This is the Waterford Mental Hospital in St. John's, Newfoundland.  Byron Prior sits here on a locked ward against his will.  He was sent here by Judge David Orr on July 20, 2009 after a lenghthly trial and found NOT CRIMINALLY RESPONSIBLE FOR DEFAMATORY LIBEL 1 under section 300 of the Criminal Code of Canada. 

Judge David Orr took the 50 minute, 11/2 page Psychiatric Assessment of David Craig, of St. John's, Newfoundland against 5 world renowned Psychologists from Toronto, Ontario, who performed a 2 week, in-depth assessment performing every psychological test there is.  (see psychiatric assessments)

Byron Prior now sits in Cell #434, a 6 ft. x 10 ft. locked cell, 4 North B, Waterford Mental Hospital Prison Ward.  As of Saturday, October 17th, 2009 - he is being held illegally, as the 90 day assessment period ended. 

Byron Prior sits on this 16-bed prison ward currently with 25 patients/inmates.....!  HOW CAN THAT BE....!  WHAT ABOUT THE FIRE CODE....!  WHERE ARE THESE 9 OTHER PATIENTS/INMATES SLEEPING.....?

As of October 22nd, Byron Prior has still not been released - 5 days past the 90-day Order handed down by Judge David Orr. 

As of October 29th, 2009 - 13 days past the 90-day period, Byron Prior still sits in the Waterford - against his will - awaiting word from the Review Panel and his lawyer - Peter Kearsey - appointed by Mental Health.

On October 29th, 2009 Byron Prior received papers from the  Review Board Panel advising him that they will be keeping him for a further 90 days.......!!

If this is not a BLATANT and DELIBERATE SET-UP to keep him there against his will to see if he will break......then I don't know what else is.......!! 

As of November 9, 2009 Byron has not been able to see his wife or son because there is a shut-down on all hospitals because of the swine flu epidemic. 

In the Provincial Court of Newfoundland and Labrador

Judicial Centre of St. John’s

 Between  

Her Majesty the Queen

And       

Byron Prior

 Judgment

[1] Mr. Prior is charged with a breach of section 300 of the Criminal Code of Canada. On the 29^th of May, 2008, Mr. Prior is alleged to have published a defamatory libel that he knew was false. Mr. Prior has not denied making the alleged defamatory statements. During the trial he gave evidence and admitted that he made the statements.  He has taken the position that the statements that he made were true and are therefore not defamatory. 

THE FACTS

[2] The facts surrounding the making of the statements were not in dispute. The accused has for many years maintained that his younger sister, S.V., was raped and impregnated by a prominent local politician T.H.  The alleged rape was said to have occurred in September of 1966. The accused is certain of the date of the alleged rape as he states that it took place on the evening of a provincial election on the 8^th of September, 1966. The accused stated that on the 8^th of September, 1966, he was at the site where the election victory celebration was to take place in the company of his mother and younger sister, S.V.  He said the he saw his sister accompany T.H. upstairs to the upper floor. He said that he voiced his objection and asked her not to accompany T.H.  He said he was then ordered to leave the premises by another person who was working there. He stated that he left but later that same evening his mother and sister returned to their home. He overheard a conversation between them that led him to belief that S.V. had been raped. . He stated that he later witnessed S.V.’s pregnancy and his mother’s care for her during the time following the alleged assault. The accused maintains the pregnancy was immediately after the alleged events in September of 1966. He stated that his sister S.V. had a child (M.P.) as a result of the rape and the child is presently working at a local business in the province.

[3] The accused made a complaint to the police about the alleged sexual assault of S.V. and her later pregnancy. He did so in an oblique manner in a series of statements. Two of his initial statements made in 1998 were entered at the trial. The first was made on the 3^rd of July, 1998 to Constable Warr at RCMP headquarters in St. John’s.  The statement is very lengthy and was recorded.  The transcribed text of the statement is 96 pages long. Constable Warr invites Mr. Prior to relate any and all information of sexual, emotional and physical abuse starting with his earliest memories. Mr. Prior relates a great deal of detailed information about himself and other family members including S.V., describing the details of any abuse that he witnessed. Despite the numerous incidents that he recounts, he does not mention T.H. at all in this statement and does not mention the alleged assault on the evening of the 1966 election.

[4] In a second statement made to the RNC on the 24^th of July, 1998, he again gives a very detailed statement about sexual abuse in his family, relating incidents concerning himself, S.V., and other family members. The only mention he makes of T.H. is that he stated T.H. may have been involved in covering up incidents of abuse that took place within the family. He goes on to say that he had no evidence to offer that T.H. was involved in a cover up.  He simply had a “gut feeling” that he was. Indeed, at one point in the interview he was asked, “Was (T.H.) involved with your mother at all?”  Mr. Prior replied, “I wish I knew, if I did you wouldn’t have to be wondering about it. I’d be letting you know.” This is inconsistent with his later statements and his evidence at the trial. He stated that the reason that these earlier statements did not name T.H. as an assailant was because he felt that T.H. was too influential a person for him to bring an allegation against. He said that he wanted the police to discover the assault via a police investigation. This explanation makes very little sense and is not consistent with the balance of the content of these statements which are lengthy and detailed.  His statement that he was afraid to bring forward an allegation against T.H. after alleging in his 1998 statement to the police that he had a “gut feeling” T.H. was involved in a cover up is not credible.   

