Justice Committee on Oct. 23rd, 2017

[The Chair, Liberal, Anthony Housefather]

Good afternoon, ladies and gentlemen.

It is a pleasure to have you here with us at the justice and human rights committee as we resume our study of Bill C-51, an act to amend the Criminal Code and the Department of Justice Act and to make consequential amendments to another act.

I am pleased to greet our witnesses today. We're very lucky to have with us, as an individual, Ms. Breese Davies, who is a lawyer at Breese Davies Law.

Welcome, Ms. Davies. Thank you for agreeing to go at the end of the testimony so that we can make sure we get everybody on video conference before anything can happen.

We have Mr. Faisal Mirza, who is an advocacy committee member and criminal law barrister representing the South Asian Bar Association. Welcome, Mr. Mirza.

Then we have the Centre for Free Expression, at Ryerson University, represented by Prof. Lisa Taylor, who is a professor of journalism, Ms. Jamie Cameron, who is a professor of law, and Prof. James Turks, who is director and distinguished visiting professor in the faculty of communications and design. Welcome, Ms. Taylor, Ms. Cameron, and Mr. Turk.

We're going to start with Mr. Mirza. All witnesses, please try to speak to the act itself and to potential amendments to the act, and not to general principles that go far outside the act. Thank you.

Mr. Mirza, the floor is yours. You have up to 10 minutes.

[Faisal Mirza, Advocacy Committee Member and Criminal Law Barrister, South Asian Bar Association]

Thank you.

Good afternoon. On behalf of the South Asian Bar Association thank you for the invitation to speak this afternoon. Let me start with the background of the organization that I'm here to represent today. We are the largest diverse bar association in Canada. SABA is also the largest organization of south Asian lawyers in North America, and we are coming up on our 11th anniversary.

In terms of advocacy we seek to protect the rights and liberties of diverse communities across Ontario. Our underlying goal is to work toward a justice system that is just and equitable and contributes to a legal profession that is inclusive and progressive. SABA has been involved in a number of consultations in the past with the government, and with various stakeholders in the legal community in Ontario. We are often with other equity groups in the broader community such as the Canadian Association of Black Lawyers, the Federation of Asian Canadian Lawyers, and the Canadian Muslim Lawyers Association.

In terms of my personal background, I am a criminal lawyer with 15 years' experience litigating cases at all levels of court. Exemplary that SABA is an inclusive group that works with other able organizations, in addition to being a contributor to SABA's advocacy group, I am also the chair of the Canadian Muslim Lawyers Association, and a contributing member of the Criminal Lawyers' Association. I'm pleased to hear that you have invited them in order to hear their views as well.

With respect to my contribution today, I wish to address one specific area of the bill, the proposed repeal of section 176 of the Criminal Code. The Minister of Justice's office has come to the conclusion that, one, this law's protection for ministers and clergy under paragraphs 176(1)(a) and 176(1)(b) is under-inclusive, and two, that it is redundant in the sense that other provisions of the Criminal Code are capable of meeting the same objective by way of criminal offences such as threats and assault.

My goal today is to provide some objective input about the pros and cons of the proposed repeal. First, let me turn to the issue of the under-inclusivity of this section. I agree that the language in paragraphs 176(1)(a) and (b) could be more inclusive. To better reflect the multicultural heritage of our nation the words “clergymen” or “minister” could be amended to state “a religious leader”. This way the section would read “everyone who (a) by threats or force unlawfully obstructs or prevents, or endeavours to obstruct or prevent, a religious leader from celebrating divine service, or performing any other function in connection with his calling”. That is a straightforward way to bridge the gap and make this provision more inclusive.

Second, let me address the issue of redundancy. In that context I'll speak about paragraphs 176(1)(a) and 176(1)(b) first. The Minister of Justice is correct that the Criminal Code already covers assaults and threats, and that the sentencing sections in the code indicate that crimes committed for bias or hate are aggravating factors on sentencing. As a criminal barrister I embrace the repeal of redundant criminal laws, but timing is everything. We cannot be blind that the current climate of increased incidents of hate, specifically at places of worship, supports that religious leaders may be in need of more, not less, focused protection. There is no doubt that synagogues, mosques, and temples are being targeted by hate groups. Those institutions also house schools where many children spend their days.

