Court headnote

Boucher v. the King
Collection
Supreme Court Judgments
Date
1950-12-18
Report
[1951] SCR 265
Judges
Rinfret, Thibaudeau; Kerwin, Patrick; Taschereau, Robert; Rand, Ivan Cleveland; Estey, James Wilfred; Locke, Charles Holland; Fauteux, Joseph Honoré Gérald; Cartwright, John Robert; Kellock, Roy Lindsay
On appeal from
Quebec
Subjects
Torts
Decision Content
Supreme Court of Canada
Boucher v. the King, [1951] S.C.R. 265
Date: 1950-12-18
Aime Boucher Appellant;
and
His Majesty the King Respondent.
Present at first hearing: Rinfret C.J. and Kerwin, Taschereau, Rand and Estey JJ.
Present at second hearing: Rinfret CJ. and Kerwin, Taschereau, Rand, Kellock, Estey. Locke, Cartwright and Fauteux JJ.
ON APPEAL FROM THE COURT OF KING'S BENCH, APPEAL SIDE, PROVINCE OF QUEBEC
Seditious libel—Religious pamphlet distributed by Witness of Jehovah—Seditious intention—Good faith—Whether incitation to violence is necessary element of seditious libel—Whether jury was properly charged—Criminal Code, R.S.C. 1927, c. 36, s. 133 (as amended by S. of C. 1936, c. 29, s. 4) and s. 133A (as enacted by S. of C. 1930,, c. 11, s. 2).
Neither language calculated to promote feelings of ill-will and hostility between different classes of His Majesty's subjects nor criticizing the courts is seditious unless there is the intention to incite to violence or resistance to or defiance of constituted authority.
The definition of a seditious intention given in Stephen's Digest of the Criminal Law, 8th Ed. p. 94, to the extent that it differs from the foregoing, disapproved.
Appellant was convicted by a jury of having published a seditious libel, by distributing copies of a pamphlet containing alleged seditious passages, to several persons at St. Joseph, in the district of Beauce, in the province of Quebec, contrary to s. 134 of the Criminal Code. The conviction was affirmed by a majority in the Court of King's Bench (Appeal Side). An appeal to this Court was allowed on grounds of misdirection and improper rejection of evidence. On the first hearing of this appeal, heard by a Court of five judges, the majority ordered a new trial. Application was then made, and granted, to have the appeal reargued before a full Court of nine judges. On the reargument, it was conceded on behalf of the Crown that the conviction should be quashed due to errors in the trial judge's charge, and the only question which remained was as to whether there was evidence upon which a properly instructed jury could find the appellant guilty of publishing a seditious libel by reason of the publication of the pamphlet here in question.
Held: (Reversing the judgment appealed from) the Chief Justice, Taschereau, Cartwright and Fauteux JJ. dissenting, that the accused should be acquitted as there was no evidence, either in the pamphlet or otherwise, upon which a jury, properly instructed, could find him guilty of the offence charged.
Per Rinfret C.J. (dissenting) : Since the Criminal Code has dealt with the matter, the Courts must administer the law respecting seditious libel in accordance with the Canadian legislation and not in accordance with statements by commentators in England. Section 133(4) of the Code makes it clear that the advocating of force is not the only instance in which an accused could be found guilty of a seditious intention. Moreover, it does not belong to this Court to pass upon any other passage of the charge than those referred to in the dissent in the Court of Appeal, nor to decide itself whether there was any ground for coming to the conclusion that the document was or was not a seditious libel. What the jury alone had to decide was: (a) whether the document contained matters which were producing or had a tendency to produce feelings of hatred and ill-will; (b) whether the accused pointed out these matters in order to their removal; and (c) whether he did so in good faith, This Court has no authority to decide these questions, more particularly in view of the fact that the jurisdiction of this 'Court in criminal eases is limited to the points of dissent in the Court of Appeal (which, in this case, were exclusively on the ground that the charge was incomplete and erroneous in certain respects and had exceeded the limitations imposed by the rules of law).
Per Taschereau, Cartwright and Fauteux JJ. (dissenting) : That, although to render an intention to create ill-will and hostility between different classes of His Majesty's subjects seditious there must be an intention to incite resistance to lawfully constituted authority (and this cannot be found to have been the intention here) ; at common law an intention to vilify the administration of justice and bring it into hatred or contempt or to excite disaffection against it is a seditious ' intention, the Criminal Code has not altered the law in this respect and as the words of the pamphlet furnish evidence upon which a properly instructed jury could reasonably find the existence of that intention, there should be a new trial.
(The history of the law relating to a seditious intention considered and the authorities reviewed). APPEAL from the judgment of the Court of King's Bench, appeal side, province of Quebec[1], dismissing, Letourneau C.JA and Galipeault JA dissenting, appellant's appeal from his conviction, at trial before a jury, on the following charge: "Que le ou vers le 11 décembre, 1946, h St Joseph dans le district de Beauce, le dit Aimé Boucher de Ste Germaine a publié des libelles séditieux contenues dans un fascicule intitulé "La haine ardente du Québec pour Dieu, pour Christ et pour la liberté est un sujet de honte pour tout le Canada", en les exhibant en public ou les faisant lire ou les montrant ou les délivrant, ou les faisant montrer ou délivrer dans le but de les faire lire par quel-qu'un, le tout malicieusement et contrairement au code Criminel du Canada, spécialement aux articles 133, 134 et 318.
The points of dissent in the Court below, to which this Court was limited in its consideration of this case, were as follows:
1) That references in the charge to the facts proven in the case appealed more to the religious or national sentiments of the jury than to the latter's reason;
2) That the trial judge should not have undertaken to establish that some of the statements in the document were erroneous, after he had properly ruled that the truth of the statements was immaterial;
3) That the trial judge misdirected himself when he told the jury that it ought to find the accused guilty if it thought that the document was of a nature to insinuate that in Quebec the administration of justice was biased, that the clergy controlled the Courts, and that there existed in that Province an apparent hate for God and Christ and Freedom;
4) That a certain objection to a question put by the defence and of a nature to establish the good faith of the accused should not have been maintained;
5) That the trial judge misdirected himself when he stated that he could not see where the jury could find that there was a doubt in this case. A. L. Stein K.C., W. G. How and D. B. Spence for appellant at the first hearing.
A. Lacourcière K.C. for respondent at the first hearing.
W. G. How for appellant at the second hearing.
L. H. Gendron K.C. for respondent at the second hearing.
THE CHIEF JUSTICE (dissenting): There has been a rehearing in this appeal, but the appellant has failed to convince me that I should modify the reasons for judgment which I had written after the first hearing and which were as follows:
The appellant was convicted by a jury of publishing a seditious libel contrary to Section 133 of the Criminal Code and the conviction was affirmed by the Court of King's Bench (Appeal Side) of the Province of Quebec[2], the Chief Justice of the Province of Quebec and Galipeault J.A. dissenting.
This Court is limited to the consideration of the points of dissent. Galipeault J.A. states in his reasons that he would have ordered a new trial "m'arrêtant uniquement aux griefs de l'appelant à l'encontre de la charge du Juge". Likewise Chief Justice Letourneau dissented exclusively on the ground that the trial judge's charge to the jury was incomplete and erroneous in certain respects and that it had exceeded the limitations imposed by the rules of law. He also would have granted a new trial. The majority of the Court of King's Bench (Appeal Side) was of opinion that no fault could be found in the learned judge's charge and the appeal of the accused should be dismissed.
Very properly Chief Justice Letourneau avoided discussing the circumstances of the trial, in view of the fact he thought that a new trial should be granted to the appellant, and I feel that I should do the same.
