Chapter IV


Last updated : 22/01/01

A. INTRODUCTION IV-2

B. SEDITIOUS LIBEL IV-3

Switzman v. Elbling IV-4

C. CONTEMPT OF COURT IV-6

R. v. Kopyto IV-6

D. LIBEL IV-10

Introduction IV-10

Hill v. Church of Scientology of Toronto IV-13

R. v. Lucas IV-29

E. THE FIRST AMENDMENT IV-48

New York Times Co. v. Sullivan IV-48

Hustler Magazine v. Falwell IV-54

The next three Chapters consider the status of different kinds of offensive expressive activity that is directed at: (i) the state [i.e., seditious libel or other unpatriotic expression]; (ii) the judicial system [i.e., criticism of the judiciary, traditionally punished by the common law offence of contempt of court]; (iii) individuals [i.e., injury to reputation, remedied by the law of defamation]; and (iv) groups [i.e., individuals identified by a characteristic such as gender or ethnicity]. One question is whether different kinds of offensive expression should be treated the same way, or differently under the Charter. In other words, is there a relevant difference between defaming the state and defaming an individual; between defaming an individual and defaming unindividuated members of a group; between criminal sanctions and remedies under tort law or human rights legislation?

How should the Court define harm for purposes of justifying limits on offensive expression? Why not restrict all expression that is perceived as offensive? If that is too intrusive of expressive freedom, at what point does offensive expression become sufficiently harmful to justify limits? How should harm be measured?

This Chapter begins with a brief look at forms of institutional libel: seditious libel and contempt of court. In doing so it raises this question: if expressive activity that criticizes institutions should receive strong protection under the Charter, should defamatory statements about individuals be treated the same way? The centrepiece is the Supreme Court of Canada=s decision in Hill v. Church of Scientology, which considered the status of libel law under the Charter for the first time and concluded that s.2(b) does not modify the common law of defamation. Two key First Amendment cases are included: New York Times v. Sullivan, and Hustler Magazine v. Falwell (did you see The People v. Larry Flynt?).

Subversive and unpatriotic expression have played a minor, and barely visible, role in Canada's constitutional jurisprudence. Pre-Charter precedent derives primarily from a series of cases that arose in the province of Quebec throughout the 1950s: a brief excerpt from Switzman v. Elbling is included below.

By contrast, the constitutional status of seditious libel was the dominant issue in First Amendment adjudication from the World War I espionage and sedition prosecutions, and through the Cold War era to the decision in New York Times v. Sullivan. Though it may not be initially obvious, Sullivan illuminates the relationship between the law of seditious libel, which seems quite anachronistic today, and the law of defamation. The connection is this. As a concept, seditious libel is fundamentally undemocratic and inconsistent with a constitutional guarantee of expressive freedom, because it punishes those who criticize the state. On any theory of responsible government or accountability, it is illegitimate to criminalize expression that challenges the government. The point of Sullivan is that a libel action by a public officer who invokes civil remedies to avoid criticism raises similar issues. Why should an officer of the government be permitted to stifle criticism of his or her performance of public duties through the law of defamation? At the same time, those who defame government officers cannot be immune from liability. How then should freedom of expression and the protection of reputation be balanced under the Charter?

[Under Quebec's "padlock law", an Act Respecting Communistic Propaganda, s. 3 made it illegal for any person to use any house within the province of Quebec for the propagation of communism. Section 12 made it unlawful to publish or distribute any literature that propagated or tended to propagate communism. The division of powers was raised in defence by a tenant sued by the owner of a house allegedly used for illegal purposes.]

Rand J.

... The object of the legislation here ... is admittedly to prevent the propagation of communism and bolshevism, but it could just as properly have been the suppression of any other political, economic or social doctrine or theory.... It is [argued] that the ban is a local matter under head 16... [of the division of powers].

Indicated by the opening words of the preamble in the Act of 1867, reciting the desire of the four Provinces to be united in a federal union with a constitution "similar in principle to that of the United Kingdom", the political theory which the act embodies is that of parliamentary government, with all its social implications....Whatever the deficiencies in its workings, Canadian government is in substance the will of the majority expressed directly or indirectly through popular assemblies. This means ultimately government by the free public opinion of an open society, the effectiveness of which, as events have not infrequently demonstrated, is undoubted.

But public opinion, in order to meet such a responsibility, demands the condition of a virtually unobstructed access to and diffusion of ideals. Parliamentary government postulates a capacity in man acting freely and under self-restraints, to govern themselves; and that advance is best served in the degree achieved of individual liberation from subjective as well as objective shackles. Under that government, the freedom of discussion in Canada, as a subject-matter of legislation, has a unity of interest and significance extending equally to every part of the Dominion. With such dimensions it is ipso facto excluded from head 16 as a local matter.

This constitutional fact is the political expression of the primary condition of social life, thought and its communication by language. Liberty in this is little less vital to man's mind and spirit than breathing is to his physical existence. As such an inherence in the individual it is embodied in his status of citizenship....

...It has [] been contended that this legislation constituted an obstacle to the liberty of the press and the liberty of speech. I believe in those fundamental liberties; they are undeniably rights which, fortunately, the citizens of this country enjoy, but these liberties would cease to be a right and become a privilege, if it were permitted to certain individuals to misuse them in order to propagate dangerous doctrines.... They are necessarily limited and must be exercised within the bounds of legality. When these limits are overstepped, these liberties become abusive, and the law must necessarily intervene to exercise a repressive control....

1. Support for an implied bill of rights drawn from the preamble to the Constitution Act, 1867 can be found in The Alberta Press Case, supra, Chapter I, Saumur v. City of Quebec, [1953] S.C.R. 299, and Switzman, above.

2. In Boucher v. The King, [1951] S.C.R. 265 a Jehovah's Witness was convicted of publishing a seditious libel. He had distributed a pamphlet titled "Quebec's burning hate for God and Christ and Freedom is the shame of all Canada", which criticized the Quebec legislature and the Quebec courts. A majority of the Court agreed that a new trial should be ordered. In doing so Justice Rand commented:

There is no modern authority which holds that the mere effect of tending to create discontent or disaffection ... or ill-will or hostility ..., but not tending to issue in illegal conduct, constitutes the crime, and this for obvious reasons. Freedom in thought and speech and disagreement in ideas and beliefs, on every conceivable subject, are of the essence of our life. The clash of critical discussion on political, social and religious subjects has too deeply become the staff of daily experience to suggest that mere ill will as the product of controversy can strike down the latter with illegality.... Controversial fury is aroused constantly by differences in abstract conceptions; heresy in some fields is again a mortal sin; there can be fanatical puritanism in ideas as well as in morals; but our compact of free society accepts and absorbs these differences and they are exercised at large within the framework of freedom and order on broader and deeper uniformities as bases of social stability. Similarly in discontent, disaffection and hostility: as subjective incidents of controversy, they and the ideas which arouse them are part of our living which ultimately serve us in stimulation, in the clarification of thought and...in the search for the constitution and truth of things generally....

 

 

3. Does seditious libel have any enduring role to play under the Charter? Can you think of any circumstances in which it might be justifiable for the state to suppress expressive activity that challenges its democratic authority or the rule of law?

Are Rand J.'s remarks in Boucher an anachronism in other ways as well? Note his disapproval of laws which would punish individuals merely for creating discontent or disaffection. Is that view consistent with restrictions on hate propaganda, discriminatory expression and obscenity? If not, is there some reason why his remarks should be limited to seditious libel and not applied generally to all forms of offensive expression? Is the Supreme Court of Canada as tolerant of offensive views today as it was in the 1950s?

4. The only Charter decision to deal with subversive or unpatriotic speech thus far is C.C.L.A. v. Canada (1992), 8 O.R. (3d) 289 [rejecting a challenge to legislation permitting the Canadian Securities Intelligence Service to engage in electronic surveillance of those suspected of participating in subversive activities].

Is there any difference, in functional terms, between criticizing judges, the courts and the judicial system, and criticizing politicians, Parliament and our system of government? If not, what does that suggest about the status of contempt of court under the Charter? Is the offence per se unconstitutional? If not, in what circumstances would it be appropriate for the judiciary to suppress expression to protect the integrity of the judicial system?

[The appellant, then a member of the Ontario bar, brought various claims on behalf of his client against the R.C.M.P, arising out of police investigation of the League for Socialist Action. Following dismissal of those claims, the following statement by [Mr. Kopyto] was published in the Globe and Mail:

This decision is a mockery of justice. It stinks to high hell. It says it is okay to break the law and you are immune so long as someone above you said to do it.

 

Mr. Dowson and I have lost faith in the judicial system to render justice.

 

We're wondering what is the point of appealing and continuing this charade of the courts in this country which are warped in favour of protecting the police. The courts and the RCMP are sticking so close together you'd think they were put together with Krazy Glue.

 

He was convicted for contempt.]

... [I]t is difficult to imagine a more important guarantee of freedom to a democratic society than that of freedom of expression. A democracy cannot exist without the freedom to express new ideas and to put forward opinions about the functioning of public institutions. These opinions may be critical of existing practices in public institutions and of the institutions themselves. However, change for the better is not dependent upon constructive criticism. Nor can it be expected that criticism will always be muted by restraint. ... Hyperbole and colourful, perhaps even disrespectful language, may be the necessary touchstone to fire the interest and imagination of the public, to the need for reform, and to suggest the manner in which that reform may be achieved. ...

... [T]he courts are bound to be the subject of comment and criticism. Not all will be sweetly reasoned. ... [S]ome criticism may be well founded, some suggestions for change worth adopting. But the courts are not fragile flowers that will wither in the hot heat of controversy.... They need not fear criticism nor need they seek to sustain unnecessary barriers to complaints about their operations or decisions. ...

In my view, statements of a sincerely held belief on a matter of public interest, even if intemperately worded, ... should, as a general rule, come within the protection afforded by s. 2(b) ....

It is incumbent upon the Crown to establish ... that the limitation on freedom of expression imposed by the offence of scandalizing the court meets the requirement of s. 1....