[5] The police did act on the complaint when it was made and interviewed S.V. on two occasions, once in 2004 and again in 2007. They also were in contact with her before this proceeding. The police evidence was that S.V. denied that she had been assaulted by T.H. and indeed stated to the police that she did not know T.H.  Likewise, T.H. was interviewed by the police and denied that he knew S.V., the accused, or his family in 1966. He has since, of course, as a result of this offence become aware of the accused.  T.H. testified at the trial and denied that he had committed any offence toward S.V., the accused, or any member of his family. He stated that he did not know the accused or his family in 1966 that there was no victory party or celebration in 1966 in the location claimed by the accused. He testified that during the election in 1966 he did not even have a formal campaign headquarters. He stated that he spent the night of the election at the home of two of his relatives.

[6] Counsel for the Crown entered as exhibits S.V.’s birth certificate and the birth certificate of M.P., who Mr. Prior alleges was the child born as a result of the alleged rape.  S.V., according to her birth certificate, was born in December of 1955, making her ten years old at the time of the alleged rape.  M.P.’s birth certificate states that she was born in January of 1968. It is quite obvious that these dates are not consistent with Mr. Prior’s allegation of assault and pregnancy and indeed make it quite clear that his allegation cannot be true. Mr. Prior’s response to the birth certificates is that they are not correct and have been made deliberately inaccurate to cover up T.H.’s actions. 

[7] There is no corroboration for Mr. Prior’s allegation in any of the evidence. The allegation is contradicted by the denials of the parties alleged to be the subject of the allegation, the birth certificates, the police investigation, and  Mr. Prior’s inconsistent statements to the police.  All of this establishes that there was no such assault. I would note with respect to the denials of the parties, S.V. did not testify at this proceeding. There was an application for her to testify by video link which was denied. Consequently, the evidence of her statements to the police are relied on only for the purpose of establishing that the police did interview her and informed the accused of the results of that interview. The accused in his evidence did acknowledge that S.V. did not support his actions or allegations.  

[8] Mr. Prior has engaged in a campaign to publicize his allegations that T.H. had raped his sister. In the past, he has made statements about it on the internet, he has set up a booth on Parliament Hill in Ottawa with signs on it claiming that T.H. had assaulted S.V., and has printed and distributed pamphlets to that effect.

[9] In relation to the specific allegation before the Court, the evidence was that Inspector Carroll was driving on the Prince Philip Parkway in St. John’s on the 29^th of May, 2008. Inspector Carroll testified that he saw the accused standing on the sidewalk near the east parking lot of the Confederation Building. The accused had a Newfoundland and Labrador flag draped over his shoulders and had a placard with the words on it that : “(T.H.) is a child rapist, police, lawyers and politicians cover up DNA.” There was also a reference to a web site contained on the placard. Inspector Carroll was concerned about the content of the placard and contacted police headquarters to ask that the matter be investigated. Constable Normore was assigned to investigate the matter.

[10]        Constable Normore had investigated a similar complaint regarding the accused and T.H. in 2007. Constable Normore was already aware of the activities of the accused on Prince Philip Parkway having been informed about it on the 27^th of May, 2008. As a result of that, he had been in contact with the Crown Attorney’s office and had a package of information prepared and a letter to serve on Mr. Prior. The package of information he had to serve contained two statements from S.V., a one page statement obtained by another police force, and a 17 page transcript of a statement taken by Constable Normore.  It also contained a copy of a Supreme Court decision in relation to the earlier allegation. This package was entered as Consent #5.

[11]        Constable Normore drove to the Prince Philip Parkway and observed the accused standing on the sidewalk wearing a placard and distributing pamphlets. The placard was as described by Inspector Carroll and entered as Consent exhibit #3, and the pamphlets were entered as Consent #4.  Both the placard and pamphlets contained the allegation that T.H. was a child rapist.

 [12]        Constable Normore approached the accused and spoke to him and read the letter prepared by the Crown Attorney’s office. He then served the accused with the package and advised him of its contents. The conversation between the accused and Constable Normore was recorded and the recording and the transcript of the recording were entered at the trial. He asked Mr. Prior to stop his activity of displaying the placard and distributing the pamphlets. Mr. Prior refused and was subsequently arrested by Constable Normore and charged with this offence.          

THE LAW

[13]        Section 300 of the Criminal Code states :

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

[14]        A defamatory libel is defined in section 298 as:

“.. 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.”

[15]        Section 299 defines publishing as:

“A person publishes a libel when he

a) exhibits it in public

b) causes it to be seen or

c) shows it 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.”

[16]        The accused has in this case caused the external circumstances of the offence to occur. The matters published clearly contain statements that are defamatory. He has caused these statements to be published in the methods specified in section 299 by exhibiting them both on a sign and by distributing leaflets with the allegations contained in them. The only issue that remains to establish the complete offence is whether or not the accused had the mens rea to commit the offence.

[17]        In R v Lucas 1998 CanLII 815 (S.C.C.), (1998), 14 C.R. (5th) 237, the Supreme Court held at paragraph 30:

“ It (the crown) must also prove both that the accused knew the defamatory libel was false and that the intent was to defame.” 

[18]        There is in this case no question that the accused intended that his words defame T.H.  His settled intention was to “expose” the crimes of T.H. to the public and thereby redress the wrongs he believes he and his family have suffered at T.H.’s hands. The issue in this case is that the accused has stated he believes the statements about T.H. are true and as a result has argued that given that belief he cannot be convicted of the offence.