His reasons for dissent were that references in the charge to the facts proven in the case appealed more to the religious or national sentiments of the jury than to the latter's reason. He also thought that since the learned judge had ruled in the course of the trial that the truth of the statements contained in the libel was immaterial, the learned judge should not have undertaken to establish that these statements were erroneous. Further, the Chief Justice considered that the learned trial judge had misdirected himself when he said that, if the jury was of the opinion that the incriminated document was of a nature to insinuate that in the Province of Quebec the administration of justice was biased, that the Catholic clergy controlled the Courts, and that there existed in that Province an apparent hate for God and Christ and Freedom, then the jury ought to find the accused guilty.
The learned Chief Justice also found fault with the ruling of the presiding judge to the effect that a certain objection to a question put by Counsel for the defence and of a nature to establish the good faith of the accused should not have been maintained.
In addition to the above, the dissent also expresses the view that when dealing with the question of reasonable doubt, at the request of Counsel for the defence, the learned trial judge misdirected himself again when he stated that in the present case he could not see where the jury could find that there was a doubt.
Finally, the dissent also refers to a direction alleged to have been made by the trial judge in reference to the good faith of the accused, that after the jury had read the incriminated document they would have to decide if such document was really of a nature to re-establish good will between the Witnesses of Jehovah and the people of the Province of Quebec, which, the accused had stated in evidence, was his purpose in publishing the document; and when, after the charge had been delivered to the jury, the learned presiding judge was asked to inform the jury as to the nature of a blasphematory libel and a defamatory libel as contrasted to a seditious libel, the learned judge defined both defamatory and blasphematory libel, but he added:
This was not the accusation brought against the accused. I do not believe that there is here in the document anything blasphematory. C'est plutôt un libelle séditieux qui a été produit.
The dissent finds that such a declaration on the part of the trial judge was of a nature to influence the verdict. The learned Chief Justice, therefore, concluded that the charge was erroneous, both on the ground of misdirection and non-direction and that, as a consequence, the verdict was tainted with illegality.
Now those are the grounds of dissent. It does not belong to this Court to pass upon any other passage of the charge of the learned trial judge, nor to decide itself whether there was any ground for coming to the conclusion that the document now in question, and for which the accused was brought to trial, was or was not a seditious libel. If this Court were to so decide, it would attribute to itself a finding which is exclusively the province of the jury. As an illustration of this, I might point out that under Section 133 (a) of the Criminal Code the question of the good faith of the accused forms a necessary part of the circumstances to which the jury must direct its attention; and, of course, good faith is essentially a matter left to the jury, properly directed, and regarding which this Court has no right to interfere.
I would be willing to accept some of the reasons of the learned Chief Justice of the Province of Quebec, and to say that, on some of the points he refers to, the charge was incomplete and perhaps even erroneous, although, with respect, I do not agree with him in his interpretation of some of the statements made by the trial judge.
I may say, at once, without referring to any of the passages in the document distributed by the accused, that I agree with the rule laid down by Lord Cairns in Metropolitan Railway Company v. Jackson[3] and would apply it to the present case:
The Judge has a certain duty to discharge, and the jurors have another and a different duty. The judge has to say whether any facts have been established by evidence from which negligence may be reasonably inferred; the jurors have to say whether, from those facts, when submitted to them, negligence ought to be inferred. It is, in my opinion, of the greatest importance in the administration of justice that these separate functions should be maintained, and should be maintained distinct. It would be a serious inroad on the province of the Jury, if, in a case where there are facts from which negligence may reasonably be inferred, the Judge were to withdraw the case from the jury upon the ground that, in his opinion, negligence ought not to be inferred; and it would, on the other hand, place in the hands of the jurors a power which might be exercised in the most arbitrary manner, if they were at liberty to hold that negligence might be inferred from any state of facts whatever. In the present case all that was necessary for the Crown to do was to file the document and to prove that the accused had published it within the meaning of the law. That is what the learned trial judge stated and meant when he said:
J'en conclus done, et sur ce point vous devez suivre ma direction, que la preuve de la Couronne a été complète par le fait d'avoir produit le pamphlet et le fait d'en avoir prouvé la distribution.
This sentence cannot be understood otherwise than to say that the Crown had adduced all the evidence necessary to allow the jury to render a verdict on the accusation, but it does not mean that the Crown had proven its case.
Far from agreeing with the dissenting judgment of the learned Chief Justice where he quotes the presiding judge as saying:
... si vous croyez qu'un document de cette nature peut laisser croire à nos canadiens de langue anglaise que dans la province de Québec, la justice n'est pas observée, que le clergé a le contrôle sur les tribunaux et enfin, qu'il y a dans la Province de Québec une haine ardente pour le Christ, pour Dieu et pour la liberté, dans ce cas-là, vous devez condamner Boucher.
And where he says that the remarks of the trial judge were "of a nature to prejudice and vitiate the verdict", I would point out that such a passage should not have been detached from its context. The whole passage reads as follows:
Si vous trouvez qu'il n'y a rien de séditieux dans cet article, vous devez acquitter Bouclier. D'un autre côté, si vous l'avez lu, après en. avoir apprécié tous les termes qu'il contient, vous croyez qu'il peut en. résulter dans la Province de Québec un élément de discorde et de trouble qui peut devenir sérieux, si vous croyez qu'un document de cette nature peut laisser croire à nos canadiens de langue anglaise que dans la Province de Québec, la justice n'est pas observée, que le clergé a le contrôle sur les tribunaux et enfin, qu'il y a dans la Province de Québec une haine ardente pour le Christ, pour Dieu et pour la liberté, dans ce cas-là, vous devez condamner Boucher.
It is, therefore, apparent that the learned judge was there telling the jury that if they found nothing seditious in the document they had to acquit Boucher, but that if, on the contrary, they thought there was something seditious in it, in the nature of what he enumerates in the passage, then they ought to condemn him. I cannot find anything objectionable in that way of presenting the matter to the jury. Then in respect of the objection to certain evidence which is mentioned in the dissenting judgment and the fact that it was maintained by the learned judge, my humble view is that the question to which the objection was maintained was illegal and that it was properly maintained. In that instance Boucher was asked to state the impression he intended to convey by a reading of the pamphlet, according to what he himself thought and his appreciation of the pamphlet. Surely it did not exclusively belong to the accused to state to the jury what he intended to convey; it was for the jury itself to come to a conclusion as to what the document conveyed to the people among whom it was distributed. Again the passage of the charge quoted by the learned Chief Justice is as follows:
Vous lirez ce document-là, Exhibit P-1, et vous déciderez si réellement il est de nature à ramener la bonne entente entre les témoins de Jéhovah et les gens de la province de Québec.
This is merely a reference to the fact that Boucher had claimed that he had distributed the document in order to "ramener la bonne entente entre les témoins de Jéhovah et les gens de la province de Québec"; and the learned judge was telling the jury that, having read the pamphlet, it was for them to decide whether it was of a nature to bring about what Boucher had contended.
The learned Chief Justice also points to the sentence in the charge:
C'est plutôt un libelle séditieux qui a été produit.
The meaning of that sentence is quite clear, more particularly if it is read in conjunction with the context. The learned trial judge had been asked by Counsel for the accused to instruct the jury on the nature of blasphematory and defamatory libel. He gave the instruction asked for and then concluded by saying:
But in this case you are not concerned with either of those. The document which has been filed, if anything, is rather a seditious libel.
With due respect, I cannot find any other meaning to that sentence which, of course, so understood cannot be held to be objectionable.
That concludes my analysis and review of the dissenting judgment of the learned Chief Justice of Quebec. I am of opinion that the several points to which I have just referred were not well taken. However, I would otherwise agree with the remainder of his reasoning and, on that account, I am of opinion that a new trial should be ordered in this case.
