R v Lucas 1998 1 SCR 439: Accused convicted of defamatory libel -- Whether defamatory libel provisions in Criminal Code infringe right to freedom of expression -- If so, whether infringement justifiable

1997: October 15; 1998: April 2.

Present: Lamer C.J. and L'Heureux-Dubé, Sopinka, Gonthier, Cory, McLachlin, Iacobucci, Major and Bastarache JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR SASKATCHEWAN

Constitutional law -- Charter of Rights -- Freedom of expression -- Accused convicted of defamatory libel -- Whether defamatory libel provisions in Criminal Code infringe right to freedom of expression -- If so, whether infringement justifiable -- Canadian Charter of Rights and Freedoms, ss. 1, 2(b) -- Criminal Code, R.S.C., 1985, c. C-46, ss. 298, 299, 300.

Constitutional law -- Charter of Rights -- Fundamental justice -- Vagueness -- Accused convicted of defamatory libel -- Whether defamatory libel provisions in Criminal Code so vague that they violate principles of fundamental justice -- Canadian Charter of Rights and Freedoms, s. 7 -- Criminal Code, R.S.C., 1985, c. C-46, ss. 298, 299, 300.

Criminal law -- Defamatory libel -- Mens rea -- Offence of defamatory libel requiring knowledge of falsity and intention to defame -- Trial judge erroneously holding that mens rea requirement satisfied by proof that accused should have known that statements were false -- Whether there is sufficient evidence that accused had subjective knowledge of falsity of defamatory statements to uphold their convictions.

A police officer investigated allegations of sexual abuse made by three children. As a result of the investigation, criminal charges were laid against a number of individuals, but many of the charges were subsequently withdrawn or stayed. During the course of his investigation, the officer had been informed that one of the children had sexually assaulted his sisters on numerous occasions and that the people who ran the special care foster home where the children had been placed were unable to stop him. However, as a result of his reliance upon the opinion of the children's therapist, the officer kept them together in the same home. The appellant Mr. L was active in a prisoners' rights group. Four of the individuals whose charges had been stayed provided him with all of the information and documentation they possessed regarding the charges. On the basis of these documents, the appellants apparently understood that one of the children had raped, sodomized and tortured one of his sisters and repeatedly participated in sexual activities with the other sister. They concluded that the officer had knowledge of what was transpiring and that he had a duty to intervene. As a result, the appellants and a small group of others picketed outside the provincial court and the police headquarters where the officer worked. Mrs. L was carrying a sign prepared by her husband which read on one side: "Did [the officer] just allow or help with the rape/sodomy of an 8 year old?" and on the other side: "If you admit it [officer] then you might get help with your touching problem." She was arrested and charged with defamatory libel under ss. 300 and 301 of the Criminal Code. The following day, Mr. L again picketed in front of the provincial court and police headquarters. This time, he carried a sign with a similar statement. He was subsequently arrested and also charged under ss. 300 and 301. At trial, the appellants argued that their freedom of expression as guaranteed by s. 2(b) of the Canadian Charter of Rights and Freedoms had been infringed. The trial judge agreed but concluded that s. 300 was saved by s. 1 of the Charter. He found both of the appellants guilty of defamatory libel under s. 300 and held that they should have known that the statements on their placards were false. The Court of Appeal upheld the convictions.

Held (McLachlin and Major JJ. dissenting on Mrs. L's appeal): The appeals should be dismissed.

Per Lamer C.J. and Gonthier, Cory, Iacobucci and Bastarache JJ.: The defamatory libel provisions in ss. 298, 299 and 300 of the Code are not so vague that they infringe s. 7 of the Charter. The wording of the sections makes it abundantly clear what kind of conduct is the subject of legal restrictions. Section 298 specifies the types of published matter which are targeted, while s. 299 restricts liability to specific modes of publication. As well, ss. 298 to 300 give a sufficient indication as to how prosecutorial decisions must be reached. Nor are the impugned sections too vague to constitute a limit prescribed by law within the meaning of s. 1 of the Charter.

While, as properly conceded by the Crown, ss. 298, 299 and 300 of the Code contravene the guarantee of freedom of expression provided by s. 2(b) of the Charter since the very purpose of these sections is to prohibit a particular type of expression, subject to the severance of part of s. 299(c) they can be upheld as a justifiable limit under s. 1 of the Charter.

The objective of the impugned provisions, which is the protection of the reputation of individuals, is a pressing and substantial one in our society. The protection of an individual's reputation from wilful and false attack recognizes both the innate dignity of the individual and the integral link between reputation and the fruitful participation of an individual in Canadian society. As well, the measures adopted are rationally connected to the objective in question.

