Submission to the Standing Committee on Justice and Human (JUST) 42nd Parliament, 1st Session

Submitted by PEN October 27, 2017 PEN Canada Submission to the Standing Committee on Justice and Human Rights (JUST) - 42nd Parliament, 1st Session

Introduction

Bill C-51 is being proposed by Parliament to ensure that the Criminal Code, inter alia, upholds the Canadian Charter of Rights and Freedoms. The criminal offence of blasphemous libel has been identified for repeal in this bill. PEN Canada proposes that the offences of seditious libel and defamatory libel also be repealed from the Criminal Code at this time. All three of Canada’s criminal libel provisions no longer serve their intended purpose. Rather, there has been a disturbing trend of public officials employing these provisions to intimidate and suppress individuals, often as a retaliatory measure.

Canada’s continued criminalization of seditious, defamatory, and blasphemous libel is out of step with the approach taken by other liberal democracies. Criminalization of speech has serious chilling effects on freedom of expression; and criminalizing libel has particularly profound impacts on writers and journalists.

Writers and other communicators who disseminate information and ideas to the public play a critical role in a healthy democratic society. As an organization whose mandate is to protect the expression of writers, members of PEN Canada recognize that such freedom is vital to maintaining both government accountability and an informed citizenry, both of which are essential in defending free expression.

The international community looks to Canada as a human rights leader and Canada needs to modernize its libel laws and join other liberal democracies in repealing all criminal libel laws.

About PEN Canada

PEN Canada is one of the most active branches of PEN International. PEN Canada celebrates literature, defends freedom of expression, and aids writers in peril. Internationally, PEN Canada works on behalf of writers who have been imprisoned or otherwise persecuted for their writing. Each writer is independently vetted by PEN International to ensure that no writer on PEN’s roster has used violence or advocated racial hatred, and that the reason they have been imprisoned is the peaceful expression of their opinions.

In addition to advocating for the release of these writers, PEN Canada often does background research to identify the system failures that put writers in danger, many of which are related to poorly constructed domestic laws, government policy, or regulation. In PEN’s experience, countries often look to Canada as the freedom of expression ideal. As a result, Canada’s moral and other authority is important to the effectiveness of our work.

PEN International was first established to promote intellectual co-operation and understanding among writers, to create a world community of writers that would emphasize the central role of literature in the development of world culture, and to defend literature against the many threats to its survival which the modern world poses.

2 As part of its mission, PEN Canada has fought and defended the right to freedom of expression both in Canada and abroad. PEN has intervened in a number of landmark legal cases in the name of journalistic integrity and artistic freedom.

PEN Canada believes that the three criminal libel provisions identified above should be repealed for the following reasons:

1. Criminal libel laws are misused by public officials

Criminal cases in the post-Charter era display a remarkable and disturbing trend. In numerous criminal defamation cases, Crown agents have used criminal defamation laws as a tool to intimidate, suppress, and retaliate against individuals.

For example, in 2012, Charles Leblanc of , a blogger, was arrested over comments made on his blog about the local police force.1 Similarly, the RCMP executed a search warrant based on a criminal defamation charge against a blogger in British Columbia who had in the past been sharply critical of the police.2

In both these examples, criminal libel provisions were used by public officials. Of course police officers that fall victim to defamation are indeed entitled to legal remedies, but civil defamation laws, as relied upon by other Canadians to protect their reputations, provide sufficient protection for police officers.

These cases are recent examples of a long-established pattern that illustrates how Canada’s criminal defamation laws have consistently allowed the police and other public officials to employ these provisions to indirectly encourage a dangerous brand of censorship. In 1996, Bradley Waugh and Ravin Gill were charged under s. 301 for having made statements about two Kingston Penitentiary guards. In 2002, Stephen Osborne was charged for defaming a New Brunswick judge.3

Though all criminal libel provisions are ripe for repeal, s. 301 is especially concerning in that it includes imprisonment as a penalty, even for true statements.

These criminal provisions were created with the intent to serve as a “shield”. But these provisions have consistently and disproportionately been used as a “sword” by police officers and, in some cases, to stifle dissident opinion. The result is that Canada’s criminal libel provisions have had a broad on freedom of expression.

1 CBC News, “Fredericton chief welcomes review of blogger case”, Canadian Broadcasting Corporation” (7 May 2012), online: http://www.cbc.ca/news/canada/new-brunswick/fredericton-chief-welcomes-review-of-blogger-case- 1.1215046. 2 See British Columbia Civil Association, “BCCLA to apply to unseal RCMP defamation search warrant” (28 August 2012) http://bccla.org/news/2012/08/bccla-to-apply-to-unseal-rcmp-defamation-search-warrant/. 3 Arshy Mann, “The trouble with criminal speech” (29 September 2014), Canadian Lawyer Magazine, online: http://www.canadianlawyermag.com/author/arshy-mann/the-trouble-with-criminal-speech-2627/.

