R. V. LUCAS Date of Judgment February 6 1995 March 9 1995

Saskatchewan Judgments

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R. V. LUCAS

QB95038
Date of Judgment: February 6, 1995 March 9, 1995 (addendum)
Number of Pages: 24


Editor's Note: Addendum released March 9, 1995. Text of addendum appended to original judgment.

Q.B. A.D. 1994
No. 7 J.C.S.

IN THE COURT OF QUEEN'S BENCH
JUDICIAL CENTRE OF SASKATOON

BETWEEN:
JOHN DAVID LUCAS and
JOHANNA ERNA LUCAS
APPLICANTS
(ACCUSED)

- and -

THE MINISTER OF JUSTICE FOR THE PROVINCE
OF SASKATCHEWAN for HER MAJESTY THE QUEEN
and THE MINISTER OF JUSTICE FOR THE DOMINION
OF CANADA for HER MAJESTY THE QUEEN
RESPONDENTS

R. Parker for the applicant
W.K. Tucker, Q.C. Agent of the Attorney General
for the Province of Saskatchewan
R. Macnab Counsel for the Attorney General
of Saskatchewan
No one appearing for the Minister of Justice
for the Dominion of Canada

JUDGMENT HRABINSKY J.
February 6, 1995

The applicants (accused) apply for the following
relief:

(1)A Declaration that sections 300 and 301 of the Criminal
Code, constitute an unreasonable limitation of one or more of
the rights and freedoms guaranteed by sections 2, 7 and
11(c)and (d) of the Canadian Charter of Rights and Freedoms
and by reason thereof are of no force or effect;

(2)A Declaration that sections 300 and 301 of the Criminal
Code fail to describe an offence known in law and by reason
thereof are of no force or effect.

FACTS

The accused were arraigned before me on the two
counts in the indictment as follows:

That John David Lucas and Johanna Erna Lucas between the 19th
day of September, A.D. 1993 and the 22nd day of September,
A.D. 1993 at or near [Q], Saskatchewan did

1. publish matter without lawful justification or excuse that
was likely to injure the reputation of [a police officer] by exposing
him to hatred, contempt or ridicule or that was designed to
insult [the officer], thereby committing a defamatory libel
contrary to S.301 of the Criminal Code.

2. publish matter without lawful justification or excuse that
was likely to injure the reputation of [the police officer] by exposing
him to hatred, contempt or ridicule or that was designed to
insult [the police officer] knowing that the matter published was false
and did thereby commit an offence contrary to S.300 of the
Criminal Code.

Both accused plead not guilty to both counts in the
indictment.
Pursuant to s. 655 of the Criminal Code the accused
admitted the following facts:

1.At all times material to this matter, the person [the police officer]
referred to in the indictment was a [rank] with the City of
Q Police Service and as such as a peace officer.

2.On September 20, 1993 at 9:00 A.M. the accused were observed
to be walking on a public sidewalk in front of the Police
Station in Q, Sask. carrying a sign which had printed
on one side the words "Did [rank] [police officer] just allow or help
with the rape/sodomy of an 8 year old" and on the other side
the words "If you admit it [the police officer] then you might get help with
your touching problem".

3.The accused were accompanied by a number of other persons.
The sign and the printing thereon were clearly visible to
persons passing by and to those looking out of the windows of
the Police Station.

4.The Police Station is the place of employment of [the police officer].

5.The accused were observed by other police officers while
carrying the sign. They were recorded on videotape in their
activities and then arrested and charged.

Pursuant to s. 611(1) counsel for the accused filed
a plea of justification consisting of 17 typed pages which,
for the purposes of this application, need not be reproduced.

Pursuant to s. 611(4) counsel for the Crown denied
generally the truth of that plea.

THE ISSUES

Do ss. 300 and 301 of the Criminal Code (the defamatory
libel provisions), or either of them, impose limits on freedom
of expression which infringe rights guaranteed by s. 2(b) of
the Canadian Charter of Rights and Freedoms?

