, the inclusion of insults in the definition of defamatory libel is minimally impairing.

 


(2)  Section 298 -- “is likely to injure”

 

83                      The appellants argued that the requirement in s. 298 that the published defamatory matter need only be “likely to injure the reputation of any person” is not constitutionally valid since proof of harm is generally required in criminal law, particularly in the area of free expression.  I disagree.  To require proof of actual injury would be contrary to Dickson C.J.’s holding in Keegstra, supra.  He carefully considered the issue and found that the criminal law could properly be used to prevent the risk of serious harm.  At p. 776, he wrote:

 

It is well accepted that Parliament can use the criminal law to prevent the risk of serious harms, a leading example being the drinking and driving provisions in the Criminal Code.

 

(3)  Section 299 -- “by the person whom it defames”

 

84                      Section 299(c) of the Code makes it an offence to publish a defamatory libel when the defamatory statement is shown or delivered “with intent that it should be read or seen by the person whom it defames. . .”.  Although it is perhaps not essential to the decision, it would appear that s. 299(c) cannot meet constitutional requirements. I agree with the appellants that this portion of the defamatory libel scheme is too broad.  It does little to advance the objective of protecting reputation since a person’s reputation will not be damaged if the defamatory statement is published to that individual alone.  It was recently held in Canada (Attorney General) v. Canada (Commission of Inquiry on the Blood System), [1997] 3 S.C.R. 440, at para. 56, that derogatory statements communicated only to the party described cannot injure reputation.  These statements may well be cruel and inflict injury but their inclusion in the provision is not logically related to the aim of protecting the reputation of individuals.


85                      In my view, the common law of libel is helpful not only in determining the meaning of the impugned sections for constitutional purposes but it is of equal assistance in establishing the invalidity of other portions of the section.  Sections 298, 299 and 300 of the Code appear under the heading “Defamatory Libel”.  This is a sound indication that common law concepts and principles of libel will be useful in interpreting these sections.  The basic definition of libel according to Gatley on Libel and Slander (9th ed. 1998), at p. 6, is the publication to a third person of words or matter containing an untrue imputation against the reputation of another.  This principle has been adopted and applied for centuries.  Clearly, the fundamental element of libel is publication to a person other than the one defamed.  Section 299(c) is so contrary to this principle that it cannot be justified.

 

86                      The phrase “by the person whom it defames or” should therefore be severed from s. 299(c) so that it reads “A person publishes a libel when he . . . shows or delivers it, or causes it to be shown or delivered, with intent that it should be read or seen by any other person”.  Obviously, the phrase “any other person” will not pertain to the situation where only the person defamed is shown the defamatory libel.

 


87                      This is not a situation in which “to sever the offending portion would actually be more intrusive to the legislative purpose than the alternate course of striking down provisions which are not themselves offensive but which are closely connected with those that are” (Schachter v. Canada, [1992] 2 S.C.R. 679, at p. 697).  What remains provides a clearer definition that complies both with the purpose of the section and with the minimal impairment requirement of s. 1.  Moreover, the severance of the unconstitutional phrase will not leave the defamed individual without the protection of the criminal law, be it by existing or other properly framed offences.  For example a statement made only to the defamed person may constitute criminal harassment (s. 264), or uttering a threat (s. 264.1). It is significant that the Attorney General of Canada agreed that the words “by the person whom it defames or” should be severed.

 

Deleterious Effects

 

88                      It is at this stage that the analysis can be undertaken to determine whether an appropriate balance has been struck between the deleterious effects of the impugned legislative provisions on the infringed right and the salutary goals of that legislation.  When freedom of expression is at issue, it is logical that the nature of the violation should be taken into consideration in the delicate balancing process.  The importance of this consideration was expressed in Keegstra, supra, at p. 760:

 

. . . the interpretation of s. 2(b) under Irwin Toy, supra, gives protection to a very wide range of expression.  Content is irrelevant to this interpretation, the result of a high value being placed upon freedom of expression in the abstract.  This approach to s. 2(b) often operates to leave unexamined the extent to which the expression at stake in a particular case promotes freedom of expression principles.  In my opinion, however, the s. 1 analysis of a limit upon s. 2(b) cannot ignore the nature of the expressive activity which the state seeks to restrict.  While we must guard carefully against judging expression according to its popularity, it is equally destructive of free expression values, as well as the other values which underlie a free and democratic society, to treat all expression as equally crucial to those principles at the core of s. 2(b).  [Emphasis in original.]