I ... am satisfied that...the objective of protecting the administration of justice was of sufficient importance to warrant overriding a constitutionally protected right or freedom. However,...the offence assumes that the words which are the subject-matter of the charge will bring the court into contempt or lower its authority. This I take to be an unwarranted and questionable assumption, and leads me to conclude that the offence has not been "carefully designed to achieve the objective in question." If the essence of the charge is ... that the words spoken do bring the court into contempt, then it would not be unreasonable to require the prosecution to prove that this is in fact the effect of those words. This requirement is lacking in the offence of scandalizing the court as it is presently known.

It may be helpful in considering this issue to recall that when dealing with contempt cases arising out of statements made pertaining to cases that are pending or under consideration, the courts have always required proof that the statements constituted a serious danger to the administration of justice. That is to say that the Crown must show that such statements put the function of the courts in serious question. ... That requirement should also be an essential condition of the offence of scandalizing the court, as it would go some distance towards ensuring that the offence: "impairs `as little as possible' the right or freedom in question". In the absence of such a requirement the limitation imposed by the offence cannot meet the proportionality test as it is both arbitrary and irrational. ...

Houlden J.A.

...Courts and judges should be subject to criticism, no matter how extreme; they will function better as a result of it....

I feel confident that our judiciary and our courts are strong enough to withstand criticism after a case has been decided no matter how outrageous or scurrilous that criticism may be. I feel equally confident that the Canadian citizenry are not so gullible that they will lose faith and confidence in our judicial system because of such criticism. If the way in which judges and courts conduct their business commands respect, then they will receive respect, regardless of any abusive criticism that may be directed towards them. ...

I appreciate that by the very nature of their office, judges and courts cannot respond to criticism.... I do not believe, however, that this is sufficient justification for putting courts and judges in a different position from other public bodies, such as Parliament, provincial legislatures, municipal governments and the police. Accordingly, I would hold that the offence of scandalizing the court is inconsistent with the ... Charter, and ... is no longer of any force and effect. With respect, I do not agree with Cory J.A. that there may still be some scope for the offence....

... I agree with the statement of my brother Houlden that our judiciary and courts are strong enough to withstand criticism after a case has been decided no matter how outrageous or scurrilous that criticism may be.... It would require an extreme combination of unusual circumstances ... to convince a court that utterances or statements constitute a real, significant and imminent or present danger to the fair and effective administration of justice. The utterances with which the court is concerned in the present case ... fall far short of meeting the test. Nevertheless, in my opinion, the offence of contempt for utterances and statements made outside of the court remains a constitutionally valid offence subject to strict proof of the fulfilment of the prescribed conditions necessary for the commission thereof.

Our free and democratic society is founded upon the rule of law. The offence of contempt of court...relates to the rule of law....What had heretofore been recognized was that a remedy was necessary to be taken against those who would destroy the rule of law by seriously impairing the administration of justice and impairing the ability of the courts to protect those fundamental freedoms and the rights of those within its jurisdiction....

It was for this reason that, parallel to the evolution of freedom of speech, the very common law courts which first proclaimed freedom of speech as a fundamental freedom also recognized the need for a criminal offence of contempt of court, not to protect the dignity of the court, nor the vindication of a judge, but to preserve the rule of law....

It is now submitted ... that ... the criminal offence of contempt of court in issue in this appeal is unconstitutional, and one who would otherwise be guilty of this offence is now "protected" by the right of free speech and immunized from process. In my respectful opinion, the offence of contempt of court in issue in this appeal does not abridge the right of freedom of expression....

Thus, although I agree ... that ... the conviction [should be] set aside, I do so... only because the offence was not made out.

1. Can you think of any circumstances in which a charge of contempt for scandalizing the court might be appropriate? If not, should that branch of the contempt doctrine be abandoned? If contempt should be retained, how should the offence now be defined? Should a different standard apply to members of the legal profession, members of the press, and members of the general public? Note how high the threshold is in the United States. In Craig v. Harney, 67 S.Ct. 1249 (1947), the petitioners, who were members of the press, employed strong and intemperate language in reporting on a controversial trial, and quite bluntly called the judge's competence into question. Acknowledging that their news stories "did not reflect good reporting", Douglas J. observed that "a reporter could not be laid by the heels for contempt because he missed the essential point in a trial or failed to summarize the issues to accord with the views of the judge who sat on the case." Assuming the unfairness of their reports, he went on to state:

... a judge may not hold in contempt one "who ventures to publish anything that tends to make him unpopular or to belittle him... ." ... The vehemence of the language used is not alone the measure of the power to punish for contempt. The fires which it kindles must constitute an imminent, not merely a likely, threat to the administration of justice. The danger must not be remote or even probable; it must immediately imperil.

 

Does Douglas J. set too high a threshold? Realistically, can it ever be met? Can you think of any circumstances in which a charge of contempt might be appropriate?

2. See also B.C.G.E.U. v. A-G British Columbia, [1988] 2 S.C.R. 214, supra Chapter 3.

D. LIBEL

Defamatory expression creates a tension between the public's interest in free debate and an individual's right to protect her reputation from unfair attack. Extending constitutional protection to defamatory expression would expose reputation to a risk of harm. At the same time, the strict liability rules of defamation may compromise the public's interest in uninhibited debate. How should that balance be struck, and does s.2(b) of the Charter require modification of the law of defamation, to give expressive freedom adequate protection?

Defamatory statements tend to injure reputation by lowering the community's estimation of an individual, or by causing that person to be shunned or avoided, or exposed to hatred, contempt, or ridicule. The injury to a plaintiff's "good name" can have monetary and emotional components. Reputation is the key to professional and business success. In addition, reputation is closely associated with values of dignity, integrity and privacy.

At common law defamation is a strict liability tort. Once the plaintiff has established that statements which have been published are:

reasonably capable of a defamatory meaning;

refer to the plaintiff; and

have been published or broadcast by the defendant or in circumstances where the defendant is responsible for the publication or broadcast;

 

a prima facie cause of action exists.

Several presumptions create a reverse onus on a libel defendant. It is not necessary for the plaintiff to show actual damage because it is presumed that "some damage will flow in the ordinary course of things from the mere invasion of [the plaintiff's] absolute right to reputation"; Ratcliffe v. Evans, [1892] 2 Q.B. 524 at 528. Similarly, the plaintiff is not required to prove malicious intent; it is sufficient, for purposes of the tort, if the words are capable of a defamatory meaning. Finally, the plaintiff need not prove that the defamatory statement is false; to avoid liability the defendant must instead prove that the statements were true or otherwise establish a defence such as consent, fair comment or privilege.

The main defences to an action for defamation are:

justification - the truth of the words or content of the publication or broadcast;

fair comment;

absolute privilege; and

qualified privilege;

 

This defence requires the defendant to demonstrate the truth of the defamatory statements. Drawing a distinction between what is "true" and what is "false" can be problematic. To what extent, if any, is this distinction problematic? Should the Charter only protect true expression? Is "truth" a question of fact or a matter of opinion? Can any opinion be false? Should the Charter protect the right to express opinions that may be false or erroneous? In any or all circumstances?

The defendant may claim that the defamatory statement complained of constitutes fair comment on a matter of public interest. In such circumstances, the publication or broadcast must be a comment (not a statement of fact) that is based on facts that are true. It then must satisfy the following test: could any reasonable, right thinking individual honestly express that opinion on those facts?

In Chernesky v. Armadale Publishers Ltd., [1979] 1 S.C.R. 1067, the Supreme Court of Canada held that the freedom to express an opinion on a matter of public interest is protected by the defence of fair comment, but that such protection is afforded only when the opinion represents the honest expression of the view of the person who expresses it. Chernesky brought suit against a newspaper for printing a letter in its "letters to the editor" section which alleged that he was a racist. The view was not shared by the editorial staff or the publisher of the newspaper. As a result they were not deemed to be "commentators" and were denied the protection of the defence of fair comment.

Does this defence adequately protect expressive freedom? Alternatively, are its requirements too strict [i.e., because the comment must be based on true facts and be honestly held]? What is the difference between the Sullivan rule, infra, and the common law defence of fair comment?

Absolute privilege is reserved for those cases in which the freedom of communication is so important that it is right to deprive the citizen of his or her remedy for all defamatory statements made about them. Occasions conferring absolute privilege include:

statements made between executive officers of the government;

the conduct of all judicial and quasi-judicial proceedings; and

the deliberations of legislative and quasi-legislative bodies.

 

The defence of qualified privilege attaches to statements made on a privileged occasion - i.e., where statements are made in performance of a duty, in protection of an interest, are contained in privileged reports, or in personal communications. The scope of the defence is discussed in Church of Scientology, infra.

In Sullivan, the U.S. Supreme Court found that the presumptions operative in the law of libel violated the First Amendment. The fear of damage awards, combined with the difficulty of proving the truth and fear of the expense of litigation itself, all resulted in what Brennan J. called "libel chill". The heavy burden placed on a defendant in a libel action has the effect of suppressing not only the expression of falsehood, but the also the expression of truth. The "chilling" effect of libel law, which is more or less assumed in the United States, has been a matter of debate in Canada. What role, if any, should the element of libel chill play in Charter analysis?

In Dolphin Delivery, McIntyre J. stated that "[t]he Courts must, on a case by case basis, apply and develop the common law consistently with the Charter." Given the central role played by a free and unencumbered news media in fostering the debate and dissemination of information vital to a "free and democratic society", the defence of qualified privilege could be interpreted in such a manner to protect the publication of political speech.

Dolphin Delivery also held that the Charter applies to the common law but does not apply to private litigation completely divorced from any connection with government. It applies to the common law where it is the basis for some governmental action which is alleged to have infringed a guaranteed right or freedom. Note that the law of defamation has been codified in virtually every common law province; see, e.g., Libel and Slander Act, R.S.O. 1980 c. 237.