[19]        I am satisfied that the statements made by the accused are false and that there is no evidence that the sexual assault he alleges ever took place. In fact, the evidence conclusively establishes that it did not. There is no objective evidentiary basis upon which the accused could base his belief and he was told by Constable Normore to stop publishing the statements as the police were satisfied they were untrue. 

[20]        Given the apparent unreasonableness of the accused’s belief which he continues to hold in the face of a great deal of contrary evidence, I found that an assessment of the accused was warranted. This was necessary in light of the extreme efforts that he has made to publicize his obviously false beliefs, activity that would appear to be beyond what one would expect from a rational person, activity he carried out despite being told by S.V., the supposed victim of the offence, that she wanted him to stop his activities. He persisted in traveling to Ottawa and setting up a booth on Parliament Hill and distributing leaflets setting out his allegations. He has spent hours and days of his time at various public places most, recently in this province displaying signs with his allegations displayed upon them. All of this gives rise to a concern that the accused may be suffering from a mental disorder.

[21]        It is clear that the court cannot raise the issue of criminal responsibility on its own motion. In R v. Swain, 1991 CanLII 104 (S.C.C.), [1991] 1 S.C.R. 933 the Supreme Court held:  

An accused person has control over the decision of whether to have counsel, whether to testify on his or her own behalf, and what witnesses to call. This is a reflection of our society's traditional respect for individual autonomy within an adversarial system.

[22]        In R v Piette, 2005 BCSC 1724 (CanLII), 2005 BCSC 1724, the court held that a court does not have the authority to raise the issue of NCRMD on its own motion but can order an assessment of the accused in relation to the issue.

Part XX.1 provides the trial judge with a spectrum of procedural steps that may be taken with respect to an accused whose mental capacity is in question. Section 672.11 permits a trial judge to order a psychiatric assessment to assist in determining a number of issues relating to mental incapacity as described in the section. Section 672.12 permits the trial judge to order an assessment at any stage of the proceedings where there are reasonable grounds to believe the evidence is necessary to determine mental capacity. The section does not say a court may raise the issue of mental capacity independently of either party. The power of a court to override the fundamental and constitutionally protected right of an accused to conduct his or her defence at trial would require the clearest of language. Such language is absent from s. 672.11 and s. 672.12.

In my view, the provisions empowering a court to make an assessment order may be invoked where the mental capacity of an accused has been placed in issue by an accused or by the Crown - that is, in a manner consistent with the constitutional rights of an accused as described in Swain - but where neither party has adduced evidence sufficient for a court to determine the issue. In that case, a trial judge may order an assessment independent of an application by either party in order to provide the court with evidence to assist it in making its determination with respect to the mental capacity of an accused.

It may be, as the Crown argues, that a trial judge is empowered by these sections to order an assessment in the absence of either party raising the issue of mental capacity. If that is so, I am of the view that an accused or the Crown must nevertheless raise the issue of mental capacity before the court can consider a verdict of NCRMD. The assessment may persuade one or the other of the parties to invoke the mental incapacity defence. However, the defence must be raised in the manner described in Swain. The burden is then on the party raising the issue of mental capacity to prove the issue on a balance of probabilities.

[23]        In light of the evidence and Mr. Prior’s strongly held belief that T.H. committed an offence that on the objective evidence presented could not be true, an assessment was ordered pursuant to section 672.11.  The order was made to provide counsel with information concerning the mental condition of the accused.  An out of custody assessment was carried out by Dr. Craig.  Dr. Craig provided an opinion to the court that Mr. Prior is suffering from a mental illness, delusional disorder. Counsel for the Crown as a result asked to pursue the issue of a verdict of NCRMD.  Mr. Prior, through his counsel, asked to obtain a second opinion in relation to the issue.

The second opinion was obtained and the accused was assessed by Dr. Semple who is a registered psychologist in the Province of Ontario. Dr. Semple was called at the trial and qualified as an expert in the field of psychology and testified on behalf of the accused. Dr. Semple working in conjunction with several others provided a report and concluded that the accused does not suffer from delusional disorder or other psychotic illness. Dr. Semple testified that the accused was tested with a number of psychological tests by several of his colleagues. He interviewed Mr. Prior and administered a personality test and two other psychological tests. He testified that in his view Mr. Prior had a traumatic childhood and had suffered as a result of that. He stated that he thought Mr. Prior was depressed and in addition suffered from a neurosis and should be treated for those conditions. He did not state what type of neurosis Mr. Prior had but he believed Mr.Prior’s actions had been harmful to himself and had a detrimental effect on his family. He stated that he did not think Mr. Prior anticipated what the official response would be to his actions in making his allegations against T.H. and that Mr. Prior believed that these allegations were true.

On cross examination Dr. Semple was reluctant to acknowledge that Mr.Prior’s statements about T.H. were false. Instead he maintained that allegations of the type alleged are difficult to prove or disprove. Dr. Semple relied almost exclusively on his test results and the information provided by his interview with Mr. Prior to form his opinion. I did not find that Dr. Semple’s opinion properly addressed the issue before the court and as a result I do not find it helpful in addressing the issue of NCRMD.      

[24]        In relation to the issue of NCRMD, the onus is on the party raising the issue to establish it on a balance of probabilities. The opinion of Dr. Craig is that the accused is suffering from a disease of the mind, delusional disorder, the severity of which was such as to render him incapable of appreciating that his acts were wrong.