For instance, in March 2017 a bomb threat was called into Toronto's Downtown Jewish Community School, a kindergarten to grade 6 school located inside Miles Nadal Jewish Community Centre. In the preceding weeks, 20 bomb threats were called in across North America to various Jewish centres, including in Vancouver. Similarly, the massacre at the Centre culturel islamique de Québec, which killed six and injured 19 in January 2017, is a stark reminder that religious institutions and their leaders are a focal point of hatred. Some people may counter that other criminal laws are able to deal with those heinous acts. However, keep in mind that the mass shooting at the mosque in Quebec was predated by a pig's head being left at the door of the same mosque six months earlier.

The mistreatment of religious minorities is a growing problem in the greater society of Canada. For instance, racist comments inscribed on the walls at York University and Concordia University and the vandalism at synagogues and mosques are stark reminders.

Bill 62 in Quebec may add fuel to this fire. Indeed, this is becoming a North American problem, and something for which the greater context has to be considered. The 2012 shooting massacre at a Wisconsin Sikh temple and another shooting a few weeks ago at a church in Tennessee are further illustrations that more protection may be required at this critical time in history. Although this law has been infrequently applied in the past, it is hard to deny its relevance in the current climate. The application of the law may become more helpful if policing agencies are educated about it and the public is made aware that it exists.

In contrast, the removal of this section at this juncture may be viewed as an invitation to persons engaging in discriminatory acts to be more aggressive. That being said, if this section were to be deleted, there are additional subsections that continue to be relevant, subsections 176(2) and 176(3), and they are valuable in that they prohibit wilfully disturbing or interrupting persons gathering for religious, social, or benevolent purposes.

In other words, if paragraphs 176(1)(a) and 176(1)(b) are the source of controversy, then their deletion may not require the deletions of subsections 176(2) and 176(3). I'm also mindful of the motion 103, which is a useful platform to study discrimination in various segments of society. It may be appropriate for the government to press pause and allow that study to take its place, for the results to come forward, and then determine whether or not this section should remain.

Thank you.

[The Chair, Liberal, Anthony Housefather]

Thank you very much for your testimony. We will now move to the Centre for Free Expression. The floor is yours.

[Professor James L. Turk, Distinguished Visiting Professor, Faculty of Communications and Design, and Director, Centre for Free Expression, Ryerson University]

Thank you very much, Mr. Chair. We'd like to thank you and the members of the committee for inviting us.

I'd like to turn to my colleague Jamie Cameron, who will make our presentation.

[Professor Jamie Cameron, Professor of Law, Osgoode Hall Law School, Centre for Free Expression, Ryerson University]

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.

[The Chair, Liberal, Anthony Housefather]

Thank you very much, both of you, for your very clear testimonies.

Now we'll move to Ms. Davies.

[Breese Davies, Lawyer, Breese Davies Law, As an Individual]

Thank you. I, too, would like to thank the committee for inviting me to address you today. It's a real privilege to be here.

By way of my background, I'm a criminal lawyer who practises in Toronto. I've been practising for 17 years at all levels of court. I'm also a vice-president of the Criminal Lawyers' Association—I know you're going to hear from them in the next hour. I'm an adjunct professor at the faculty of law at U of T and at Osgoode Hall law school. In addition to that, I prosecute sexual abuse cases in the regulatory context, so it's within that frame that I'll make my submissions today.

As you know, broadly speaking, Bill C-51 has a number of classes of amendments. I want to focus my comments today on the provisions that create the new procedure for determining the admissibility of private records in the hands of the accused, so that would be proposed section 278.92. I know you have submissions on this from the Criminal Lawyers' Association and I obviously support those. I just want to address a few of the issues. We've tried to coordinate our comments so we don't duplicate what we say.

Both the Minister of Justice in her comments before you last week, and the parliamentary secretary in his comments during first reading, made it clear that the goals of this new procedural regime about the admissibility of private records is twofold: first, to ensure that sexual assault complainants are treated with respect; and second, to respond to the public concern there may be about how sexual assault cases are prosecuted, defended, and judged. Those are obviously two very important objectives, so I will keep those in mind when I make my comments.

