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Canada Censorship The Courts

In Canada, Criminal Libel Charges Laid For Criticizing Police 383

BitterOak writes "A Calgary man is facing criminal charges of libel for criticizing police. According to the story, the RCMP have filed five charges against John Kelly for claiming on his website that Calgary police officers engaged in perjury, corruption, and obstruction of justice. What makes the story unusual is that the charges are criminal and not civil. Even in Canada, which has much less free speech protection than the United States, it is extremely rare for people to be charged criminally with libel. It is almost always matter for civil courts."
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In Canada, Criminal Libel Charges Laid For Criticizing Police

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  • Is this the site? (Score:5, Informative)

    by MichaelSmith ( 789609 ) on Saturday September 18, 2010 @08:35AM (#33619142) Homepage Journal

    http://www.bownessca.com/ [bownessca.com]

    The purpose of this site is to inform the residents of Bowness, the citizens of Calgary and others, as to how senior individuals within the City of Calgary placed the Bowness Community Association (the BCA) into receivership by illegal, corrupt and criminal means.
    There has been over 5 years of corrupt and criminal acts that have been committed and they are continuing to be committed by Derek Podlubny and the present Board, ably assisted by lawyers from the law firm of Blake Cassels and Graydon.

  • Re:Is this the site? (Score:5, Informative)

    by whisper_jeff ( 680366 ) on Saturday September 18, 2010 @08:39AM (#33619160)
    I was going to say it was this site - http://www.rosscarrock.info/ [rosscarrock.info] - but I see that Mr Kelly is mounting a multi-pronged attack against, well, anyone he sets his sights on that wrongs him in even the slightest way.
  • Re:Is this the site? (Score:4, Informative)

    by IgnoramusMaximus ( 692000 ) on Saturday September 18, 2010 @08:47AM (#33619212)

    Both of these sites have a distinct flavour of crackpottery, mixed with a generous dose of lunacy and tipped with wholesome nuttiness.

    I think the RCMP will end up with a rather embarrassing situation of having dragged a certifiable conspiracy nut before the courts wherein he will quickly drown them in spittle and general ranting incoherence, which then will prompt more reasonable citizenry to start asking pointed questions as to why the RCMP feels threatened by an individual whose case would best be dealt with by the medical profession and if maybe there is something to his ranting...

  • by pooh666 ( 624584 ) on Saturday September 18, 2010 @08:51AM (#33619230)
    BS.. It is allowed to stand because the people of Quebec wish it. You can compare paper or compare reality. In the US, in the same situation we would just find a way to change the law to suit. So staying there is some kind of static difference really isn't accurate. I think the language laws are a massive affront to freedom, but then I don't live in Quebec, for damn good reason!
  • by CrimsonAvenger ( 580665 ) on Saturday September 18, 2010 @09:07AM (#33619298)

    From the Canadian Charter of Rights and Freedoms:

    rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

    Tne First Amendment doesn't have the qualifer, therefore it is slightly stronger.

    Note that this is in theory. It is not necessarily true in practice, for either nation.

  • by Auroch ( 1403671 ) on Saturday September 18, 2010 @09:09AM (#33619320)

    See, the funny thing is in America our president can insult the police and its all fine and dandy. Just saying.

    Actually, the funny thing is that it was neither libel nor slander, in this case.

  • by florescent_beige ( 608235 ) on Saturday September 18, 2010 @09:12AM (#33619342) Journal

    I think the GP is right actually. The problematic part of Quebec law is the requirement that French be predominant on all business signs. I can't see that surviving in the US.

    Note that the restriction is not on what you can say, it's on the language of business signage. Practically speaking I'm not sure if that means Canada has less free speech that the States.

    Given that this was one of only two uses ever of the notwithstanding clause, I don't consider it to be a weakness in the constitution. Think of it more as a shortcut constitutional amendment. Note that notwithstanding overrides expire after five years in order to give voters a chance to express their opinion via a general election it before they are renewed.

