July 31 2017 – Kevin Yaworski – Public Advocate and Global Citizen – http://wp.me/p1fJaD-WF
Here is another example of an attack on freedom of speech that is being taken to the Supreme Court of Canada plus some concerning trends in important court decisions in Canada not being reported or translated to the disadvantage of the general public.
A defamatory libel law found to be Unconstitutional in an unreported case years ago has not been repealed and is being used to try and silence political speech on social media. The original case is not listed on CanLII or other Canadian national case law databases.
The Alberta Crown charged a former councillor (fired for raising concerns of corruption) using this unconstitutional law for her defamatory Facebook posts against two a crooked public official and a prominent community member. Full story linked below.
This appears to be a trend along with important Court Decisions in at least Quebec that were delivered only in French not being officially translated and reported.
Similar has happened with important cases in Manitoba not being reported including.
Two important delay motions with Charter 11b challenge with decisions in favour of the accused (self represented) not reported after relying on R v. Jodan (SCC), R v. Grant (MBPC) but under appeal at the time, R v. Segodnia (MBPC), other caselaw and evidence. Grant successfully appealed by the Crown but still re-enforced the 18 month ceiling.
Testimony and evidence during the two hearings plus wording in the decisions once again raised concerns of public trust and confidence in the system including the Courts, lack of disclosure (Chater 7), the high volume and upward trend of simple traffic matters, that the seriousness of minor traffic alleged offenses do overrule Charter Rights. They also re-enforced the fact that these Charter rights are present whether the accused is aware of them or not and this must be considered when these matters before the Court.
- R v. Yaworski (MBPC Sept 20 2016) 18 month unreasonable delay but available on my blog here:
- R v. Prescott (MBPC Dec 2016) – with 17 month unreasonable delay. Decision available on my blog here:
I have asked a senior Crown in MBQB this important question and they are not sure why some important cases are not reported. Others involved heavily in the legal community but not lawyers assumed all decisions were reported. I will write ACJ Krahn from MBPC and ask why this is the case.
There is others important cases that are going unreported as well or not being translated from at least French to English. For more info see:
I contacted CanLII using their option to report cases that were not listed. I provided the cases details including Court, Justice Date, Court Room and Time as requested. I did not get a response. I tried a couple of times and same. I also asked them about the Quebec decsion mentioned below not being available in English and they responded almost immediately with link to site that has some translated decisions. It does not have this or very many cases.
More details here inlcuding where to check for Quebec decisions or Translations of them and how to request official copies if they are not already available.
Law being used to silence political speech on Facebook
FIRST POSTED: SUNDAY, JUNE 04, 2017 05:03 PM CDT – See Archive of article below.
Alberta case could ease free speech restriction
By: Derek James, Posted: 06/9/2017 4:00 AM
Archive of above Winnipeg Sun Editorial:
Law being used to silence political speech on Facebook
Yesterday at 6:15 PM
Sometimes the squeaky wheel gets the grease, sometimes it gets removed. Karen MacKinnon, a former councillor from the Alberta town of Drumheller, knows this from experience.
On March 25, 2011, MacKinnon was arrested and charged with defamatory libel under section 301 of the Criminal Code after she posted on Facebook that two prominent members of her community, including one town official, were “repulsive, corrupted, lying, thieving, deviant bastards both.” Although the comment was almost tame by the standard of much social media political commentary, the Crown thought it sufficient to charge her with a criminal offence.
During her time as a town councillor, MacKinnon noticed what appeared to her to be some costly problems with the town’s administration. For example, staff were permitted to bank vacation time indefinitely, incurring an accrued liability of nearly $600,000 for the municipality. The auditor called it a “grave liability” that could cripple the town, yet MacKinnon’s efforts to discuss the matter and institute a use-it-or-lose-it vacation time policy were rebuffed.
From time-to-time other matters would arise causing MacKinnon concern, including what she described to Council as inexplicable secrecy over a $75 million over land water supply pipeline between Drumheller and the town of Balzac.
After voicing concerns over a number of these sorts of issues, MacKinnon was summarily disqualified from serving on council in 2007.
MacKinnon was understandably devastated. With the next municipal election just weeks away and her reputation badly damaged, she had no chance of mounting a successful re-election campaign.
Yet she refused to go away quietly. She continued her public service by becoming an outspoken critic of the town’s administration, including in colourfully candid language on social media.
After the police knocked on her door that March day and tossed her in jail for her Facebook comment, a deflated MacKinnon, afraid of going to trial and risking a prison sentence and criminal record, agreed to remain “civil and temperate” while using social media, which was later adopted into a provincial court order.
Unbeknownst to MacKinnon at the time, the law under which she had been charged had been declared unconstitutional in an unreported Alberta case almost 20 years earlier.
Section 301 of the Criminal Code reads: “Every one who publishes a defamatory libel is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years.”
Under Section 301, even truthful comments can, unlike the common law tort of defamation, result in a criminal conviction.
Clearly, the Crown should have known that it was charging MacKinnon with an unconstitutional offence. It takes about a minute of online legal research or reading the notes to the annotated Criminal Code to discover this.
One would also have hoped the court would have known too. In fact, at the time she was charged, the superior courts of three other provinces—Saskatchewan, Ontario, and Newfoundland and Labrador—had also declared section 301 unconstitutional. Since 2011, the New Brunswick Court of Queen’s Bench has joined them.
Curiously, none of those five decisions was appealed by the Crown, and so the Supreme Court of Canada has not had an opportunity to provide national certainty on the constitutionality of this speech-restricting criminal law.
This means the Crown will still occasionally bring charges under section 301–though only ever to shield public officials like politicians and police from criticism, never average private citizens.
The Alberta Court of Appeal upheld MacKinnon’s conviction, but did not deal with the issue of the constitutionality of the offence itself.
The other week, MacKinnon asked the Supreme Court of Canada to review her case and strike down section 301 nationally, once and for all.
If the Court takes the case, as it should, her colourful Facebook comments will have done every Canadian a service by ensuring that no one else has his or her speech rights restricted based on this unconstitutional law.
Derek James From is staff lawyer at the Canadian Constitution Foundation.