[The plaintiff in this case was a prominent Crown attorney, Casey Hill, who was subsequently appointed to the Ontario Court (General Division). Hill had given advice to the OPP regarding a search warrant of the Scientology premises, and 250,000 documents (2 million pages) were seized. Scientology retained Clayton Ruby to quash the warrant and to recover the seized documents. Casey Hill acted for the Crown. An issue arose about whether a sealing order pertaining to certain documents had been violated. Scientology brought a notice of motion to launch criminal contempt proceedings against Hill and alleged that the he had misled a judge and had breached orders sealing documents belonging to Scientology. In a press conference on the steps of Osgoode Hall, Morris Manning, counsel for Scientology, read and commented on extracts from the motion. Later, at the contempt proceedings, the allegations were found to be false and without foundation. Prior to the contempt hearing, Scientology knew its allegations were false but continued with the hearing. At the libel trial, even though they knew the allegations were false, Scientology continued to attack Hill in the presence and absence of the jury and repeated the libel more than once. At trial, Hill was awarded damages of $1.6 million; the Court of Appeal upheld the decision; and Scientology appealed to the Supreme Court.]

...This action for damages for libel was commenced on December 14, 1984.... The questions posed to the jury and their answers were as follows:

3. Are the words complained of...and the Notice of Motion defamatory of the plaintiff?

A. Yes

4. If the answer to Question 3 is "yes", what general damages, if any, is the plaintiff, Casey Hill, entitled to from the defendants, The Church of Scientology of Toronto and Morris Manning?

A. $300,000

5. If your answer to Question 3 is "yes", is he entitled to any aggravated damages from the defendant, Morris Manning,...and if so, in what amount?

A. Nil

6. If your answer to Question 3 is "yes", is he entitled to any aggravated damages from the defendant, The Church of Scientology of Toronto,...and if so, in what amount?

A. $500,000

7. If your answer to Question 3 is "yes", is he entitled to any punitive damages from the defendant, The Church of Scientology of Toronto, and if so, in what amount?

A. $800,000

...

...Two major issues are raised in this appeal. The first concerns the constitutionality of the common law action for defamation. The second relates to the damages that can properly be assessed in such actions....The appellants contend that the common law of defamation has failed to keep step with the evolution of Canadian society. They argue that the guiding principles upon which defamation is based place too much emphasis on the need to protect the reputation of plaintiffs at the expense of the freedom of expression of defendants.... The appellants add that if the element of government action in the present case is insufficient...under s. 32, the principles of the common law ought, nevertheless, to be interpreted, even in a purely private action, in a manner consistent with the Charter. This, the appellants say, can only be achieved by the adoption of the "actual malice" standard of [New York Times v. Sullivan].

In addition, the appellant Morris Manning submits that the common law should be interpreted so as to afford the defence of qualified privilege to a lawyer who, acting on behalf of a client, reads and comments in public upon a notice of motion which he believes, in good faith, has been filed in court, and which subsequently is filed....

The appellants have not challenged the constitutionality of any of the provisions of the Libel and Slander Act[]. The question, then, is whether the common law of defamation can be subject to Charter scrutiny. The appellants submit that by reason of his position as a government employee, Casey Hill's action for damages constitutes "government action" within the meaning of s. 32....

The appellants argue that at all material times Casey Hill was an agent of the Crown, acting on behalf of the Attorney General of Ontario, and that the defamatory statements which are the subject of the present action were made in relation to acts undertaken by him in that capacity. They further submit that Casey Hill commenced these legal proceedings at the direction and with the financial support of the Attorney General in order to vindicate the damage to the reputation of the Ministry resulting from criticism leveled at the conduct of one of its officials. It is, therefore, contended that this action represents an effort by a government department to use the action of defamation to restrict and infringe the freedom of expression of the appellants in a manner that is contrary to the Charter.

These submissions cannot be accepted. They have no legal, evidentiary or logical basis of support....

The fact that persons are employed by the government does not mean that their reputation is automatically divided into two parts, one related to their personal life and the other to their employment status. To accept the appellants' position would mean that identical defamatory comments would be subject to two different laws, one applicable to government employees, the other to the rest of society. Government employment cannot be a basis for such a distinction. Reputation is an integral and fundamentally important aspect of every individual. It exists for everyone quite apart from employment.

In order to establish the requisite government action for Charter scrutiny, the appellants argue that it is easy to distinguish between a janitor working in a government building who is simply an employee and a Crown Attorney who is an agent of the state. ... There are a significant number of public servants who represent the Crown in any number of ways. While it might be easy to differentiate between the extreme examples set forth by the appellants, the grey area between those extremes is too extensive and the functions of the officials too varied to draw any effective line of distinction....

There is no doubt that Crown Attorneys exercise statutory powers as agents of the government.... Therefore...they benefit from the protection of any immunity which attaches to their office [and] may become personally liable when they exceed their statutory powers. By extension, actions taken by Crown Attorneys which are outside the scope of their statutory duties are independent of and distinct from their status as agents for the government. Such was the case here.

The appellants impugned the character, competence and integrity of Casey Hill, himself, and not that of the government. He, in turn, responded by instituting legal proceedings in his own capacity. There was no evidence that the Ministry of the Attorney General or the Government of Ontario required or even requested him to do so. Neither is there any indication that the Ministry controlled the conduct of the litigation in any way....Further, the fact that Casey Hill's suit may have been funded by the Ministry of the Attorney General does not alter his constitutional status or cloak his personal action in the mantle of government action....In my opinion, the appellants have not satisfied the government action requirement described in s. 32....

This Court first considered the application of the Charter to the common law in Dolphin Delivery [], [which] held that the common law could be subjected to Charter scrutiny in the absence of government action.... In emphasizing that the common law should develop in a manner consistent with Charter principles, a distinction was drawn between private litigants founding a cause of action on the Charter and judges exercising their inherent jurisdiction to develop the common law....

Since 1986, this Court has subjected the common law to Charter scrutiny in a number of situations where government action was based upon a common law rule []. However, Dolphin Delivery remains the only case which has closely examined the application of the Charter in the context of purely private litigation....

It is clear...that the common law must be interpreted in a manner which is consistent with Charter principles. This obligation is simply a manifestation of the inherent jurisdiction of the courts to modify or extend the common law in order to comply with prevailing social conditions and values....

When determining how the Charter applies to the common law, it is important to distinguish between those cases in which the constitutionality of government action is challenged, and those in which there is no government action involved. It is important not to import into private litigation the analysis which applies in cases involving government action....

Private parties owe each other no constitutional duties and cannot found their cause of action upon a Charter right. The party challenging the common law cannot allege that the common law violates a Charter right because, quite simply, Charter rights do not exist in the absence of state action. The most that the private litigant can do is argue that the common law is inconsistent with Charter values. It is very important to draw this distinction between Charter rights and Charter values. Care must be taken not to expand the application of the Charter beyond that established by s. 32(1), either by creating new causes of action, or by subjecting all court orders to Charter scrutiny. Therefore, in the context of civil litigation involving only private parties, the Charter will "apply" to the common law only to the extent that the common law is found to be inconsistent with Charter values.

Courts have traditionally been cautious regarding the extent to which they will amend the common law. Similarly, they must not go further than is necessary when taking Charter values into account. Far-reaching changes to the common law must be left to the legislature.

When the common law is in conflict with Charter values, how should the competing principles be balanced? In my view, a traditional s.1 framework for justification is not appropriate....[T]he balancing must be more flexible than the traditional s. 1 analysis undertaken in cases involving governmental action cases. Charter values, framed in general terms, should be weighed against the principles which underlie the common law. The Charter values will then provide the guidelines for any modification to the common law which the court feels is necessary.

Finally, the division of onus which normally operates in a Charter challenge ... should not be applicable in a private litigation Charter "challenge" to the common law.... It is up to the party challenging the common law to bear the burden of proving not only that the common law is inconsistent with Charter values but also that its provisions cannot be justified....

There can be no doubt that in libel cases the twin values of reputation and freedom of expression will clash....The real question, however, is whether the common law strikes an appropriate balance between the two.

Much has been written of the great importance of free speech.... Similar reasoning has been applied in cases argued under the Charter. Although a Charter right is defined broadly, generally without internal limits, the Charter recognizes, under s. 1, that social values will at times conflict and that some limits must be placed even on fundamental rights....

In R. v. Keegstra, []...Dickson C.J. adopted the contextual approach...and concluded that since hate propaganda contributed little to the values which underlie the right enshrined under s. 2(b), namely the quest for truth, the promotion of individual self-development, and participation in the community, a restriction on this type of expression might be easier to justify than would be the case with other kinds of expression.

In R. v. Butler, []...[i]t was held...that pornography could not stand on an equal footing with other kinds of expression which directly engage the "core" values of freedom of expression....

Certainly, defamatory statements are very tenuously related to the core values which underlie s. 2(b). They are inimical to the search for truth. False and injurious statements cannot enhance self-development. Nor can it ever be said that they lead to healthy participation in the affairs of the community. Indeed, they are detrimental to the advancement of these values and harmful to the interests of a free and democratic society....

The other value to be balanced in a defamation action is the protection of the reputation of the individual. Although much has very properly been said and written about the importance of freedom of expression, little has been written of the importance of reputation. Yet, to most people, their good reputation is to be cherished above all. A good reputation is closely related to the innate worthiness and dignity of the individual. It is an attribute that must, just as much as freedom of expression, be protected by society's laws. In order to undertake the balancing required by this case, something must be said about the value of reputation.

Democracy has always recognized and cherished the fundamental importance of an individual. That importance must, in turn, be based upon the good repute of a person. It is that good repute which enhances an individual's sense of worth and value....

From the earliest times, society has recognized the potential for tragic damage that can be occasioned by a false statement made about a person. This is evident in the Bible, the Mosaic Code and the Talmud....

[A] central theme through the ages has been that the reputation of the individual is of fundamental importance....

In the present case, consideration must be given to the particular significance reputation has for a lawyer. The reputation of a lawyer is of paramount importance to clients, to other members of the profession and to the judiciary. A lawyer's practice is founded and maintained upon the basis of a good reputation for professional integrity and trustworthiness. It is the cornerstone of a lawyer's professional life. Even if endowed with outstanding talent and indefatigable diligence, a lawyer cannot survive without a good reputation....

Although it is not specifically mentioned in the Charter, the good reputation of the individual represents and reflects the innate dignity of the individual, a concept which underlies all the Charter rights. It follows that the protection of the good reputation of an individual is of fundamental importance to our democratic society....

The publication of defamatory comments constitutes an invasion of the individual's personal privacy and is an affront to that person's dignity. The protection of a person's reputation is indeed worthy of protection in our democratic society and must be carefully balanced against the equally important right of freedom of expression. In order to undertake the requisite balancing of values, let us first review the change to the existing common law proposed by the appellants....