 

89                      In Stevens, supra, at p. 285, Twaddle J.A. aptly noted that based on the decision of La Forest J. in United States of America v. Cotroni, [1989] 1 S.C.R. 1469:

 

The more worthy [the] activity, the more difficult it is to justify a limit on it.  On the other hand, a limit on activity which is harmful to another and far removed from the values embodied in the freedom of expression can more readily be justified.

 


90                      In New Brunswick, supra, at p. 513, the core values of freedom of expression were held to include the search for political, artistic and scientific truth, the protection of individual autonomy and self‑development, and the promotion of public participation in the democratic process.  It was decided that the further a particular form of expression departs from these underlying values, the lower will be the level of constitutional protection afforded to it.  It was put this way at pp. 512‑13:

 

. . . the level of constitutional protection to which expression will be entitled varies with the nature of the expression.  More specifically, the protection afforded freedom of expression is related to the relationship between the expression and the fundamental values this Court has identified as being the “core” values underlying s. 2(b). . . .  This Court has subjected state action that jeopardizes these “core” values to a “searching degree of scrutiny”.  Where, on the other hand, the expression in question lies far from the “centre core of the spirit” of s. 2(b), state action restricting such expression is less difficult to justify.

 

91                      This was one of the aspects specifically considered by the majority in Keegstra, supra, where it was held that s. 319(2) of the Code dealing with hate propaganda was justifiable under s. 1.  In addressing the value to be given to a communication intended to promote hatred against identifiable groups, Dickson C.J. stated, at p. 765:

 

[G]iven the unparalleled vigour with which hate propaganda repudiates and undermines democratic values, and in particular its condemnation of the view that all citizens need be treated with equal respect and dignity so as to make participation in the political process meaningful, I am unable to see the protection of such expression as integral to the democratic ideal so central to the s. 2(b) rationale.  Together with my comments as to the tenuous link between communications covered by s. 319(2) and other values at the core of the free expression guarantee, this conclusion leads me to disagree with the opinion of McLachlin J. that the expression at stake in this appeal mandates the most solicitous degree of constitutional protection.  In my view, hate propaganda should not be accorded the greatest of weight in the s. 1 analysis.

 


92                      In Hill, supra, a similar conclusion was reached with respect to defamatory statements.  At p. 1174, it was said that:

 

. . . 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.

 

93                      Most certainly defamatory libel is far from and indeed inimical to the core values of freedom of expression.  It would trivialize and demean the magnificent panoply of rights guaranteed by the Charter if a significant value was attached to the deliberate recounting of defamatory lies that are likely to expose a person to hatred, ridicule or contempt.

 

94                      It is thus clear that defamatory libel is so far removed from the core values of freedom of expression that it merits but scant protection.  This low degree of protection can also be supported by the meritorious objective of the impugned sections.  They are designed to protect the reputation of the individual.  This is the attribute which is most highly sought after, prized and cherished by most individuals.  The enjoyment of a good reputation in the community is to be valued beyond riches.

 

95                      These two factors, the low or minimal degree of protection to be accorded defamatory lies and the meritorious object of the challenged sections, combine to facilitate the justification of the infringement of s. 2(b) of the Charter.  In his reasons in the Stevens case Twaddle J.A. aptly put it in this way, at p. 299:

 


Not only is it easier to justify impairment of a Charter right or freedom where the impairment only affects a low‑valued exercise of the right or freedom, but it is also easier to do so where the objective of the impugned law has itself a high value.  Thus, a ban on the publication of a report on court proceedings is easier to justify where the purpose is to enable an accused to obtain a fair trial than it would be if the ban was intended as a form of censorship.  In this case, the value of a person's reputation is very high indeed.  Shakespeare put its value in these terms:  "Who steals my purse steals trash . . . But he that filches from me my good name . . . makes me poor indeed" (Othello, III (iii), 157‑61, Iago).

 

96                      In my view, the laudable objective of the defamatory libel provisions and their salutary effects on the protection of reputation far outweigh any negative impact on freedom of expression.

 

97                      Subject to the reading out of “by the person whom it defames or” in s. 299(c), I find that ss. 298 to 300 can be upheld as a justifiable limit on freedom of expression.  The next question which must be addressed is whether Mr. and Mrs. Lucas were properly convicted.