    The US constitution has...how many amendments? The Canadian Constitution has none, and two uses of the notwithstanding clause. I wouldn't say one is stronger or weaker than the other.

    Finally, as clear as the 1st amendment appears to be, we all know you can't say anything you want whenever you want wherever you want. There are limits. The Canadian constitution is explicit about that so when you read them side by side the Canadian text appears wishy-washy, but in effect they are equivalent.

  • by swabeui ( 1291044 ) on Saturday September 18, 2010 @09:30AM (#33619432)

    I think what the article means to say is that "In canada, they're not litigation happy, and the courts have made it very difficult to get a multimillion dollar settlement for pouring hot coffee on your lap and claiming that it was the fault of the coffee shop for not telling you that coffee is hot... (and other such nonsense cases ... like awarding a family damages over the autism-caused-by-vaccines debacle which has been debunked by real scientists over and over...)".

    I love how everyone uses that case as their poster-child for all things wrong in American courts. I guess everyone is susceptible to media bias as one point or another. Here's the actual facts of the case: http://www.lectlaw.com/files/cur78.htm [lectlaw.com]

  • by drinkypoo ( 153816 ) <martin.espinoza@gmail.com> on Saturday September 18, 2010 @09:37AM (#33619460) Homepage Journal

    I have never had that experience with my friends who are in different areas of policing. Perhaps it's a family thing?

    To local cops, FBI stands for "Fucking Big Idiots". To the FBI, local cops are bunglers who can't tell their asshole from... hey, what's that in the ground over there? But maybe your family is just more polite than this other guy's. I never got into any fights at any family events, but I can't say I wasn't close to getting in a fight with one of my uncles on one occasion. Fucking alkies. I don't really see eye to eye on anything with my family and have been out of touch for years. I hope to keep it that way.

  • by tomhudson ( 43916 ) <barbara@hudson.barbara-hudson@com> on Saturday September 18, 2010 @09:48AM (#33619516) Journal
    Yes, I am in Kanuckistan - Poutineville, to be specific, though I'm abandoning Quebec as soon as I can. I'm patient, but I've had it.

    Defamation (there's no such thing as libel in Canada, just "defamatory libel" - not the same thing) is different from the US. The truth is not an absolute defense. However, they screwed up, because the police, being public figures, are more subject to open criticism than the average citizen. This is intimidation, pure and simple.

    The web site is in New York, so it's outside the Canadian courts' jurisdiction, pure and simple. The US 5th Amendment takes precedence on US soil.

    So we have the problem of venue. If the defamatory statements were published in the US, and if Canada doesn't have a long-arm statute (we don't, except for child abuse and terrorism), the RCMP are SOL. Sorry boys, you don't get your man this time.

    Also, sections 309 - 310 of the criminal code [justice.gc.ca]:

    Public benefit

    309. No person shall be deemed to publish a 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.

    R.S., c. C-34, s. 273.

    Fair comment on public person or work of art

    310. No person shall be deemed to publish a defamatory libel by reason only that he publishes fair comments
    (a) on the public conduct of a person who takes part in public affairs; or
    (b) on a published book or other literary production, or on any composition or work of art or performance publicly exhibited, or on any other communication made to the public on any subject, if the comments are confined to criticism thereof.

    R.S., c. C-34, s. 274.

    When truth a defence

    311. No person shall be deemed to publish a 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.

    R.S., c. C-34, s. 275.

    Do the RCMP sometimes lie? That's been proven in court. Instead of trying to suppress publication in another country with a SLAPP criminal proceeding, maybe they should address the issues, and realize that when you're a cop, what you do is public, same as a politician.

  • by sco08y ( 615665 ) on Saturday September 18, 2010 @09:56AM (#33619566)

    See, the funny thing is in America our president can insult the police and its all fine and dandy. Just saying.

    The federal government is a separate entity from the state and local governments and, in certain ways, is superior to them. For example, the FBI can override the jurisdiction of local cops, particularly if a crime happens across state lines. For those reasons, yes, the President can criticize or even insult police.