If either or both ss. 300 and 301 of the Criminal Code
constitute a limit on freedom of expression, is such
limitation justified by s. 1 of the Charter?

Do ss. 300 and 301 of the Criminal Code, or either of
them, violate s. 7 of the Charter which guarantees the right
to liberty and the right not to be deprived thereof except in
accordance with the principles of fundamental justice?

Do ss. 300 and 301 of the Criminal Code, or either of
them, violate ss. 11(c) and (d) of the Charter which provide
that a person has a right not to be compelled to be a witness
in proceedings against that person and that a person has the
right to be presumed innocent until proven guilty?

THE LAW

Sections 300 and 301 of the Criminal Code read:


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.

301. 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 distinction between ss. 300 and 301 of the
Criminal Code is that the Crown must prove that a person
charged under s. 300 knew that the published defamatory libel
was false. Falsity is not a necessary element under s. 301.
A person may be found guilty under s. 301 of publishing a
defamatory libel even if that person honestly believed that
the published defamatory matter was true and even if it was in
fact true.

The definitions of "defamatory libel" and
"publishes" are found in ss. 298 and 299 of the Criminal Code.
They read:

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 upon any substance, or

(b) by an 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.

It is to be noted that neither of the foregoing sections
refers to the truth or falsity of the defamatory libel.
Further, ss. 298 and 299 are very broad. Counsel for the
applicants submits that a broad range of relatively trivial or
innocuous material would fall within those provisions of the
Criminal Code. Counsel for the respondent concedes that this
is so. I agree. However, courts have held that criminal
sanctions for defamatory libel should be available for
serious, not trivial libels. In Gleaves v. Deakin, [1979] 2
All E.R. 497 (H.L.) Lord Scarman stated at p.508-09:

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.

. . .

. . . In R v Labouchere Lord Coleridge CJ emphasised that
both Hawkins and Lord Kenyon had regarded the criminality of
libels on private persons as their tendency to disturb the
public peace. Though the issue in that case was whether or
not leave should be given to file a criminal information (a
remedy now abolished), Lord Coleridge's view was plainly that
a libel had to be so `cruel and outrageous' as to make it a
matter which called for the interference of the court in the
defence of the public interest. While, therefore, it was
almost invariably said that the criminality of libel arose
from the tendency to disturb the public peace, evidence was
not necessary to establish the existence of the tendency: the
gravity of the libel was the best evidence. The logic of the
law was finally exposed by du Parcq J in R v Wicks. In giving
the judgment of the court, he said that a prosecution ought
not to be instituted `when the libel complained of is of so
trivial a character as to be unlikely either to disturb the
peace of the community or seriously to affect the reputation
of the person defamed'. It is plain from the passage in the
judgment where these words appear that the learned judge was
emphasising that it is the gravity of the libel which matters.
The libel must be more than of a trivial character: it must be
such as to provoke anger or cause resentment. The emphasis of
the passage, as Wien J recognised in Goldsmith v Pressdram Ltd
is on the character of the language used. In my judgment, the
references in the case law to reputation, outrage, cruelty or
tendency to disturb the peace are no more than illustrations
of the various factors which either alone or in combination
contribute to the gravity of the libel. The essential feature
of a criminal libel remains, as in the past, the publication
of a grave, not trivial, libel.

The Attorney General for Saskatchewan concedes that
the purpose and effect of ss. 300 and 301 of the Criminal Code
(the defamatory libel provisions) are to criminalize
"expression" because of its content. Placing such
restrictions on the right of freedom of expression results in
the infringement of s. 2(b) Charter rights. See: Irwin Toy
Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927.


The Attorney General for Saskatchewan concedes that
ss. 300 and 301 of the Criminal Code impose limits on
expression and therefore infringe rights guaranteed by s. 2(b)
of the Charter. However, the Attorney General for
Saskatchewan submits that this infringement is justified under
s. 1 of the Charter.

SECTION 300 OF THE CRIMINAL CODE

The Court must determine whether s. 300 of the
Criminal Code constitutes a limit to freedom of expression
which is demonstrably justified in a free and democratic
society.

