J. Editor's Note: Addendum released March 9, 1995. Text of addendum appended to original judgment. Q.B. A.D. 1994 No. J.C.S. IN THE COURT OF QUEEN'S BENCH JUDICIAL CENTRE OF SASKATOON BETWEEN: JOHN DAVID LUCAS and JOHANNA ERNA LUCAS 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, 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 twocounts in the indictment as follows:That John David Lucas and Johanna Erna Lucas between the 19thday of September, A.D. 1993 and the 22nd day of September,A.D. 1993 at or near [Q], Saskatchewan did1. publish matter without lawful justification or excuse thatwas likely to injure the reputation of [a police officer] by exposinghim to hatred, contempt or ridicule or that was designed toinsult [the officer], thereby committing a defamatory libelcontrary to S.301 of the Criminal Code. 2. publish matter without lawful justification or excuse thatwas likely to injure the reputation of [the police officer] byexposinghim to hatred, contempt or ridicule or that was designed toinsult [the police officer] knowing that the matter published wasfalseand did thereby commit an offence contrary to S.300 of theCriminal 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 [rank] with the City of Police Service and as such as peace officer. 2.On September 20, 1993 at 9:00 A.M. the accused were observed to be walking on public sidewalk in front of the Police Station in Q, Sask. carrying sign which had printed on one side the words "Did [rank] [police officer] just allow or help with the rape/sodomy of an 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 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 fileda 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 deniedgenerally 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 limit on freedom of expression, is such limitation justified by s. of the Charter? Do ss. 300 and 301 of the Criminal Code, or either of them, violate s. 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 person has right not to be compelled to be witness in proceedings against that person and that 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 defamatory libel that he knows is false is guilty of an indictable offence and liable to imprisonment for term not exceeding five years. 301. Every one who publishes defamatory libel is guilty of an indictable offence and liable to imprisonment for term not exceeding two years. The distinction between ss. 300 and 301 of the Criminal Code is that the Crown must prove that person charged under s. 300 knew that the published defamatory libel was false. Falsity is not necessary element under s. 301. person may be found guilty under s. 301 of publishing 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. 298. (1) 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) 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 defamatory libel otherwise than 299. person publishes 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 broad range of relatively trivial or innocuous material would fall within those provisions of the Criminal Code. Counsel for the respondent concedes that this agree. However, courts have held that criminal sanctions for defamatory libel should be available for serious, not trivial libels. In Gleaves v. Deakin, [1979] All E.R. 497 (H.L.) Lord Scarman stated at p.508‑09: It is, however, not every libel that warrants criminal prosecution. To warrant prosecution the libel must be sufficiently serious to require the intervention of the Crown in the public interest. In 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 criminal information (a remedy now abolished), Lord Coleridge's view was plainly that libel had to be so `cruel and outrageous' as to make it 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 in Wicks. In giving the judgment of the court, he said that prosecution ought not to be instituted `when the libel complained of is of so trivial 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 trivial character: it must be such as to provoke anger or cause resentment. The emphasis of the passage, as Wien recognised in Goldsmith 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 criminal libel remains, as in the past, the publication of 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 CanLII 87 (SCC), [1989] 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. of the Charter. SECTION 300 OF THE CRIMINAL CODE The Court must determine whether s. 300 of the Criminal Code constitutes limit to freedom of expression which is demonstrably justified in free and democratic society. Section 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 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 right or freedom is on the party seeking to uphold the limitation and the standard of proof is by preponderance of probability: R. v. Oakes, 1986 CanLII 46 (SCC), [1986] S.C.R. 103 at pp. 136‑138. In the Oakes decision Dickson C.J.C. stated that the limitation on right or freedom guaranteed by the Charter, must be shown to be reasonable and demonstrably justified in free and democratic society. The standards against which limit on right or freedom guaranteed by the Charter can be shown to be reasonable and demonstrably justified are those underlying values and principles essential to free and democratic society. In R. v. Keegstra (1990), 1990 CanLII 24 (SCC), 61 C.C.C. (3d) at p. 29, Dickson C.J.C. stated: As was stated by the majority in Slaight Communications Inc. v. Davidson (1989), 1989 CanLII 92 (SCC), 59 D.L.R. (4th) 416 at p. 427, [1989] S.C.R. 1038, 1989 CanLII 92 (SCC), 26 C.C.E.L. 85: "The underlying values of free and democratic society both guarantee the rights in the Charter and, in appropriate circumstances, justify limitations upon those rights." Obviously, practical application of s. 