    But it wasn't all fine and dandy. Obama is a politician and took a lot of heat for, basically, opening his big mouth when he shouldn't have. That's been a recurring criticism of Obama: that he talks about stuff when there's no good reason for him to, and wastes his political capital.

  • No kidding (Score:3, Informative)

    by Sycraft-fu ( 314770 ) on Saturday September 18, 2010 @10:09AM (#33619662)

    Also I don't know the libel standard in Canada but in the US:

    1) The statements must be untrue. Truth is the ultimate libel defense. So if his statements are true (probably not, but just saying) then that is the end of that.

    2) The person making the statements had to know they were untrue. While this gets a little more "he said, she said," in the case of someone who's connection to reality is a bit tenuous, this could easily be a defense. He may honestly believe what he is writing is true. In that case, it isn't libel. It is crackpottery, but not libel.

    3) The statements must have been made with the intent to cause harm. Well here again, might be a problem. After all, he may well be making the statements to inform people, not to attempt to harm anyone. In that case, again not libel.

    Could be very different in Canada, of course, but that's how it works in the US. Libel/slander are when someone deliberately spreads false information about you to harm you. It isn't when someone makes fun of you or the like.

    So no, in the US, conspiracy nut rantings aren't libel. If they honestly believe what they are saying is true, it isn't libel.

    Also personally I think speech against the government should be the very most protected of all. The government needs to accept that people can just drag them through the mud, that is the right of citizens in a free country. Pretty much anything is fair game. I mean really, if your government can be harmed by the rantings of conspiracy nuts, then you have bigger problems.

  • Re:I'm OK with this (Score:4, Informative)

    by demonlapin ( 527802 ) on Saturday September 18, 2010 @10:15AM (#33619698) Homepage Journal
    Stuff like this [usma1994.com], or this [reason.com], or any of a thousand other examples, are why people don't trust the police. They're not trustworthy, they don't care to help you, and their dedication is only to each other. You are a subject, and they are the ones with power. Disagree, and they'll jail you, shoot you, or frame you. This just proves the point.

    Police and prosecutors say baseless crap all the time. Remember Richard Jewell [wikipedia.org]? The FBI can "leak" information to the media to destroy people's lives with impunity - the best that guy got, despite complete innocence, was the AG saying "I regret the leak." Well, gee, thanks.

    the cops and prosecutors involved need to be lined up against a wall and shot.

    Yeah, somehow that never seems to happen. All Mike Nifong [wikipedia.org] got was being disbarred, and spending one night in jail for contempt of court, on charges that he trumped up and that would have, if successful, put three men in jail for a long, long time. And those are the ones with lots of money to defend themselves. As far as I'm concerned, that level of dishonesty should lead to putting him in jail for the full length of the sentence he was trying to get.

  • by dogsbreath ( 730413 ) on Saturday September 18, 2010 @10:45AM (#33619860)

    For Canadian standards see http://www.cscja-acjcs.ca/criminal_civil_law-en.asp?l=4 [cscja-acjcs.ca]

    "More evidence is needed to find the accused at fault in criminal cases than to find the defendant at fault in civil ones. To convict someone of a crime, the prosecution must show there is proof beyond a reasonable doubt that the person committed the crime and, in most cases, that they intended to commit it. Judges and juries cannot convict someone they believe probably committed the crime or likely is guilty - they must be almost certain. This gives the accused the benefit of any reasonable doubt and makes it less likely an innocent person will be wrongfully convicted and imprisoned. Civil cases, in contrast, must be proven on a balance of probabilities - if it is more likely than not that the defendant caused harm or loss, a court can uphold a civil claim."

    It will be fairly easy to show who did the publishing and that he intended to do the publishing.

    Problem for the RCMP, who are not the defamed group, and the Calgary Police will be showing that a crime was actually committed. The key phrase in Canadian law is "on reasonable grounds, he believes is true". Is it reasonable for a person to argue these points given what is known to be true? Looking at the site, at least some of the statements do not seem "reasonable".