Now, dealing with a general review of the case, I would first observe that the French version of the document is the one to which the attention of the jury should be brought, because admittedly the region in which it was distributed is largely, if not exclusively, French speaking. The document in French would, therefore, be the one that could affect the people among which it was published. Having read it several times I would say without hesitation that it contains statements upon which the jury might reasonably come to the conclusion that such statements are in the nature of seditious libels; and, applying the language of Lord Cairns in the Metropolitan Railway Company case (supra), my view would be that the pre-siding judge could direct the jury that it might reasonably infer that the document could be looked upon, under Canadian law, as a seditious libel. It would, of course, be for the jurors to say whether, when submitted to them, guilt ought to be inferred. Merely as an illustration of what I have in mind I would refer to the several passages where the document says that the French Canadian Courts are so much under the influence of the Catholic priests that they are thereby induced to confirm infamous sentences and to render judgments not according to their judicial duties and oath, but as a result of the influence of -the priests.
Here is the passage to which I refer. The French version reads:
Toutes les cours Canadiennes Françaises étaient tellement sous l'influence sacerdotale qu'elles confirmèrent la sentence infâme, et ce ne fut que lorsque la cause fut portée en Cour Suprême du Canada que le jugement fut renversé.
The English version reads:
All the French Canadian courts were so under priestly thumbs that they affirmed the infamous sentence, and it was not until the case reached the Supreme Court of 'Canada that judgment was reversed.
Perhaps it should be noted here that the statement that the judgment was reversed by the Supreme Court of Canada is a falsity. The judgment in question is that of Brodie v. The King[4], having been reported, it is therefore public and it is sufficient to refer to that judgment 'to see that it is absolutely incorrect to say that there was a reversal. The Supreme Court merely quashed the indictment and the conviction on the ground that the necessary averments were omitted and the necessary ingredients were lacking in the indictment preferred against the appellants and that their absence constituted defects in matters of sub-stance. But the Court stated that the Crown was at liberty "to prefer a fresh indictment if so advised."
In Canada it should not be forgotten that the criminal law of the country is contained in the Criminal Code; and as was pointed out in Brodie v. The King:
It cannot be that the criminal law should be administered as though there were no code.
The sections of the Criminal Code referring to seditious libel are sections 133 and 133A. This was first enacted by section 123, chap. 25, 55-56 Victoria (1892), the section then having four paragraphs. In 1906, by sec. 132, chap. 146 of the Revised Statutes of Canada adopted in that year, sec. 123, above mentioned, was amended by the deletion of paragraph one of that section. In 1927 when the subsequent Revised Statutes of Canada were adopted this section 132, of chap. 146, R.S.C. 1906, was retained without amendment as sec. 133. By chap. 29, 1936 S.C., a fourth paragraph was added to sec. 133. In addition in 1930 a new section 133A, was enacted by chap. 11 of the Statutes of Canada of that year, and that section was retained without amendment in the amendments of 1947.
Under the law as it stood at the material time, that is when the appellant distributed what is alleged to have been the seditious libel, section 133 stated that "a seditious libel is a libel expressive of a seditious intention".
It was argued by Counsel for the appellant that the Code does not define "seditious intention". Of course, subsection (4) of section 133. enacts that "everyone shall be presumed to have a seditious intention who publishes, or circulates any writing, printing or document in which it is advocated or who teaches or advocates, the use, without the authority of law, of force, as a means of accomplishing any governmental change within Canada"; but the subsection begins by the words "without limiting the generality of the meaning of the expression 'seditious intention' ". Therefore, we have it here that the advocating of force is not the only instance in which an accused could be found guilty of a "seditious intention".
Then if we turn to section 133A, also in force when the present appellant was proven to have distributed the seditious libel, the legislator there indicated certain cases where one would not be deemed to have had a seditious intention only because he intends in good faith
(c) to point out, in order to their removal, matters which are producing or have a tendency to produce feelings of hatred and ill-will between different classes of His Majesty's subjects.
Of course, one cannot but be impressed by the analogy of that section added in 1930 with sections 114 and 115 of Stephen's "Digest of the Criminal Law", as they were at the time of the drafting of the Criminal Code in Canada in 1892, and also by the definition of "sedition" given by Russell "On Crime", Vol. 1, 9th edit., p. 87.
But the very fact that the Canadian Code has dealt with the matter compels the Canadian Courts to administer the law with regard to seditious libel in accordance with the Canadian legislation and not in accordance with statements by commentators in England, or even with pronouncements by judges administering justice in Great Britain. Indeed that was the very ruling of the Judicial Committee of the Privy Council in Wallace-Johnson v. The King[5], where it was held that the provisions of the Gold Coast Criminal Code were clear and unambiguous and intended to contain as far as possible a full and complete statement of the law of sedition in the Colony, and that, therefore, the English common law as expounded in a judgment rendered in England was inapplicable. Under Part I of the Canadian Criminal Code (sections 8 et seq.) the Courts in this country can refer to the law of England only in so far as a matter has not been dealt with by the Canadian Parliament. Even if in section 133, as it was originally enacted, we did not find sufficient to decide what Parliament thought should be considered as a seditious intention, we certainly have some indication of the legislator's mind in subsection (4) as it now stands and as it was introduced by the amendment of 1936. As already pointed out, what is stated there as creating a presumption of seditious intention is qualified by the words "without limiting the generality of the meaning of the expression".
Section 133A, introduced in 1930, by chap. 11 of the Statutes of Canada of that year, undoubtedly contains some indication of the legislator's view of what constitutes seditious intention under the law of Canada. Subsection (c) refers to the pointing out of matters which are producing or have a tendency to produce feelings of hatred and ill-will between different classes of His Majesty's subjects and it says that if one only intends "in order to their removal, to point out such matters", he shall not be deemed to have a seditious intention if he "intends it" in "good faith". It necessarily follows that even pointing out these matters in order to their removal will not relieve an accused of the guilt of seditious intention unless he did it in good faith. Therefore, if you have a matter which is producing, or has a tendency to produce feelings of hatred and ill-will between different classes of His Majesty's subjects, a jury would be justified in finding that a man, under Canadian jurisdiction, ought to be found guilty of seditious libel, unless the jury comes to the conclusion that the man in question pointed out these matters "in order to their removal" and that he did so "in good faith."
In my humble view, therefore, it is unnecessary in the present case to refer to any pronouncements either in Great Britain, and less so in the United States, as the learned Counsel for the appellant invited us to do, because here in Canada we have the precise legislation on the issue; and what the jury alone has to decide here with regard to Boucher is :
(1) Whether the document which he distributed contained matters which were producing, or had a tendency to produce feelings of hatred and ill-will between classes of His Majesty's subjects; ;
(2) Whether he pointed out these matters in order to their removal; and (3) Whether he did so in good faith.
These three questions are strictly the province of the jury. I cannot see by what authority this Court should decide that Boucher pointed out these matters in order to their removal, or that he did so in good faith, more particularly in view of the fact that the Supreme Court of Canada's jurisdiction in criminal cases is limited to point of dissent in the Court of Appeal. There was absolutely no dissent on these matters in the Court below. The dissenting opinions of Letourneau C.J. and of Galipeault J.A. are expressly limited to misdirections, or non-directions, in the learned trial judge's charge; and the only points which this Court has to decide are whether the alleged misdirections, or non-directions, are really to be found in the charge, and the consequence can only be that there should be a new trial, if they are so found.
I would not like to part this appeal, however, without stating that to interpret freedom as licence is a dangerous fallacy. Obviously pure criticism, or expression of opinion, however severe or extreme, is, I might almost say, to be invited. But, as was said elsewhere, "there must be a point where restriction on individual freedom of expression is justified and required on the grounds of reason, or on the ground of the democratic process and the necessities of the present situation". It should not be understood from this Court--the Court of last resort in criminal matters in Canada-that persons subject to Canadian jurisdiction "can insist on their alleged unrestricted right to say what they please and when they please, utterly irrespective of the evil results which are often inevitable". It might well be said in such a case, in the words of Milton, "Licence they mean when they cry liberty", or as expressed Mr. Edouard Herriot, "La liberté doit trouver sa imite dans l'autorité légale".
For these reasons in is particular appeal, the conviction should be set aside on the grounds of misdirection and non-direction, and a new trial should be directed.
