Thank you, and thank you, Dr. Turk.
I am the designated spokesperson for the Centre for Free Expression this afternoon. I'm a professor at Osgoode Hall law school at York University.
To members of the committee, we have prepared some speaking notes that were provided to you, and I'll just move to some of the highlights from those speaking notes.
Our presentation this afternoon concerns the status of criminal libel in the Criminal Code. There are three forms of criminal libel that are currently penalized in the Criminal Code: blasphemous libel, seditious libel, and defamatory libel.
Bill C-51 proposes to repeal the offence of blasphemous libel. In the Minister of Justice's charter statement, we learned that this was in part to enhance the protection of free expression. However, while Bill C-51 proposes to repeal blasphemous libel, it does not propose to repeal seditious libel or defamatory libel. There's a minor amendment proposed to defamatory libel, but in the main, the other offences remain intact.
The Centre for Free Expression supports and applauds the repeal of section 296, the blasphemous libel offence, on the grounds that it is either obsolete or that it contains risk elements related to the charter. We submit, however, that all forms of criminal libel should be repealed together. In particular, we submit to the committee that seditious libel and defamatory libel both fall within the rationale for repealing Criminal Code provisions in Bill C-51. Specifically, either the provisions are obsolete or they pose risks to the protection of expressive freedom under the charter.
I'll say a couple of words about blasphemous and seditious libel. These two are somewhat alike, because both of these Criminal Code offences are effectively or essentially obsolete. The last prosecution for blasphemous libel, I believe, was in 1936, and according to our research, the last major conviction for seditious libel occurred in 1950. I think both of these provisions are somewhat obsolete, and both pose charter risks to freedom of expression, as the minister acknowledged in the case of blasphemous libel.
In our view, defamatory libel raises particular concerns. Specifically, defamatory libel—there are two offences in the Criminal Code—is not obsolete. Far from being obsolete, the defamatory libel offences pose worrying risks and concerns for freedom of expression. My colleague Professor Taylor's research reveals worrying patterns for the prosecution of these offences under the Criminal Code.
I'll now turn to a couple of key issues about the defamatory libel offences. First of all, two defamatory libel offences in the Criminal Code are found in sections 300 and 301 of the code. Section 301 is notable because this provision has been found unconstitutional by lower courts in at least five different provinces across the country. That's the first significant point. Second, it's important to note that sections 300 and 301 are both more harsh in their approach to the questions of defamation and defamatory statements than the civil law of defamation.
The third point is that the Criminal Code's definition of “defamation” is particularly problematic because it's overbroad. Here I would point to the inclusion of the word “ridicule” in the definition of “defamation” in the code and the words “designed to insult” as elements of the criminal offence, which we would not find in the civil law definition of defamation. Moreover, words that ridicule or insult another person are not necessarily defamatory.
A fourth point, and it's a very important one for the Centre for Free Expression, is that these provisions in sections 301 and 30 are too often used by the police as a tool to silence and punish those who are harshly critical of different kinds of public actors. These can include police officers, prison wardens, municipal officials, and other kinds of state actors who have been harshly criticized by individuals from time to time.
In our submission, the defamatory libel offences, for a variety of reasons, pose very extreme charter risks to freedom of expression and fall within the minister's rationale for repeal under Bill C-51.
I would also like to state, because it's important, that there are other alternatives open under the Criminal Code should there be transgressive activity that needs to be addressed by the criminal justice system. There is a whole list of Criminal Code offences that can be used in lieu of defamatory libel to deal with this kind of conduct. There's criminal harassment, uttering threats, and the range of offences that deal with different kinds of cyber-smearing. Should there be time in the question period, my colleague Professor Taylor would be happy to speak to that.
I just have a couple of closing notes for the committee. The first is that, for the centre, it's significant to note that in 1984 the Law Reform Commission of Canada did a fairly extensive study of the whole subject of defamatory libel and the Law Reform Commission came to the conclusion and made the recommendation that defamatory libel should be abolished as a criminal law offence in Canada.
It's useful to note that more recently, in 2009, the United Kingdom made the decision to abolish all forms of common law criminal libel. That included seditious libel, defamatory libel, and something that is known in the U.K. as obscene libel.
I think that report and the U.K. reform initiative support our view that criminal libel offences in the code are really artifacts from another day and age, and do not belong in the criminal law at this point in time.
This has been a brief submission. We're happy to answer questions, but in closing, we urge the committee to consider amendments to Bill C-51 that would include the repeal of seditious libel and defamatory libel, together with blasphemous libel.
Thank you for your attention.