 

Is There Sufficient Evidence That the Appellants Had Subjective Knowledge of the Falsity of the Defamatory Statements They Displayed to Uphold Their Convictions Despite the Trial Judge’s Erroneous Application of an Objective Test?

 

98                      The placards displayed by Mr. and Mrs. Lucas fall within those parts of ss. 298 and 299 which are constitutionally valid:  that is to say they were publicly displayed and objectively likely to injure a person’s reputation.

 


99                      The respondent conceded that the trial judge erred when he held that the mens rea requirement for s. 300 was satisfied by proof that the appellants should have known that the statements they published were false.  In order to sustain a conviction under s. 300 of the Code, the Crown must prove that the accused published a defamatory libel “that he knows is false”.  In R. v. Jorgensen, [1995] 4 S.C.R. 55, it was held that the knowledge required by such a phrase is subjective.  It follows that the trial judge should have determined whether the accused knew that the published statements were false.

 

100                    The question that now must be considered is whether, despite the trial judge’s error, the convictions of Mr. and Mrs. Lucas ought to be upheld.  The appellants argued that they should be acquitted because the Crown failed to prove that they had subjective knowledge of the falsity of the contents of the placards.  Although the Court of Appeal did not undertake an extensive review of the evidence, it concluded that the Crown had successfully proven all the essential elements of the offence beyond a reasonable doubt.

 

101                    The appellants contend that the message they were communicating was not what might reasonably be gathered from an objective reading of the placards.  They claim that they felt the police officer was, through his inaction, responsible for the abuse of the children and that this was what the placards indicated.  There was evidence adduced at trial that both Mr. and Mrs. Lucas believed that the message they were attempting to convey was true.

 

102                    However, the appellants’ subjective understanding of the statements on the placards should not be determinative.  If this position was adopted, it would always be open to an accused to argue that the “real” meaning which they believed to be true was quite different from the meaning which would be objectively attributed to it by any reasonable reader.  Rather, the question should be whether the appellants knew that the message, as it would be understood by a reasonable person, was false.

 


103                    In determining whether the appellants had the requisite mens rea to be convicted of defamatory libel, the evidence must be reviewed.  Mr. and Mrs. Lucas were tried together.  Mr. Lucas acted for himself.  He testified and was cross‑examined by counsel for Mrs. Lucas and Crown counsel.

 

104                    There are two aspects to the mens rea issue.  First, did the appellants  intend to defame the police officer?  Secondly, did they know that the statements they published were false?  With respect to the former, there can be no clearer indication of their intention to defame the police officer than the testimony of Mr. Lucas that their purpose in publishing the statements was “to have him thrown in jail”, “to have him lose his pension, his job”, and “to have him charged in court”.  Clearly then, their intention was to injure the reputation of the officer, and thus came within the definition of defamatory libel set out in s. 298.  This conclusion is reinforced both by the inflammatory and provocative language used in the placards, and by the displaying of the placards in the locations which were calculated to have the most embarrassing and injurious effect on the officer.

 

105                    The placards accused the police officer of actually physically assaulting a child by stating:  “Did [the police officer] help/or take part in the rape & sodomy of an 8 year old”.  Further, one of the signs made by Mr. Lucas, but carried by his wife at her insistence, implied that the officer had a “touching problem”, an obvious euphemism for a proclivity for sexual molestation. It stated:  “If you admit it [officer] then you might get help with your touching problem.”

 


106                    There was evidence adduced at trial which proves beyond a reasonable doubt that they both knew that the objective meaning of the words on the placards Mr. Lucas made was false.  Mr. Lucas testified that his wife had access to the pertinent documents, and that he and his wife had read them together and discussed them.  Moreover, he testified that he and his wife were concerned about the police officer’s tendency to refer to the children’s sexual activities as a “touching problem”.  It is also apparent that the appellants knew that the officer did not have a “touching problem”.  In light of this, the evidence is clear and overwhelming that on a subjective standard, the appellants knew that the material on the placard prepared by Mr. Lucas and carried by Mrs. Lucas was false.  Yet Mrs. Lucas insisted on carrying this placard.  There was simply no evidence in the material the appellants read that the officer had a proclivity for sexual molestation, that is to say a “touching problem”.

 

107                    Further it is reasonable to infer that since she had read the relevant documents, Mrs. Lucas, as well as her husband, knew that the police officer did not physically help with the rape or sodomy of an eight year old.  The evidence leads inevitably to the conclusion that the requisite mental elements of the offence were proved beyond a reasonable doubt with respect to both appellants.