[25]        In R. v. Chaulk 1990 CanLII 34 (S.C.C.), (1990), 2 C.R. (4th) 1, the court held that wrong means morally wrong not legally wrong. The issue is whether the accused due to disease of the mind, was rendered incapable of knowing that the act committed was something that he ought not to have done. The accused may well be aware the act is contrary to law but, by reason of disease of the mind, at the same time be incapable of knowing that the act is morally wrong in the circumstances, according to the moral standards of society.  

[26]        R v. Oomen 1994 CanLII 101 (S.C.C.), (1994), 30 C.R. (4th) 195 holds that section 16(1) embraces not only the intellectual ability to know right from wrong in an abstract sense but also the ability to apply that knowledge in a rational way to the alleged criminal act. The provision focuses upon the particular capacity of the accused to understand that the act was wrong at the time it was committed.

[27]        In this case, the accused suffers from a disease of the mind, delusional disorder and had a false belief that deprived him of the capacity to rationally make a choice about the rightness or wrongness of his actions. Were his beliefs true about the crimes of T.H., his actions in publicizing them did, in the words of Dr. Craig, “ … constitute a legitimate attempt (although extreme) attempt to bring T.H. to justice.”

[28]        Consequently I am satisfied that counsel for the Crown has met the burden of proof in establishing that the accused was not criminally responsible at the time of the offence and a verdict of not criminally responsible on account of mental disorder is entered.   

Disposition

The court makes no disposition at this time. The accused is remanded in custody to the Waterford Hospital pending a disposition by the review board.

Dated at St. John’s

This 20^th Day of  July, 2009

                                                                                      David Orr

                                                                                          P.C.J.

 Counsel for the Crown      E. Reid

Counsel for the Accused   M. Coady

T. H. = T. ALEXANDER HICKMAN - FORMER CHIEF JUSTICE OF THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR (1979-2000) - FORMER JUSTICE MINISTER OF NEWFOUNDLAND AND LABRAOR (1966-1979)

S. V. = SUZANNE PRIOR VIEIRA (BYRON'S SISTER)

 

M. P. = MARJORIE PRIOR ANSTEY (BYRON'S NIECE - SUZANNE'S DAUGHTER AND T. ALEX HICKMAN'S DAUGHTER, EMPLOYED AT HICKMAN MOTORS, BURIN, NEWFOUNDLAND).

• Article rank
• 1 Aug 2009
• The Telegram
• BY ALISHAMORRISSEY amorrissey@thetelegram.com
• THE TELEGRAM

Mentally ill man held not criminally responsible for libel

She denied it for a third time before the charges were laid against her brother.

The politician was also interviewed and he denied knowing the girl or Prior at the time the incident was supposed to have happened. He denied anything ever happened with the girl.

He said he became aware of the family because of the allegations levelled against him by Prior.

The court ruled that based on the timelines outlined by Prior, his claims were impossible.

“Mr. Prior has engaged in a campaign to publicize his allegations …,” the decision reads. “In the past, he has made statements about it on the Internet, he has set up a booth on Parliament Hill in Ottawa with signs on it … and has printed and distributed pamphlets to that effect.”

Two assessments

Prior had two separate psychological assessments. One showed he suffers from a delusional disorder. The second said he was depressed and suffers from neurosis as a result of a traumatic childhood, but is not delusional.

“In this case, the accused suffers from a disease of the mind, delusional disorder and had a false belief that deprived him of the capacity to rationally make a choice about the rightness or wrongness of his actions,” Orr wrote. “… A verdict of not criminally responsible on account of mental disorder is entered.”

Prior remains at the Waterford.

IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR TRIAL DIVISION

Citation: R. v. Byron Prior, 2008 NLTD80

Date: 20080502

Docket: 200701T1240

HER MAJESTY THE QUEEN

V.

BYRON PRIOR

____________________________________________________________

Before: The Honourable Madam Justice Lois R. Hoegg

____________________________________________________________

Place of hearing: St. John's, Newfoundland and Labrador

Held:

Section 301 of the Criminal Code of Canada contravenes the Charter right to freedom of expression. The section is not saved by section 1, and is therefore unconstitutional.

Appearances:

Elaine Reid for the Crown

Derek Hogan & Sean Montague for Byron Prior

Authorities Cited:

CASES CONSIDERED: R. v. Lucas, [1998] S.C.J. No. 28; R. v. Oakes, [1986] 1 S.C.R. 103; Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927; Hill v. Church of Scientology, [1995] 2 S.C.R. 1130; R. v. Zundel, [1992] S.C.C. 731; R. v. Big M Drug Mart Ltd. (1985), 18 D.L.R. (4th) 321 (S.C.C.); R. v. Stevens (1995), 96 C.C.C. (3d) 238 (Man.C.A.); Gleaves v. Deakin and Others, [1979] 2 All E.R. 497; R. v. Keegstra (1991), 61 C.C.C. (3d) 1 (S.C.C.); R. v. Finnegan, [1992] A.J. No. 1208 (Alta. Q.B.); R. v. Lucas, 1995 CarswellSask 130 (Sask. Q.B.); R. v. Gill, 1996 CarswellOnt 1314 (Gen. Div.); R. v. Holbrook (1878), 4 Eng. Q.B.D. 42 (Eng.Q.B.)

