COURT FILE NO.: CR-19-60-00 DATE: 2019-11-13
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN Respondent
- and –
ANDREW MARSDEN Applicant
Counsel: A. Khoorshed, for the Crown M. Lacy, for the Defendant
HEARD: August 7, 2019
REASONS ON APPLICATION TO QUASH COMMITTAL
D.E HARRIS J.
[1] The applicant, Andrew Marsden, applies for certiorari quashing his committal to trial on one count of defamatory libel contrary to Section 300 of the Criminal Code of Canada.
THE ALLEGATIONS
[2] The applicant’s son, Kyle, about 15 years old at the time, was a member of a teenage band, the Burlington Teen Touring Band (BTTB) which played in Canada and in the United States. Kyle is autistic and has special needs. The band managers were aware of this. The applicant complained repeatedly by email and in person to the band manager, Rob Bennett, that his son was not being treated fairly by him. There was also a complaint that Mr. Bennett permitted the applicant’s former spouse, Ms. Lapoint, to improperly use charitable funds to travel out of town with the band.
[3] The applicant, believing that Mr. Bennett had not adequately addressed his complaints, complained to Mr. Bennett’s supervisor, Bob Axiak.
[4] The disagreements between the applicant and Mr. Bennett and Mr. Axiak (the complainants) became very heated. The applicant was exceedingly invested in his son’s emotional well being. Swirling around the disagreements was a bitter custodial and family dispute with his ex-wife over Kyle.
[5] At a band performance at the Centre for Performing Arts in Burlington on April 8, 2018, the applicant put up a poster outside the hall in several locations. The subject matter of the defamatory libel charge is the poster. It reads [sections of the poster have been assigned letters for easy reference]:
“Alert”
[A] Your Child May Be at Risk
[B] As a concernRD [SIC] parent of a Burlington Teen Tour Band Member please note that there are several serious allegations of abuse against the Burlington Teen Tour Band Managing Director Mr. Rob Bennett.
[C] Complaints have been made that this man has engaged in inappropriate behavior with an underaged child!
[D] There is also a serious complainT that funds have gone missing from the Angel Charity Fund.
[E] However; Mr. Rob Axiak of the city of Burlington has chosen to ignore these serious allegations in attempt to not embarrass the teen tour band management or himself.
[f] Please contact the city of Burlington and demand an investigation and help put a stop to their refusal to act and let them know that our community will not tolerate this.
[g] Your child may also be at risk and your donations may be being used inappropriately or stolen.
[h] Demand that the City of Burlington cannot allow our children to be abused by city employees.
[6] The poster was almost immediately taken down. An outside investigation into the claims in the poster found no wrongdoing on the part of Mr. Bennett or Mr. Axiak.
[7] It is the applicant’s position that the poster accurately reflected his previous complaints. Therefore, the poster did not promulgate a falsehood as the defamatory libel offence requires. In order to evaluate this argument, it is necessary to delve into the history leading up to the applicant’s drafting of the poster.
RE: THE POSTER’S ALLEGATIONS OF “ABUSE” AND “INAPPRPOPRIATE BEHAVIOUR WITH AN UNDERAGE CHILD”
[8] In the emotions whipped up in the conflict between the applicant and Mr. Bennett, the applicant had explicitly claimed in their correspondence that Mr. Bennett was guilty of “abuse” and “inappropriate behaviour.” Mr. Bennett, in his testimony at the preliminary inquiry agreed that the applicant had made “serious allegations of abuse” in emails and conversations with him and Bob Axiak before putting up the poster. Further, there was an on-line City of Burlington complaint form in which “abuse” allegations were made. Bob Axiak in his testimony agreed that the poster was consistent with and essentially repeated the prior allegations of the applicant. These allegations found their way into the poster at letters [B], [C] and [E].
[9] There were several incidents which had come to a head in the applicant’s mind and led him to draft the poster. There was a Christmas parade performance of the band at which the applicant breached protocol and attempted to speak with Kyle at the end of the parade. Mr. Bennett criticized the applicant in front of others. The applicant expressed displeasure with Mr. Bennett at the band office.