 

108                    The appellants knew that the police officer had not committed the despicable acts implied by the signs.  Mr. Lucas admitted that there were no accusations in the T. papers of sexual abuse by the officer and that they knew that the officer had not sexually assaulted anybody.  Further, the appellants knew that the officer did not have a “touching problem” per se.  Rather, they believed that he had inappropriately used the word “touching”.  There is ample evidence that the appellants had the requisite knowledge of falsity to uphold their conviction under s. 300.

 

Conclusion

 


109                    Sections 298 to 300 of the Code infringe upon the right of freedom of expression guaranteed by s. 2(b) of the Charter.  However, subject to the interpretation I have accorded “insults” in s. 298 and the reading out of that part of s. 299 set out earlier the sections should be upheld as a demonstrably justified limit under s. 1 of the Charter.

 

Disposition

 

110                    In the result, I would dismiss the appeals of John David Lucas and Johanna Erna Lucas.

 

//L’Heureux-Dubé J.//

 

The following are the reasons delivered by

 

111                    L’Heureux-Dubé J. -- While I agree with McLachlin J.’s analysis under s. 1 of the Canadian Charter of Rights and Freedoms, I otherwise concur with the analysis  and conclusions of my colleague, Cory J.

 

//McLachlin J.//

 

The following are the reasons delivered by

 


112                    McLachlin J. (dissenting in part) -- I agree with Justice Cory that defamatory libel is protected under s. 2(b) of the Canadian Charter of Rights and Freedoms and consequently that convicting people for this offence has the potential to violate their rights.  I also agree with him that the limitation of rights entailed in the offence does not ultimately violate the Charter because it is a reasonable measure demonstrably justified in a free and democratic society: s. 1 of the Charter.  However, I would approach the s. 1 analysis differently than Cory J.   I also reach a different result regarding Johanna Lucas’s appeal.  Hence these brief reasons.

 

113                    To determine whether a limitation on a Charter right is justified under s. 1, we must follow the steps set out by this Court in R. v. Oakes, [1986] 1 S.C.R. 103. The first question is whether the limitation on the right is justified by a pressing and substantial objective.  If it is, the second question arises: is the limitation proportionate to the objective?  The second step imposes a cost-benefit analysis.  This cost-benefit analysis embraces three subquestions:  (1) is the limitation of the right rationally  connected to the objective, i.e. will it actually further it? (2) does the limitation of the right impair the right as little as possible, i.e., is it appropriately restrained and not overbroad? and (3) are the negative effects of  the limitation of the right proportionate to, or outweighed by, the positive effects to be gained by furthering the objective of the limitation?

 

114                    I differ from Cory J. on how the value of the expression at issue figures in the Oakes analysis.  Cory J. introduces the low value of defamatory libel at the outset of the s. 1 analysis, stating, at para. 34:  “Quite simply, the level of protection to which expression may be entitled will vary with the nature of the expression.”  The low value of defamatory libel is then used to inform the s. 1 analysis at various stages.  For example, in considering minimal impairment Cory J. states, at para. 57:  “It is particularly important at this stage to bear in mind the negligible value of defamatory expression.”  At the final stage of the Oakes analysis, Cory J. concludes that because of the low value of the expression, it is entitled to little protection.  He does not engage in a systematic weighing of the beneficial and detrimental effects of the legislation.  Presumably, its low value is conclusive. 

 


115                    It may be useful to discuss the relation of the expression at issue to the core values underlying s. 2(b) at the outset of the s. 1 analysis, as context for the analysis that follows.  However, we must be careful not to allow the discussion of context to pre-empt the analysis itself.  To allow the perceived low value of the expression to lower the bar of justification from the outset of the s. 1 analysis is to run the risk that a judge’s subjective conclusion that the expression at issue is of little worth may undermine the intellectual rigour of the Oakes test.  This risks reducing the s. 1 analysis to a function of what a particular judge thinks of the expression, thus shortcutting the cost-benefit analysis proposed by Oakes.  Instead of insisting that the limitation on the right be justified by a pressing concern and  that it be  rationally connected to the objective and appropriately restrained, the judge may instead reason that any defects on these points are resolved in favour of justification by the low value of the expression.  The initial conclusion that the expression is of low value may thus dictate the conclusion on the subsequent steps of the analysis in a circular fashion. 