I also want to preface my comments by saying that I acknowledge and recognize that the Supreme Court of Canada has said that the defence does not have the right to a trial by ambush, that it is open to Parliament to enact procedures that would control the way in which defence counsel can put forward a case, but there has to be a balancing of the rights, a balancing of the accused's rights with the interests of the complainant. It's in that spirit that I'm going to make my comments. It's in that spirit of the balancing that I still have some concerns about the new regime as it's drafted.

In particular, I have two concerns I want to talk about today. The first is that the provision is overly broad, even taking into consideration what the stated objectives are. The second is the lack of corresponding resources to deal with these more complex procedural issues, and the potential unintended consequences of creating complexity in criminal trials that I think you should be alive to when you're considering the bill.

Let me deal with the overbreadth. In my submission there are two ways in which the provisions as drafted are overly broad. The first one I can deal with fairly quickly, I think, because it's a fairly narrow point.

The proposed amendment makes it clear that no record relating to a complainant or a witness is admissible unless the procedure is followed. It strikes me, from all of the commentary that has been made, that the concern is really around the manner in which complainants are addressed in criminal trials, so my concern is that the inclusion of the words “or a witness” will make this enormously broad in terms of its application. That would apply to any crown witness, whether they are connected to the complainant or not, and in my submission that extends the reach of this new provision beyond the stated goal or the purpose. I think it's unnecessary to achieve the objectives.

I also think there would be a real concern on constitutional grounds about there being no rational connection between the stated purpose and that language, and that it wouldn't survive a minimal impairment analysis. I would urge you, in your discussions, to delete references to witnesses and continue to focus on complainants. That's the narrow one.

My second comment is around the definition of the record for the purpose of this regime. I know, from the legislation, that the definition of “record” that is being used for the new regime is the same definition that applies for the third-party records application, but in my submission it has very different connotations in the context of a record that's in the hands of an accused person already. I think you have to look at whether or not the definition of a record is too broad for the purposes that have been articulated.

The definition of “record” is “any form of record that contains personal information for which there is a reasonable expectation of privacy”. There is a list, but the starting point is whether it is a record for which there is a reasonable expectation of privacy. In my submission, that is going to cover potentially an enormously broad group of records, and it would significantly increase the complexity and length of sexual assault cases.

I want to give you five examples of records that I think would be captured in this definition that perhaps weren't intended to be captured, and certainly I think in the context of constitutional considerations should not be included.

One is personal communications between the accused and a complainant. If a complainant sends an email to an accused person, that is a private communication. The case law is very unclear on whether or not that is a record over which there's a reasonable expectation of privacy. The British Columbia Court of Appeal, in a case called Craig, said that you do retain a reasonable expectation of privacy over a private communication that you send to another person, even if it's in their hands. Even in the hands of an accused person, there would be a reasonable expectation of privacy over text messages, emails, or Facebook posts that you send to one another. The Ontario Court of Appeal came to the exact opposite conclusion.

This issue is before the Supreme Court of Canada, but if the Supreme Court of Canada sides with the B.C. Court of Appeal and says there is a reasonable expectation of privacy, any communication, any electronic communication that goes between an accused person and a complainant would now be subject to this regime. If the issue is about avoiding trial by ambush, you don't need that protection for things that a complainant wrote his or herself and sent to an accused person. There's no element of surprise, or there ought not to be an element of surprise in communications that initiated from the complainant or were received by the complainant. Certainly those are records that the complainant should have themselves, or the crown and the police can have access to and can get if they're deleted. That's one area that I think ought to be excluded.

There's also concern about joint records. Sometimes complainants and accused people have joint counselling records, joint cellphone records, joint bank accounts to which they both have a reasonable expectation of privacy but are equally entitled to have access. I think there's a real concern about requiring the accused to go through this procedural hoop when there are joint records. Private records filed in other proceedings, sometimes family courts, sometimes civil proceedings, sometimes related criminal proceedings, the type of private information which I think is quite rightly the subject of this, is already in the public domain and ought to be available, and this procedure shouldn't apply.

Also, it may include records that are part of disclosure, so records that the crown obtained, everybody knows about. If there's a reasonable expectation of privacy over those records, they still could be covered, and records that were produced through a third-party records application where the issues have already been adjudicated by a judge.

