Submission to The House of Commons Standing Committee on Justice and Human Rights Hearings on Bill C-51

Submitted on behalf of the Centre for Free Expression by: Dr. James Turk, Director, Professor Jamie Cameron, Osgoode Hall Law School, Professor Lisa Taylor, Ryerson University

Bill C-51:

• Objectives include amending, removing or repealing passages and provisions that have been ruled unconstitutional or that raise risks with regard to the Canadian Charter of Rights and Freedoms and
• Amending, removing or repealing those that are obsolete, redundant or that no longer have a place in criminal law [our emphasis]

Criminal libel:

• The Criminal Code punishes three forms of criminal libel: blasphemous libel (s.296); seditious libel (s.59(2)); and defamatory libel (ss. 301 and 300)
• The Minister proposes to repeal blasphemous libel, “to enhance freedom of expression protected by s.2(b) [of the Charter]” [see Charter statement]
• Apart from a minor amendment to defamatory libel, Bill C-51 retains seditious and defamatory libel as Criminal Code offences

Submission:

• All three forms of criminal libel in the Criminal Code constitute a serious and unjustifiable violation of s.2(b) of the Charter, which guarantees freedom of expression
• We invite and ask the Committee and Minister to repeal all criminal libel offences, including seditious and defamatory libel, as well as blasphemous libel

Blasphemous and seditious libel

• In functional terms, seditious and blasphemous libel are obsolete criminal offences
• The last conviction for blasphemous libel was 1936; the last charge about 35 years ago was stayed (Monty Python; Life of Brian)
• We have found no convictions or charges for seditious libel since Boucher v. the King (1950)
• Blasphemous and seditious libel also raise risks under s.2(b) and courts would likely find that these offences are an unjustifiable violation of expressive freedom

Defamatory libel:

• Defamatory libel is not obsolete, but continues to be charged and prosecuted; as such this form of criminal libel poses a serious ongoing risk to expressive freedom under s.2(b) of the Charter
• In fact, defamatory libel is a greater threat to the constitutional rights of Canadians than blasphemous or seditious libel
• The Criminal Code criminalizes two forms of defamatory libel: s.301 and s.300

Section 301:

• Making a defamatory statement of any kind – whether true or false – exposes an individual to being charged, convicted and subject to imprisonment for up to two years;
• Defamatory libel includes matter that is likely to injure another person’s reputation by exposing that person to “hatred, contempt or ridicule” or is “designed to insult the person” (s.298(1))
• This definition, in combination with the uncertainty of defences, makes s.301’s criminal offence harsher than the civil law of defamation; for this reason, it is a serious interference with expressive freedom
• Section 301 has been found unconstitutional by courts in 5 different provinces: R. v. Finnegan (Alberta QB 1992); R. v. Lucas (Sask QB 1995); R. v. Gill (Ont CJ 1996); R. v. Osborne (NB QB 2004); R. v. Prior (Nfld/Lab SupCt 2008)
• It is assumed that s.301 is unconstitutional; however, without a provincial appellate or Supreme Court decision s.301 is relied on in public and private prosecutions for improper purposes (i.e., to silence those who speak out against public officers; to provide grounds for a search warrant)

Section 300:

• An individual who publishes a defamatory libel that he “knows to be false” can be imprisoned for up to 5 years
• R. v. Lucas (1998) held that s.300 was a justifiable violation of s.2(b) (Supreme Court of Canada)
•  Almost 20 years later, s.300 raises “risks” under the Charter that are within Bill C-51’s mandate for repeal, and should also be repealed
• There are 4 central concerns:
  • Lucas is inconsistent with R. v. Zundel (1991), which earlier invalidated the “false news” provision of the Code as an impermissible violation of s.2(b) of the Charter
  • Lucas relied on Hill v. Church of Scientology (1995), a civil defamation decision which was superseded by Grant v. Torstar Corp. (2009)
  • Section 300 has been used to harass and charge individuals who are harshly critical of public officers, in violation of their Charter rights, and
  • Like blasphemous libel, defamatory libel is an artifact of the 17th century, aimed originally at preventing duels and keeping the peace; in 1984 the Law Reform Commission of Canada recommended that defamatory libel be struck from the Code and abolished; See: https://archive.org/stream/defamatorylibel00lawr/defamatorylibel00lawr_djvu.txt

Research points on defamatory libel

• Defamatory libel prosecutions are not rare; there have been at least 408 prosecutions between 2000-2015, and the number climbed from an average of 20 per year in 2000 to 40 per year between 2010-2015
• 1/3 of the cases involved political expression by individuals who were critical of state actors such as police, prosecutors, municipal officials, prison guards, etc.; while their expression may have taken the form of invective, it commented on matters of public importance at the core of s.2(b)
• Many charges do not go to trial but engage the investigative process and often result in lengthy proceedings, which can include search warrants, serial charges, and the need to retain counsel and defend against charges
• While criminal libel laws in other countries often target journalists or prominent individuals who have the power to defend themselves, the target of these laws in Canada are often powerless individuals who have offended those in authority
• The other 2/3 of charges relate to personal vendettas (i.e. cyber-smearing; slut-shaming etc.); a range of Criminal Code provisions are available to deal with these forms of transgressive conduct: http://www.justice.gc.ca/eng/rp-pr/other-autre/cndii-cdncii/p4.html

Proposal:

• We ask the Committee to acknowledge the constitutional infirmity of criminal libel, and to adopt amendments to Bill C-51 that will repeal the seditious libel (ss.59-61) and defamatory libel provisions (ss.297-316) of the Criminal Code
• We are supported in this position by PEN Canada and Canadian Journalists for Free Expression
• We draw to your attention that in 2009 the UK abolished all common law libel offences (seditious libel; defamatory libel; obscene libel) [s.73, Coroners and Justice Act 2009]; see: http://merlin.obs.coe.int/iris/2010/2/article20.en.html; http://www.pressgazette.co.uk/criminal-libel-and-sedition-offences-abolished/

Please see:

J. Cameron, “Repeal Defamatory Libel” Centre for Free Expression Blogpost, July 5, 2017 https://cfe.ryerson.ca/blog/2017/07/repeal-defamatory-libel

L. Taylor & D. Pritchard, “The Process is the Punishment: Criminal Libel and Political Speech in Canada” (paper available at the Committee’s request)