KERWIN J.‑This is an appeal by the accused from a decision of the Court of King's Bench (Appeal Side) for the Province of Quebec[6], affirming his conviction for publishing a seditious libel contrary to section 133 of the Criminal Code. Chief Justice Letourneau dissented and, as Mr. Justice Galipeault agreed with his reasons, reference thereto may conveniently be made throughout as expressing the dissent with which this Court is concerned. Prior to the hearing, we dismissed a motion by the Crown to quash the appeal on the ground that the dissent was on questions of fact alone because we are all of opinion that there was dissent on questions of law.
The charge against the accused is that he published a seditious libel by distributing copies of a pamphlet to several persons at St. Joseph, in the District of Beauce, which pamphlet contained certain alleged seditious pass-ages. The editors of the pamphlet are stated therein to be Watch Tower Bible and Truth Society, Toronto, Ont., and the accused is a member of Jehovah's Witnesses. There is no doubt as to the publication by the accused in the manner charged but the question is whether what he published constituted the criminal offence known as seditious libel.
Section 133 of the Criminal Code under which the charge was laid must be considered together with section 133A enacted in 1930, and these now read:
133. Seditious words are words expressive of a seditious intention.
2. A seditious libel is a libel expressive of a seditious intention.
3. A seditious conspiracy is an agreement between two or more persons to carry into execution a seditious intention.
4. Without limiting the generality of the meaning of the expression "seditious intention" everyone shall be presumed to have a seditious intention who publishes, or circulates any writing, printing or document in which it is advocated, or who teaches or advocates, the use, without the authority of law, of force, as a means of accomplishing any govern-mental change within Canada.
133A. No one shall be deemed to have a seditious intention only because he intends in good faith,‑
(a) to show that His Majesty has been misled or mistaken in. his measures; or
(b) to point out errors or defects in the government or constitution of the United Kingdom, or of any part of it, or of Canada or of any province thereof, or in either House of Parliament of the United Kingdom or of Canada, or in any legislature, or in the administration of justice; or to excite His Majesty's subjects to attempt to procure, by lawful means, the alteration of any matter in the state; or,
(c) to point out, in order to their removal, matters which are producing or have a tendency to produce feelings of hated and ill-will between different classes of His Majesty's subjects. Subsection 4 of section 133 was' enacted in 1936, at which time Parliament repealed the much discussed section 98, but for our purposes subsection 4 need not be considered. With the exception of this subsection, these enactments follow the corresponding provisions of the Draft Criminal Code, prepared by the Commissioners in England and while "seditious intent" is nowhere defined in our Code, it has always been accepted that the definition proposed by the Commissioners accurately sets forth the law of England on the subject. This definition had been adopted by the Commissioners almost verbatim from that found in Stephen's Digest of the Criminal Law. As explained by Cave J. in Reg. v. Burns[7], the latter had the authority not only of Mr. Justice Stephen but also of the very learned judges who were associated with him in drafting the proposed English Criminal Code. On the following page, Cave J. points out that Mr. Justice Stephen was a judge of very great accuracy and that, for the proposition laid down in his Digest for seditious libel, there was to be found undoubted authority. The authorities and the history of the matter are set out in Volume 2 of the History of the Criminal Law of England by the same author at p. 298 et seq. That definition should be adopted as the law of Canada.
The definition appears as article 114 in the 8th edition of Stephen's Digest and, together with article 115, are as follows:
ARTICLE 114
SEDITIOUS INTENTION DEFINED
A seditious intention is an intention to bring into hatred or contempt, or to excite disaffection against the person of, Ills Majesty, his heirs or successors, or the government and constitution of the United Kingdom, as by law established, or either House of Parliament, or the administration of justice, or to excite His Majesty's subjects to attempt otherwise than by lawful means, the alteration of any matter in Church or State by law established, or to incite any person to commit any crime in disturbance of the peace, or to raise discontent or disaffection amongst His Majesty's subjects, or to promote feelings of ill-will and hostility between different classes of such subjects.
An intention to show that His Majesty has been misled or mistaken in his measures, or to point out errors or defects in the government or constitution as by law established, with a view to their reformation, or to excite His Majesty's subjects to attempt by lawful means the alteration of any matter in Church or State by law established, or to point out, in order to their removal, matters which are producing, or have a tendency to produce, feelings of hatred and ill-will between classes of His Majesty's subjects, is not a seditious intention.
ARTICLE 115
PRESUMPTION AS TO INTENTION
In determining whether the intention with which any words were spoken, any document was published, or any agreement was made, was or was not seditious, every person must be deemed to intend the consequences which would naturally follow from his conduct at the time and under the circumstances in which he so conducted himself.
The accused as one of the members of Jehovah's Witnesses distributed a pamphlet in which complaint was made of what was said to have occurred with reference to some of those members. He was entitled to complain of what he conceived to be existing grievances and, in so doing, he was not restricted to a calm and dispassionate exposé, such as might be expected in a court of law.
Specifically, he was entitled to point out what he alleged were errors or defects in the administration of justice and also, in order to effect their removal, matters which were producing, or had a tendency to produce, feelings of hatred and ill-will between the residents of the Province of Quebec and Jehovah's Witnesses. Evidence could be led by the accused in an endeavour to show the truth of these statements as it would be relevant, but as was admitted by counsel for the accused, relevant only, to the question whether the accused intended to point out those matters in good faith as provided by section 133A of our Code.
Chief Justice Letourneau points out that after ruling that the truth or falsity of the allegations made in the pamphlet was immaterial, the trial judge, at various times, picked out various passages in the pamphlet and, referring to each, said: "C'est encore une fausseté". I agree with the Chief Justice that the issue of good faith was not put accurately to the jury.
The question of seditious libel is always one of great delicacy, requiring from the trial judge an instruction distinctly drawing to the attention of the jury the various elements that must be found before they may convict of the offence charged and applying the law to the evidence in the record. I agree with the Chief Justice that this was not done in the present case. The main element which it was necessary for the jury to find was an intention on the part of the accused to incite the people to violence or to create a public disturbance or disorder: Reg. v. Burns supra; Reg. v. Sullivan[8]; Rex v. Aldred[9]; The King v. Gaunt not reported but referred to in a note in 64 L.Q.R. 203. The use of strong words is not by itself sufficient nor is the likelihood that readers of the pamphlet in St. Joseph de Beauce would be annoyed or even angered, but the question is, was the language used calculated to promote public disorder or physical force or violence. In coming to a conclusion on this point, a jury is entitled to consider the state of society or, as it is put by Chief Justice Wilde in his charge to the jury in The Queen v. Fussell[10]‑
You cannot, as it seems to me, form a correct judgment of how far the evidence tends to establish the crime imputed to the defendant, without bringing into that box with you a knowledge of the present stale of society, because the conduct of every individual in regard to the effect which that conduct is calculated to produce, must depend upon the state of the society in which he lives. This may be innocent in one state of society, because it may not tend to disturb the peace or to interfere with the right of the community, which at another time, and in a different state of society, in consequence of its different tendency, may be open to just censure.
This, it should be noted, was said at a trial at the Central Criminal Court before the Chief Justice, Baron Parke and Maule J. An instruction to the same effect was given in Reg. v. Burns supra by gave J., of whose charge it is stated generally, at page 88 of the 9th edition of Russell on Crime, that the present view of the law is best stated therein. Reference might also be made to the words of Coleridge J. in his charge to the jury in the later case of Rex v. Aldred[11]:‑
You are entitled also to take into account the state of public feeling. Of course there are times when a spark will explode a powder magazine; the effect of language may be very different at one time from what it would be at another.