[10] On another occasion, at the end of a performance, the applicant picked up his son and asked for the bag containing Kyle’s belongings. Mr. Bennett believed that it had been agreed between the applicant and his ex-wife that the bag would be kept with the band. An argument ensued. Mr. Bennett took the band “property” out of the bag and the applicant left with the bag and the remaining contents. After this incident the applicant emailed Mr. Bennett and expressed the view that he was treating Kyle in a discriminatory manner and it was causing his son anxiety and stress.
[11] Another email from the applicant about the incident complained that no one was taking “responsibility for the harm done” to his son. This was “inappropriate behaviour” by Mr. Bennett. He continued, saying, “This …was an outrageous act against an autistic person with special needs [who did not deserve it].”
[12] On November 8, 2017, another email was sent by the applicant. Kyle had returned from the practice upset because it was announced in front of the whole band that his mother would be travelling with the band to the Rose Bowl. The applicant complained that there was no need to announce this in front of the entire band given how sensitive the issue was. The applicant stated that Mr. Bennett had single-handedly caused the family great harm over the last two years. In saying that he would be held accountable for this, the applicant said he considered this “child abuse or worse…”
[13] Mr. Axiak testified at the preliminary hearing and said that in late November, after this email from the applicant was received, a “zero tolerance” policy with respect to the applicant was instituted. Direct dealings with Mr. Bennett were prohibited and the applicant was reminded of the need to comply with all band protocols.
RE: THE COMPLAINT IN THE POSTER THAT FUNDS HAD GONE MISSING FROM THE ANGEL CHARITY FUND AND HAD BEEN INAPPROPRIATELY USED OR STOLEN
[14] The allegations of funds having gone missing or being inappropriately used are in the poster at letters [D] and [G]. There was a history to this as well. The band was going to Hawaii to perform. Kyle’s mother was signed up as a chaperone. The band wanted a one on one chaperone for him. The applicant was displeased with this and said he would be coming to Hawaii himself. He eventually backed off and his ex-wife travelled with Kyle and the band. However, the applicant thought that a charity fund, the Angel Fund, was being improperly used to subsidize his wife’s travel expenses. The applicant raised this with Mr. Bennett, Mr. Axiak and other supervisors with the City of Burlington. Mr. Bennett’s response was that he had no control over how funds from the Angel Fund were disbursed.
[15] There was more conflict of a similar kind around a subsequent trip to California. Ms. Lapoint was again scheduled to go with her son and the band. The applicant also wanted to chaperone with the band. If he could not, he intended to make separate travel arrangements with his son. Mr. Bennett and then Mr. Axiak became involved. Mr. Axiak banned the applicant from travelling to California or staying at the same hotel as the band. Ultimately, Kyle did not end up going on the trip. The applicant alleged that Mr. Axiak was covering up for Mr. Bennett and had not properly investigated the claim that money from the Angel Fund had been used inappropriately.
THE DEFAMATORY LIBEL PROVISIONS IN THE CRIMINAL CODE
Criminal Code, R.S.C., 1985, c. C-46
DEFINTION\Mode of Expression
- (1) A defamatory libel is matter published, without lawful justification or excuse, that is likely to injure the reputation of any person by exposing him to hatred, contempt or ridicule, or that is designed to insult the person of or concerning whom it is published.
(2) A defamatory libel may be expressed directly or by insinuation or irony
(a) in words legibly marked on any substance; or
(b) by any object signifying a defamatory libel otherwise than by words.
PUBLISHING
- 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.
PUNISHMENT OF LIBEL KNOWN TO BE FALSE
- 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 ELEMENTS OF THE OFFENCE OF DEFAMATORY LIBEL
[16] In the leading case of R. v. Lucas, 1998 CanLII 815 (SCC), [1998] 1 S.C.R. 439, 123 C.C.C. (3d) 97, the defamatory libel provisions were subjected to a constitutional attack pitting freedom of expression under Section 2(b) of the Charter of Rights and Freedoms against the fundamental importance of personal reputation.