STATUTES CONSIDERED: ss. 1 and 2(b) of the Canadian Charter of Rights and Freedom; ss. 298, 299 300 and 301 of the Criminal Code; Libel Act, 1843 (6 & 7 Vict.) c. 96

REASONS FOR JUDGMENT

HOEGG, J.:

INTRODUCTION

·  The accused Byron Prior is charged with three breaches of section 301 of the Criminal Code - publishing defamatory libel.

·  Section 301 reads:

"Everyone who publishes a defamatory libel is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years."

Simply put, to convict Mr. Prior the Crown must prove that on the dates and places specified in the Indictment, Byron Prior exhibited matter in public likely to injure the reputation of the complainant by exposing him to hatred, contempt, ridicule or insult.

FACTS

1.     The Crown alleges that at three different times, Mr. Prior distributed flyers and/or wore a placard alleging that the complainant, a public justice figure, had raped and impregnated the accused’s twelve–year–old sister in 1966. A complaint was made, and its investigation by the Royal Newfoundland Constabulary included interviews of the accused’s sister, Suzanne Vieira, on two occasions in 2004 and once in 2007. On each of these three occasions Ms. Vieira denied having been sexually assaulted by, or even knowing, the complainant. However, the Crown has no evidence to show that Mr. Prior knows his allegations against the complainant are false. Presumably if the Crown felt it could prove Mr. Prior knowingly published defamatory libel, it would have charged him under section 300.

[5] Section 300 – publishing defamatory libel knowing it to be false – has been declared constitutional (R. v. Lucas, [1998] S.C.C. No. 28). Section 300 reads:

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.

THE POSITIONS OF THE CROWN & DEFENCE

1.     Mr. Prior challenges the constitutionality of section 301. He argues that it contravenes his Charter right to freedom of expression, and that it is not saved by section 1.

2.     Both Crown and Defence agree that section 301 violates the right to freedom of expression. Although the Supreme Court’s decision in Lucas concerns section 300, its finding that section 300 contravenes freedom of expression is, in my view, equally applicable to section 301.

3.     The parties’ positions diverge at this juncture. The Crown maintains that like section 300, section 301 is saved by section 1 of the Charter. Mr. Prior, however, maintains that section 301 is not a reasonable limit on the right to freedom of expression, and therefore is not saved.

THE LAW

The mental element of section 301 is the "intention to publish and defame" (Lucas). The offence does not speak to whether the published matter is true or false, or whether it is known by the libeler to be true or false. In this respect, it differs from section 300 of the Code. Section 300 requires the Crown to prove that an accused knows the libel he or she is publishing to be false.

In Lucas the Supreme Court of Canada found that section 300 contravenes the right to freedom of expression guaranteed by section 2(b) of the Charter of Rights and Freedoms, but that it is saved by section 1 because it is a reasonable limit on freedom of expression justified in our free and democratic society. The court applied the section 1 saving test established in R. v. Oakes, [1986] 1 S.C.R. 103, and found section 300 justified. In so doing, the court reasoned in paragraph 48:

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

In my reading of Lucas, an accused’s knowledge of the falsity of the libel is significant to the court’s decision.

ISSUE

1.     The issue for this Court is whether section 301 of the Code is saved by section 1 of the Charter.

ANALYSIS

The onus of justifying section 301’s limit on freedom of expression rests with the party seeking to uphold the section, and the standard for the justification is the balance of probabilities (Oakes). In that case, former Chief Justice Dickson set out the approach a court must take in determining whether a law that violates the Charter can be saved by section 1:

1. Is the limit on the right prescribed by law?

2. Is the objective for which the legislation was enacted sufficiently pressing and important to override a Charter freedom?

and,

3. Is there proportionality between the effects of the measures which limit the Charter freedom and the important legislative objective? To answer this third question, the court must consider whether there is a rational connection between the legislative objective and the means chosen to achieve it, whether the means chosen minimally impairs the Charter right, and whether the deleterious effects of the restriction outweigh its salutary effects.

Is Section 301 a limit prescribed by law?

Mr. Prior and the Crown both say that Section 301 constitutes a limit prescribed by law. I agree, for the following reasons. Section 301 has been in the Criminal Code for over one hundred years, and accordingly cannot be said to be arbitrary or to take people by surprise. The section, along with the necessarily implicated definitions found in sections 298 and 299 of the Code, uses common words capable of interpretation, thereby providing "an intelligible standard according to which the judiciary must do its work" (Lucas). The section is therefore not defeated by vagueness (Irwin Toy v. Quebec (Attorney General), [1989] 1 S.C.R. 297).

 Is the objective of Section 301 sufficiently pressing and substantial to override a Charter freedom?

[14] The Crown says that the objective of section 301, like section 300, is to protect personal reputation. It relies on paragraph 48 of Lucas to support its position that protection of reputation is so pressing and important as to override freedom of expression. Mr. Prior acknowledges that protection of reputation from willful and false attack is a pressing and substantial objective in our society, but argues that protecting an individual’s reputation from truthful attack is not a pressing and substantial objective. Because section 301 can prevent the publishing of defamatory but truthful matter, the section cannot stand. Mr. Prior’s argument is essentially that suppression of truth is simply too great a cost to pay to protect reputation. Mr. Prior cites the Lucas case and R. v. Zundel, [1992] S.C.C. 731 in support of his argument.