In New York Times v. Sullivan, [] the United States Supreme Court ruled that the existing common law of defamation violated the guarantee of free speech under the First Amendment of the Constitution. It held that the citizen's right to criticize government officials is of such tremendous importance in a democratic society that it can only be accommodated through the tolerance of speech which may eventually be determined to contain falsehoods. The solution adopted was to do away with the common law presumptions of falsity and malice and place the onus on the plaintiff to prove that, at the time the defamatory statements were made, the defendant either knew them to be false or was reckless as to whether they were or not....

At the outset, it is important to understand the social and political context of the times which undoubtedly influenced the decision in New York Times v. Sullivan, []. The impugned publication was an editorial advertisement, placed in the appellant's newspaper, entitled "Heed Their Rising Voices". It criticized the widespread segregation which continued to dominate life in the southern states in the late 1950s and early 1960s. Prominent and well respected individuals, including Mrs. Eleanor Roosevelt, lent their name to the advertisement. It communicated information, recited grievances, protested abuses and sought financial support. The group or movement sponsoring the advertisement was characterized by Brennan J. as one "whose existence and objectives are matters of the highest public interest and concern"[]...

The Supreme Court, in overturning the verdict, clearly perceived the libel action as a very serious attack not only on the freedom of the press but, more particularly, on those who favoured desegregation in the southern United States. It was concerned that such a large damage award could threaten the very existence of, in Black J.'s words, "an American press virile enough to publish unpopular views on public affairs and bold enough to criticize the conduct of public officials" []....

The "actual malice" rule has been severely criticized by American judges and academic writers. It has been suggested that the decision was overly influenced by the dramatic facts underlying the dispute and has not stood the test of time....Commentators have pointed out that, far from being deterred by the decision, libel actions have, in the post-Sullivan era, increased in both number and size of awards. They have, in this way, mirrored the direction taken in other tort actions....

Perhaps most importantly, it has been argued the decision has shifted the focus of defamation suits away from their original, essential purpose. Rather than deciding upon the truth of the impugned statement, courts in the U.S. now determine whether the defendant was negligent. Several unfortunate results flow from this shift in focus. First, it may deny the plaintiff the opportunity to establish the falsity of the defamatory statements and to determine the consequent reputational harm....

Second, it necessitates a detailed inquiry into matters of media procedure. This, in turn, increases the length of discoveries and of the trial which may actually increase, rather than decrease, the threat to speech interests....

Third, it dramatically increases the cost of litigation. This will often leave a plaintiff who has limited funds without legal recourse....

Fourth, the fact that the dissemination of falsehoods is protected is said to exact a major social cost by deprecating truth in public discourse....

The New York Times v. Sullivan decision has been criticized by judges and academic writers in the United States and elsewhere. It has not been followed in the United Kingdom or Australia. I can see no reason for adopting it in Canada in an action between private litigants.... I simply cannot see that the law of defamation is unduly restrictive or inhibiting. Surely it is not requiring too much of individuals that they ascertain the truth of the allegations they publish. The law of defamation provides for the defences of fair comment and of qualified privilege in appropriate cases. Those who publish statements should assume a reasonable level of responsibility....

None of the factors which prompted the United States Supreme Court to rewrite the law of defamation in America are present....First, this appeal does not involve the media or political commentary about government policies....

Second, a review of jury verdicts in Canada reveals that there is no danger of numerous large awards threatening the viability of media organizations. Finally, in Canada there is no broad privilege accorded to the public statements of government officials which needs to be counterbalanced by a similar right for private individuals.

In conclusion, in its application to the parties in this action, the common law of defamation complies with the underlying values of the Charter and there is no need to amend or alter it.

Consideration must now be given to the submission...that the defence of qualified privilege should be expanded to include reports upon pleadings and court documents that have been filed or are at the point of being filed. [Manning's press conference took place before the Notice of Motion was filed and the question, in such circumstances, was whether the defence was available. After concluding that it was, Cory J. found that Manning's conduct exceeded the privilege.]

...Morris Manning's conduct far exceeded the legitimate purposes of the occasion. The circumstances of this case called for great restraint in the communication of information concerning the proceedings launched against Casey Hill. As an experienced lawyer, Manning ought to have taken steps to confirm the allegations that were being made....[H]e was duty bound to wait until the investigation was completed before launching such a serious attack on Hill's professional integrity. Manning failed to take either of these reasonable steps. As a result of this failure, the permissible scope of his comments was limited and the qualified privilege which attached to his remarks was defeated.

The press conference was held on the steps of Osgoode Hall in the presence of representatives from several media organizations. This constituted the widest possible dissemination of grievous allegations of professional misconduct....His comments were made in language that portrayed Hill in the worst possible light. This was neither necessary nor appropriate....While it is not necessary to characterize Manning's conduct as amounting to actual malice, it was certainly high-handed and careless. It exceeded any legitimate purpose the press conference may have served. His conduct, therefore, defeated the qualified privilege that attached to the occasion.

...[A]n appellate court is not entitled to substitute its own judgment as to the proper award for that of the jury merely because it would have arrived at a different figure....

It has long been held that general damages in defamation cases are presumed from the very publication of the false statement and are awarded at large....They are, as stated, peculiarly within the province of the jury. These are sound principles that should be followed.

The consequences which flow from the publication of an injurious false statement are invidious. The television report of the news conference on the steps of Osgoode Hall must have had a lasting and significant effect on all who saw it. They witnessed a prominent lawyer accusing another lawyer of criminal contempt in a setting synonymous with legal affairs and the courts of the province. It will be extremely difficult to correct the impression left with viewers that Casey Hill must have been guilty of unethical and illegal conduct.

The written words emanating from the news conference must have had an equally devastating impact....The unfortunate impression left by a libel may last a lifetime....It is members of the community in which the defamed person lives who will be best able to assess the damages. The jury as representative of that community should be free to make an assessment of damages which will provide the plaintiff with a sum of money that clearly demonstrates to the community the vindication of the plaintiff's reputation....

The appellants contend that there should be a cap placed on general damages in defamation cases just as was done in the personal injury context....

In my view, there should not be a cap placed on damages for defamation. First, the injury suffered by a plaintiff as a result of injurious false statements is entirely different from the non-pecuniary damages suffered by a plaintiff in a personal injury case. In the latter case, the plaintiff is compensated for every aspect of the injury suffered: past loss of income and estimated future loss of income, past medical care and estimated cost of future medical care, as well as non-pecuniary damages. Second, at the time the cap was placed on non-pecuniary damages, their assessment had become a very real problem for the courts and for society as a whole....

A very different situation is presented with respect to libel actions. In these cases, special damages for pecuniary loss are rarely claimed and often exceedingly difficult to prove. Rather, the whole basis for recovery for loss of reputation usually lies in the general damages award. Further, a review of the damage awards over the past nine years reveals no pressing social concern similar to that which confronted the courts at the time the trilogy was decided. From 1987 to 1991, there were only 27 reported libel judgments in Canada, with an average award of $30,000. Subsequent to the decision in this case, from 1992 to 1995, there have been 24 reported libel judgments, with an average award of less than $20,000....

There is a great difference in the nature of the tort of defamation and that of negligence. Defamation is the intentional publication of an injurious false statement. While it is true that an actual intention to defame is not necessary to impose liability on a defendant, the intention to do so is nevertheless inferred from the publication of the defamatory statement. This gives rise to the presumption of malice which may be displaced by the existence of a qualified privilege. Personal injury, on the other hand, results from negligence which does not usually arise from any desire to injure the plaintiff. Thus, if it were known in advance what amount the defamer would be required to pay in damages (as in the personal injury context), a defendant might look upon that sum as the maximum cost of a licence to defame. A cap would operate in a manner that would change the whole character and function of the law of defamation. It would amount to a radical change in policy and direction for the courts....

Aggravated damages may be awarded in circumstances where the defendants' conduct has been particularly high-handed or oppressive, thereby increasing the plaintiff's humiliation and anxiety arising from the libelous statement....

These damages take into account the additional harm caused to the plaintiff's feelings by the defendant's outrageous and malicious conduct. Like general or special damages, they are compensatory in nature....They represent the expression of natural indignation of right-thinking people arising from the malicious conduct of the defendant.

If aggravated damages are to be awarded, there must be a finding that the defendant was motivated by actual malice, which increased the injury to the plaintiff, either by spreading further afield the damage to the reputation of the plaintiff, or by increasing the mental distress and humiliation of the plaintiff....

In this case, there was ample evidence upon which the jury could properly base their finding of aggravated damages....

[E]very aspect of this case demonstrates the very real and persistent malice of Scientology....

Punitive damages may be awarded in situations where the defendant's misconduct is so malicious, oppressive and high-handed that it offends the court's sense of decency. Punitive damages bear no relation to what the plaintiff should receive by way of compensation. Their aim is not to compensate the plaintiff, but rather to punish the defendant. It is the means by which the jury or judge expresses its outrage at the egregious conduct of the defendant. They are in the nature of a fine which is meant to act as a deterrent to the defendant and to others from acting in this manner. It is important to emphasize that punitive damages should only be awarded in those circumstances where the combined award of general and aggravated damages would be insufficient to achieve the goal of punishment and deterrence.

Unlike compensatory damages, punitive damages are not at large. Consequently, courts have a much greater scope and discretion on appeal. The appellate review should be based upon the court's estimation as to whether the punitive damages serve a rational purpose. In other words, was the misconduct of the defendant so outrageous that punitive damages were rationally required to act as deterrence?...

There can be no doubt that the conduct of Scientology [was so] outrageous [] that it cried out for the imposition of punitive damages.

There might have been some concern that, in light of the award of general and aggravated damages totalling $800,000, there might not be a rational basis for punitive damages. However any lingering doubt on that score is resolved when Scientology's persistent misconduct subsequent to the trial is considered....

[L'Heureux-Dubé J. wrote a concurring opinion.]