[17] The provisions, with a minor exception not relevant here, were upheld as a reasonable limit prescribed by law under Section 1 of the Charter. However, under the constitutional scrutiny of the Supreme Court, the elements of the defamatory libel offence were reinterpreted and reinforced. The elements of the offence as established in Lucas are (see paragraphs 30, 58, 68, 82):
Actus Reus
The publication of a false statement. (It must be without justification or excuse but there is no issue with respect to that aspect in this case), and
The statement must be “objectively defamatory” in the sense of “likely to injure the reputation of any person by exposing him to hatred, contempt or ridicule”, or that it was “designed to [gravely] insult the person ….”
Mens Rea
Knowledge of the falsity of the statement, and,
An intention to defame the alleged victim.
THE DECISION OF THE PRELIMINARY HEARING JUSTICE
[18] The preliminary hearing judge committed the applicant to trial. She said at the outset of her reasons,
The background to what brings this matter to this courtroom, of course, is the high conflict Family Court proceedings. It is quite clear that, even as I am speaking, the accused is dealing with high conflict Family Court proceedings in Milton regarding custody and assess of Kyle with his ex-spouse. Its seems apparent to me that the City of Burlington and the Burlington Teen Tour Band have been hit hard as collateral damage to these high conflict Family Court proceedings.
[19] The preliminary hearing justice first concluded that the accused knew that the information in the poster was false. It is not entirely clear what this finding was based on. She then found that the “clear animus” towards Mr. Bennett was evidence of an intention to defame. The preliminary hearing judge relied upon the evidence of Mr. Bennett who testified that when he saw the poster, “I was devastated. Like my heart was ripped out.” The justice then asked rhetorically whether this was,
a reasonable response from the man who has been involved with the Burlington Teen Touring Band for 40 years? Hundreds and hundreds of children? Yes it was.
[20] At the end of her reasons, the preliminary hearing justice said that with respect to the actus reus of falsity,
for the same reasons I found the falsity of the statement to be subjectively known by Mr. Marsden, that part of the actus reus is made out as well.
THE STANDARD OF REVIEW
[21] The applicant must demonstrate that the preliminary hearing justice exceeded her jurisdiction by committing him to trial. In order for a preliminary hearing judge to venture outside her jurisdiction by committing to trial, there must be an absence of evidence on an essential element of the offence. In examining this issue, the reviewing judge must grant the “greatest deference” to the conclusion of the preliminary hearing justice. A “scintilla of evidence” on each element of the offence is all that is needed for the committal to be within jurisdiction: R. v. Deschamplain 2004 SCC 76, [2004] 3 S.C.R. 601 at para. 23, R. v. Russell, 2001 SCC 53, 157 C.C.C. (3d) 1 at paras. 19-20, R. v. Skogman, 1984 CanLII 22 (SCC), [1984] 2 S.C.R. 93 at pp. 100, 104.
WAS THERE EVIDENCE OF A DEFAMATORY LIBEL?
[22] The issue on this application reduces down to whether there was any evidence before the preliminary hearing judge satisfying the twin elements of falsity of the statements in the poster and knowledge of their falsity. These two elements, on this record, one a part of the actus reus, the other a component of the mens rea, go hand and hand. “Calculated falsehood” (Garrison v. Louisiana, 379 U.S. 64 (1964), per Brennan J. stated at p. 75) is at the centre of the defamatory libel provision and at the centre of this prosecution.
[23] There are important freedom of expression issues interwoven into this criminal accusation. Defamatory libel penalizes speech with criminal sanctions. Case law demonstrates that criminal offences predicated on speech must be carefully scrutinized: see generally R. v. Zundel, 1992 CanLII 75 (SCC), [1992] 2 S.C.R. 731, [1992] S.C.J. No. 70.
[24] Proof of “calculated falsehoods” is crucial to protect the right to freedom of expression. As was said in the pre-Lucas case of R. v. R.A.K., 1995 CanLII 6014 (SK KB), [1995] S.J. No. 399, 133 Sask.R. 248 at para. 8:
What must be established is that the accused knew what he was saying was false. That places a considerable burden on the Crown but it reflects Parliament's concern that freedom of speech be protected as much as possible. It is not enough for the Crown to show that what the accused said was false. It must establish that the accused knew it was false. There may, however, be cases where the statement is so obviously untrue that the accused will be presumed to know that.