My suggestion is that there ought to be an amendment to the existing language that expressly exempts certain categories of communications, certain categories of records that ought not to be subject to this regime. I would suggest communications between complainants and the accused, records that are accessible to both the complainant and the accused, information that is otherwise publicly available, and records that have previously been disclosed through a third-party records application. For example, if I bring a third-party records application and I get a complainant's therapeutic records, I ought not to be required to go through a second application, once everybody knows what they are, in order to use those in a trial. Obviously every question, every line of cross-examination, will be subject to the discretion of the trial judge to stop the defence counsel if they're using it improperly.

Those are my broad suggestions in terms of narrowing the scope of what this applies to.

I want to just speak very briefly in the minute I have left about some unintended practical consequences.

One of the concerns is to ensure that responsible, experienced counsel are involved in all of these cases for the accused, and I know there are provisions for the complainant to have counsel as well. You do not want to create mechanisms that will either result in more unrepresented accused or more under-represented accused.

If there aren't additional resources allocated to fund these complicated procedures, you will have more and more experienced senior counsel not taking on these cases on legal aid, which most of these cases are. You will end up in situations where you have more unrepresented accused people who cannot navigate these proceeding or under-represented accused people who don't have adequate senior counsel to deal with these complex issues.

I think you have to be concerned as well that, as you increase the complexity of criminal trials, you obviously run up against the concerns that the case from the Supreme Court of Canada in R v. Jordan created, in terms of not the hard caps but the presumptive caps on delay. If you turn every trial that is now a one-day trial into a two-day trial, you're going to run up against serious considerations in terms of delay.

Those are my comments and I'm happy to take questions about them.

[The Chair, Liberal, Anthony Housefather]

Thank you very much to all of our witnesses. You were very helpful. We will start with questions and we're going to start with Mr. Nicholson.

[Rob Nicholson, Conservative, Niagara Falls, ON]

Thank you very much. I'm very pleased to have all of your testimony. I think it was all very helpful.

Ms. Davies, you gave us a suggestion of about four or five different ways in which we could clarify the area with respect to the reasonable expectation of privacy. Would that change your view of the bill? The Canadian Criminal Lawyers' Association is going to be coming. They say the bill that's drafted is unconstitutional and ineffective. That may or may not be your view, but would that change your opinion if those amendments were drafted? Would you be more satisfied with the bill?

[Breese Davies]

I think, as drafted, there are concerns about the constitutionality of it and I know those submissions are before you so I didn't address that. I think narrowing the focus so that it is very clear that it is a narrow range of records over which there is a high expectation of privacy.... Those are the sorts of restrictions that the courts would say Parliament is entitled to put on the means by which accused people defend themselves. I think the broader it is the less likely it would sustain constitutional scrutiny.

Yes, if you narrow it to a small category of records, it would go a long way to address concerns about constitutionality.

[Rob Nicholson, Conservative, Niagara Falls, ON]

I appreciate that very much.

Mr. Mirza, thank you very much for your comments with respect to the repeal of section 176. Thank you for splitting that and talking about two different sections of it. With respect to the first part, the definition of a “minister” or a “clergyman”, has it been your experience in the criminal justice system that when courts interpret that they haven't continuously made their interpretation of the Criminal Code more narrow? Or have you found that over the years, and certainly since the Charter of Rights and Freedoms has come in, that the courts have in fact expanded the definitions of various sections of the Criminal Code?

[Faisal Mirza]

If we're talking specifically about this section, I think that any reasonable jurist would look at the term “minister” or “clergyman” and view that as also encompassing other religious leaders. That being said, I think if you want to bring greater clarity to the law, it's easy to fix it. That's why I provided a suggestion.

[Rob Nicholson, Conservative, Niagara Falls, ON]

Thank you for that suggestion. Just to let you know, the Government of Canada already has expanded that definition in other departments. For instance, the Department of National Defence, while they may refer to members of the clergy in terms of the services they provide to members of the armed forces, that term includes rabbis, and other religious officials. Even the government itself has expanded the definition of what a member of the clergy is. Thank you very much for that.

We don't have much time, I know, but to the Centre for Free Expression, thank you very much for pointing out those other types of libel. Now that this has been brought to our attention we will have a look at that and see if that can and should be contained in the amendments here removing the other types of libel.

Those are my comments, Mr. Chair.

[The Chair, Liberal, Anthony Housefather]

Thank you very much.

You have some time left. Does anybody else from the Conservative side want to ask a question? You're good?

We're next going to move to Mr. Ehsassi.