CFTO BROADCAST

The Toronto Church of Scientology has filed charges of contempt of court against two provincial lawyers. The Church believes the lawyers violated a court order by opening sealed documents which were seized last year in a raid on the Church's headquarters. A report from CFTO's Tim Webber:

Webber:

Eighteen months ago, more than one hundred O.P.P. officers stormed out of three buses and into the offices of the Church of Scientology. They seized hundreds of thousands of documents in two days of searching. Police said they were looking for evidence of tax fraud, consumer fraud and other indictable offences. Many of these seized documents were deemed confidential by the Church. Some they said were confessions between priests and penitents and they convinced a judge to order about two hundred of the documents sealed. Today, lawyers for the Church filed charges alleging that the sealing order has been violated.

 

Manning:

The documents were ordered sealed by Mr. Justice Osler, pursuant to a request by counsel, in a very serious matter, and they were opened and revealed to persons whom we say were unauthorized to so do.

 

Webber:

The charges are against Jerome Cooper, a lawyer for Consumer and Commercial Relations, and Crown Attorney S. Casey Hill. The documents filed today alleged that the two convinced another Supreme Court Justice to allow the Ministry of Consumer and Commercial Relations to view the sealed documents in the company of O.P.P. officers. One of the lawyers being charged, Jerome Cooper, today told us he had absolutely no comment on the matter. The trial date has already been set for the 17th of January, but lawyers for the Church of Scientology are hoping to convince the defendants and the Court so start even sooner.

The Church of Scientology has filed a suit against two Toronto based Crown Attorneys. The Church had its offices raided by police and documents seized in March of 1983. Lawyers for the Church say those documents were opened and read by persons not authorized to do so.

Manning:

They were confidential documents which have been ordered sealed by Supreme Court of Ontario Justices which were opened with the permission of counsel for the Crown. And this constitutes, in the opinion of the Church, a contempt of court. We've had a date set in January. But hopefully, we can get a date set earlier with the consent of the Chief Justice of the Trial Division, or the Chief Justice of Ontario on the basis that it's a very important matter. It's important to the administration of justice.

 

 

The Church of Scientology of Toronto is asking the Supreme Court of Ontario to find a Crown prosecutor and a lawyer with the Ontario Ministry of Consumer and Commercial Relations in contempt of court.

Morris Manning, a lawyer acting for the church, said in an interview yesterday that he has filed a motion asking for S. Casey Hill, a prosecutor with the Ontario Ministry of the Attorney-General, and Jerome Cooper, a lawyer with the Consumer Ministry, to be jailed or fined.

The motion claims that Mr. Cooper misled Mr. Justice Jean-Charles Sirois of the Supreme Court of Ontario into releasing to the Consumer Ministry documents seized by the Ontario Provincial Police in a raid on the Church's headquarters.

The motion says Judge Sirois was not told that many of the documents had been ordered sealed by another Ontario Supreme Court judge while the Church contests the legality of the search warrant used by the O.P.P. in the raid last year.

The motion claims Mr. Hill, who represented the Attorney-General during the search warrant hearings "aided and abetted in the misleading of Mr. Justice Sirois".

A hearing on the motion has been set for January 17.

1. Do you agree that the Charter did not apply here because the Crown Attorney=s civil action was private in nature? How is it possible to view this as private in circumstances where a government officer has taken legal action to protect his reputation from criticism of the way he discharged his duties as a Crown Attorney? Did the Court=s decision on this point compromise s. 2(b)=s values? In particular, are government officers and private citizens the same for purposes of the Charter?

2. What about Cory J.=s Abalancing@ of the competing values? Are expressive freedom and reputation of equal rank under the Charter? If not, how does Cory J. come to the conclusion that reputation should be protected at the expense of expressive freedom?

3. How should the balance between these values be struck? Does New York Times v. Sullivan, infra, weight the scales too heavily in favour of expressive freedom? If so, were there other alternatives the Court could have considered to re-calibrate the balance between expressive freedom and the protection of reputation?

4. Do unlimited damages place too heavy a burden on expressive freedom? Should the Court impose a cap on damages in defamation cases? Should aggravated and punitive damages be available and if so, in what circumstances?

5. See R. v. Zundel, infra Chapter V. There, a majority of the Supreme Court invalidated s.181 of the Criminal Code, which prohibits the wilful publication of false news. In doing so, McLachlin J. expressed the following concerns about the true/false distinction:

[Another] difficulty lies in the assumption that we can identify the essence of the communication and determine that it is false with sufficient accuracy to make falsity a fair criterion for denial of constitutional protection....

 

One problem lies in determining the meaning which is to be judged to be true or false. A given expression may offer many meanings, some which seem false, others, of a metaphorical or allegorical nature, which may possess some validity. Moreover, meaning is ... an interactive process.... Different people may draw from the same statement different meanings at different times. The guarantee of freedom of expression seeks to protect not only the meaning intended to be communicated by the publisher but also the meaning or meanings understood by the reader....

 

A second problem arises in determining whether the particular meaning assigned to the statement is true or false.... [P]articularly where complex social and historical facts are involved, it may prove exceedingly difficult....

 

[I]t is the civil action for defamation which constitutes the only other significant branch of the law in which a jury is asked to determine the truth or falsity of a statement. But the difficulties posed by this demand are arguably much less daunting in defamation.... [There] a statement [is] made about a specific living individual. Direct evidence is usually available as to its truth or falsity. Complex social and historical facts are not at stake. And most importantly the consequences of failure to prove truth are civil damages, not the rigorous sanction of criminal conviction and imprisonment.

 

Do you agree that it is easier to distinguish between truth and falsity in a civil action for defamation than in a criminal prosecution under s. 181?

6. Note that Coates v. The Citizen (1988), 44 C.C.L.T., 286 (N.S.T.D.) rejected the American approach, as set out in New York Times, on the basis that Canadian courts have "weighed more heavily the value of personal reputation over those of free speech and free press." Do you agree that the personal reputations of public figures should receive the same protection as private individuals?

7. Lamer C.J.C. gave a hint as to his views on these issues in Snyder v. The Montreal Gazette (1988), 49 D.L.R. (4th) 17 (S.C.C.), a case which considered the damages to be awarded a prominent public figure for non-pecuniary loss in a defamation action. Though the Charter was not applicable. Lamer J. made the following comment in his dissenting judgment:

Though it is a secondary consideration, there is one factor that must be taken into account in defamation cases. These often involve newspapers, press agencies and radio or television stations. In coming to the rescue of a defamation victim, the courts must not overlook the fact that the written and spoken press is indispensable and is an essential component of a free and democratic society. Moreover, both the Quebec and Canadian Charters recognize the importance of the press....If information agencies are ordered to pay large amounts as the result of a defamation the danger is that their operations will be paralyzed or indeed, in some cases, that their very existence may be endangered. Although society undoubtedly places a great value on the reputation of its members, that value, as it is subjective, cannot be so high as to threaten the functioning or the very existence of the press agencies which are essential to preserve a right guaranteed by the Charter.

 

8. In Botiuk v. Toronto Free Press Publications Ltd, [1995] 3 S.C.R. 3, the respondent was a lawyer who represented the Ukrainian-Canadian Committee (UCC) before a public inquiry examining a confrontation with police at a UCC demonstration. Botiuk was paid by the municipality, and rumours circulated that he breached his agreement to donate his fee to the UCC. The UCC published a letter in a community newspaper that financial matters relating to the demonstration and inquiry had not been satisfactorily settled. A year later the allegation was repeated in a declaration at the UCC general meeting. That declaration, signed by eight lawyers, was sent to the provincial council of the UCC, reprinted in a community newspaper, and sent to several members of the community. Botiuk was awarded $140,000 in compensatory damages at trial, and special damages of $325,000 for loss of income. The Court of Appeal awarded $200,000 in compensatory damages, holding that special damages could only form part of the general damage award as they were not raised at trial. The Supreme Court of Canada upheld the trial judge's award, and found that the defendants, most of whom were lawyers, were not entitled to the defence of qualified privilege, that their conduct was reckless, and that they were motivated by malice.

9. In Derrickson v. Tomat (1992), 88 D.L.R. (4th) 401, 63 B.C.L.R. (2d) 273 (BCCA), the plaintiffs (members of an Indian Council) sued the defendants (nine members of the Indian Band and two others) in defamation for alleging that the plaintiffs were fraudulently mismanaging Band Funds. The allegations appeared in a circulating petition that was sent to the Minister of Indian Affairs, in a press release, and in statements to the media. The trial judge found the defendants liable and awarded general and punitive damages to each plaintiff. The B.C. Court of Appeal noted that members of an Indian band have an interest in communicating to the Minister allegations of wrongdoing by a Chief and Band Council. The Court held that the defence of qualified privilege ought to have been given more serious consideration by the trial judge. A new trial was ordered on grounds that the trial judge had failed to consider the defences of each defendant individually (some defendants had little or no involvement in giving copies of the petition to the media) and had excluded admissible evidence -- a commissioned report which the defendants relied on for a defence of honest belief.

10. R. v. Gill (1996), 29 O.R. (3d) 250 (Gen. Div.) invalidated s. 301 of the Criminal Code. The section provides that every one who publishes a defamatory libel is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years. The charges in Gill arose from protest posters that were displayed following the death of a prisoner. Each "Wanted" poster had a picture of one of six Kingston Penitentiary Guards and descriptive information. Each poster bore the Kingston Police Force logo. The text of each poster was the same:

The suspect is one of several people wanted in connection with the kidnap, torture and killing of Robert Gentles on October 24, 1993. The six are believed to be members of a criminal gang operating in the Kingston area. If you see the suspects or have information as to their whereabouts, notify the Kingston police. ...Caution, do not attempt to apprehend the suspects yourself. They have a long history of sadistic violence and are believed to have socio-pathic tendencies. VIGILANCE IS EVERY CITIZEN'S DUTY.

 

11. In Elliott et al. v. C.B.C. (1996), 25 O.R. (30) 302, the Ontario Court of Appeal dismissed an appeal from a decision striking the plaintiff=s statement of claim and dismissing the action. The plaintiff was one of approximately 25,000 surviving aircrew from World War II, who claimed that the C.B.C. documentary, AThe Valour and The Horror,@ was defamatory.

12. See also Theophanous v. Herald & Weekly Times Ltd. 124 A.L.R. 1 (1994) (High Ct. of Aust.) suggesting, as a modification to the common law, that a publisher could avoid liability for publications that are Areasonable in the circumstances@ and otherwise not malicious or knowingly false.