Section 1 of the Charter reads:

1. The Canadian Charter of Rights and Freedoms guarantees the
rights and freedoms set out in it subject only to such
reasonable limits prescribed by law as can be demonstrably
justified in a free and democratic society.

Section 2(b) of the Charter reads:

2. Everyone has the following fundamental freedoms:

...

(b) freedom of thought, belief, opinion and
expression, including freedom of the press and other media of
communication;

The onus of justifying the limitation of a right or
freedom is on the party seeking to uphold the limitation and
the standard of proof is by a preponderance of probability:
R. v. Oakes, [1986] 1 S.C.R. 103 at pp. 136-138. In the Oakes
decision Dickson C.J.C. stated that the limitation on a right
or freedom guaranteed by the Charter, must be shown to be
reasonable and demonstrably justified in a free and democratic
society. The standards against which a limit on a right or
freedom guaranteed by the Charter can be shown to be
reasonable and demonstrably justified are those underlying
values and principles essential to a free and democratic
society. In R. v. Keegstra (1990), 61 C.C.C. (3d) 1 at p. 29,
Dickson C.J.C. stated:

As was stated by the majority in Slaight Communications Inc.
v. Davidson (1989), 59 D.L.R. (4th) 41 at p. 427, [1989] 1
S.C.R. 1038, 26 C.C.E.L. 85: "The underlying values of a free
and democratic society both guarantee the rights in the
Charter and, in appropriate circumstances, justify limitations
upon those rights."

Obviously, a practical application of s. 1 requires more than
an incantation of the words "free and democratic society".
These words require some definition, an elucidation as to the
values that they invoke. To a large extent a free and
democratic society embraces the very values and principles
which Canadians have sought to protect and further by
entrenching specific rights and freedoms in the Constitution,
although the balancing exercise in s. 1 is not restricted to
values expressly set out in the Charter ( Slaight, supra, at
p. 427). With this guideline in mind, in Oakes I commented
upon some of the ideals that inform our understanding of a
free and democratic society, saying (at p. 346):

The court must be guided by the values and principles
essential to a free and democratic society which I believe
embody, to name but a few, respect for the inherent dignity of
the human person, commitment to social justice and equality,
accommodation of a wide variety of beliefs, respect for
cultural and group identity, and faith in social and political
institutions which enhance the participation of individuals
and groups in society. The underlying values and principles
of a free and democratic society are the genesis of the rights
and freedoms guaranteed by the Charter and the ultimate
standard against which a limit on a right or freedom must be
shown, despite its effect, to be reasonable and demonstrably
justified.

Undoubtedly these values and principles are numerous, covering
the guarantees enumerated in the Charter and more. Equally,
they may well deserve different emphasis, and certainly will
assume varying degrees of importance depending upon the
circumstances of a particular case.

It is important not to lose sight of factual circumstances in
undertaking a s. 1 analysis for these shape a court's view of
both the right or freedom at stake and the limit proposed by
the state; neither can be surveyed in the abstract. As Wilson
J. said in Edmonton Journal, supra, referring to what she
termed the "contextual approach" to Charter interpretation (
at. p. 584):

. . . a particular right or freedom may have a different value
depending on the context. It may be, for example, that
freedom of expression has greater value in a political context
than it does in the context of disclosure of the details of a
matrimonial dispute. The contextual approach attempts to
bring into sharp relief the aspect of the right or freedom
which is truly at stake in the case as well as the relevant
aspects of any values in competition with it. It seems to be
more sensitive to the reality of the dilemma posed by the
particular facts and therefore more conducive to finding a
fair and just compromise between the two competing values
under s. 1).

Freedom of expression is extremely important in a
free and democratic society. However, freedom of expression
cannot be absolute. Unrestricted freedom of expression may
interfere with legitimate interests in privacy and reputation.
These are the competing interests which must be balanced.