    But also, he is not publishing in Canada. eg: Court publication bans do not extend to websites hosted in other countries.

    If you look at the site, it clearly appeals to the fringe and is long on accusation and short on evidence. It also explicitly names particular people without a lot of supporting documentation. Personnally, I would say this guy is pushing the limits of free speech beyond what is ethical but I am not so sure that there is a law broken. My gut reaction was that he is a wack job and is doing more harm than good for his cause. Police should be held to higher standards and complaints should be investigated independantly but I would not want to be a public servant in a tough, demanding job and be subject to this kind of public complaint. Again, I'm not saying there is criminal defamation; just saying that this is clearly at the limit.

    Finally, first thing I did upon reading the article was to go find the site: http://www.rottenapples.info/ [rottenapples.info]
    I am sure that this fellows site popularity has soared. ;->

    This will be an interesting case to follow.

  • by khallow ( 566160 ) on Saturday September 18, 2010 @10:48AM (#33619880)

    Yes, in Canada you can't walk around holding a pistol and suing everyone who looks at you funny. You also can't start a chapter of the KKK, start publishing material that has no value and offends a large audience. Oh, and queer-bashing? Also illegal. Why? Because you couldn't say or do the same things to someone that wasn't queer, and not get arrested/charged. That doesn't mean canada has lax free speech laws. That means Canada has a better system of protecting the rights of its citizens.

    What rights are being protected here? The right to associate with whom you choose? Nope. The right to say what you think? Nope. All these are sacrificed for some alleged right to not be offended. Looks like folly to me. Maybe you should think about this.

  • by zill ( 1690130 ) on Saturday September 18, 2010 @10:50AM (#33619894)

    The Royal's are the Canuck equivalent to the American FBI, and are a national police force.

    This is incorrect. The FBI only has investigative jurisdiction over federal crimes, thus differentiating them from local police departments. The RCMP and the Calgary police department enforce the exact same set of laws - Criminal Code of Canada, and they have identical investigative jurisdictions. While the RCMP is a national police force, it is not the equivalent of the FBI.

    Simply put, RCMP hands out parking tickets but the FBI does not.

  • by KazW ( 1136177 ) on Saturday September 18, 2010 @11:21AM (#33620062)

    Quebec men prefer pussies, you like cocks?

    By the way the Cajuns did not leave, they were deported by the English.

    Any Canadian knows that only someone who is Québécois would say that... As a Canadian of French decent, I always make it clear I'm Acadian, not Québécois, and for good reason. You also left out how one third of the Acadian population was wiped out by the English.

  • by KazW ( 1136177 ) on Saturday September 18, 2010 @11:28AM (#33620106)
    Chances are she was of Acadian decent, not Québécois, Acadians are the majority of the French speaking population in Nouvea Brunswick as well as Nova Scotia.
  • by tomhudson ( 43916 ) <barbara@hudson.barbara-hudson@com> on Saturday September 18, 2010 @12:02PM (#33620322) Journal
    Section 300 provides for a 5 year jail term. Section 317 specifically mentions a jury trial.

    Also, except in indictments specifically enumerated in section 553, it is up to the accused, not the judge, to decide whether they will have a trial by judge alone or by jury. See section 554. Also sections 558 and following. Don't take my word for it - here's the Canadian Criminal Code directly from the government website: http://laws.justice.gc.ca/eng/C-46/FramesView.html [justice.gc.ca]

    Hope this makes it a bit clearer.

  • Re:No kidding (Score:4, Informative)

    by wrecked ( 681366 ) on Saturday September 18, 2010 @12:18PM (#33620464)
    Sorry, IAAL in Canada, and I can't let your comment go without a reply. The libel laws between the US and Canada are very different. In Canada, there are several defences against libel: justification (ie "truth", the most difficult defence to prove), absolute or qualified privilege (ie communications in a confidential setting), fair comment (ie honestly held opinion in good faith), and the new defence of "responsible communication on matters of public interest" (ie. "responsible journalism").