(Emphasis Added)
[25] For the reasons below, I would allow the application and quash the committal. The applicant raised a private dispute with the complainants to a public forum, railing against the complainants alleged unfairness in the poster. The allegations made against the complainants in the poster had been expressed previously in much the same language and with the same tenor. The poster advanced opinions and value judgments incapable of being proved false as required by the defamatory libel provision. There being no evidence of falsehood or of knowledge of falsehood, the preliminary hearing judge acted outside her jurisdiction in ordering the applicant’s committal for trial.
[26] The reasons for this conclusion will be structured under the following headings:
The poster depicted the prior history between the complainants and the applicant with substantial accuracy, albeit in a hyperbolic and angry tone. The statements in it were not false as the defamatory libel offence requires. There are two aspects to this: 1. It was made clear in the poster that its contents were “allegations” not proved facts; 2. The allegations in the poster more or less accurately depicted what the applicant had said privately to Mr. Bennett and Mr Axiak in the past.
The offence of defamatory libel requires proof of false statements. The poster conveyed statements of opinion, not statements of fact. Opinion is not susceptible to proof as true or false.
The complainants’ upset was of no evidentiary assistance to support proof of falsehood or of knowing falsehood.
The Lucas and Stevens cases are illustrations of the proper use of the defamatory libel offence. To compare this case to those highlights the deficiencies in this prosecution.
1. THE POSTER CONVEYED “ALLEGATIONS”
[27] It is important to recognize that the poster was explicit in stating from the outset that its content was based on “allegations.” At [B] it is stated: “A concerned parent” of a band member wished to note that “there are several serious allegations of abuse.” At [C]: “Complaints have been made…” Going on to [E] it is stated that Bob Axiak has ignored these “serious allegations.” At [H], readers are importuned to “demand an investigation.”
[28] Allegations or complaints are not proof. An investigation, like the investigation urged in the poster, is to explore allegations and complaints. The civil defamation jurisprudence takes significant pains to draw a line of demarcation between allegations and facts.
[29] In Guergis v. Novak, 2013 ONCA 449, [2013] O.J. No. 2975, 116 O.R. (3d) 280, a cabinet minister alleged that the Prime Minister had defamed her in a press release. The press release said that there had been serious allegations against the cabinet minister and that the allegations had been referred to the RCMP and the Ethics Commissioner. The Court of Appeal said,
57 A reasonably thoughtful and informed reader would understand the difference between allegations and proof of guilt. Such a person would bear in mind that an accused person is presumed innocent until proven guilty: Miguna v. Toronto Police Services Board, [2004] O.J. No. 2455 (Ont. S.C.J.), at paras. 4-6, aff’d [2005] O.J. No. 107 (Ont. C.A.), at para. 4.
[30] More recently, in Frank v. Legate, 2015 ONCA 631, [2015] O.J. No. 4819, 23 C.C.L.T. (4th) 190, a physician claimed she had been defamed by lawyers who had published online complaints and medical malpractice allegations which had been made against her. The Court of Appeal in dismissing an appeal from the striking of the statement of claim said at para. 44,
No reasonable person, who is taken to understand the difference between allegations and proof of guilt, could interpret these statements in the manner suggested by the appellant (i.e. as suggestive of her being negligent and/or incompetent as a physician).
[31] Our accusatorial system of justice has always made a fundamental distinction between allegations and facts. This dichotomy is deeply woven into the fabric of our law in both civil and criminal proceedings. Court proceedings are often about taking allegations and attempting to persuade a decision maker to find them as facts. This distinction between allegations and facts is well-recognized by a reasonable, well-informed member of the public.
[32] It should also be noted that defamatory libel could rest on false allegations made privately and then published subsequently. A person could be accused falsely in private communication and this false allegation could then be published. This case, however, seems to be premised by the Crown on the poster being a false depiction of the private dispute between the applicant and the complainants.
2. THE POSTER WAS ESSENTIALLY ACCURATE
[33] The Crown’s primary position on this application was that an implication of criminal abuse and theft of money was left by the poster. Because this was false and was known to be false, these corresponding act and mental elements of the offence were made out to the requisite standard.