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 [Charter] and if so, whether the violation can be justified under s. 1... . 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.

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.

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.

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.

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.

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.

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.

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.

At trial, the appellants argued that their freedom of expression... 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.

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.

 

 

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

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. ...

 

Hrabinsky J. stated that a balance must be struck between the value of freedom of expression and the value of reputation. ... He concluded that s. 300 should be upheld under s. 1 of the Charter.

 

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

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. ...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

 

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. ... As for the second ground, 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. ...

 

 

Analysis

 

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

 

... Decisions of this Court have stressed the vital and fundamental importance of freedom of expression in our democratic society. ... This right must be accorded vigilant protection in order to ensure that it is only restricted in clearly appropriate circumstances.

 

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. ... 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). ...

 

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. ... Most recently this liberal approach to s. 2(b) was reaffirmed in Libman v. Quebec (Attorney General)... .

 

These sections of the Code seek to restrict a limited type of expression which comes within the ambit of protected expression. ...

 

 

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

 

The appellants contended that the defamatory libel provisions are so vague that they infringe s. 7... . 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 []). 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 []). ...

 

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.

 

The requirement of a limitation on the prosecutorial discretion... was also discussed in Nova Scotia Pharmaceutical... .

 

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". 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... .

 

 

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

...

Context

This Court has stressed the importance of a contextual approach in determining the appropriate balance between individual rights and state interests under s. 1. []. It follows that when freedom of expression is at issue, the nature of the s. 2(b) violation must be considered in determining whether the restriction can be "demonstrably justified in a free and democratic society". This was emphasized in Keegstra [], and will be considered at greater length in the proportionality discussion.

 

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

 

 

Prescribed by Law

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

 

While the sections in question may not be perfectly drafted it must be remembered that words and phrases cannot always be measured with scientific precision. This concept was ably captured by Gonthier J. in Nova Scotia Pharmaceutical Society... . It follows that merely because ss. 298 to 300 may be subjected to various shadings of interpretation does not mean they are unacceptably vague.

 

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

 

Any imprecision that may exist in these sections is properly addressed under the proportionality test. ...

 

 

The Objective of the Offence of Defamatory Libel

... In Zundel [], it was emphasized that the application and interpretation of objectives may vary over time. However, a court must look to the intention of Parliament when the section was enacted, and cannot assign objectives according to the perceived reality of the challenged section.

 

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

 

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

 

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

 

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

 

Significantly this preamble was reproduced verbatim in the 1874 Canadian legislation. ...

 

It is clear that by the time of the enactment of Lord Campbell's Act, the prevention of breaches of the peace was no longer the objective underlying the offence of defamatory libel. ...

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

 

Headings in a statute can properly be taken into account in determining the intentions of Parliament []. Indeed they have been used in interpreting Criminal Code provisions []. The placement of s. 300 in this part of the Code can be contrasted with the "spreading false news" provision, which, as noted in Zundel [], was placed under the heading "Nuisances". Finally, the fact that there is a specific provision to prevent duelling (s. 71) under Part II "Offences against Public Order" confirms that Parliament's primary aim in enacting s. 300 was the protection of reputation rather than that of preventing breaches of the peace.

 

 

The Importance of the Objective of Protecting Reputation

Is the goal of the protection of reputation a pressing and substantial objective 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. Preventing damage to reputation as a result of criminal libel is a legitimate goal of the criminal law.

 

In Hill, supra, it was emphasized that it is of fundamental importance in our democratic society to protect the good reputation of individuals. ...

 

That a number of international conventions, ratified by Canada, contain explicit limitations of freedom of expression in order to protect the rights and reputations of individuals, further supports the conclusion that this constitutes a pressing and substantial objective. ... The existence of these provisions reflects a consensus within the international community that the protection of reputation is an objective sufficiently important to warrant placing some restrictions upon freedom of expression.

 

Finally, it is significant that many other free and democratic societies have criminal libel laws, including Australia, Belgium, Denmark, France, The Netherlands, Norway, Sweden and Switzerland []. ...

 

 

Proportionality

 

Rational Connection

... As Iacobucci J. aptly observed in [RJR-MacDonald], "[r]ational connection is to be established, upon a civil standard, through reason, logic or simply common sense". A common sense approach to the analysis of s. 300 and its defining provisions reveals that a rational connection does indeed exist. In order to protect individuals from wilful and false attacks on their reputations, Parliament has chosen to enact a law which prohibits the publication of injurious or insulting statements concerning another individual which are known to be false. The provision specifically addresses a targeted mischief.

 

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

 

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

 

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

 

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

 

 

Minimal Impairment

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

 

 

Mens Rea Requirement

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

 

It would be contrary to constitutional principles to interpret s. 300 as requiring anything less than a subjective intent to defame. ... Accordingly, the Crown can only make out the offence of defamatory libel if it proves beyond a reasonable doubt that the accused intended to defame the victim. This requirement places a sufficiently onerous burden on the Crown to make the mens rea aspect of the provision minimally intrusive.

 

 

The Criminal/Civil Law Dichotomy

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

 

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

 

It has been held that it is appropriate for different branches of the law to recognize different kinds and degrees of harm flowing from the same wrong. ...

 

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

 

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

 

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

 

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

 

 

Impugned Phrases and Terminology

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

 

 

(1) Section 298 - "designed to insult"

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

 

I agree that the provision would be overly intrusive if it were to be construed so that mere insults should constitute a criminal offence. ...

In order to interpret the words "designed to insult" appearing in s. 298, the French version of the section must be considered. ... In this case, the language used in the French text indicates a higher threshold with respect to defamatory insults. The French version of the Code provides as a definition of defamatory libel a published matter which is "destinée à outrager". The use of the word "outrager" rather than the literal translation of "insult" suggests a grave insult is necessary and that anything less will not be sufficient to trigger the defamatory libel provisions. According to Le Nouveau Petit Robert (1996), "outrager" means "[o]ffenser gravement par un outrage (actes ou paroles)"; "outrage" is defined as "offense ou injure extrêmement grave (de parole ou de fait)". The stronger meaning of the term "outrage" is clear when one notes the other places in the French version of the Code where it is used. For instance, the offence of contempt of court in s. 708 is referred to as "outrage au tribunal" in the French version. "Outrage" is also used in s. 182(b) ("outrage envers un cadavre") which prohibits the offering of any indignity to human remains.

 

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

 

 

(2) Section 298 - "is likely to injure"

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

 

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

 

 

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

Section 299(c) of the Code makes it an offence to publish a defamatory libel when the defamatory statement is shown or delivered "with intent that it should be read or seen by the person whom it defames. . .". Although it is perhaps not essential to the decision, it would appear that s. 299(c) cannot meet constitutional requirements. I agree with the appellants that this portion of the defamatory libel scheme is too broad. It does little to advance the objective of protecting reputation since a person's reputation will not be damaged if the defamatory statement is published to that individual alone. ...

 

In my view, the common law of libel is helpful not only in determining the meaning of the impugned sections for constitutional purposes but it is of equal assistance in establishing the invalidity of other portions of the section. ... The basic definition of libel according to Gatley on Libel and Slander (9th ed. 1998), at p. 6, is the publication to a third person of words or matter containing an untrue imputation against the reputation of another. ... 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. ...

 

 

Deleterious Effects

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

 

In Stevens [], Twaddle J.A. aptly noted...:

 

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

 

In New Brunswick [], the core values of freedom of expression were held to include the search for political, artistic and scientific truth, the protection of individual autonomy and self-development, and the promotion of public participation in the democratic process. It was decided that the further a particular form of expression departs from these underlying values, the lower will be the level of constitutional protection afforded to it. ...

 

This Court has subjected state action that jeopardizes these "core" values to a "searching degree of scrutiny".Where, on the other hand, the expression in question lies far from the "centre core of the spirit" of s. 2(b),state action restricting such expression is less difficult to justify.

 

This was one of the aspects specifically considered by the majority in Keegstra, supra, where it was held that s. 319(2) of the Code dealing with hate propaganda was justifiable under s. 1. ...

 

In Hill v. Church of Scientology of Toronto, [1995] 2 S.C.R. 1130, a similar conclusion was reached with respect to defamatory statements. ... Most certainly defamatory libel is far from and indeed inimical to the core values of freedom of expression. It would trivialize and demean the magnificent panoply of rights guaranteed by the Charter if a significant value was attached to the deliberate recounting of defamatory lies that are likely to expose a person to hatred, ridicule or contempt.

 

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

 

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

 

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

 

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

 

Subject to the reading out of "by the person whom it defames or" in s. 299(c), I find that ss. 298 to 300 can be upheld as a justifiable limit on freedom of expression. ...

 

 

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?

 

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

 

The respondent conceded that the trial judge erred when he held that the mens rea requirement for s. 300 was satisfied by proof that the appellants should have known that the statements they published were false. In order to sustain a conviction under s. 300 of the Code, the Crown must prove that the accused published a defamatory libel "that he knows is false". ... It follows that the trial judge should have determined whether the accused knew that the published statements were false.

 

The question that now must be considered is whether, despite the trial judge's error, the convictions of Mr. and Mrs. Lucas ought to be upheld. The appellants argued that they should be acquitted because the Crown failed to prove that they had subjective knowledge of the falsity of the contents of the placards. ...

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

 

Conclusion

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

 

 

L'Heureux-Dubé J.

 

While I agree with McLachlin J.'s analysis under s. 1 of the Canadian Charter of Rights and Freedoms, I otherwise concur with the analysis and conclusions of my colleague, Cory J.

 

 

McLachlin J. (dissenting in part)

 

I agree with Justice Cory that defamatory libel is protected under s. 2(b)... and consequently that convicting people for this offence has the potential to violate their rights. I also agree with him that the limitation of rights entailed in the offence does not ultimately violate the Charter because it is a reasonable [limit]. However, I would approach the s. 1 analysis differently than Cory J.I also reach a different result regarding Johanna Lucas's appeal. Hence these brief reasons.

 

To determine whether a limitation on a Charter right is justified under s. 1, we must follow the steps set out by this Court in R. v. Oakes, [1986] 1 S.C.R. 103. ...