With respect to minimal impairment, it is particularly important at this stage to bear in mind the negligible value of defamatory expression, which significantly reduces the burden on the Crown to demonstrate that the provision is minimally impairing. While on its face s. 300 requires but one form of mens rea, namely knowledge of falsity, and there is no express requirement that an accused have an intention to defame, a historical review of the application of mens rea in the context of defamatory libel and the application of traditional principles of statutory interpretation lead inevitably to the conclusion that such an intention is required and that s. 300 should be read accordingly. The Crown can thus only make out the offence of defamatory libel if it proves beyond a reasonable doubt that the accused intended to defame the victim. This requirement places a sufficiently onerous burden on the Crown to make the mens rea aspect of the provision minimally intrusive. The defamatory libel provisions in the Code are not overbroad as a result of the civil remedy in libel which also protects the reputation of individuals. The harm addressed by s. 300 is so grave and serious that the imposition of a criminal sanction is not excessive but rather an appropriate response. However, s. 299(c) of the Code provides that a defamatory libel is published when the defamatory statement is shown or delivered "with intent that it should be read or seen by the person whom it defames". This portion of the defamatory libel scheme is too broad. Clearly, the fundamental element of libel is publication to a person other than the one defamed. Section 299(c) is so contrary to this principle that it cannot be justified. The phrase "by the person whom it defames or" should therefore be severed from s. 299(c) so that it reads "A person publishes a libel when he . . . shows or delivers it, or causes it to be shown or delivered, with intent that it should be read or seen by any other person". Obviously, the phrase "any other person" will not pertain to the situation where only the person defamed is shown the defamatory libel.

When freedom of expression is at issue, it is logical that the nature of the violation should be taken into consideration in determining whether an appropriate balance has been struck between the deleterious effects of the impugned legislative provisions on the infringed right and the salutary goals of that legislation. The further a particular form of expression departs from the values underlying freedom of expression, the lower will be the level of constitutional protection afforded to it. Defamatory libel is so far removed from the core values of freedom of expression that it merits but scant protection. The laudable objective of the defamatory libel provisions and their salutary effects on the protection of reputation far outweigh any negative impact on freedom of expression.

The placards displayed by the appellants fall within those parts of ss. 298 and 299 which are constitutionally valid: that is to say they were publicly displayed and objectively likely to injure a person's reputation. While the trial judge erred when he held that the mens rea requirement for s. 300 was satisfied by proof that the appellants should have known that the statements they published were false, there is ample evidence that the appellants had the requisite knowledge of falsity to uphold their conviction under s. 300.

Per L'Heureux-Dubé J.: Subject to agreement with McLachlin J.'s analysis under s. 1 of the Charter, Cory J.'s analysis and conclusions were concurred with.

Per Major J. (dissenting in part): Cory J.'s reasons are agreed with except with respect to the disposition of Mrs. L's appeal. It has long been established that an appellate court should exercise caution in upholding a conviction where, as here, the trial judge erred in applying an objective mens rea test when the Criminal Code required a subjective standard. There was no direct evidence that Mrs. L had subjective knowledge that the message portrayed on the placard she carried was false. If the trial judge had found that her knowledge was in fact based solely on the reports obtained by her husband, it might have been possible to infer that she had subjective knowledge of falsity. However, no such finding of fact was made. It is possible that Mrs. L's knowledge might have derived at least in part from what she was told by Mr. L, and she may therefore have believed that the message was true even though in fact it was not. In the absence of findings of fact by the trial judge related to subjective knowledge, there is insufficient evidence before this Court to prove beyond a reasonable doubt that Mrs. L knew that the messages on the placard she carried were false. Accordingly, her conviction must be set aside and, in light of the Crown's statement that in the circumstances the Crown would not proceed with a new trial, an acquittal directed.

Per McLachlin J. (dissenting in part): Cory J.'s reasons are agreed with except with respect to how the value of the expression at issue figures in the s. 1 analysis and with respect to the disposition of Mrs. L's appeal, which should be allowed for the reasons given by Major J. The content of the expression and its value fall for consideration only at the final stage of the proportionality analysis. To allow the perceived low value of the expression to lower the bar of justification from the outset is to run the risk that a judge's subjective conclusion that the expression at issue is of little worth may undermine the intellectual rigour of the Oakes test. Justice is better served if the Crown is required to demonstrate a pressing and substantial objective, rational connection and minimal impairment independent of the perception that the content of the expressive activity is offensive or without value. At the third and final stage of the proportionality analysis the judge is required to consider both the benefits and the detriments of limiting the expression in issue. Legislative limits on expression that falls far from the core values underlying s. 2(b) of the Charter are easier to justify, not because the standard of justification is lowered, but rather because the beneficial effects of the limitation more easily outweigh any negative effects flowing from the limitation. In this case the objective of the impugned provisions, which is to protect reputation against deliberate attack using statements that are known to be false, passes the first stage of the s. 1 analysis. The limit on expression is also rationally connected to this pressing and substantial objective and meets the minimal impairment test. Finally, the balancing process envisaged by the last step of the Oakes test leads inexorably to the conclusion that the benefits gained from the limitation on expression outweigh by far any detriment. This conclusion rests not on the low value of the expression (although this figures in the analysis), but on the fact that the benefits of limiting the right exceed any benefits that might flow from leaving it untrammelled.

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