 


116                    In my view, justice is better served if the Crown is required to demonstrate a pressing and substantial objective, rational connection and minimal impairment independent of the perception that the content of the expressive activity is offensive or without value, as suggested by Professor Jamie Cameron, “The Past, Present, and Future of Expressive Freedom Under the Charter” (1997), 35 Osgoode Hall L.J. 1.  At the pressing and substantial objective stage, the concern is whether the limitation on the right has the objective or purpose of addressing a real and substantial harm or risk of harm.   It may be relevant to consider the nature of the expression at issue in order to determine the evil to which the limitation is directed, as part of the assessment of whether the objective is pressing and substantial.  Beyond this, however, the value of the expression cannot assist.  At the rational connection stage, the focus is on whether there is a link based on reason or logic between the objective and the limitation of the right.  Here the value of the expression at issue is of no assistance.  The minimal impairment inquiry focuses on whether the legislature has restricted the Charter right as little as reasonably possible to achieve the desired objective.   Here also, the inquiry focuses on the legislation at issue, i.e. its reach or breadth, not on the value of the restricted expression.

 

117                    The content of the expression and its value fall for consideration at the final stage of the proportionality analysis.  It is at this stage that Wilson J.’s concern in Edmonton Journal v. Alberta (Attorney General), [1989] 2 S.C.R. 1326, at p. 1355, that “a particular right or freedom may have a different value depending on the context” finds its place.  This Court has unanimously affirmed that it is at the third and final stage of the proportionality analysis that expressive context should be considered:  Canadian Broadcasting Corp. v. New Brunswick (Attorney General), [1996] 3 S.C.R. 480, at p. 513.

 

118                    The third stage of the proportionality analysis engages the balancing of values envisioned by the contextual approach.  At this stage, the judge is required to consider both the benefits and the detriments of limiting the expression in issue.  The Crown has already been required to demonstrate the pressing and substantial nature of the legislative objective, the rational connection between the objective and the limitation of the right and the minimal impairment or appropriate restraint,  independent of any subjective perceptions of the value of the expression at issue.  At this final stage, the task is to determine whether the benefits of the limitation outweigh its detrimental effects.

 


119                    Using this approach, the application of the s. 1 analysis remains both flexible and contextual, taking account of differing legislative and expressive contexts, while at the same time ensuring an adequate level of protection for all forms of expression.  Legislative limits on expression that falls far from the core values underlying s. 2(b) are easier to justify, not because the standard of justification is lowered, but rather because the beneficial effects of the limitation more easily outweigh any negative effects flowing from the limitation.

 

Application to the Case at Bar

 

120                    The case at bar readily demonstrates why there is no need to lower the standard of justification for expression that falls far from the core values underlying s. 2(b).  The objective of the impugned provisions is to protect reputation against deliberate attack using statements that are known to be false.  This objective passes the first stage of the s. 1 analysis  not only because, as Cory J. notes, a good reputation is to be valued more than riches, but because defamatory attacks pose a real risk of harm in our society.  As Cory J. notes at para. 73 of his reasons, “[d]efamatory libel can cause long-lasting or permanent injuries to the victim.  The victim may be forever demeaned and diminished in the eyes of her community.”  Protecting individuals from such harm is a pressing and substantial objective in a free and democratic society.  Nor can it be doubted that the limitation on expression represented by ss. 298, 299 and 300 of the Criminal Code, R.S.C., 1985, c. C-46, is rationally connected to this pressing and substantial objective.  It is logical and reasonable to expect that prohibiting the publication of defamatory statements that are known to be false may serve to reduce such statements.  The limit on expression also meets the minimal impairment test;  I agree with Cory J.’s analysis with the exception that I do not share his view that the low value of the expression at issue is relevant to this stage of the analysis.

 


121                    This brings me to the third stage of the proportionality analysis and the consideration of whether the benefits that result from the infringement outweigh its negative effects.  At this stage we must weigh the benefits that will be gained by limiting the publication of intentionally defamatory statements that are known to be false, against the negative effects that may flow from the limitation of the right.  The benefits to be achieved by the limitation on the right are aptly described by Cory J.; they are the protection of reputation and the prevention of a serious form of harm.  The negative effects that may flow from the limitation of the right are confined to the possibility that defamatory expression may focus public attention on issues of public concern.  Sections 298, 299 and 300 of the Criminal Code may therefore prohibit a form of expression that possesses some, albeit low, value.  This possible value is undercut, however, by the fact that public attention can be focused on issues without intentionally inflicting harm on the reputation of people through the publication of known falsehoods.  The balancing process envisaged by the last step of the Oakes test thus leads inexorably to the conclusion that the benefits gained from the limitation on expression outweigh by far any detriment.  The conclusion rests not on the low value of the expression (although this figures in the analysis), but on the fact that the benefits of limiting the right exceed any benefits that might flow from leaving it untrammelled.

