R. v. Lucas

R. v. Lucas
Collection
Supreme Court Judgments
Date
1998-04-02
Report
[1998] 1 SCR 439
Case number
25177
Judges
Lamer, Antonio; L'Heureux-Dubé, Claire; Sopinka, John; Gonthier, Charles Doherty; Cory, Peter deCarteret; McLachlin, Beverley; Iacobucci, Frank; Major, John C.; Bastarache, Michel
On appeal from
Saskatchewan
Subjects
Constitutional law
Criminal law
Notes
SCC Case Information: 25177
Decision Content
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investigation, criminal charges were laid against a number of individuals, but many of the charges were subsequently withdrawn or stayed.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 approac