 

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

 

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

 

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

 

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

 

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

 

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

 

 

Application to the Case at Bar

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

 

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

 

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

 

 

Major J. (dissenting in part)

 

I have read the reasons of Justice Cory and agree with him except with respect to the disposition of the appeal of the appellant Johanna Lucas.

 

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

 

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

 

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

 

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

 

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

 

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

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

 

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

E. THE FIRST AMENDMENT

 

New York Times Co. v. Sullivan

376 U.S. 254 (1964)

 

[Prior to Sullivan, the U.S. Supreme Court had excluded certain categories of speech from the First Amendment, including fighting words, obscenity and libel. Sullivan directly posed the question whether the First Amendment protects expressive activity critical of government conduct, in the context of an action in defamation. The lawsuit arose from a full-page advertisement in the New York Times, complaining of harassment and a "wave of terror" against anti-segregation and civil rights demonstrators. The advertisement did not explicitly name the plaintiff (Montgomery, Alabama's Commissioner of Police), but was both defamatory and factually inaccurate. The Court's decision to extend constitutional protection and introduce the actual malice standard was a breakthrough--not only for the law of defamation and the civil rights movement, but also for the First Amendment renaissance of the 1960s.]

 

 

Brennan, J.

 

Under Alabama law ..., a publication is "libelous per se" if the words "tend to injure a person ... in his reputation" or to "bring [him] into public contempt"....Once "libel per se" has been established, the defendant has no defense as to stated facts unless he can persuade the jury that they were true in all their particulars. [] His privilege of "fair comment" ... depends on the truth of the facts upon which the comment is based.... Unless he can discharge the burden of proving truth, general damages are presumed, and may be awarded without proof of pecuniary injury....

 

The question before us is whether this rule of liability, as applied to an action brought by a public official against critics of his official conduct, abridges the [First and Fourteenth Amendments].

 

Respondent relies heavily ... on statements of this Court to the effect that the Constitution does not protect libelous publications. [] Those statements do not foreclose our inquiry here. None of the cases sustained the use of libel laws to impose sanctions upon expression critical of the official conduct of public officials.... In deciding the question now, we are compelled by neither precedent nor policy to give any more weight to the epithet "libel" than we have to other "mere labels" of state law.[] Like insurrection, contempt, advocacy of unlawful acts, breach of the peace, obscenity, solicitation of legal business, and the various other formulae for the repression of expression ... libel can claim no talismanic immunity from constitutional limitations....

 

The general proposition that freedom of expression upon public questions is secured by the First Amendment has long been settled by our decisions. The constitutional safeguard, we have said, "was fashioned to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people." [] "The maintenance of the opportunity for free political discussion to the end that government may be responsive to the will of the people and that changes may be obtained by lawful means, an opportunity essential to the security of the Republic, is a fundamental principle of our constitutional system."[].... "[I]t is a prized American privilege to speak one's mind, although not always with perfect good taste, on all public institutions" [], and this opportunity is to be afforded for "vigorous advocacy" no less than "abstract discussion"[]. The First Amendment, said Judge Learned Hand, "presupposes that right conclusions are more likely to be gathered out of a multitude of tongues, than through any kind of authoritative selection. To many this is, and always will be, folly; but we have staked upon it our all." [] Mr. Justice Brandeis, in his concurring opinion in Whitney v. California [] gave the principle its classic formulation:

 

Those who won our independence believed ... that public discussion is a political duty.... They recognized the risks to which all human institutions are subject. But they knew that order cannot be secured merely through fear of punishment for its infraction; that it is hazardous to discourage thought, hope and imagination; that fear breeds repression; that repression breeds hate; that hate menaces stable government; that the path of safety lies in the opportunity to discuss freely supposed grievances and proposed remedies, and that the fitting remedy for evil counsels is good ones. Believing in the power of reason as applied through public discussion, they eschewed silence coerced by law - the argument of force in its worst form. Recognizing the occasional tyrannies of governing majorities, they amended the Constitution so that free speech and assembly should be guaranteed.

 

Thus we consider this case against the background of a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials. [] The present advertisement, as an expression of grievance and protest on one of the major public issues of our time, would seem clearly to qualify for the constitutional protection. The question is whether it forfeits that protection by the falsity of some of its factual statements and by its alleged defamation of respondent.

 

Authoritative interpretations of the First Amendment guarantees have consistently refused to recognize an exception for any test of truth ... and especially one that puts that burden of proving truth on the speaker. [] The constitutional protection does not turn upon "the truth, popularity, or social utility of the ideas and beliefs which are offered." N.A.A.C.P. v. Button, []. As Madison said, "Some degree of abuse is inseparable from the proper use of every thing; and in no instance is this more true than in that of the press."[] In Cantwell v. Connecticut, [], the Court declared:

 

In the realm of religious belief, and in that of political belief, sharp differences arise. In both fields the tenets of one man may seem the rankest error to his neighbor. To persuade others to his own point of view, the pleader, as we know, at times, resorts to exaggeration, to vilification ... and even to false statement. But the people of this nation have ordained in the light of history, that, in spite of the probability of excesses and abuses, these liberties are, in the long view, essential to enlightened opinion and right conduct on the part of the citizens of a democracy.

 

[E]rroneous statement is inevitable in free debate, and ... it must be protected if the freedoms of expression are to have the "breathing space" that they "need ... to survive"....[].

Injury to official reputation affords no more warrant for repressing speech that would otherwise be free than does factual error. Where judicial officers are involved, this Court has held that concern for the dignity and reputation of the courts does not justify the punishment as criminal contempt of criticism of the judge or his decision.[] This is true even though the utterance contains "half-truths" and "misinformation."[] Such repression can be justified, if at all, only by a clear and present danger of the obstruction of justice.[] If judges are to be treated as "men of fortitude, able to thrive in a hardy climate" [], surely the same must be true of other government officials.... Criticism of their official conduct does not lose its constitutional protection merely because it is effective criticism and hence diminishes their official reputations.

 

If neither factual error nor defamatory content suffices to remove the constitutional shield from criticism of official conduct, the combination of the two elements is no less inadequate. This is the lesson to be drawn from the great controversy over the Sedition Act of 1798, [] which first crystallized a national awareness of the central meaning of the First Amendment.[] That statute made it a crime ... "if any person shall write, print, utter or publish ... any false, scandalous and malicious writing or writings against the government of the United States, or either house of the Congress..., or the President..., with intent to defame... or to bring them, or either of them, into contempt or disrepute...." The Act allowed the defendant the defense of truth, and provided that the jury were to be judges both of the law and the facts. Despite these qualifications, the Act was vigorously condemned as unconstitutional....

 

Madison prepared the Report in support of the protest. His premise was that the Constitution created a form of government under which "The people, not the government, possess the absolute sovereignty." The structure of the government dispersed power in reflection of the people's distrust of concentrated power, and of power itself at all levels. This form of government was "altogether different" from the British form.... Earlier ... Madison had said: "If we advert to the nature of Republican Government, we shall find that the censorial power is in the people over the Government, and not in the Government over the people."[].... The right of free public discussion of public officials was thus, in Madison's view, a fundamental principle of the American form of government.

 

Although the Sedition Act was never tested in this Court,[] the attack upon its validity has carried the day in the court of history....

 

... What the State may not constitutionally bring about by means of a criminal statute is likewise beyond the reach of its civil law of libel. The fear of damage awards under a rule [such as this] may be markedly more inhibiting than the fear of prosecution under a criminal statute.... The judgment awarded in this case ... was one thousand times greater than the maximum fine provided by the Alabama criminal statute, and one hundred times greater than that provided by the Sedition Act.... Whether or not a newspaper can survive a succession of such judgments, the pall of fear and timidity imposed upon those who would give voice to public criticism is an atmosphere in which the First Amendment freedoms cannot survive....

 

The state rule of law is not saved by its allowance of the defense of truth. A defense for erroneous statements honestly made is no less essential here .... A rule compelling the critic of official conduct to guarantee the truth of all his factual assertions- and to do so on pain of libel judgments virtually unlimited in amount- leads to a comparable "self-censorship." Allowance of the defense of truth, with the burden of proving it on the defendant, does not mean that only false speech will be deterred.[] Even courts accepting this defense as an adequate safeguard have recognized the difficulties of adducing legal proofs that the alleged libel was true in all its factual particulars.[] Under such a rule, would-be critics of official conduct may be deterred from voicing their criticism, even though it is believed to be true and even though it is in fact true, because of doubt whether it can be proved in court or fear of the expense of having to do so. They tend to make only statements which "steer far wider of the unlawful zone."[] The rule thus dampens the vigor and limits the variety of public debate. It is inconsistent with the First and Fourteenth Amendments.

 

The constitutional guarantees require, we think, a federal rule that prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with "actual malice"- that is, with knowledge that it was false or with reckless disregard of whether it was false or not....

 

Such a privilege for criticism of official conduct [] is appropriately analogous to the protection accorded a public official when he is sued for libel by a private citizen.... It is as much his duty to criticize as it is the official's duty to administer. As Madison said, "the censorial power is in the people over the Government, and not in the Government over the people." It would give public servants an unjustified preference over the public they serve, if critics of official conduct did not have a fair equivalent of the immunity granted to the officials themselves.

 

We conclude that such a privilege is required by the First and Fourteenth Amendments.

 

We hold today that the Constitution delimits a State's power to award damages for libel in actions brought by public officials against critics of their official conduct. Since this is such an action, [ ] the rule requiring proof of actual malice is applicable....

 

 

Notes and questions

 

1. Justice Brennan's opinion relies quite heavily on Madison's views about the role expressive freedom plays in a republican system of government. Do you agree that America's form of government was "altogether different" from the British form? Does Sullivan's theory of the First Amendment apply with equal vigour in a parliamentary democracy? Why or why not?

 

2. Should all "false" speech be protected on the theory of Sullivan? Should false statements of fact be treated the same way as false statements of opinion? Holmes's example of a man falsely shouting "fire" in a crowded theater may seem obvious. Can you suggest other situations in which it would be appropriate to prohibit expressive activity simply because it is false?