3 2. Canadian courts have found criminal libel to be unconstitutional

At present, trial courts in Alberta 4 , Saskatchewan 5 , Ontario 6 , New Brunswick 7 , Newfoundland and Labrador8 have found s. 301 to be unconstitutional. However, because the Crown in these cases did not appeal the trial level decisions with respect to s. 301, no appellate court has ruled on the constitutionality of this provision.

Even if the Crown were to appeal, it is unreasonable to expect a party to endure the expense and emotional turmoil of taking their case through the appellate courts for such a clear violation of the Charter.

3. Criminal libel laws contribute to expressive chill

Criminal libel provisions have repeatedly been found to cause expressive chill, especially when they include harsh penalties, such as imprisonment. Even when the harshest penalties are not applied, the fact that they exist at all contributes to a “chilling effect”, with writers and other communicators hesitant to make statements that might be caught up in these provisions. PEN Canada conducted a national survey looking to find out which freedom of expression issues concerned Canadian writers. The results were alarming.

The main findings were:

 60% of respondents stated that they were very or extremely concerned about freedom of expression and ;

 87% of respondents stated that they highly value defending freedom of expression in Canada; and

 80% of respondents reported that they were very or extremely concerned about the silencing of Canadian scientists, 77% were very or extremely concerned about right to information and access to information laws in Canada.

4. Canada is a leading human rights authority; this is incongruous with criminalized libel

Canadian human rights legislation has historically influenced the laws of other countries. Many countries have, at various, points looked to Canada for guidance when drafting and enacting domestic human rights legislation. For example, in 1996, the Parliament of South Africa promulgated a new constitution that drew “heavily on Canada’s Charter of Rights and Freedoms.”9

4 R v Finnegan, [1992] AJ No 1208. 5 R v Lucas, [1996] SJ No 336; R v Lucas was appealed to the where s. 300 was held to be constitutional, but the constitutionality of s. 301 was not decided. 6 R v Gill, 1996 CarswellOnt 1314. 7 R v Osborne, 2002 CarswellNB 405. 8 R v Prior, 2008 CarswellNfld 122. 9 , “Canada-South Africa Relations” (June 2015), online: http://www.canadainternational.gc.ca/southafrica-afriquedusud/bilateral_relations_bilaterales/canada_south-africa-afrique- du-sud.aspx?lang=eng.

4 Canada’s authority on the international front should come as no surprise. Canada has always prided itself as a leader in human rights, and has been recognized as such by the United Nations, La Francophonie, the Organization of American States, the Group of Seven, and the Organization for Security Cooperation in Europe.10 Further, Canada is an observer at the UN Human Rights Council and participates in the UN General Assembly’s Third Committee, which is responsible for considering human rights issues.11 In a 2015 study conducted by the Pew Research Center, Canada was found to be in the top 10 countries most supportive of free expression.12

Such authority is, however, diminshed when enforceable laws restrict freedom of expression. The criminal libel provisions in the Criminal Code undermine Canada’s long- standing moral authority on freedom of expression and detract from Canada’s historical efforts to establish itself as a leader in human rights.

The Economist recently reported that “[i]n some countries, insulting politicians can lead to jail.” Canada is in the group of countries, along with Burma, China, and Vietman, where such power exists to criminally charge citizens who defame public officials.13 The fact that Canada still treats defamation as a criminal offence, punishable by up to five years imprisonment, reflects an uncharacteristic disregard for the human rights commitments that Canada has historically legislated and promoted.

While public officials in Canada are not precluded from relying on the civil tort of defamation, they, in contrast to the general population, continue to disproportionately rely on the existing criminal libel provisions, as found in sections 298, 299 and 300 of the Criminal Code.

Further, the penalty of imprisonment violates international standards of freedom of expression. Defamation should be treated as a civil matter and, in any event, prison sentences for criminal libel convictions should never apply. According to a September 2011 General Comment by the UN Human Rights Committee:

States parties should consider the decriminalization of defamation and, in any case, the application of the criminal law should only be countenanced in the most serious of cases and imprisonment is never an appropriate penalty.14

10 Government of Canada, “Canada’s approach to advancing human rights” (Date Modified 13 June 2017), online: http://international.gc.ca/world-monde/issues_development-enjeux_developpement/human_rights- droits_homme/advancing_rights-promouvoir_droits.aspx?lang=eng. 11 Ibid. 12 Alex Gray, “: which country has the most?” (8 November 2016), online: https://www.weforum.org/agenda/2016/11/freedom-of-speech-country-comparison/. 13 The Economist, “How powerful people use criminal-defamation laws to silence their critics” (13 July 2017), online: https://www.economist.com/news/international/21724993-some-countries-insulting-politicians-can-lead-jail-how-powerful- people-use. See Howard Anglin, “When the police come knocking over feisty Facebook comments” (2 August 2017), online: http://nationalpost.com/opinion/howard-anglin-when-the-police-come-knocking-over-feisty-facebook-comments. 14 General Comment No 34, (12 September 2011), CCPR/C/GC/34 at para 47.