In R. v. Zundel, [1992] 2 S.C.R. 731 at p. 775
McLachlin J. stated:

. . . I add that what is at issue is the value of all speech
potentially limited by the provision at issue. In assessing
this, the Court must not be diverted by the offensive content
of the particular speech giving rise to the Charter challenge
of the legislative provision.

From the foregoing I conclude that in determining
whether s. 300 of the Criminal Code can be upheld as a
reasonable limit prescribed by law as can be demonstrably
justified in a free and democratic society under s. 1 of the
Charter, the Court must consider all expression that is
potentially restricted by s. 300 of the Criminal Code, not
only the expressions involved in this particular case.

THRESHOLD TEST

The threshold test under s. 1 of the Charter is
whether s. 300 of the Criminal Code, the impugned section,
represents a "limit prescribed by law". See: R. v. Oakes,
supra.

The applicants submit that the definition of
defamatory libel in s. 298 of the Criminal Code is vague and
uncertain. In Canada v. Pharmaceutical Society (Nova Scotia),
[1992] 2 S.C.R. 606 at p. 626 Gonthier J. stated:

1.Vagueness can be raised under s. 7 of the Charter, since it
is a principle of fundamental justice that laws may not be too
vague. It can also be raised under s. 1 of the Charter in
limine, on the basis that an enactment is so vague as not to
satisfy the requirement that a limitation on Charter rights be
"prescribed by law". Furthermore, vagueness is also relevant
to the "minimal impairment" stage of the Oakes test ...

Section 7 of the Charter reads:

7. Everyone has the right to life, liberty and security of
the person and the right not to be deprived thereof except in
accordance with the principles of fundamental justice.

If a law which imposes a criminal sanction is vague
and uncertain, an accused person may be deprived of his
liberty because that person may find it difficult, if not
impossible, to defend the charge against him or her in
accordance with the principles of fundamental justice by
reason of the vagueness and uncertainty of the offence. That
is not the situation before me. I find that the definition of
defamatory libel in s. 298 of the Criminal Code is constructed
in words of common usage capable of interpretation. It
provides a sensible construction and "an intelligible standard
according to which the judiciary must do its work". See:
Irwin Toy Ltd., supra.

I find that s. 298 of the Criminal Code defines
defamatory libel in a manner which provides an intelligible
standard of conduct. Sections 298, 299 and 300 constitute a
"limit prescribed by law" within s. 1 of the Charter. The
threshold test for the application of s. 1 has been met.

SECTION 1 ANALYSIS

In order to justify an infringement of s. 2(b) of
the Charter, it must be shown that:

(1)The impugned legislative provision has an
objective of pressing and substantial concern.
(2)There is a proportionality to the legislation in
that:
(a)the measures must be fair and not arbitrary,
carefully designed to achieve the objective in question and
rationally connected to the objective;
(b)the means should impair freedom of
expression as little as possible;
(c)there must be a proportionality between the
effects of the limiting legislation and the objective. See:
R. v. Oakes, supra.

Section 298 of the Criminal Code defines a
defamatory libel as a 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 a person.

OBJECTIVE

The objective of s. 300 of the Criminal Code is the
protection of individuals from false defamatory attacks on
their privacy and reputations.

The objective of s. 300 of the Criminal Code must be
of sufficient importance to justify a violation of s. 2(b) of
the Charter. That is, the objective must relate to concerns
which are pressing and substantial in a free and democratic
society.

In R. v. Stevens, [1993] 7 W.W.R. 38, Giesbrecht,
Prov. J. stated at p. 63:

The Supreme Court has on a number of occasions acknowledged
that one of the underlying principles essential to a free and
democratic society is respect for the intrinsic value of all
individuals: in Oakes, supra, at p. 136 Dickson C.J.C. spoke
of the "respect for the inherent dignity of the human person";
In Reference re s. 94(2) of Motor Vehicle Act (British
Columbia) (1985), 48 C.R. (3d) 289 at 309 [[1986] 1 W.W.R.
481] Lamer J. (as he then was) referred to "`the dignity and
worth of the human person'" (from the preamble of the Canadian
Bill of Rights) as being one of the beliefs on which the
administration of justice is founded; in R. v. Morgentaler
(1988), 37 C.C.C. (3d) 449 at 554, Wilson J. stated that
"beliefs about human worth and dignity `are the sine quo non
of the political tradition underlying the Charter'".