 

3. Garrison v. Louisiana, 85 S.Ct. 209 (1964), may well represent a high point for the status of false speech under the U.S. Constitution. There, the appellant, a District Attorney in Louisiana, was involved in a dispute with eight judges of the Criminal District Court. During this dispute, he held a press conference at which he issued a statement disparaging their judicial conduct. Specifically, he attributed a large backlog of pending criminal cases to the inefficiency, laziness, and excessive vacations of the judges and suggested that, by refusing to authorize disbursements to cover the expenses of undercover investigations of vice in New Orleans, the judges had hampered his efforts to enforce the vice laws. As a result he was tried and convicted of criminal defamation. Brennan J. reasoned as follows:

 

... [W]here the criticism is of public officials and their conduct of public business, the interest in private reputation is overborne by the larger public interest, secured by the Constitution, in the dissemination of truth. ...

 

Moreover, even where the utterance is false, the great principles of the Constitution which secure freedom of expression in this area preclude attaching adverse consequences to any except the knowing or reckless falsehood. Debate on public issues will not be uninhibited if the speaker must run the risk that it will be proved in court that he spoke out of hatred; even if he did speak out of hatred, utterances honestly believed contribute to the free interchange of ideas and the ascertainment of truth. Under a rule like the Louisiana rule, permitting a finding of malice based on an intent merely to inflict harm, rather than an intent to inflict harm through falsehood, "it becomes a hazardous matter to speak out against a popular politician, with the result that the dishonest and incompetent will be shielded."...

 

Truth may not be the subject of either civil or criminal sanctions where discussion of public affairs is concerned. ... For speech concerning public affairs is more than self-expression; it is the essence of self-government....

 

The use of calculated falsehood, however, would put a different cast on the constitutional question. Although honest utterance, even if inaccurate, may further the fruitful exercise of the right of free speech, it does not follow that the lie, knowingly and deliberately published about a public official, should enjoy a like immunity. ...

 

4. Note that in New York Times the plaintiff was a public official. Subsequent cases have extended the doctrine to "public figures" who are involved in issues in which the public has a justified and important interest. See Curtis Publishing Co. v. Butts and Associated Press v. Walker, decided together at 388 U.S. 130 (1967). In Butts the Saturday Evening Post claimed that the University of Georgia athletic director (and former football coach) had fixed a football game. In Walker, AP reported that the plaintiff, a retired general, had led a violent crowd in opposition to the enforcement of a desegregation order at the University of Mississippi. If the class of public figures is extended beyond public officials, is it possible to draw a meaningful line? See discussion of privacy below.

 

5. How should New York Times be applied in situations where an otherwise private individual is thrust into the limelight? The U.S. Supreme Court considered this issue in Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974) where the plaintiff was a lawyer who acted in a civil suit for the family of an individual shot by a Chicago City policeman. Gertz brought suit when a magazine published by the John Birch Society alleged that he had been part of a communist frameup which led to the policeman's conviction for murder. Gertz was a reputable lawyer, was not involved in the criminal proceedings, and had not discussed the matter with the press. The Court held that New York Times did not apply, limiting the category of public figures as follows:

 

For the most part [public figures are] those who attain this status [by assuming] roles of especial prominence in the affairs of society. Some occupy positions of such persuasive power and influence that they are deemed public figures for all purposes. More commonly, those classes as public figures thrust themselves to the forefront of particular public controversies in order to influence the resolution of the issues involved.

 

6. Can the press be sued in "privacy", i.e., true disclosures about the plaintiff's personal life that are an embarrassing invasion of privacy and not newsworthy? See Cox Broadcasting Corporation v. Cohn, 420 U.S. 469 (1975) whether a father sued a T.V. station for broadcasting the fact that his daughter had been a rape victim. The Court held that civil liability in a privacy action could not be imposed for truthfully publishing information released to the public in official court records.

Hustler Magazine v. Falwell

108 S.Ct. 876 (1988)

 

Rehnquist, C.J.

 

Petitioner Hustler Magazine, Inc., is a magazine of nationwide circulation. Respondent Jerry Falwell, a nationally known minister who has been active as a commentator on politics and public affairs, sued petitioner and its publisher, petitioner Larry Flynt, to recover damages for invasion of privacy, libel, and intentional infliction of emotional distress.... The jury found for petitioners on the defamation claim, but found for the respondent on the claim for intentional infliction of emotional distress and awarded damages....

 

The inside front cover of the November 1983 issue of Hustler Magazine featured a "parody" of an advertisement of Campari Liqueur that contained the name and picture of respondent and was entitled "Jerry Falwell talks about his first time." This parody was modeled after actual Campari ads that included interviews with various celebrities about their "first times." Although it was apparent by the end of each interview that this meant the first time they sampled Campari, the ads clearly played on the sexual double entendre of the general subject of "first times." Copying the form and layout of these Campari ads, Hustler's editors chose respondent as the featured celebrity and drafted an alleged "interview" with him in which he states that his "first time" was during a drunken incestuous rendezvous with his mother in an outhouse. The Hustler parody portrays respondent and his mother as drunk and immoral, and suggests that respondent is a hypocrite who preaches only when he is drunk. In small print at the bottom of the page, the ad contains the disclaimer, "ad parody-not to be taken seriously." The magazine's table of contents also lists the ad as "Fiction; Ad and Personality Parody."

 

Soon after the November issue of Hustler became available to the public, respondent brought this [] action ....

 

... This case presents us with a novel question involving First Amendment limitations upon a State's authority to protect its citizens from the intentional infliction of emotional distress. We must decide whether a public figure may recover damages for emotional harm caused by the publication of an ad parody offensive to him, and doubtless gross and repugnant in the eyes of most. Respondent would have us find that a State's interest in protecting public figures from emotional distress is sufficient to deny First Amendment protection to speech that is patently offensive and is intended to inflict emotional injury, even when that speech could not reasonably have been interpreted as stating actual facts about the public figure involved. This we decline to do.

 

At the heart of the First Amendment is the recognition of the fundamental importance of the free flow of ideas and opinions on matters of public interest and concern. "[T]he freedom to speak one's mind is not only an aspect of individual liberty-and thus a good unto itself-but also is essential to the common quest for truth and the vitality of society as a whole." [] We have therefore been particularly vigilant to ensure that individual expressions of ideas remain free from governmentally imposed sanctions. The First Amendment recognizes no such thing as a "false" idea. []....

 

The sort of robust political debate encouraged by the First Amendment is bound to produce speech that is critical of those who hold public office or those public figures who are "intimately involved in the resolution of important public questions or, by reason of their fame, shape events in areas of concern to society at large." [] Justice Frankfurter put it succinctly ... when he said that "[o]ne of the prerogatives of American citizenship is the right to criticize public men and measures." Such criticism, inevitably, will not always be reasoned or moderate; public figures as well as public officials will be subject to "vehement, caustic, and sometimes unpleasantly sharp attacks." [] ...

 

Respondent argues, however, that a different standard [than Sullivan] should apply in this case because here the State seeks to prevent not reputational damage, but the severe emotional distress suffered by the person who is the subject of an offensive publication. [ ] In respondent's view, ... so long as the utterance was intended to inflict emotional distress, was outrageous, and did in fact inflict serious emotional distress, it is of no constitutional import whether the statement was a fact or an opinion, or whether it was true or false. It is the intent to cause injury that is the gravamen of the tort, and the State's interest in preventing emotional harm simply outweighs whatever interest a speaker may have in speech of this type.

 

Generally speaking the law does not regard the intent to inflict emotional distress as one which should receive much solicitude.... But in the world of debate about public affairs, many things done with motives that are less than admirable are protected by the First Amendment. ...

 

Thus while such a bad motive may be deemed controlling for purposes of tort liability in other areas of the law, we think the First Amendment prohibits such a result in the area of public debate about public figures.

 

Were we to hold otherwise, there can be little doubt that political cartoonists and satirists would be subjected to damages awards without any showing that their work falsely defamed its subject.... The appeal of the political cartoon or caricature is often based on exploration of unfortunate physical traits or politically embarrassing events-an exploration often calculated to injure ... the feelings of the subject of the portrayal. The art of the cartoonist is often not reasoned or evenhanded, but slashing and one-sided....

 

...Despite their sometimes caustic nature, ... graphic depictions and satirical cartoons have played a prominent role in public and political debate.... From the viewpoint of history it is clear that our political discourse would have been considerably poorer without them.

 

Respondent contends, however, that the caricature in question here was so "outrageous" as to distinguish it from more traditional political cartoons. There is no doubt that the caricature of respondent and his mother published in Hustler is at best a distant cousin of the political cartoons described above.... If it were possible by laying down a principled standard to separate the one from the other, public discourse would probably suffer little or no harm. But we doubt that there is any such standard, and we are quite sure that the pejorative description "outrageous" does not supply one. "Outrageousness" in the area of political and social discourse has an inherent subjectiveness about it which would allow a jury to impose liability on the basis of the jurors' tastes or view, or perhaps on the basis of their dislike of a particular expression. An "outrageousness" standard thus runs afoul of our longstanding refusal to allow damages to be awarded because the speech in question may have an adverse emotional impact on the audience....

 

...Admittedly, these oft-repeated First Amendment principles, like other principles, are subject to limitations. ... These limitations are but recognition of the observation ... that this Court has "long recognized that not all speech is of equal First Amendment importance." But the sort of expression involved in this case does not seem to us to be governed by any exception to the general First Amendment principles stated above.

 

We conclude that the public figures and public officials may not recover for the tort of intentional infliction of emotional distress ... without showing in addition that the publication contains a false statement of fact which was made with "actual malice," i.e., with knowledge that the statement was false or with reckless disregard as to whether or not it was true....

 

Justice White, concurring in the judgment

 

As I see it, the decision in New York Times v. Sullivan has little to do with this case, for here the jury found that the ad contained no assertion of fact. But I agree with the Court that the judgment below, which penalized the publication of the parody, cannot be squared with the First Amendment.

 

 

Notes and questions

 

1. Is Rehnquist's opinion in this case consistent with his views about flag desecration? If it is permissible for the state to protect the symbolic status of the flag, why is it not permissible for the law of torts to protect the reputational and privacy interests of individuals? Is an act of flag desecration qualitatively more offensive, or more harmful to its unwilling audience, than commentary that pillories, maligns or belittles an individual would be to the target of an attack?