While the jury must consider the question of good faith in accordance with section 133A of our Code, it will be noticed that that section specifically states that no one shall be deemed to have a seditious intention only because he intends in good faith to show or point out the matters mentioned. The jury should be charged that if they find good faith on the part of the accused, and if in their opinion there is nothing more in the case, the accused is entitled to an acquittal; but, if in addition to that good faith, there was an intention on the part of the accused to create public disorder or promote physical force, or that notwithstanding the motives of the accused the natural tendency of the words (and therefore the intention) was to create such disturbances, then

Court headnote

Boucher v. the King Collection Supreme Court Judgments Date 1950-12-18 Report [1951] SCR 265 Judges Rinfret, Thibaudeau; Kerwin, Patrick; Taschereau, Robert; Rand, Ivan Cleveland; Estey, James Wilfred; Locke, Charles Holland; Fauteux, Joseph Honoré Gérald; Cartwright, John Robert; Kellock, Roy Lindsay On appeal from Quebec Subjects Torts Decision Content Supreme Court of Canada Boucher v. the King, [1951] S.C.R. 265 Date: 1950-12-18 Aime Boucher Appellant; and His Majesty the King Respondent. Present at first hearing: Rinfret C.J. and Kerwin, Taschereau, Rand and Estey JJ. Present at second hearing: Rinfret CJ. and Kerwin, Taschereau, Rand, Kellock, Estey. Locke, Cartwright and Fauteux JJ. ON APPEAL FROM THE COURT OF KING'S BENCH, APPEAL SIDE, PROVINCE OF QUEBEC Seditious libel—Religious pamphlet distributed by Witness of Jehovah—Seditious intention—Good faith—Whether incitation to violence is necessary element of seditious libel—Whether jury was properly charged—Criminal Code, R.S.C. 1927, c. 36, s. 133 (as amended by S. of C. 1936, c. 29, s. 4) and s. 133A (as enacted by S. of C. 1930,, c. 11, s. 2). Neither language calculated to promote feelings of ill-will and hostility between different classes of His Majesty's subjects nor criticizing the courts is seditious unless there is the intention to incite to violence or resistance to or defiance of constituted authority. The definition of a seditious intention given in Stephen's Digest of the Criminal Law, 8th Ed. p. 94, to the extent that it differs from the foregoing, disapproved. Appellant was convicted by a jury of having published a seditious libel, by distributing copies of a pamphlet containing alleged seditious passages, to several persons at St. Joseph, in the district of Beauce, in the province of Quebec, contrary to s. 134 of the Criminal Code. The conviction was affirmed by a majority in the Court of King's Bench (Appeal Side). An appeal to this Court was allowed on grounds of misdirection and improper rejection of evidence. On the first hearing of this appeal, heard by a Court of five judges, the majority ordered a new trial. Application was then made, and granted, to have the appeal reargued before a full Court of nine judges. On the reargument, it was conceded on behalf of the Crown that the conviction should be quashed due to errors in the trial judge's charge, and the only question which remained was as to whether there was evidence upon which a properly instructed jury could find the appellant guilty of publishing a seditious libel by reason of the publication of the pamphlet here in question. Held: (Reversing the judgment appealed from) the Chief Justice, Taschereau, Cartwright and Fauteux JJ. dissenting, that the accused should be acquitted as there was no evidence, either in the pamphlet or otherwise, upon which a jury, properly instructed, could find him guilty of the offence charged. Per Rinfret C.J. (dissenting) : Since the Criminal Code has dealt with the matter, the Courts must administer the law respecting seditious libel in accordance with the Canadian legislation and not in accordance with statements by commentators in England. Section 133(4) of the Code makes it clear that the advocating of force is not the only instance in which an accused could be found guilty of a seditious intention. Moreover, it does not belong to this Court to pass upon any other passage of the charge than those referred to in the dissent in the Court of Appeal, nor to decide itself whether there was any ground for coming to the conclusion that the document was or was not a seditious libel. What the jury alone had to decide was: (a) whether the document contained matters which were producing or had a tendency to produce feelings of hatred and ill-will; (b) whether the accused pointed out these matters in order to their removal; and (c) whether he did so in good faith, This Court has no authority to decide these questions, more particularly in view of the fact that the jurisdiction of this 'Court in criminal eases is limited to the points of dissent in the Court of Appeal (which, in this case, were exclusively on the ground that the charge was incomplete and erroneous in certain respects and had exceeded the limitations imposed by the rules of law). Per Taschereau, Cartwright and Fauteux JJ. (dissenting) : That, although to render an intention to create ill-will and hostility between different classes of His Majesty's subjects seditious there must be an intention to incite resistance to lawfully constituted authority (and this cannot be found to have been the intention here) ; at common law an intention to vilify the administration of justice and bring it into hatred or contempt or to excite disaffection against it is a seditious ' intention, the Criminal Code has not altered the law in this respect and as the words of the pamphlet furnish evidence upon which a properly instructed jury could reasonably find the existence of that intention, there should be a new trial. (The history of the law relating to a seditious intention considered and the authorities reviewed). APPEAL from the judgment of the Court of King's Bench, appeal side, province of Quebec[1], dismissing, Letourneau C.JA and Galipeault JA dissenting, appellant's appeal from his conviction, at trial before a jury, on the following charge: "Que le ou vers le 11 décembre, 1946, h St Joseph dans le district de Beauce, le dit Aimé Boucher de Ste Germaine a publié des libelles séditieux contenues dans un fascicule intitulé "La haine ardente du Québec pour Dieu, pour Christ et pour la liberté est un sujet de honte pour tout le Canada", en les exhibant en public ou les faisant lire ou les montrant ou les délivrant, ou les faisant montrer ou délivrer dans le but de les faire lire par quel-qu'un, le tout malicieusement et contrairement au code Criminel du Canada, spécialement aux articles 133, 134 et 318. The points of dissent in the Court below, to which this Court was limited in its consideration of this case, were as follows: 1) That references in the charge to the facts proven in the case appealed more to the religious or national sentiments of the jury than to the latter's reason; 2) That the trial judge should not have undertaken to establish that some of the statements in the document were erroneous, after he had properly ruled that the truth of the statements was immaterial; 3) That the trial judge misdirected himself when he told the jury that it ought to find the accused guilty if it thought that the document was of a nature to insinuate that in Quebec the administration of justice was biased, that the clergy controlled the Courts, and that there existed in that Province an apparent hate for God and Christ and Freedom; 4) That a certain objection to a question put by the defence and of a nature to establish the good faith of the accused should not have been maintained; 5) That the trial judge misdirected himself when he stated that he could not see where the jury could find that there was a doubt in this case. A. L. Stein K.C., W. G. How and D. B. Spence for appellant at the first hearing. A. Lacourcière K.C. for respondent at the first hearing. W. G. How for appellant at the second hearing. L. H. Gendron K.C. for respondent at the second hearing. THE CHIEF JUSTICE (dissenting): There has been a rehearing in this appeal, but the appellant has failed to convince me that I should modify the reasons for judgment which I had written after the first hearing and which were as follows: The appellant was convicted by a jury of publishing a seditious libel contrary to Section 133 of the Criminal Code and the conviction was affirmed by the Court of King's Bench (Appeal Side) of the Province of Quebec[2], the Chief Justice of the Province of Quebec and Galipeault J.A. dissenting. This Court is limited to the consideration of the points of dissent. Galipeault J.A. states in his reasons that he would have ordered a new trial "m'arrêtant uniquement aux griefs de l'appelant à l'encontre de la charge du Juge". Likewise Chief Justice Letourneau dissented exclusively on the ground that the trial judge's charge to the jury was incomplete and erroneous in certain respects and that it had exceeded the limitations imposed by the rules of law. He also would have granted a new trial. The majority of the Court of King's Bench (Appeal Side) was of opinion that no fault could be found in the learned judge's charge and the appeal of the accused should be dismissed. Very properly Chief Justice Letourneau avoided discussing the circumstances of the trial, in view of the fact he thought that a new trial should be granted to the appellant, and I feel that I should do the same. His reasons for dissent were that references in the charge to the facts proven in the case appealed more to the religious or national sentiments of the jury than to the latter's reason. He also thought that since the learned judge had ruled in the course of the trial that the truth of the statements contained in the libel was immaterial, the learned judge should not have undertaken to establish that these statements were erroneous. Further, the Chief Justice considered that the learned trial judge had misdirected himself when he said that, if the jury was of the opinion that the incriminated document was of a nature to insinuate that in the Province of Quebec the administration