It cannot be disputed that reputation is a significant facet
of the inherent dignity and worth of the human person. The
question I must answer is whether protection of reputation is
a pressing and substantial concern in a free and democratic
society.

The value of good reputation has roots deep in history; all
societies have sought in one manner or another to protect
personal reputation. Brown in The Law of Defamation in
Canada, at p. 4 states:

. . . it is universally recognized that the reputation of a
person is, and always has been, an important value which the
law must protect. Some form of legal or social constraints on
defamatory publications "are to be found in all stages of
civilization, however imperfect, remote and proximate to
barbarism". The extent to which a community protects the
reputation of its citizens may partially measure its "cultural
level and democratic quality." (Emphasis added.) [Footnotes
omitted].

Carter-Ruck at p. 17 expresses a similar view:
There is little doubt that defamation has always been regarded
as a serious subject and its transgression as a serious
offence. Defamation, in Roman times described as
calumniation, has been so treated in the law of all civilized
communities.


Veeder commenting on the value of reputation in [1904] 4
Colum. L. Rev., at p. 33 said:

One's good name is therefore as truly the product of one's
efforts as any physical possession; indeed it alone gives to
material possessions their value as sources of happiness.

Reputation has long been recognized as being a
fundamental value in a free and democratic society. Courts
have held that emotional damage can be caused by defamatory
remarks and psychological harm can be the result of violations
of a person's integrity. See: R. v. Keegstra, supra and R. v.
Morgentaler, [1988] 1 S.C.R. 30.

One of the underlying principles essential to a free
and democratic society is respect for the inherent dignity and
worth of the human person which includes respect for the
reputation of all persons.

The applicants' submission that by reason of the
fact that prosecutions of criminal defamatory libel are rare,
the objectives of ss. 300 and 301 of the Criminal Code are not
of a pressing and substantial concern in a free and democratic
society is untenable. It may be that these sections, by their
existence, create a deterrent to those who would criminally
defame individuals. I find that s. 300 of the Criminal Code
has an objective of a pressing and substantial concern in a
free and democratic society.

I now turn to the next stage of the analysis of s. 1
of the Charter which is the proportionality test. This
involves balancing a number of factors to determine whether
the means chosen to achieve an objective are proportional and
rationally connected to the objective. In this case the Court
must balance the value of freedom of expression against the
value of reputation. That is, the court must balance the
limitation of the impugned s. 300 of the Criminal code in the
context of the value of the limitation placed on s. 2(b) of
the Charter in a free and democratic society which s. 300 is
designed to protect.

I find that there is a rational connection between
the objectives of protecting the privacy and reputations of
persons in the defamatory libel provisions of the Criminal
Code and the limitation on freedom of expression as guaranteed
under s. 2(b) of the Charter. The prohibition of publication
of false defamatory libel is rationally connected to the
protection of privacy and reputation. It is not arbitrary,
unfair or based on irrational considerations. Thus the first
component of the proportionality test is met.

Sections 298, 299 and 300 of the Criminal Code
minimally impair the Charter right to freedom of expression as
guaranteed by s. 2(b). The actus reus elements of the s. 300
offence are publication of a false statement that is
defamatory. The mens rea elements of the s. 300 offence are
the intention to publish, knowledge of falsity and the
intention to defame. The fact that the Crown must prove the
mens rea elements of the offence, including knowledge of
falsity, reaffirms my conclusion that the objective of s. 300
of the Criminal Code impairs freedom of expression as little
as possible.