[15] The following passages from these cases inform the issue by underscoring the importance of the pursuit of truth to our society. The court stated at paragraph 90 of Lucas:

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. (My emphasis)

[16] In Zundel, McLachlin, J. said at paragraph 22:

The purpose of the guarantee is to permit free expression to the end of promoting truth, political or social participation, and self-fulfillment. (My emphasis) That purpose extends to the protection of minority beliefs which the majority regards as wrong or false: Irwin Toy, supra, at p. 968 [S.C.R.]. Tests of free expression frequently involve a contest between the majoritarian view of what is true or right and an unpopular minority view. As Holmes J. stated over 60 years ago, the fact that the particular content of a person’s speech might "excite popular prejudice" is no reason to deny it protection for "if there is any principle of the Constitution that more imperatively calls for attachment than any other it is the principle of free thought - - not free thought for those who agree with us but freedom for the thought that we hate": Schwimmer v. United States, 279 U.S. 644 (1929), at p. 654. Thus the guarantee of freedom of expression serves to protect the right of the minority to express its view, however unpopular it may be; adapted to this context, it serves to preclude the majority’s perception of "truth" or "public interest" from smothering the minority’s perception. The view of the majority has no need of constitutional protection; it is tolerated in any event. Viewed thus, a law which forbids expression of a minority or "false" view on pain of criminal prosecution and imprisonment, on its face, offends the purpose of the guarantee of free expression.

[17] The next step is to determine the objective of section 301 and its importance relative to freedom of expression. Is the objective of section 301 the same as the objective of section 300, ie. protection of reputation? Can two sections of the Code have the same objective if they are differently worded, or if the mens rea requirements differ, ie. if one section (300) requires knowledge of falsity and the other (301) does not? If so, is it necessary or justifiable to have two sections of the Criminal Code with the same objective? Is the objective so important that it overrides the right to freedom of expression?

[18] It is well established that the objective of a law is determined by judging the objective of those who drafted and enacted it at the time it was proclaimed (R. v. Big M Drug Mart Ltd. (1995), 18 D.L.R. (4th) 321 at 335 (S.C.C.)). This principle was reinforced in Zundel, where McLachlin, J. stated at p. 761 that a court "cannot assign objectives, nor invent new ones according to the perceived current utility of the impugned provision" when deciding the objective of legislation.

[19] It is therefore necessary to review the history of the crime of defamatory libel. For the history of sections 300 and 301, I rely on the Supreme Court’s decision in Lucas, the Manitoba Court of Appeal case R. v. Stevens (1995), 96 C.C.C. (3d) 238 (Man. C.A.), the House of Lords case Gleaves v. Deakin and Others, [1979] 2 All E.R. 497, Crankshaw’s Criminal Code of Canada and the English Libel Act, 1843 (6 & 7 Vict.) c. 96, which is also known as Lord Campbell’s Act. This statute modified and codified criminal libel law in England in 1843. It also introduced a new offence of aggravated defamatory libel (section 4). The new offence of aggravated defamatory libel has evolved to what is now section 300 of the Code, which requires the accused to have knowledge of falsity of the libel he or she publishes.

[20] On the other hand, the forerunner to section 301 was section 5 of Lord Campbell’s Act, simple defamatory libel. Both paragraphs 4 and 5 of this Act were incorporated into Canadian criminal law in 1874 (An Act respecting the Crime of Libel, S.C. 1874, c.38), became part of the first Canadian Criminal Code in 1892 and evolved over time and through various revisions into sections 300 and 301 as found today in the Code.

[21] I accept Chief Justice Scott’s and Mr. Justice Twaddle’s historical reviews of criminal libel law as described in Stevens, and note that Mr. Justice Twaddle’s extensive work was quoted with approval by the Supreme Court of Canada in Lucas.

[22] Although the objective of section 300 (aggravated defamatory libel) may be the protection of reputation, I am not convinced that the original objective of section 301 (simple defamatory libel) was the same. I am inclined to the view that the objective of the crime of simple defamatory libel was to prevent breaches of the peace. I am mindful of the Supreme Court’s statements in paragraphs 40 to 47 of the Lucas judgment which seem to indicate that the objective of criminal libel law at the time Lord Campbell’s Act was proclaimed was to protect reputation. However, the Supreme Court was considering this issue in the specific context of section 300 (section 4 of Lord Campbell’s Act) which clearly was enacted for that purpose. To my mind it is clear from Twaddle J.A.’s meticulous research, including his examination of the parliamentary debates relating to the enactment of the Libel Act as well as other legal literature, that prior to the Libel Act, the interest of the state, manifested in the offence of criminal libel, was to prevent the dissemination of libelous material in order to prevent breaches of the peace. This was on the theory that men would seek revenge by resorting to violence if their honour was libeled. Whether the "libel" was true or false was irrelevant. This theory continued to manifest itself in cases through the nineteenth century, as acknowledged by the court in their reference to R. v. Holbrook (1878), 4 Eng. Q.B.D. 42 (Eng. Q. B.).

[23] In determining the objective of the offence of defamatory libel, the Supreme Court referenced the preamble to Lord Campbell’s Act which states that the codified law of defamatory libel is to protect reputation. In visiting the history of the law, the Supreme Court judgment in Lucas reads at paragraphs 41 to 43:

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

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.

It is clear that the court found that the objective of the offence of aggravated defamatory libel, at the time it was enacted in 1843, was protection of reputation. However, the court did not appear to specifically turn its mind to the offence of simple defamatory libel which, unlike aggravated defamatory libel, was not a new offence introduced in Lord Campbell’s Act.