of justice was biased, that the Catholic clergy controlled the Courts, and that there existed in that Province an apparent hate for God and Christ and Freedom, then the jury ought to find the accused guilty. The learned Chief Justice also found fault with the ruling of the presiding judge to the effect that a certain objection to a question put by Counsel for the defence and of a nature to establish the good faith of the accused should not have been maintained. In addition to the above, the dissent also expresses the view that when dealing with the question of reasonable doubt, at the request of Counsel for the defence, the learned trial judge misdirected himself again when he stated that in the present case he could not see where the jury could find that there was a doubt. Finally, the dissent also refers to a direction alleged to have been made by the trial judge in reference to the good faith of the accused, that after the jury had read the incriminated document they would have to decide if such document was really of a nature to re-establish good will between the Witnesses of Jehovah and the people of the Province of Quebec, which, the accused had stated in evidence, was his purpose in publishing the document; and when, after the charge had been delivered to the jury, the learned presiding judge was asked to inform the jury as to the nature of a blasphematory libel and a defamatory libel as contrasted to a seditious libel, the learned judge defined both defamatory and blasphematory libel, but he added: This was not the accusation brought against the accused. I do not believe that there is here in the document anything blasphematory. C'est plutôt un libelle séditieux qui a été produit. The dissent finds that such a declaration on the part of the trial judge was of a nature to influence the verdict. The learned Chief Justice, therefore, concluded that the charge was erroneous, both on the ground of misdirection and non-direction and that, as a consequence, the verdict was tainted with illegality. Now those are the grounds of dissent. It does not belong to this Court to pass upon any other passage of the charge of the learned trial judge, nor to decide itself whether there was any ground for coming to the conclusion that the document now in question, and for which the accused was brought to trial, was or was not a seditious libel. If this Court were to so decide, it would attribute to itself a finding which is exclusively the province of the jury. As an illustration of this, I might point out that under Section 133 (a) of the Criminal Code the question of the good faith of the accused forms a necessary part of the circumstances to which the jury must direct its attention; and, of course, good faith is essentially a matter left to the jury, properly directed, and regarding which this Court has no right to interfere. I would be willing to accept some of the reasons of the learned Chief Justice of the Province of Quebec, and to say that, on some of the points he refers to, the charge was incomplete and perhaps even erroneous, although, with respect, I do not agree with him in his interpretation of some of the statements made by the trial judge. I may say, at once, without referring to any of the passages in the document distributed by the accused, that I agree with the rule laid down by Lord Cairns in Metropolitan Railway Company v. Jackson[3] and would apply it to the present case: The Judge has a certain duty to discharge, and the jurors have another and a different duty. The judge has to say whether any facts have been established by evidence from which negligence may be reasonably inferred; the jurors have to say whether, from those facts, when submitted to them, negligence ought to be inferred. It is, in my opinion, of the greatest importance in the administration of justice that these separate functions should be maintained, and should be maintained distinct. It would be a serious inroad on the province of the Jury, if, in a case where there are facts from which negligence may reasonably be inferred, the Judge were to withdraw the case from the jury upon the ground that, in his opinion, negligence ought not to be inferred; and it would, on the other hand, place in the hands of the jurors a power which might be exercised in the most arbitrary manner, if they were at liberty to hold that negligence might be inferred from any state of facts whatever. In the present case all that was necessary for the Crown to do was to file the document and to prove that the accused had published it within the meaning of the law. That is what the learned trial judge stated and meant when he said: J'en conclus done, et sur ce point vous devez suivre ma direction, que la preuve de la Couronne a été complète par le fait d'avoir produit le pamphlet et le fait d'en avoir prouvé la distribution. This sentence cannot be understood otherwise than to say that the Crown had adduced all the evidence necessary to allow the jury to render a verdict on the accusation, but it does not mean that the Crown had proven its case. Far from agreeing with the dissenting judgment of the learned Chief Justice where he quotes the presiding judge as saying: ... si vous croyez qu'un document de cette nature peut laisser croire à nos canadiens de langue anglaise que dans la province de Québec, la justice n'est pas observée, que le clergé a le contrôle sur les tribunaux et enfin, qu'il y a dans la Province de Québec une haine ardente pour le Christ, pour Dieu et pour la liberté, dans ce cas-là, vous devez condamner Boucher. And where he says that the remarks of the trial judge were "of a nature to prejudice and vitiate the verdict", I would point out that such a passage should not have been detached from its context. The whole passage reads as follows: Si vous trouvez qu'il n'y a rien de séditieux dans cet article, vous devez acquitter Bouclier. D'un autre côté, si vous l'avez lu, après en. avoir apprécié tous les termes qu'il contient, vous croyez qu'il peut en. résulter dans la Province de Québec un élément de discorde et de trouble qui peut devenir sérieux, si vous croyez qu'un document de cette nature peut laisser croire à nos canadiens de langue anglaise que dans la Province de Québec, la justice n'est pas observée, que le clergé a le contrôle sur les tribunaux et enfin, qu'il y a dans la Province de Québec une haine ardente pour le Christ, pour Dieu et pour la liberté, dans ce cas-là, vous devez condamner Boucher. It is, therefore, apparent that the learned judge was there telling the jury that if they found nothing seditious in the document they had to acquit Boucher, but that if, on the contrary, they thought there was something seditious in it, in the nature of what he enumerates in the passage, then they ought to condemn him. I cannot find anything objectionable in that way of presenting the matter to the jury. Then in respect of the objection to certain evidence which is mentioned in the dissenting judgment and the fact that it was maintained by the learned judge, my humble view is that the question to which the objection was maintained was illegal and that it was properly maintained. In that instance Boucher was asked to state the impression he intended to convey by a reading of the pamphlet, according to what he himself thought and his appreciation of the pamphlet. Surely it did not exclusively belong to the accused to state to the jury what he intended to convey; it was for the jury itself to come to a conclusion as to what the document conveyed to the people among whom it was distributed. Again the passage of the charge quoted by the learned Chief Justice is as follows: Vous lirez ce document-là, Exhibit P-1, et vous déciderez si réellement il est de nature à ramener la bonne entente entre les témoins de Jéhovah et les gens de la province de Québec. This is merely a reference to the fact that Boucher had claimed that he had distributed the document in order to "ramener la bonne entente entre les témoins de Jéhovah et les gens de la province de Québec"; and the learned judge was telling the jury that, having read the pamphlet, it was for them to decide whether it was of a nature to bring about what Boucher had contended. The learned Chief Justice also points to the sentence in the charge: C'est plutôt un libelle séditieux qui a été produit. The meaning of that sentence is quite clear, more particularly if it is read in conjunction with the context. The learned trial judge had been asked by Counsel for the accused to instruct the jury on the nature of blasphematory and defamatory libel. He gave the instruction asked for and then concluded by saying: But in this case you are not concerned with either of those. The document which has been filed, if anything, is rather a seditious libel. With due respect, I cannot find any other meaning to that sentence which, of course, so understood cannot be held to be objectionable. That concludes my analysis and review of the dissenting judgment of the learned Chief Justice of Quebec. I am of opinion that the several points to which I have just referred were not well taken. However, I would otherwise agree with the remainder of his reasoning and, on that account, I am of opinion that a new trial should be ordered in this case. Now, dealing with a general review of the case, I would first observe that the French version of the document is the one to which the attention of the jury should be brought, because admittedly the region in which it was distributed is largely, if not exclusively, French speaking. The document in French would, therefore, be the one that could affect the people among which it was published. Having read it several times I would say without hesitation that it contains statements upon which the jury might reasonably come to the conclusion that such statements are in the nature of seditious libels; and, applying the language of Lord Cairns in the Metropolitan Railway Company case (supra), my view would be that the pre-siding judge could direct the jury that it might reasonably infer that the document could be looked upon, under Canadian law, as a seditious libel. It would, of course, be for