The final component of the proportionality test
involves weighing the effects of the limitation under s. 300
of the Criminal Code on the right to freedom of expression
guaranteed by s. 2(b) of the Charter against the objective of
s. 300 of the Criminal Code. The limitation on the right to
freedom of expression imposed by s. 300 is narrow. It is
confined to the intentional publishing of defamatory matter,
known to be false, with the intention of defaming a person.
Such expression is far removed from the core principles
underlying the guaranteed right to freedom of expression under
s. 2(b) of the Charter. The limitation imposed on freedom of
expression by s. 300 is negligible. The objective of the
limitation is to protect persons from the harm caused by false
and defamatory attacks or the reputations of members of
society. The limitation imposed on freedom of expression does
not outweigh the importance of its objective. The last
component of the proportionality test is met.

I find that s. 300 of the Criminal Code constitutes
a reasonable limit in a free and democratic society on the
freedom of expression guaranteed by s. 2 (b) of the Charter
and is therefore upheld under s. 1 of the Charter.

ONUS

The applicants submit that an accused charged under
s. 300 of the Criminal Code is faced with a reverse onus under
ss. 309 and 311 of the Criminal Code since they are relying on
the truth of the alleged defamatory material. This, they
submit, is in violation of ss. 11(c) and (d) of the Charter
which read:

11. Any person charged with an offence has the right
...

(c) not to be compelled to be a witness in proceedings against
that person in respect of the offence;

(d) to be presumed innocent until proven guilty according to
law in a fair and public hearing by an independent and
impartial tribunal.

Sections 309 and 311 of the Criminal Code read:

309. No person shall be deemed to publish a defamatory libel
by reason only that he publishes defamatory matter that, on
reasonable grounds, he believes is true, and that is relevant
to any subject of public interest, the public discussion of
which is for the public benefit.

311. No person shall be deemed to publish a defamatory libel
where he proves that the publication of the defamatory matter
in the manner in which it was published was for the public
benefit at the time when it was published and that the matter
itself was true.

Under s. 300 of the Criminal Code one of the
elements which the Crown must prove is that the defamatory
libel was false. If the Crown fails to prove that the matter
was false, the accused need not prove that it was true nor
that it was for the pubic benefit. Accordingly, ss. 309 and
311 are not relevant to this charge. An accused need only
raise a reasonable doubt for an acquittal under s. 300 of the
Criminal Code. Thus the accused are not faced with a reverse
onus. There is no violation of s. 11(c) or (d) of the
Charter.

The applicants also submit that ss. 611 and 612 of
the Criminal Code create a reverse onus.

Sections 611 and 612 of the Criminal Code read:
611. (1) An accused who is charged with publishing a
defamatory libel may plead that the defamatory matter
published by him was true, and that it was for the public
benefit that the matter should have been published in the
manner in which and at the time when it was published.

(2) A plea that is made under subsection (1) may
justify the defamatory matter in any sense in which it is
specified in the count, or in the sense that the defamatory
matter bears without being specified, or separate pleas
justifying the defamatory matter in each sense may be pleaded
separately to each count as if two libels had been charged in
separate counts.

(3) A plea that is made under subsection (1) shall
be in writing and shall set out the particular facts by reason
of which it is alleged to have been for the public good that
the matter should have been published.

(4) The prosecutor may in his reply deny generally
the truth of a plea that is made under this section.

612. (1) The truth of the matters charged in an alleged libel
shall not be inquired into in the absence of a plea of
justification under section 611 unless the accused is charged
with publishing the libel knowing it to be false, in which
case evidence of the truth may be given to negative the
allegation that the accused knew that the libel was false.

(2) The accused may, in addition to a plea that is
made under section 611, plead not guilty and the pleas shall
be inquired into together.

(3) Where a plea of justification is pleaded and the
accused is convicted, the court may, in pronouncing sentence,
consider whether the guilt of the accused is aggravated or
mitigated by the plea.

Sections 611 and 612 of the Criminal Code permit an
accused charged with defamatory libel to enter a plea of
justification in addition to a plea of not guilty.