 

122                    Notwithstanding the differences in our approaches, I agree with Cory J. that the infringement of s. 2(b) in the case at bar is justified under s. 1 and that ss. 298, 299 and 300 of the Criminal Code are constitutional.  Like Cory J., I would dismiss the appeal of John David Lucas.  However, I share the concerns raised by Justice Major regarding the conviction of Johanna Lucas.  As a result, for the reasons stated by Major J., I would allow the appeal of Johanna Erna Lucas.

 

//Major J.//

 

The following are the reasons delivered by

 


123                    Major J. (dissenting in part) -- I have read the reasons of Justice Cory and agree with him except with respect to the disposition of the appeal of the appellant Johanna Lucas.

 

124                    It has long been established that an appellate court should exercise caution in upholding a conviction where, as here, the trial judge erred in applying an objective mens rea test when the Criminal Code required a subjective standard.  In such circumstances, the reviewing court should carefully assess the evidence and findings made by the trial judge to determine whether the Crown proved the required subjective knowledge beyond a reasonable doubt.

 

125                    The Court of Appeal concluded that the Crown had proved beyond a reasonable doubt all the essential elements of the offence, including intention to publish the defamatory libel knowing it to be false with intention to defame, with respect to both appellants.  The Court of Appeal did not indicate what evidence it was relying upon to support a finding that the appellants had subjective knowledge of the falsity of the published statements.

 

126                    There was no direct evidence that Mrs. Lucas had subjective knowledge that the message portrayed on the placard she carried was false.  She did not testify on her own behalf nor did she call any witnesses in her defence.  The Crown called no evidence at trial as to her knowledge.  Two Crown witnesses testified that they did not know whether Mrs. Lucas knew that the messages were false.

 


127                    Although Crown counsel was entitled to put forward a case based on circumstantial evidence, the circumstantial evidence in this case does not prove that Mrs. Lucas knew that the messages on the placard were false.  In the circumstances, the simple fact that she carried a placard bearing a false message is insufficient to prove subjective mens rea beyond a reasonable doubt.

 

128                    Mr. Lucas testified that Mrs. Lucas had access to the pertinent documents, and that they had read them together and discussed them together.  If the trial judge had found that Mrs. Lucas’s knowledge was in fact based solely on the reports obtained by her husband, it might have been possible to infer that she had subjective knowledge of falsity.  However, no such finding of fact was made, nor did the trial judge make any findings with respect to the credibility of Mr. Lucas or the extent to which his evidence was accepted. 

 

129                    In his reasons for sentence ((1995), 132 Sask. R. 71),  the trial judge stated “that John David Lucas was the instigator and Johanna Erna Lucas was his follower”  (p. 74).  This finding raises the possibility that Mrs. Lucas’s knowledge might have derived at least in part from what she was told by Mr. Lucas, and she may therefore have believed that the message was true even though in fact it was not.

 

130                    In the absence of findings of fact by the trial judge related to subjective knowledge, there is insufficient evidence before this Court to prove beyond a reasonable doubt that Mrs. Lucas knew that the messages on the placard she carried were false.  Accordingly, her conviction must be set aside.

 

131                    Ordinarily, a new trial would be ordered.  However, in light of the Crown’s statement that in the circumstances the Crown would not proceed with a new trial, I would direct an acquittal of Mrs. Lucas. 

 


Appeals dismissed, McLachlin and Major JJ. dissenting on Johanna Lucas’s appeal.

 

Solicitors for the appellants:  Ruby & Edwardh, Toronto.

 

Solicitor for the respondent:  Graeme G. Mitchell, Regina.

 

Solicitor for the intervener the Attorney General of Canada:  Robert Frater, Toronto.

 

Solicitor for the intervener the Attorney General for Ontario:  M. David Lepofsky, Toronto.

 

Solicitor for the intervener the Attorney General of Manitoba:  Shawn Greenberg, Winnipeg.

 

Solicitors for the intervener the Canadian Civil Liberties Association:  Tory Tory DesLauriers & Binnington, Toronto.

 



* Sopinka J. took no part in the judgment.

 

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