the jurors to say whether, when submitted to them, guilt ought to be inferred. Merely as an illustration of what I have in mind I would refer to the several passages where the document says that the French Canadian Courts are so much under the influence of the Catholic priests that they are thereby induced to confirm infamous sentences and to render judgments not according to their judicial duties and oath, but as a result of the influence of -the priests. Here is the passage to which I refer. The French version reads: Toutes les cours Canadiennes Françaises étaient tellement sous l'influence sacerdotale qu'elles confirmèrent la sentence infâme, et ce ne fut que lorsque la cause fut portée en Cour Suprême du Canada que le jugement fut renversé. The English version reads: All the French Canadian courts were so under priestly thumbs that they affirmed the infamous sentence, and it was not until the case reached the Supreme Court of 'Canada that judgment was reversed. Perhaps it should be noted here that the statement that the judgment was reversed by the Supreme Court of Canada is a falsity. The judgment in question is that of Brodie v. The King[4], having been reported, it is therefore public and it is sufficient to refer to that judgment 'to see that it is absolutely incorrect to say that there was a reversal. The Supreme Court merely quashed the indictment and the conviction on the ground that the necessary averments were omitted and the necessary ingredients were lacking in the indictment preferred against the appellants and that their absence constituted defects in matters of sub-stance. But the Court stated that the Crown was at liberty "to prefer a fresh indictment if so advised." In Canada it should not be forgotten that the criminal law of the country is contained in the Criminal Code; and as was pointed out in Brodie v. The King: It cannot be that the criminal law should be administered as though there were no code. The sections of the Criminal Code referring to seditious libel are sections 133 and 133A. This was first enacted by section 123, chap. 25, 55-56 Victoria (1892), the section then having four paragraphs. In 1906, by sec. 132, chap. 146 of the Revised Statutes of Canada adopted in that year, sec. 123, above mentioned, was amended by the deletion of paragraph one of that section. In 1927 when the subsequent Revised Statutes of Canada were adopted this section 132, of chap. 146, R.S.C. 1906, was retained without amendment as sec. 133. By chap. 29, 1936 S.C., a fourth paragraph was added to sec. 133. In addition in 1930 a new section 133A, was enacted by chap. 11 of the Statutes of Canada of that year, and that section was retained without amendment in the amendments of 1947. Under the law as it stood at the material time, that is when the appellant distributed what is alleged to have been the seditious libel, section 133 stated that "a seditious libel is a libel expressive of a seditious intention". It was argued by Counsel for the appellant that the Code does not define "seditious intention". Of course, subsection (4) of section 133. enacts that "everyone shall be presumed to have a seditious intention who publishes, or circulates any writing, printing or document in which it is advocated or who teaches or advocates, the use, without the authority of law, of force, as a means of accomplishing any governmental change within Canada"; but the subsection begins by the words "without limiting the generality of the meaning of the expression 'seditious intention' ". Therefore, we have it here that the advocating of force is not the only instance in which an accused could be found guilty of a "seditious intention". Then if we turn to section 133A, also in force when the present appellant was proven to have distributed the seditious libel, the legislator there indicated certain cases where one would not be deemed to have had a seditious intention only because he intends in good faith (c) to point out, in order to their removal, matters which are producing or have a tendency to produce feelings of hatred and ill-will between different classes of His Majesty's subjects. Of course, one cannot but be impressed by the analogy of that section added in 1930 with sections 114 and 115 of Stephen's "Digest of the Criminal Law", as they were at the time of the drafting of the Criminal Code in Canada in 1892, and also by the definition of "sedition" given by Russell "On Crime", Vol. 1, 9th edit., p. 87. But the very fact that the Canadian Code has dealt with the matter compels the Canadian Courts to administer the law with regard to seditious libel in accordance with the Canadian legislation and not in accordance with statements by commentators in England, or even with pronouncements by judges administering justice in Great Britain. Indeed that was the very ruling of the Judicial Committee of the Privy Council in Wallace-Johnson v. The King[5], where it was held that the provisions of the Gold Coast Criminal Code were clear and unambiguous and intended to contain as far as possible a full and complete statement of the law of sedition in the Colony, and that, therefore, the English common law as expounded in a judgment rendered in England was inapplicable. Under Part I of the Canadian Criminal Code (sections 8 et seq.) the Courts in this country can refer to the law of England only in so far as a matter has not been dealt with by the Canadian Parliament. Even if in section 133, as it was originally enacted, we did not find sufficient to decide what Parliament thought should be considered as a seditious intention, we certainly have some indication of the legislator's mind in subsection (4) as it now stands and as it was introduced by the amendment of 1936. As already pointed out, what is stated there as creating a presumption of seditious intention is qualified by the words "without limiting the generality of the meaning of the expression". Section 133A, introduced in 1930, by chap. 11 of the Statutes of Canada of that year, undoubtedly contains some indication of the legislator's view of what constitutes seditious intention under the law of Canada. Subsection (c) refers to the pointing out of matters which are producing or have a tendency to produce feelings of hatred and ill-will between different classes of His Majesty's subjects and it says that if one only intends "in order to their removal, to point out such matters", he shall not be deemed to have a seditious intention if he "intends it" in "good faith". It necessarily follows that even pointing out these matters in order to their removal will not relieve an accused of the guilt of seditious intention unless he did it in good faith. Therefore, if you have a matter which is producing, or has a tendency to produce feelings of hatred and ill-will between different classes of His Majesty's subjects, a jury would be justified in finding that a man, under Canadian jurisdiction, ought to be found guilty of seditious libel, unless the jury comes to the conclusion that the man in question pointed out these matters "in order to their removal" and that he did so "in good faith." In my humble view, therefore, it is unnecessary in the present case to refer to any pronouncements either in Great Britain, and less so in the United States, as the learned Counsel for the appellant invited us to do, because here in Canada we have the precise legislation on the issue; and what the jury alone has to decide here with regard to Boucher is : (1) Whether the document which he distributed contained matters which were producing, or had a tendency to produce feelings of hatred and ill-will between classes of His Majesty's subjects; ; (2) Whether he pointed out these matters in order to their removal; and (3) Whether he did so in good faith. These three questions are strictly the province of the jury. I cannot see by what authority this Court should decide that Boucher pointed out these matters in order to their removal, or that he did so in good faith, more particularly in view of the fact that the Supreme Court of Canada's jurisdiction in criminal cases is limited to point of dissent in the Court of Appeal. There was absolutely no dissent on these matters in the Court below. The dissenting opinions of Letourneau C.J. and of Galipeault J.A. are expressly limited to misdirections, or non-directions, in the learned trial judge's charge; and the only points which this Court has to decide are whether the alleged misdirections, or non-directions, are really to be found in the charge, and the consequence can only be that there should be a new trial, if they are so found. I would not like to part this appeal, however, without stating that to interpret freedom as licence is a dangerous fallacy. Obviously pure criticism, or expression of opinion, however severe or extreme, is, I might almost say, to be invited. But, as was said elsewhere, "there must be a point where restriction on individual freedom of expression is justified and required on the grounds of reason, or on the ground of the democratic process and the necessities of the present situation". It should not be understood from this Court--the Court of last resort in criminal matters in Canada-that persons subject to Canadian jurisdiction "can insist on their alleged unrestricted right to say what they please and when they please, utterly irrespective of the evil results which are often inevitable". It might well be said in such a case, in the words of Milton, "Licence they mean when they cry liberty", or as expressed Mr. Edouard Herriot, "La liberté doit trouver sa imite dans l'autorité légale". For these reasons in is particular appeal, the conviction should be set aside on the grounds of misdirection and non-direction, and a new trial should be directed. KERWIN J.