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 large extent 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. is not restricted to values expressly set out in the Charter Slaight, supra, at p. 427). With this guideline in mind, in Oakes commented upon some of the ideals that inform our understanding of free and democratic society, saying (at p. 346): The court must be guided by the values and principles essential to free and democratic society which believe embody, to name but few, respect for the inherent dignity of the human person, commitment to social justice and equality, accommodation of 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 free and democratic society are the genesis of the rights and freedoms guaranteed by the Charter and the ultimate standard against which limit on 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 particular case. It is important not to lose sight of factual circumstances in undertaking s. analysis for these shape 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): particular right or freedom may have different value depending on the context. It may be, for example, that freedom of expression has greater value in political context than it does in the context of disclosure of the details of 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 fair and just compromise between the two competing values under s. 1). Freedom of expression is extremely important in 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 CanLII 75 (SCC), [1992] S.C.R. 731 at p. 775 McLachlin J. stated: 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 conclude that in determining whether s. 300 of the Criminal Code can be upheld as reasonable limit prescribed by law as can be demonstrably justified in free and democratic society under s. 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. of the Charter is whether s. 300 of the Criminal Code, the impugned section, represents "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 CanLII 72 (SCC), [1992] S.C.R. 606 at p. 626 Gonthier J. stated: 1.Vagueness can be raised under s. of the Charter, since it is principle of fundamental justice that laws may not be too vague. It can also be raised under s. of the Charter in limine, on the basis that an enactment is so vague as not to satisfy the requirement that limitation on Charter rights be "prescribed by law". Furthermore, vagueness is also relevant to the "minimal impairment" stage of the Oakes test ... Section 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 law which imposes 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. 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 sensible construction and "an intelligible standard according to which the judiciary must do its work". See: Irwin Toy Ltd., supra. find that s. 298 of the Criminal Code defines defamatory libel in manner which provides an intelligible standard of conduct. Sections 298, 299 and 300 constitute "limit prescribed by law" within s. of the Charter. The threshold test for the application of s. has been met. SECTION 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 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 proportionality between the effects of the limiting legislation and the objective. See: R. v. Oakes, supra. Section 298 of the Criminal Code defines defamatory libel as 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 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 violation of s. 2(b) of the Charter. That is, the objective must relate to concerns which are pressing and substantial in free and democratic society. In R. v. Stevens, 1993 CanLII 14706 (MB PC), [1993] W.W.R. 38, Giesbrecht, Prov. J. stated at p. 63: The Supreme Court has on number of occasions acknowledged that one of the underlying principles essential to 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), 1985 CanLII 81 (SCC), 48 C.R. (3d) 289 at 309 [[1986] 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), 1988 CanLII 90 (SCC), 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 significant facet of the inherent dignity and worth of the human person. The question must answer is whether protection of reputation is pressing and substantial concern in 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. states: it is universally recognized that the reputation of 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 community protects the reputation of its citizens may partially measure its "cultural level and democratic quality." (Emphasis added.) omitted]. Carter‑Ruck at p. 17 expresses similar view: There is little doubt that defamation has always been regarded as serious subject and its transgression as 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] 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 fundamental value in 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 person's integrity. See: R. v. Keegstra, supra and R. v. Morgentaler, 1988 CanLII 90 (SCC), [1988] S.C.R. 30. One of the underlying principles essential to 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 pressing and substantial concern in free and democratic society is untenable. It may be that these sections, by their existence, create deterrent to those who would criminally defame individuals. find that s. 300 of the Criminal Code has an objective of pressing and substantial concern in free and democratic society. now turn to the next stage of the analysis of s. of the Charter which is the proportionality test. This involves balancing 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 free and democratic society which s. 300 is designed to protect. find that there is 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 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 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. find that s. 300 of the Criminal Code constitutes reasonable limit in free and democratic society on the freedom of expression guaranteed by s. (b) of the Charter and is therefore upheld under s. of the Charter. ONUS The applicants submit that an accused charged under s. 300 of the Criminal Code