    The last defence of "responsible communication on matters of public interest" was created in 2009 by the Supreme Court of Canada in Grant v Torstar 2009 SCC 61 [canlii.org]. That case was actually covered in Slashdot: Landmark Canadian Hyperlink Case Goes to Supreme Court [slashdot.org].

    Read of that case if you are interested in defamation law (but seek legal advice if you have a problem). It explains the legal tests for all of the defences. Since the defence of "responsible communications in matters of public interest" does not exist in US law, it means that American journalists and bloggers have a higher risk of liability for defamation than their Canadian counterparts. So which country has stronger freedom of expression?
  • by Golddess ( 1361003 ) on Saturday September 18, 2010 @02:05PM (#33621196)
    Or you could defend your position with a citation, instead of making claims and then ignoring citations to the contrary [slashdot.org]. I want to believe you, but it's not looking good.
  • by telso ( 924323 ) on Saturday September 18, 2010 @02:27PM (#33621328)

    I'm sure that "vague language" has never been interpreted by the courts. Oh wait: [wikipedia.org]

    1. There must be a pressing and substantial objective
    2. The means must be proportional
      1. The means must be rationally connected to the objective
      2. There must be minimal impairment of rights
      3. There must be proportionality between the infringement and objective

    You're right, though, that's pretty permissive in what it allows the government to do. Fortunately for Americans, their rights are not subject to such "vague language". For example, when courts are trying to decide if it right has been violated, the most stringent judicial review they are allowed to use is strict scrutiny [wikipedia.org]. What are the three prongs a law must pass to survive strict scrutiny?

    1. It must be justified by a compelling governmental interest
    2. It must be narrowly tailored to achieve that goal or interest
    3. It must be the least restrictive means for achieving that interest

    Totally different situations, obviously, especially since it's been speculated that the Canadian test comes from the SCOTUS test for commercial speech [wikipedia.org]. Still, between 1990 and 2003, 30 percent [ssrn.com] of federal cases involving strict scrutiny have approved of the rights restrictions.

    Look, I'm not saying there aren't Canadian laws or court decisions I disagree with, while the US is completely messed up. But don't pretend that the country that gave the world "free speech zones" [wikipedia.org], "contemporary community standards" [wikipedia.org] for obscenity, the PATRIOT Act and other national security laws, Morse v. Frederick [wikipedia.org] and Gonzales v. Raich [wikipedia.org] and other ridiculous drug laws, among many, many other laws and court decisions can look down on other jurisdictions' rights while implying theirs are absolute. It's not just what you write in your constitution, it's how five of the nine people in black robes interprets it. And given some of the wacky decisions I've seen out of your country lately, I'll take my nine red-robed [scc-csc.gc.ca] over your nine black-robed.

  • Re:ohhh (Score:1, Informative)

    by Anonymous Coward on Saturday September 18, 2010 @04:28PM (#33621960)

    Rape is used as a weapon because when one side rapes and mutilates the women of the other, the men will often reject and abandon their wives or children. It has a devastating effect on the areas affected and civilian morale is destroyed. Sadly, wars are won with these tactics.

  • by ScentCone ( 795499 ) on Saturday September 18, 2010 @05:17PM (#33622288)
    The fact is, individual rights are enumerated by both countries' central law systems

    No. The US constitution doesn't enumerate rights. It helpds to define what's federal turf which is what is left to the states, and specifies important areas in which the government is expressly prevented from infringing. It doesn't say what a citizen's rights are. It makes a big deal about areas that are off-limits from government interference. Those are not the same things, at all. The US system presumes that rights exist as natural feature of our human existance. And to play it safe, it expressly mentions some areas that are beyond the government's reach, no matter what laws are passed.

The biggest difference between time and space is that you can't reuse time. -- Merrick Furst