[Ali Ehsassi, Liberal, Willowdale, ON]

Thank you, Mr. Chair.

My first question is for Ms. Davies. Thank you very much for your testimony. It was very clear, very comprehensive, and very helpful.

As you are very well aware, conviction rates for sexual assaults are very low at this point. One of the concerns that we have heard is that victims fear that the justice system, in going through with proceedings, will lead to revictimization.

Now in light of that and the concern that we certainly have, what are your thoughts on changes to clause 21 of Bill C-51? That, of course, is the clause that clarifies the circumstances under which a complainant's sexual history could be admitted as evidence.

[Breese Davies]

I haven't spent a lot of time looking at that because I know the Criminal Lawyers' Association is going to give you some submissions about that. My understanding of the amendment is that it is broadening the scope of what constitutes sexual behaviour or sexual activity for the purposes of one of those applications to include communications.

From my experience, trial judges are already alive to that issue of whether or not sexual communication is sexual activity for the purpose of that provision. I think the big concern from the defence perspective and from the perspective of balancing the rights, which is what you always have to be concerned about, is whether or not communications around the transaction that forms the subject matter of the offence are caught by that provision. I think that's the real concern. If you define it too narrowly, you will include in the requirement for an application the communications around the transaction.

I think it needs to be drafted in a way that ensures that communications on the same evening of or in anticipation of whatever the transaction is that leads to the event don't get excluded. Therefore, the courts and the defence are able to freely examine the full circumstances of the events that led to the offence, and what you're requiring an application for are truly additional communications that are not connected to the offence. I think that's the concern about how broad that section may be, that it would include or that it would be seen to apply to communications around the offence itself.

I hope that's helpful.

[Ali Ehsassi, Liberal, Willowdale, ON]

Absolutely. Thank you for that.

My second question is for the witnesses from the Centre for Free Expression. Again, thank you very much for your testimony. It was very helpful, especially the reference to the Law Reform Commission in the 1980s that I'd never heard of.

Now, in terms of full disclosure, I should say that I had the honour of having Professor Cameron at Osgoode Hall law school. Once again, I find myself here with a notebook and a pen to take notes as you guide us.

Professor Cameron, could you kindly comment on the changes in Bill C-51 that have to do with changes to the Department of Justice Act? It now requires the Minister of Justice to issue a charter statement with respect to every proposed bill. Could you tell us how significant that is?

[Prof. Jamie Cameron]

It's not part of my mandate in being here this afternoon, but I am aware that it is part of the proposal for Bill C-51. I applaud the initiative. I think it's a useful, constructive, and important addition to the legislation. The charter statements, of course, provide important guidance to everyone who's looking at the kinds of legislative measures that are being brought forward. We paid attention to the charter statement on the blasphemous libel in thinking that perhaps this might be time to bring the other forms of libel forward as well.

[Ali Ehsassi, Liberal, Willowdale, ON]

Absolutely.

As you stated, Bill C-51 really doesn't deal with the issue of defamatory libel. However, there is a change in the requirement for publishing. Could you speak to the significance of that, whether that's a good development or whether it will make a tangible difference?

[Prof. Jamie Cameron]

I don't think it will make a tangible difference, because it really just picks up a small part of the Supreme Court of Canada's decision in R. v. Lucas, which confirmed that in order for the offensive defamation to be made out, the publication has to be to a third party and not only to the victim of the defamatory statement. I don't see it as very significant.

If you don't mind my adding a comment, because I didn't get a chance to say it in my primary submission, Bill C-51 is a very important initiative. What the Minister of Justice has done is take a look through the Criminal Code in its entirety and try to identify critical provisions that are either obsolete or raise charter risks.

What the centre would simply like the committee to know is that it would be unfortunate if blasphemous libel were identified when the other forms of libel that share the rationales that are operative for Bill C-51 were not included in the inquiry. That's really why we're here.

To answer your question a bit more directly, the proposed amendment to the definition of defamatory libel really doesn't address the issues that are of concern to us, which have to do with the existence of the offences.

[The Chair, Liberal, Anthony Housefather]

Thank you very much. We're going to now move to Mr. Johns.

Mr. Johns, welcome to the committee.

[Gord Johns, NDP, Courtenay—Alberni, BC]

Thanks, Chair.

My question is for Professor Taylor.