5 In any case, criminal libel provisions are unnecessary. In 1984, the Law Reform Commission of Canada concluded that criminal law can do no better than what the civil law of defamation is already doing to regulate such illegal behaviour.15

5. Seditious and defamatory libel laws are being repealed internationally

Criminal libel laws have become an anomaly among common law legal systems. Many jurisdictions have abolished the criminal treatment of defamation. England, initially the source of criminal libel laws as they exist today, along with Wales, the Republic of Ireland, and Northern Ireland have abolished the common law offences of seditious libel, defamatory libel, and obscene libel.

When bringing the issue to the debate in the House of Lords, Lord Lester of Herne Hill noted that criminal libel offences are used to suppress political criticism and dissent.16 Lord Lester saw British Parliament as setting an example for other state actors to adopt a “robust position in reviewing such laws and their operation.”17

Unlike the United Kingdom, the United States of America has never had criminal libel laws at the federal level. While a number of individual states do have criminal defamation provisions, some do not carry jail time and many others have been deemed to be unconstitutional by state courts.18

The Supreme Court of the United States ruled in 1966 that the common law cause of action for criminal defamation is constitutionally vague. 19 That court has also limited the application of criminal defamation provisions to instances where the intent rises to a standard of actual malice and has excluded the application of the provisions in cases where the statements made were true.20

Across the globe, countries have taken steps to repeal either all general criminal defamation laws or weaken them. Among the list of nations instituting a full repeal are Norway and Romania, with New Zealand also repealing all criminal libel provisions except for blasphemous libel. Italy has partially repealed these provisions, while France, Croatia and Finland have abolished the possibility of imprisonment.21

The movement towards further repeal of criminal libel laws is gaining momentum around the world. Malta and Mongolia are overhauling all of their criminal defamatory libel laws and others, such as Germany, are aiming to repeal significant provisions in the coming years.22

With major decisions being handed down by the European Court of Human Rights, affirming, for instance, that custodial sentences for offences of defamatory libel violate the

15 Mann, supra note 1. 16 Lords Hansard text for 9 Jul 200909 July 2009 (pt 0013). 17 Ibid. 18 Committee to Protect Journalists, Criminal Defamation Laws in North America, October 25, 2017, available at https://cpj.org/x/6761. 19 Ashton v. Kentucky, 384 U.S. 195 (1966). 20 Garrison v Louisiana, 379 U.S. 64, 74 (1964). 21 The Representative on Freedom of the Media, Dunja Mijatović, for the Organization for Security and Co-operation in Europe, “Defamation and Insult Laws in the OSCE Region: A Comparative Study” March 2017. 22 Ibid.

6 freedom of expression,23 we expect that the movement towards repeal of such provisions will continue. As a leader in good governance and human rights, and with the opportunity to repeal seditious and defamatory libel along with blasphemous libel as part of Bill C-51, Canada could immediately be one of the leaders in this regard, rather than a laggard.

6. The repeal of criminal libel laws would give Canada the moral authority it needs to pressure more repressive states to defend freedom of expression

PEN International contributes to defending freedom of expression around the world. Some of PEN Canada’s projects include supporting exiled writers that seek refuge in Canada and writers imprisoned domestically and aboard for the practice of free speech. PEN Canada supports community events to educate citizens about the right to freedom of expression and affronts thereon.

PEN Canada also aims to defeat criminal libel laws around the world. PEN is able to leverage Canada’s strong reputation as a leader in human rights and free expression to conduct most of its work. This authority, however, withers in light of Canada’s continued affirmation of criminal libel laws.

Conclusion

Sections 59-61, and 299-304 of the Criminal Code, all of which criminalize libel, should be repealed as part of Bill C-51.

The criminal offences of blasphemous libel, seditious libel, and defamatory libel should all be repealed as part of Bill C-51. These offences have no place in a democratic society that holds as one of its utmost values the fundamental freedoms of expression and opinion.

This recommendation is made on the eve of a sweeping bill proposed by Parliament to ensure that the Criminal Code, inter alia, upholds the Canadian Charter of Rights and Freedoms. The bill includes a proposal to amend the definition of publishing that would remove instances where one may be charged for defamatory libel solely on the basis that the object of the libel sees it and no one else. Unfortunately, this leaves the remaining elements of the criminal offence in place, the most alarming of which is that an individual may be charged even if the matter published is demonstrably true.

The government’s proposed amendments fall far too short of its goal of upholding the Charter, particularly the fundamental freedoms of opinion and expression that include the and other media of communication.

The concepts of seditious and defamatory libel do have a place in an orderly society that values the integrity of the head of state and the protection of an individual’s reputation. However, such values are already adequately protected by the causes of action in tort law. Indeed, this civil course of action is far more appropriate as it allows the injured party to be compensated by way of damages without threatening the of the accused. The existence of civil recourse also

23 Mika v Greece (2013), 10347/10 – Chamber Judgment, [2013] ECHR 1332.

7 aptly achieves the purposes and principles of sentencing set out in the Criminal Code, namely deterrence and denunciation.

It is time to repeal the offences of seditious and defamatory libel, the criminalization serves no proper purpose in a modern liberal democracy. It is an antiquated remedy that casts a long shadow over citizens — and particularly writers — who rely on the fundamental freedoms of opinion and expression to uphold their duty of promoting a free and democratic society.

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