Saturday, December 7, 2013

Will freedom of expression come to Canada?

OCLA's principled letter to the AG of Ontario...

By Denis G. Rancourt

Political agents across the left-right spectrum in the USA, including left public intellectual Noam Chomsky, positively advance the USA as being the modern society with the greatest protections for free speech.

In the USA, expression of opinion is absolutely protected, as is all expression except in limited areas (LINK):

Criticism of the government and advocacy of unpopular ideas that people may find distasteful or against public policy are almost always permitted. There are exceptions to these general protections, including the Miller test for obscenity, child pornography laws, speech that incites imminent lawless action, and regulation of commercial speech such as advertising. Within these limited areas, other limitations on free speech balance rights to free speech and other rights, such as rights for authors and inventors over their works and discoveries (copyright and patent), protection from imminent or potential violence against particular persons (restrictions on fighting words), or the use of untruths to harm others (slander). Distinctions are often made between speech and other acts which may have symbolic significance.

Canada, on the other hand, has not been so fortunate. It is stuck with a far more backward remnant of the common law tort of defamation (LINK):

Libel law developed in an ancient era which we would today consider backward, tyrannical and repressive. It is rooted in 16th and 17th century criminal statutes protecting nobility from criticism. Cases of political libel and eventually damages actions were handled by the infamous Star Chamber until its abolition in 1641. By the end of that century, many elements of the common law of libel we would recognize today had been established.

Under the common law of defamation in Canada, when a plaintiff claims defamation for some insult or opinion, then damages and malice are presumed (malice of defamation versus express malice), and the defendant has the onus to prove his or her innocence based on strictly limited defences allowed in the common law.

In Canada, the courts had the occasion to significantly reform the common law of defamation when the legal landscape was changed by the introduction of the 1982 Canadian Charter of Rights and Freedoms, but have steadfastly refused to do so, in ruling after ruling.

Instead, incremental changes have been installed that further entrench the common law of defamation in its egregious reverse onus stance, such as the new "responsible journalism" defence -- introduced with great fanfare, after most other common law jurisdictions (UK, Australia, etc.) had seen this particular light.

The common law tort of defamation is the only cause of action which assumes damages without any requirement to prove damages in the court. Other torts that address harm to reputation, such as the tort of malicious falsehood, do not assume damages.

Is there any hope that freedom of expression will ever come to Canada?

I can report recent evidence that may justify some hope: THIS RECENT LETTER of the Ontario Civil Liberties Association (independent from the Canadian Civil Liberties Association, and the CCLA position on the same matter) to the Attorney General of Canada's province of Ontario.

OCLA's letter is strong and principled. OCLA is refusing to ignore the elephant in the room.

Thus, there is hope. This (OCLA's letter) may be a start that could lead to the downfall of the Star Chamberesque jurisdiction of Canadian courts in matters of individual expression?

Denis G. Rancourt is the Self-Represented Litigants Workgroup Coordinator of the Ontario Civil Liberties Association. He is a former tenured and Full Professor of physics at the University of Ottawa, Canada. He is known for his applications of physics education research (TVO Interview). He practiced various areas of science which were funded by a national agency, has published over 100 articles in leading scientific journals, and has written several social commentary essays. He is the author of the book Hierarchy and Free Expression in the Fight Against Racism. He has self-represented himself in several courts and tribunals: labour relations board, access to information appeals, municipal court, Superior Court of Justice for Ontario, Court of Appeal for Ontario, and filed motions at the Supreme Court of Canada.