Professor Taylor, could you continue to expand on how the Criminal Code provisions have related to defamatory libel in Canada, and why is that of concern? You discussed some alternatives, so feel free to expand on that.

[Professor Lisa Taylor, Professor of Journalism, Ryerson University, Centre for Free Expression, Ryerson University]

First and foremost, I will tell you that defamatory libel is being used far more often than most people understand. At the time that the Law Reform Commission of Canada wrote about this, we were seeing about two or three charges per year. Around 2000, it was at 20 charges per year. Now it appears that we're at 40 per year. Those are just the numbers that I can gather by going through the secondary and primary sources. No doubt there are some that have escaped my attention. We're talking about 40 cases a year, despite the conventional wisdom that says this is barely used, a little-used provision in the Criminal Code.

I have to divide the cases into two categories. There are two-thirds that deal with essentially crimes that are born of the Internet, and I'll come back to those in a minute. A full one-third of the cases target political dissent. They are individuals who are upset with the police, judges, lawyers, or Revenue Canada field agents, and who say inelegant and often harsh things about those individuals in their professional capacity. The criticism of public entities is core in its consistency with our guarantee of freedom of expression.

The other interesting thing that happens with this is that a disproportionate number of charges are laid under the criminal defamatory libel provisions and later dropped or withdrawn or other charges are used in their stead.

What we're seeing is the appearance that the police are using this charge to harass individuals who have the temerity to criticize the state. Once you know that you're under investigation or you're charged, you hire a lawyer, you think about your defence, and you have your cellphone and computer seized. In this sense, the very investigative process becomes the punishment, even if ultimately the charges do not go to trial.

Unlike in other democracies that still have criminal defamatory libel, and we're seeing fewer of them as we go forward, the individuals who are targeted are never journalists, high profile, or powerful individuals. They're one of the little guys, if I can use that term, who is upset with Revenue Canada, or who doesn't think the judge should have awarded custody to her ex-husband. Those are the individuals who are being charged.

Just one example is a man in Thunder Bay who dared to put up a poster with a Revenue Canada agent's photo and said, “This man is known to be working for an insidious organization.... Protect yourself from organized crime. If you are approached by this man be prepared to defend yourself.” He was convicted and sentenced to seven months house arrest for something that was equal parts angry and fanciful.

That's the one-third. There are the two-thirds that are born, as I said, of Internet shaming and what we call cyber-smearing, or if I may say it, slut shaming. We have seen an increase in those cases, there's no denying that. They are not core to free expression values. What those cases have is a full list of alternate provisions in the Criminal Code from intimidation to harassment, and others. In fact, the Department of Justice published earlier this year a list of 12 Criminal Code provisions that can be used to respond to those kinds of cases. Given how well protected individuals are who find themselves as victims of those particular transgressions, there is no need for a law being used to attack our core freedom of expression rights.

If I can elaborate any more, I will. There are cases upon cases.

[Gord Johns, NDP, Courtenay—Alberni, BC]

Thank you.

My next question is for Professor Cameron. Please elaborate on why it's important to repeal all three criminal libel provisions in the Criminal Code.

[Prof. Jamie Cameron]

I would say that it's important to repeal all three because all three relate directly to the rationale of Bill C-51. I would say, in particular, that blasphemous libel is like seditious libel in that both are essentially obsolete. They're inactive as Criminal Code offences, and if blasphemous libel is obsolete enough to be within the purview of Bill C-51, then seditious libel is as well.

In addition, both of those forms of libel pose charter risks in the terminology of the minister, because of the wording and the way in which they threaten freedom of expression under section 2(b) of the charter. Defamatory libel is not obsolete, but sections 300 and 301 are frequently misused to target those who criticize public actors in an uncivil or vehement way. As my colleague Professor Taylor noted, there are alternative offences available to prosecute this kind of transgressive conduct.

Section 301 has been found unconstitutional by several lower courts in several provinces. The definition of “defamatory libel” in the Criminal Code is highly problematic. Finally, I would just repeat and rely on, in particular, the Law Reform Commission's report of 1984 and the U.K. initiative, which recognized that all forms of common law or criminal libel are essentially artifacts that have come and gone and been replaced by other forms of criminal offences that can address whatever criminal behaviour needs to be prosecuted that is similar to, or a default from, those kinds of criminal acts.

I hope that answered your question.