[34] This argument cannot be accepted. The statement that there had been allegations of “abuse” as stated in the poster was literally true. The applicant had complained over a lengthy period of time based on several incidents that his son, a vulnerable person, had been treated poorly by Mr. Bennett and Mr. Axiak. The word “abuse” had been specifically used by the applicant in his previous correspondence with Mr. Bennett and Mr. Axiak as was the phrase “inappropriate behavior.”
[35] Moreover, Mr. Axiak had testified that the poster went no further than the applicant’s previous allegations had gone. This was powerful evidence to refute the Crown’s case on the central element of falsity.
[36] It is true that the word “abuse” is highly emotive and could potentially leave a connotation of criminal misconduct. This is particularly the case when combined with the words, “underage children” in the poster.
[37] However, the poster had to be interpreted in full context. As held in Guergis at para. 56, “… words are to be construed in context, according to the meaning they would be given by reasonable persons of ordinary intelligence, knowledge, and experience”: also see Frank v. Legate at para. 48.
[38] The public, as part of the context, would view the poster with incredulity. It was posted in a public place and advocated an investigation based on a private dispute the factual basis of which was impossible to discern. Public displays of this kind are not uncommon. As advocacy, they could not be less persuasive.
[39] There may be a natural inclination amongst lawyers to interpret the word “abuse” as referring to criminal offences, whether assaults or sexual assaults. That inclination is not shared by the wider public. It is the ordinary person which is the perspective, not a legally trained person: Lewis v. Daily Telegraph Ltd., [1964] A.C. 234 (U.K. H.L.) at p. 258. To an ordinary person “abuse” comes in many forms and does not necessarily mean physical abuse. In context, it did not mean that here.
[40] Two parts of the poster, if read carefully, were inconsistent with the allegation being of physical abuse. The sentence at letter [F] says,
PLEASE CONTACT THE CITY OF BURLINGTON AND DEMAND AN INVESTIGATION AND HELP PUT A STOP TO THEIR REFUSAL TO ACT AND LET THEM KNOW THAT OUR COMMUNITY WILL NOT TOLERATE THIS.
[41] The last sentence of the poster at letter [H] states,
DEMAND THAT THE CITY OF BURLINGTON CANNOT ALLOW OUR CHILDREN TO BE ABUSED BY CITY EMPLOYEES.
[42] In urging the public to demand an investigation and not to tolerate the “abuse”, the poster makes it clear that it is not criminal abuse which is being alleged. The plea would be far too mild and contingent if the abuse was truly of a criminal nature.
[43] With respect to the allegations of missing or stolen funds and inappropriate use of funds (letters [D] and [G]), there had been an allegation that it was wrong for the Angel Fund to have subsidized the travel of the applicant’s ex-wife with the band. While the poster framed this in terms of missing funds, inappropriate use of funds or stolen funds, to a layperson, the vantage point from which it must be adjudged, the poster alleged a form of misappropriation. The poster in using the language it did was not perpetrating a falsehood.
[44] The Crown also argues one other point of known falsity besides the allegation of abuse and stolen money. This arises from the heading of the poster at [B], “Your Child May be At Risk.” The Crown argues that this was “misleading” because it was a “suggestion to all parents that their own children may be at risk” when it was actually only a very specific situation with respect to Kyle. But this was incapable of being catalogued as being either true or false. The warning could not be described as false as required by the defamatory libel provision. From his unhappy experience, the applicant was simply warning others that the same might happen to them.
[45] Looking at the poster as a whole, more precise language would have obviously been preferable when making serious allegations against the two men. There was a febrile tone to the poster. “Discrimination”, “insensitivity” or “emotional abuse” would have been more apt descriptions of the prevailing situation from the applicant’s perspective than dubbing it simply “abuse.” Calling the dispute about subsidizing his ex-wife’s travel theft or even missing funds was also not as carefully phrased at it could have been. However, it should be noted that even if the poster had used more precise language, these allegations would still have been hurtful to the complainants.