·  In order to review the objective of the offence of simple defamatory libel, it seems to me that it is necessary to consider its history prior to the Libel Act. To my mind, if Canada adopts English law as codified by the Libel Act, it adopts the history that comes with it. When one considers the differences between sections 4 and 5 of the 1843 Act, and the differences between sections 300 and 301 today, it becomes clear that while both sections address reputation, the sections are different and may have different purposes.

·  There is no doubt that the purpose of the new offence of aggravated defamatory libel (equivalent to section 300) was "for the better protection of private character" as the Supreme Court of Canada found. Despite the preamble to Lord Campbell’s Act, it appears to me that the purpose of the bare offence of criminal libel, which existed prior to 1843 and is the forerunner of section 301, was to prevent the provocation of breaches of the peace. This is essentially acknowledged by the court in the above referenced paragraphs of the Lucas judgment.

The Stevens case is also helpful. Chief Justice Scott delivered the court’s judgment. He said at 247:

In 1843, as a result of a report of a committee of the House of Lords, the Libel Act, 1843 (U.K.), c. 96 (Lord Campbell’s Act) was passed. The preamble to Lord Campbell’s Act described its purpose as being: "For the better Protection of private Character, and for more effectually securing the Liberty of the Press, and for better preventing Abuses in exercising the said Liberty".  

It has been accepted ever since that one of the principal objects of this legislation was to provide a measure of protection to the press, who frequently appeared as defendants in criminal libel proceedings. Proceedings for defamatory libel were at times commenced by the Crown at the urging of prominent persons seeking public vindication, or by way of private prosecution. Yet, prior to Lord Campbell’s Act, truth could not be pled successfully. Truth, while always a defence to a civil action for libel, was not a defence to a criminal charge of libel since the essence of the offence continued to be that publication was likely to cause a breach of the peace. Hence, it was a crime "that the state had an interest in repressing", the maxim being "the greater the truth, the greater the libel": see W. Odgers, An Outline of the Law of Libel (London: MacMillan & Co. Ltd. 1897), at p. 181. The Act’s most significant change, therefore, was to make truth a defence provided the defendant could prove both that the statement was true and "that it was for the public benefit that the said matters charged should be published". This benefit provided a compensating public advantage to any risk of a breach of the peace. (My emphasis) In fact, this change was also of benefit to the victim. Since evidence of truth was now admissible, the public would be left in no doubt as to the falseness of the publication should there be a conviction.

[28] And Mr. Justice Twaddle said at p. 295:

Having regard to the history of the offence as I have outlined it and particularly to the proceedings before the select committee, I am of the view that Lord Campbell’s Act might be viewed as the watershed which divides the days when the law’s objective was the maintenance of peace and those when the law’s objective was primarily the protection of reputation. And in particular, the objective of s. 4 of Lord Campbell’s Act was the protection of reputation from willful and false attack.

[29] Several of the Lords writing in the Gleaves case also maintain that the purpose of bare defamatory libel was to maintain the peace. In particular, Lord Diplock stated at page 498:

The original justification for the emergence of the common law offence of defamatory libel in a more primitive age was the prevention of disorder, to use the words of art of the European Convention, which describes the various grounds on which public authority may interfere to restrict or penalise freedom of expression.

The reason for creating the offence was to provide the victim with the means of securing the punishment of his defamer by peaceful process of the law instead of resorting to personal violence to obtain revenge.

[30] And, Lord Scarman said at p. 508:

It is, however, not every libel that warrants a criminal prosecution. To warrant prosecution the libel must be sufficiently serious to require the intervention of the Crown in the public interest. The requirement has developed from the common law principle that a criminal libel was one of the tendency of which was to provoke a breach of the peace. As Blackstone put it (quoted by Wien J. in Goldsmith v. Pressdram): … in a criminal prosecution, the tendency which all libels have to create animosities, and to disturb the public peace, is the whole that the law considers’.

[31] It appears to me that the Supreme Court’s decision that protection of reputation was the objective of criminal libel law is more appropriately confined to section 300 of the Code.

[32] There are other reasons why I question whether the objective of section 301 is to protect reputation. The wording of section 301 is different from section 300, and the mens rea requirements of the sections are substantially different. The sections catch different types of offenders. To me, it naturally follows that their purposes or objectives must be different.

[33] As well, it seems to me that if the objective of a law is to protect reputation, knowledge of the libel’s falsity must be an essential element of an offence which criminalizes the publication of the libel. For if a libel be true, the reputation at stake is not a reputation at all. I think it is fair to assume that it is presumed in the phrase "protection of reputation" that the reputation is good, at least to the point that it would suffer some damage from a libel. To my mind a reputation rests on truth. It should not be isolated from the truth and does not deserve protection from the truth. In this regard I rely on Hill v. Church of Scientology of Toronto, [1995] 2 S.C.R.

1130, wherein the court stated at paragraph 108 that "a democratic society, therefore, has an interest in insuring that its members can enjoy and protect their good reputation so long as it is merited". (My emphasis) To my mind, it would be wrong to suppress truth to protect sensibilities or an unmerited reputation. To do so would be inimical to the values our society holds dear.