The substance of the Libel Act, 1843 (6 and 7 Vict.,
c. 96) was adopted in Saskatchewan in The Libel and Slander
Act, R.S.S. 1909, c. 71 (see now R.S.S. 1978, c. L-14). The
only substantive provisions in the English Libel Act which are
omitted in the Saskatchewan Act dealt with criminal libel
which is not within the jurisdiction of the Province.
Sections 611 and 612 of the Criminal Code are very similar to
s. 6 of the Libel Act 1843 (6 and 7 Vict., c. 96) which reads:

6. On the trial of any indictment or information for a
defamatory libel, the defendant having pleaded such a plea as
hereinafter mentioned the truth of the matters charged may be
inquired into, but shall not amount to a defence unless it was
for the public benefit that the said matters charged should be
published; and to entitle the defendant to give evidence of
the truth of such matters charged as a defence to such
indictment or information, it shall be necessary for the
defendant, in pleading to the said indictment or information,
to allege the truth of the said matters charged in the manner
now required in pleading a justification to an action for
defamation, and further to allege that it was for the public
benefit that the said matters charged should be published, and
the particular fact or facts by reason whereof it was for the
public benefit that the said matters charged should be
published, to which plea the prosecutor should be at liberty
to reply generally, denying the whole thereof; and if after
such plea the defendant shall be convicted on such indictment
or information, it shall be competent to the court, in
pronouncing sentence, to consider whether the guilt of the
defendant is aggravated or mitigated by the said plea, and by
the evidence given to prove or to disprove the same: provided
always, that the truth of the matters charged in the alleged
libel complained of by such indictment or information shall in
no case be inquired into without such plea or justification:
provided also, that in addition to such plea it shall be
competent to the defendant to plead a plea of not guilty:
provided also, that nothing in this act contained shall take
away or prejudice any defence under the plea of not guilty,
which it is now competent to the defendant to make under such
plea, to any action or indictment or information for
defamatory words or libel.

In Archbold Pleading, Evidence & Practice In
Criminal Cases, 40th ed. (London: Sweet & Maxwell, 1979), c.
25 at p. 1732, para. 3638, there is the following in reference
to the Libel Act 1843:

. . . The falsity of the libel is immaterial unless
justification is pleaded. Where justification is pleaded the
defendant has to prove the truth of the alleged libel and that
the publication thereof is for the public benefit . . . and
the prosecutor has to deal with the matter only after a prima
facie case of justification is made out. . . .

The foregoing establishes, under the English Libel
Act, a reverse onus in relation to s. 6 of the Libel Act 1843.
However, I have been unable to find any authorities
specifically interpreting ss. 611 or 612 of the Criminal Code
whether they be substantive or procedural.

I am of the view that where a statutory provision
can reasonably be interpreted in more than one way it should
be interpreted with the Charter in mind. Lamer J., in his
dissenting judgment in Slaight Communications Inc. v.
Davidson, [1989] 1 S.C.R. 1038 at p. 1078, stated the
principle in this manner:

. . . Although this Court must not add anything to
legislation or delete anything from it in order to make it
consistent with the Charter, there is no doubt in my mind that
it should also not interpret legislation that is open to more
than one interpretation so as to make it inconsistent with the
Charter and hence of no force or effect. Legislation
conferring an imprecise discretion must therefore be
interpreted as not allowing the Charter rights to be
infringed. . . . .

In Hills v. Canada, [1988] 1 S.C.R. 513, at p. 558,
Madam Justice L'Heureux-Dube stated:

. . . I agree that the values embodied in the Charter must be
given preference over an interpretation which would run
contrary to them (RWDSU v. Dolphin Delivery Ltd., [1986] 2
S.C.R. 573; Manitoba (Attorney General) v. Metropolitan Stores
Ltd., [1987] 1 S.C.R. 110). . . .