[46] We do not criminalize individuals because of imperfect linguistic skills or because their speech is offensive. The gist of the poster portrayed the history in a generally accurate manner. Freedom to express oneself upon threat of criminal prosecution ought not to depend on surgical exactitude. Perhaps most importantly, the applicant was simply expressing his opinion, toxic as it was.
3. THE POSTER CONTAINED STATEMENT OF OPINION, NOT OF FACT
[47] As established in Lucas, the act element of defamatory libel requires proof of statements of fact, statements of fact which must be proved false. Facts can be true or false. Opinions, however, defy such categorization. One can agree or disagree with opinions, but opinions are not susceptible to proof as true or false.
[48] Furthermore, opinions are protected by the right to freedom of expression. Opinion are expressly included in the Section 2(b) Charter right (“freedom of thought, belief, opinion and expression”): Irwin Toy Ltd. v. Que. (A.G.), 1989 CanLII 87 (SCC), [1989] 1 S.C.R. 927, 58 D.L.R. (4th) 577 at p. 968, Simpson v. Mair, 2008 SCC 40, [2008] 2 S.C.R. 420 at para. 4. If opinions can be prosecuted, there is virtually no limit to the kind of speech at which the criminal prohibition of defamatory libel can be levelled. Any matter that could potentially ground a suit for civil defamation because of reputational injury would be fair game and could be elevated to criminal defamatory libel.
[49] At times, it may be difficult to distinguish between fact and opinion. The difficulty of the distinction, when it arises, weighs on the Crown as the Crown has the burden of proof.
[50] In Zundel, the Supreme Court of Canada struck down the publication of false news offence in the Criminal Code. The gravamen of the offence was wilful publication of a statement that was known to be false and was likely to cause injury. The knowledge of falsity element is akin to the issue of “calculated falsehoods” at the crux of this application.
[51] Justice McLachlin (as she then was), writing for the majority in Zundel, expressed discomfort with the “slippery” and at times difficult distinction between fact and opinion. Justice McLachlin said at para. 57:
57 The phrase “statement, tale or news” [referring to the wording of the false news offence], while it may not extend to the realm of true opinion (wherever the line is to be drawn, itself a question of great difficulty), obviously encompasses a broad range of historical and social speech, going well beyond what is patent or provable to the senses as a matter of “pure fact”.
[52] In this case, however, the statements are not ambiguous. They are clearly statements of opinion, not of fact. Assistance in distinguishing opinion from fact is to be found in the dissenting judgment of Justice Cory in Zundel. There was no disagreement by the majority on this issue. In rejecting the argument that there is no coherent distinction between opinion and fact, Justice Cory described the distinction. He said,
227… Expression which makes a statement susceptible to proof and disproof is an assertion of fact; expression which merely offers an interpretation of fact which may be embraced or rejected depending on its cogency or normative appeal, is opinion.
228 This analysis is supported by the distinctions employed in the Canadian and United States laws of defamation (see R.E. Brown, The Law of Defamation in Canada (Toronto: Carswell, 1987), vol.1, at p. 678, and Ollman v. Evans, 750 F.2d 970 (D.C. Cir. 1984) (en banc), certiorari denied, 471 U.S. 1127 (1985)). Four helpful criteria have been identified in order to distinguish fact from opinion: specificity of the terms used, verifiability, linguistic context, and social context. All criteria are unified by the theme of exploring the response of a reasonable reader.
229 The statement must have a sufficiently definite meaning to convey facts. An allegation that X is corrupt is not an assertion of fact because it makes no specific allegation and uses language that lacks a definite meaning. However, an allegation that X is corrupt because he embezzles from his employer bespeaks sufficiently certain facts to permit its characterization as a factual claim.
230 The statement must be verifiable through empirical proof or disproof. An allegation that X is a K.G.B. agent is empirically verifiable and therefore factual; an allegation that her temperament would suit her for such work is not verifiable and therefore an expression of opinion. A statement that the hot dogs one makes are 100 per cent beef is a verifiable factual claim; a statement that they are delicious is an expression of opinion.