[34] I would therefore find that section 301’s objective is to prevent breaches of the peace. Is this objective so pressing and substantial as to justify its salvation by section 1 of the Charter? I do not think so. In my view, the Criminal Code provides other means of preventing breaches of the peace, should a breach of the peace occur as a result of the publication of a libel. It could just as easily be said that looking at somebody the wrong way could provoke a breach of the peace. It would surely not be asserted that looking at someone the wrong way is behaviour that ought to be criminalized on the chance it could provoke a breach of the peace. In citing this example, I do not mean to equate it with the publication of the defamatory matter at issue in this case. I simply mean to illustrate that the causes of breaches of the peace are many, and are often lawful, and the remedy is surely not to criminalize the causative conduct. Regardless of what may cause a breach of the peace, if the peace is breached, there are criminal law remedies available to protect society’s interest in maintaining order, provided the elements of the particular offence charged and the requisite mens rea are proved.

[35] If I am wrong in concluding that the objective of section 301 of the Code is to prevent breaches of the peace and not to protect reputation, I would have to find that the objectives of section 300 and 301 diverge into protection of reputation from willful and false attacks and protection of reputation from any attack regardless of its truth, respectively. I would go on to find that the objective of protecting reputation from any attack regardless of its truth is not so pressing and important as to override the Charter right to freedom of expression. Further, it was not asserted that there is, nor does there appear to me to be, a pressing social disorder problem instigated by the publication of libel.

[36] Accordingly, I would find that neither the objective of preventing breaches of the peace nor the protection of reputation from any attack regardless of its truth to be sufficiently pressing and important so as to override the Charter right to freedom of expression and thereby warrant its salvation by section 1 of the Charter.

Is there proportionality between the effects of the measures limiting the right and achieving the important objective?

[37] If I am wrong in striking section 301 on the basis that the objective of preventing breaches of the peace is not pressing and substantial, I would go on to strike section 301 on the third part, ie. the proportionality aspect of the Oakes test. To my mind, there is little to no rational connection between the legislative objective of preventing breaches of the peace and the publication of libel.

[38] If I am wrong and it is determined that the objective of section 301 is to protect reputation, I would also strike section 301 on the proportionality aspect of the Oakes test. To my mind, subjecting people to criminal charges for publishing the truth does much more than minimally impair their Charter right to freedom of expression. The notion that a citizen could be convicted of a criminal offence for publishing the truth, or for mistakenly publishing a falsehood, or for publishing a falsehood while believing it to be true, flies in the face of the Supreme Court of Canada decisions in both R. v. Keegstra (1991), 61 C.C.C. (3d) 1 (S.C.C.), and Zundel, and is entirely at odds with modern views of mens rea in criminal law. The criminalization of publication of libel, without knowledge of its falsity, conflicts with what has been described as a core value of our society: the search for, and the promotion of, truth. For the same reason, I believe the deleterious effects of the restriction to the right imposed by section 301 far outweigh any salutary effects it may have. I cannot say it better than Lord Diplock in Gleaves:

The examination of the legal characteristics of the criminal offence of defamatory libel as it survives today, which has been rendered necessary in order to dispose of this appeal, has left me with the conviction that this particular offence has retained anomalies which involve serious departures from accepted principles on which the modern criminal law of England is based and are difficult to reconcile with international obligation which this country has undertaken by becoming a party to the European Convention for the Protection of Human Rights and Fundamental Freedoms.

[39] It appears that this could leave the complainant upset over the accused’s ability to continue to publish statements which insult and ridicule him. Because the Crown is not in a position to advance evidence probative of Mr. Prior’s knowledge of the falsity of his defamatory statements, Mr. Prior cannot be criminally prosecuted. However, there is a civil remedy to which the complainant may resort. This is not to say that because there is a civil remedy there need not be a criminal remedy. Civil and criminal remedies have different purposes and are not interchangeable, as the Supreme Court of Canada in Lucas found. It is simply to say that the complainant has resort to civil remedy in such a case as this, the same way that a wronged party seeks an injunction or sues for damages.

[40] Three other Canadian superior courts have found section 301 of the Criminal Code unconstitutional. The Crown argues that none of these cases is binding on this Court, and that the reasons for each of the decisions do not bear scrutiny. Those cases are R. v. Finnegan, [1992] A.J. No. 1208 (Alta. Q.B.) wherein Mr. Justice MacKenzie found that section 301 failed the proportionality aspect of the Oakes test; R. v. Lucas, 1995 CarswellSask 130 (Sask. Q.B.) wherein Mr. Justice Hranbinsky found section 301 unconstitutional because truthful comments could result in conviction; and R. v. Gill, 1996 CarswellOnt 1314 (Gen. Div.) wherein Mr. Justice Lally came to essentially the same conclusion as Mr. Justice Hranbinsky.

[41] I have analyzed the constitutional issue of whether section 301 is saved by section 1 of the Charter by inquiring into and determining section 301’s original objective. I then determined that the objective was not so pressing and important as to override freedom of expression. The Lucas (Trial Division), Gill and Finnegan courts came to the same result for different reasons. It is clear to me, however, that each of the three above-noted courts found section 301 unconstitutional because the section is offensive to modern day notions of justice. In that regard, I rely on these cases for their conclusions.

CONCLUSION

·  In summary I find that it is not justified, in our free and democratic society, for the Crown to use the heavy hammer of the criminal law against a subject for publishing defamatory libel when the Crown is not able to show that that subject knows that his statements are false. As the case law aptly establishes, the expression of truthful, unpopular or even false statements deserve protection unless expressed in a violent manner.

In the result, section 301 of the Code violates the Charter guarantee of freedom of expression, and is not saved by section 1. It is therefore unconstitutional.  

LOIS R. HOEGG

Justice