is faced with 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 witness in proceedings against that person in respect of the offence; (d) to be presumed innocent until proven guilty according to law in 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 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 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 reasonable doubt for an acquittal under s. 300 of the Criminal Code. Thus the accused are not faced with 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 reverse onus. Sections 611 and 612 of the Criminal Code read: 611. (1) An accused who is charged with publishing 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) 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) 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 plea that is made under this section. (1) The truth of the matters charged in an alleged libel shall not be inquired into in the absence of 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 plea that is made under section 611, plead not guilty and the pleas shall be inquired into together. (3) Where 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 plea of justification in addition to plea of not guilty. The substance of the Libel Act, 1843 (6 and 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. of the Libel Act 1843 (6 and Vict., c. 96) which reads: 6. On the trial of any indictment or information for defamatory libel, the defendant having pleaded such plea as hereinafter mentioned the truth of the matters charged may be inquired into, but shall not amount to 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 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 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 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 prima facie case of justification is made out. The foregoing establishes, under the English Libel Act, reverse onus in relation to s. of the Libel Act 1843. However, have been unable to find any authorities specifically interpreting ss. 611 or 612 of the Criminal Code whether they be substantive or procedural. am of the view that where 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 CanLII 92 (SCC), [1989] 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 CanLII 67 (SCC), [1988] S.C.R. 513, at p. 558, Madam Justice L'Heureux‑Dube stated: 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] S.C.R. 573; Manitoba (Attorney General) v. Metropolitan Stores Ltd., 1987 CanLII 79 (SCC), [1987] 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 CanLII 79 (SCC), [1987] 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 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] 798. 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 way so as to make them consistent with Charter values. conclude, therefore, that ss. 611 and 612 set out the procedures to be followed but do not create 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 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 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 proportionality between the effects of the limiting legislation and the objective. Therefore, s. 301 of the Criminal Code cannot be justified in free and democratic society under s. 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 reasonable limit prescribed by law and demonstrably justified in free and democratic society. Section 300 of the Criminal Code does not constitute 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. of the Charter and therefore cannot be upheld under that section. In summary find s. 300 of the Criminal Code to be constitutional and valid. find s. 301 to be unconstitutional and of no force or effect. J. Q.B. A.D. 1994 No. J.C.S. IN THE COURT OF QUEEN'S BENCH JUDICIAL CENTRE OF SASKATOON BETWEEN: JOHN DAVID LUCAS and JOHANNA ERNA LUCAS 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 of the judgment dated February 6, 1995, not be published nor broadcast in any manner.
The accuseds were charged under ss.300 and 301 of the Code with (i)committing and (ii)publishing a defamatory libel against a police officer. They filed a plea of justification as permitted under s.611(1) of the Code. The Crown denied the truth of the plea pursuant to s.611(4) and the matter proceeded to trial. At the opening of their trial the accuseds applied for an order declaring ss.300 and 301 of the Criminal Code to be of no force and effect on the basis that they constituted an unreasonable limitation on their rights and freedoms guaranteed under ss.2, 7 and 11 of the Charter. The Crown admitted that ss.300 and 301 limited an individual's right to freedom of expression as provided by s.2 of the Charter but argued that this infringement was justified under s.1 of the Charter. HELD: Application allowed in part.  1)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. 2)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. While the right of free speech is important in our society, it is not unrestricted. 3)In order to justify an infringement of this right, it must be shown that: (i)the impugned legislative provision has an objective of pressing and substantial concern and (ii)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. S.300 of the Code meets these tests, and is therefore a reasonable limit on free speech and is valid. 4)Ss.611 and 612 of the Code, which permit a plea of justification do not create a reverse onus on the accused. They are procedural and merely serve to put the Crown on notice as to the accused's defence. The Crown must still prove that the alleged defamatory libel is knowingly false beyond a reasonable doubt. 5)S.301 of the Code makes it an offence to publish a defamatory libel whether or not the accused believes it to be true. S.301 is therefore not a reasonable limit and is invalid. ADDENDUM: The Court ordered that the agreed statement of facts set out at pp. 2 and 3 of the judgment not be published nor broadcast in any manner.