‑This is an appeal by the accused from a decision of the Court of King's Bench (Appeal Side) for the Province of Quebec[6], affirming his conviction for publishing a seditious libel contrary to section 133 of the Criminal Code. Chief Justice Letourneau dissented and, as Mr. Justice Galipeault agreed with his reasons, reference thereto may conveniently be made throughout as expressing the dissent with which this Court is concerned. Prior to the hearing, we dismissed a motion by the Crown to quash the appeal on the ground that the dissent was on questions of fact alone because we are all of opinion that there was dissent on questions of law. The charge against the accused is that he published a seditious libel by distributing copies of a pamphlet to several persons at St. Joseph, in the District of Beauce, which pamphlet contained certain alleged seditious pass-ages. The editors of the pamphlet are stated therein to be Watch Tower Bible and Truth Society, Toronto, Ont., and the accused is a member of Jehovah's Witnesses. There is no doubt as to the publication by the accused in the manner charged but the question is whether what he published constituted the criminal offence known as seditious libel. Section 133 of the Criminal Code under which the charge was laid must be considered together with section 133A enacted in 1930, and these now read: 133. Seditious words are words expressive of a seditious intention. 2. A seditious libel is a libel expressive of a seditious intention. 3. A seditious conspiracy is an agreement between two or more persons to carry into execution a seditious intention. 4. Without limiting the generality of the meaning of the expression "seditious intention" everyone shall be presumed to have a seditious intention who publishes, or circulates any writing, printing or document in which it is advocated, or who teaches or advocates, the use, without the authority of law, of force, as a means of accomplishing any govern-mental change within Canada. 133A. No one shall be deemed to have a seditious intention only because he intends in good faith,‑ (a) to show that His Majesty has been misled or mistaken in. his measures; or (b) to point out errors or defects in the government or constitution of the United Kingdom, or of any part of it, or of Canada or of any province thereof, or in either House of Parliament of the United Kingdom or of Canada, or in any legislature, or in the administration of justice; or to excite His Majesty's subjects to attempt to procure, by lawful means, the alteration of any matter in the state; or, (c) to point out, in order to their removal, matters which are producing or have a tendency to produce feelings of hated and ill-will between different classes of His Majesty's subjects. Subsection 4 of section 133 was' enacted in 1936, at which time Parliament repealed the much discussed section 98, but for our purposes subsection 4 need not be considered. With the exception of this subsection, these enactments follow the corresponding provisions of the Draft Criminal Code, prepared by the Commissioners in England and while "seditious intent" is nowhere defined in our Code, it has always been accepted that the definition proposed by the Commissioners accurately sets forth the law of England on the subject. This definition had been adopted by the Commissioners almost verbatim from that found in Stephen's Digest of the Criminal Law. As explained by Cave J. in Reg. v. Burns[7], the latter had the authority not only of Mr. Justice Stephen but also of the very learned judges who were associated with him in drafting the proposed English Criminal Code. On the following page, Cave J. points out that Mr. Justice Stephen was a judge of very great accuracy and that, for the proposition laid down in his Digest for seditious libel, there was to be found undoubted authority. The authorities and the history of the matter are set out in Volume 2 of the History of the Criminal Law of England by the same author at p. 298 et seq. That definition should be adopted as the law of Canada. The definition appears as article 114 in the 8th edition of Stephen's Digest and, together with article 115, are as follows: ARTICLE 114 SEDITIOUS INTENTION DEFINED A seditious intention is an intention to bring into hatred or contempt, or to excite disaffection against the person of, Ills Majesty, his heirs or successors, or the government and constitution of the United Kingdom, as by law established, or either House of Parliament, or the administration of justice, or to excite His Majesty's subjects to attempt otherwise than by lawful means, the alteration of any matter in Church or State by law established, or to incite any person to commit any crime in disturbance of the peace, or to raise discontent or disaffection amongst His Majesty's subjects, or to promote feelings of ill-will and hostility between different classes of such subjects. An intention to show that His Majesty has been misled or mistaken in his measures, or to point out errors or defects in the government or constitution as by law established, with a view to their reformation, or to excite His Majesty's subjects to attempt by lawful means the alteration of any matter in Church or State by law established, or to point out, in order to their removal, matters which are producing, or have a tendency to produce, feelings of hatred and ill-will between classes of His Majesty's subjects, is not a seditious intention. ARTICLE 115 PRESUMPTION AS TO INTENTION In determining whether the intention with which any words were spoken, any document was published, or any agreement was made, was or was not seditious, every person must be deemed to intend the consequences which would naturally follow from his conduct at the time and under the circumstances in which he so conducted himself. The accused as one of the members of Jehovah's Witnesses distributed a pamphlet in which complaint was made of what was said to have occurred with reference to some of those members. He was entitled to complain of what he conceived to be existing grievances and, in so doing, he was not restricted to a calm and dispassionate exposé, such as might be expected in a court of law. Specifically, he was entitled to point out what he alleged were errors or defects in the administration of justice and also, in order to effect their removal, matters which were producing, or had a tendency to produce, feelings of hatred and ill-will between the residents of the Province of Quebec and Jehovah's Witnesses. Evidence could be led by the accused in an endeavour to show the truth of these statements as it would be relevant, but as was admitted by counsel for the accused, relevant only, to the question whether the accused intended to point out those matters in good faith as provided by section 133A of our Code. Chief Justice Letourneau points out that after ruling that the truth or falsity of the allegations made in the pamphlet was immaterial, the trial judge, at various times, picked out various passages in the pamphlet and, referring to each, said: "C'est encore une fausseté". I agree with the Chief Justice that the issue of good faith was not put accurately to the jury. The question of seditious libel is always one of great delicacy, requiring from the trial judge an instruction distinctly drawing to the attention of the jury the various elements that must be found before they may convict of the offence charged and applying the law to the evidence in the record. I agree with the Chief Justice that this was not done in the present case. The main element which it was necessary for the jury to find was an intention on the part of the accused to incite the people to violence or to create a public disturbance or disorder: Reg. v. Burns supra; Reg. v. Sullivan[8]; Rex v. Aldred[9]; The King v. Gaunt not reported but referred to in a note in 64 L.Q.R. 203. The use of strong words is not by itself sufficient nor is the likelihood that readers of the pamphlet in St. Joseph de Beauce would be annoyed or even angered, but the question is, was the language used calculated to promote public disorder or physical force or violence. In coming to a conclusion on this point, a jury is entitled to consider the state of society or, as it is put by Chief Justice Wilde in his charge to the jury in The Queen v. Fussell[10]‑ You cannot, as it seems to me, form a correct judgment of how far the evidence tends to establish the crime imputed to the defendant, without bringing into that box with you a knowledge of the present stale of society, because the conduct of every individual in regard to the effect which that conduct is calculated to produce, must depend upon the state of the society in which he lives. This may be innocent in one state of society, because it may not tend to disturb the peace or to interfere with the right of the community, which at another time, and in a different state of society, in consequence of its different tendency, may be open to just censure. This, it should be noted, was said at a trial at the Central Criminal Court before the Chief Justice, Baron Parke and Maule J. An instruction to the same effect was given in Reg. v. Burns supra by gave J., of whose charge it is stated generally, at page 88 of the 9th edition of Russell on Crime, that the present view of the law is best stated therein. Reference might also be made to the words of Coleridge J. in his charge to the jury in the later case of Rex v. Aldred[11]:‑ You are entitled also to take into account the state of public feeling. Of course there are times when a spark will explode a powder magazine; the effect of language may be very different at one time from what it would be at another. While the jury must consider the question of good faith in accordance with section 133A of our Code, it will be noticed that that section specifically states that no one shall be deemed to have a seditious intention only because he intends in good faith to show or point out the matters mentioned. The jury should be charged that if they find good faith on the part of the accused, and if in their opinion there is nothing more in the case, the accused is entitled to an acquittal; but, if in addition to that good faith, there was an intention on the part of the accused to create public disorder or promote physical force, or that notwithstanding the motives of the accused the natural tendency of the words (and therefore the intention) was to create such disturbances, then

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