231 The statement must be made in a linguistic context in which it will be understood as fact rather than opinion…
232 Finally, the statement must be considered in its broader social context. Some forms of expression, such as academic periodicals, are accorded more authority and have traditions of authenticity that influence their interpretation, while others, such as political signs or lampoons, have traditions of hyperbolic rhetoric. Statements, such as the pamphlet at issue in this appeal, which are disguised as the reasoned product of scholarly investigation will be accorded greater seriousness by the reasonable reader.
[53] In the same vein, the civil law of defamation in the last number of years has explored the issue of when a statement is opinion. If a statement is properly classified as opinion, a defence of fair comment is available even though the plaintiff’s reputation has been injured. The fair comment defence is essential to freedom of expression: Slim v. Daily Telegraph Ltd., [1968] 2 Q.B. 157, [1968] 1 All E.R. 497 (Eng. C.A.) at p. 503.
[54] In Simpson v. Mair, Simpson was a public figure opposed to gay and same-sex lifestyles being taught in the schools. Mair was a radio show host who spoke against her and compared her to historical figures who condoned violence. Justice Binnie held that a reasonable viewer would see this as a comment not as an assertion of fact (see paras. 19, 26-27).
[55] Comment was defined as including “the subjective expression of opinion in the form of a deduction, inference, conclusion, criticism, judgment, remark or observation which is generally incapable of proof” (Simpson at para. 26, Grant v. Torstar Corp.,2009 SCC 61, [2009] 3 S.C.R. 640 at 31, adopted from Ross v. N.B.T.A., 2001 NBCA 62, 201 D.L.R. (4th) 75 (N.B. C.A.), at para. 56). It has also been referred to as a “value judgment” (Ross at para. 56).
[56] Delving into the specific differences between civil and criminal liable is unnecessary. The kernel to be extracted here is that the civil law of defamation recognizes the legal difference between fact and opinion and holds that opinion is generally incapable of proof as false. This follows as a matter of logic. It also recognizes the value of speech and permits significant leeway to ensure its free exercise. Unlike in the context of a civil tort, a statement of opinion enjoys complete immunity from criminal prosecution.
[57] An examination of the poster demonstrates that it expressed opinions, not statements of fact. The applicant made observations of the conduct of Mr. Bennett and Mr. Axiak towards him and his son. What he expressed in the poster and previously to the complainants concerning their behaviour were his normative judgments of their behaviour. How could it ever be proved true or false that the complainants had not treated the applicant’s son with sensitivity in light of his special needs?
[58] Applying the four criteria relied upon by the minority in Zundel, as in the example of alleging that someone is corrupt, there was no definite meaning to the terms “abuse” or “inappropriate behaviour.” There was no factual substrata presented in the poster which could lead an observer to view these broad statements as more fact than opinion. Furthermore, the statements were not verifiable through empirical proof or disproof. What took place was within an interpersonal relationship not amenable to proof of truth or falsehood. The linguistic context of the applicants’ poster would not likely be taken seriously by an ordinary reader. Lastly, the broader social context was of a protest placard with its “traditions of hyperbolic rhetoric.”
[59] All four criteria support the poster as an expression of opinion. So does the analysis derived from the civil defamation cases. The applicant was voicing an opinion about the treatment of his son and making value judgments about the complainants’ conduct. The opinions were based on events and facts which were quite impossible to determine one way or the other by an outside observer. At heart, the expression was opinion, not fact. It was incapable of being proved false.
4. THE COMPLAINANTS’ UPSET DID NOT PROVE FALSEHOOD OR KNOWING FALSEHOOD
[60] The language used in the poster was intemperate and the tone and the manner of its display in a public place lacked the basic graces of common civility. The poster’s overt purpose was to rally the public to investigate and then punish Mr. Bennett and Mr. Axiak. It was more a blind lashing out against the complainants than it was a reasoned argument with any prospect of successful persuasion.
[61] To escalate the private conflict into a public remonstrance was impolitic and offensive. However, disrespectful language criticizing others does not constitute the crime of defamatory libel. Perhaps in the best of all possible worlds, public expressions of this kind with the object or effect of encouraging derision of others would not occur. But that is not reality. There will always be those who feel a need to air their grievances publicly and attempt to enlist the public in their crusade against what they see as injustice. The frothed up, mildly crazed idiosyncrasy of these appeals, like the poster in this case, will betray by their tone and content the low credibility of the speaker.