Mr. Justice Beetz referred to Charter-based
interpretation as another meaning of "the presumption of
constitutionality" in Manitoba v. Metropolitan Stores (MTS)
Ltd., [1987] 1 S.C.R. 110, at p. 125:

Still another meaning of the "presumption of
constitutionality" is the rule of construction under which an
impugned statute ought to be construed, whenever possible, in
such a way as to make it conform to the Constitution. This
rule of construction is well known and generally accepted and
applied under the provisions of the Constitution relating to
the distribution of powers between Parliament and the
provincial legislatures. It is this rule which has led to the
"reading down" of certain statutes drafted in terms
sufficiently broad to reach objects not within the competence
of the enacting legislature: McKay v. The Queen, [1965] S.C.R.
798. . . .

I find that ss. 611 and 612 of the Criminal Code are
reasonably open to more than one interpretation. These
sections ought to be construed in such a way so as to make
them consistent with Charter values.

I conclude, therefore, that ss. 611 and 612 set out
the procedures to be followed but do not create a reverse onus
on the accused. They are procedural. The effect of these
provisions is that the accused is permitted to put the Crown
on notice of his or her defence. This interpretation is in
accord with Charter values.

When an accused pleads, pursuant to ss. 611, that
the alleged defamatory matter published by him was true and
that it was for the public benefit, the onus remains upon the
Crown to prove beyond a reasonable doubt that the matter was
not true and that it was not for the public benefit. The onus
does not shift to the accused. However, as in all criminal
cases, the accused has the right to testify or to call
evidence of the truth of the matter to negative the allegation
that the accused knew that the libel was false but there is no
onus upon him or her to do so. Accordingly, s. 300 of the
Criminal Code does not violate subsections (c) and (d) of s.
11 of the Charter.

SECTION 301 OF THE CRIMINAL CODE

Section 301 of the Criminal Code provides that every
one who publishes a defamatory libel is guilty of an offence.
Unlike under s. 300 of the Criminal Code, the Crown need not
prove the mens rea element of knowledge of falsity under s.
301. Thus under s. 301 an accused is open to criminal
sanction if he or she expresses an opinion or belief which he
or she reasonably and honestly believes to be true and even if
the defamatory matter is true. If the defamatory matter is in
fact true, the mens rea element of intention to defame may not
be present. The limitation imposed on s. 2(b) of the Charter
by s. 301 of the Criminal Code does not meet the minimal
impairment stage of the Oakes test, nor is there a
proportionality between the effects of the limiting
legislation and the objective. Therefore, s. 301 of the
Criminal Code cannot be justified in a free and democratic
society under s. 1 of the Charter.

CONCLUSIONS

Section 300 of the Criminal Code is an infringement
on freedom of expression guaranteed by s. 2(b) of the Charter.
Such infringement is a reasonable limit prescribed by law and
demonstrably justified in a free and democratic society.

Section 300 of the Criminal Code does not constitute
a threat to the right to liberty and the right not to be
deprived thereof. Section 300 does not violate ss. 7, 11(c)
nor 11(d) of the Charter.

Section 301 of the Criminal Code is an infringement
on freedom of expression guaranteed by s. 2(b) of the Charter.
It does not meet the threshold test under s. 1 of the Charter
and therefore cannot be upheld under that section.

In summary I find s. 300 of the Criminal Code to be
constitutional and valid. I find s. 301 to be
unconstitutional and of no force or effect.

J.




Q.B. A.D. 1994
No. 7 J.C.S.

IN THE COURT OF QUEEN'S BENCH
JUDICIAL CENTRE OF SASKATOON

BETWEEN:
JOHN DAVID LUCAS and
JOHANNA ERNA LUCAS
APPLICANTS
(ACCUSED)

- and -

THE MINISTER OF JUSTICE FOR THE PROVINCE
OF SASKATCHEWAN for HER MAJESTY THE QUEEN
and THE MINISTER OF JUSTICE FOR THE DOMINION
OF CANADA for HER MAJESTY THE QUEEN
RESPONDENTS

R. Donlevy for the Crown
R. Parker for the Johanna Erna Lucas
John David Lucas on his own behalf

ADDENDUM HRABINSKY J.
March 9, 1995

Order that the agreed statement of facts on pp.2 and 3 of the judgment dated February 6, 1995, not be published nor broadcast in any manner.
J.