[62] It was understandable that Mr. Bennett and Mr. Axiak would be upset by the poster. However, although the antagonistic tenor of the poster may have helped to prove the insult element of the actus reus, it did not, viewed from the perspective of a reasonable informed viewer, serve to advance in any way the Crown’s case on the central elements of falsity and knowing falsity. It did not touch on the question of calculated falsehood lying at the heart of the offence. Strict division between these elements of the offence is critical.
[63] A lack of definitional rigor can stultify free expression by the chilling threat of prosecution. The defamatory libel offence is very clear. The statements must be statements of fact, not opinion, they must be false, and they must be known to be false. These elements are the key to what distinguishes criminal defamation from the tort of defamation. A failure to be vigilant in requiring calculated falsehoods could transform the provision into one inimical to the continued vitality of free expression in our society.
5. LESSONS FROM THE LUCAS AND STEVENS CASES
[64] Lastly, a review of the facts from two well-known defamatory libel cases in recent Canadian history helps to illustrate the total absence of a calculated falsehood in this record. In Lucas, a police officer had investigated sexual assaults against three children. Charges were laid but were later withdrawn or stayed by the prosecution. There were allegations that the complainants had engaged in explicit sexual acts between themselves. Mr. Lucas had been approached by several of the accused who had publicly proclaimed their innocence. He picketed outside the court with placards which suggested that the investigating police officer was complicit in the sexual abuse of the children and that he had a “touching problem.” This was blatantly and manifestly false. The Supreme Court upheld his conviction for defamatory libel.
[65] In R. v. Stevens, 1995 CanLII 5594 (MB CA), [1995] 4 W.W.R. 153, 100 Man. R. (2d) 81, the Manitoba Court of Appeal dismissed a constitutional challenge to the defamatory libel section several years before the Supreme Court took up the question in Lucas. Stevens had a brief relationship with the complainant which she had broken off. He put up posters and distributed leaflets on a university campus containing the complainant’s picture and commenting that she was desperate, suicidal, had an abortion and was a known sex-offender. On appeal, there was no challenge to the trial judge’s finding that these assertions were false and known to be false.
[66] Reference to these two cases does not purport to fully catalogue falsehoods criminalized by the defamatory libel provision. However, it can be seen that these cases are fundamentally different from this case. No one could reasonably argue that Lucas and Stevens did not perpetrate falsehoods. Such is not the case with respect to the applicant.
[67] Unlike this case, those cases did not arise out of the details of an interpersonal conflict between the accused and the complainants in which, to find falsehood, it would be necessary to delve into the goings on in the relationship between them and determine who was at fault for what. These value judgments are beyond the reach of the criminal defamatory libel offence.
CONCLUSION
[68] Focusing on the requirement of a known falsehood, there was simply no evidence which was capable of establishing this. The applicant had characterized the behaviour of the two complainants in a way that was debatably correct despite its incendiary tone. It was clearly not false in a black and white sense. It was not, viewed in the context of what had been said in the past by the applicant, a false statement of fact. The statements were clearly labelled as allegations. The statements conformed to the content of the allegations made previously. The statements were in the nature of opinion and value judgments. They were not “calculated falsehoods” as required by the offence.
[69] The applicant was guilty of having the bad judgment to escalate his personal grievances into a public forum. It only gave one side of the story when there was obviously another side. But there is no evidence that what the applicant said was false or known to be false.
[70] In conclusion, although there was quite understandably consternation around the attack on the complainants, there was no evidence of deliberately false statements. What was said was opinion and any minimal factual component which could be gleaned from it was substantially accurate.
[71] The application for certiorari is allowed, the committal to trial is quashed and the applicant is discharged upon the one count charging him with defamatory libel.
COURT FILE NO.: CR-19-60-00 DATE: 2019-11-13
ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN Respondent
- and –
ANDREW MARSDEN Applicant
REASONS ON APPLICATION TO QUASH COMMITTAL
D.E HARRIS J.
Released: November 13, 2019