Defamation law that ignores truth ruled unconstitutional
Peter Walsh - The Telegram (St. John's, NFLD)
Tuesday, May 6
The Supreme Court of Newfoundland has ruled a law that could send someone to prison for defamation is unconstitutional.
Justice Lois Hoegg made the decision Friday. Her ruling also struck down a criminal case by Crown prosecutors against Byron Prior of Grand Bank.
Prior claims that in 1966, a justice official in the province raped and impregnated one of his relatives. Crown attorneys say Prior wore placards and distributed flyers which published the allegations.
The Royal Newfoundland Constabulary interviewed Prior's relative in 2004 and in 2007, but the alleged victim denied she had been sexually assaulted or that she even knew the person Prior said had attacked her.
Crown prosecutors tried to convict Prior of defamation under Section 301 of the Criminal Code, which says "everyone who publishes a defamatory libel is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years."
The problem is, Hoegg said, the Crown couldn't prove that Prior was knowingly spreading lies.
"I find that it is not justified, in our free and democratic society, for the Crown to use the heavy hammer of the criminal law against a subject for publishing defamatory libel when the Crown is not able to show that the subject knows that his statements are false.
"The expression of truthful, unpopular or even false statements deserve protection unless expressed in a violent manner," wrote Hoegg.
Hoegg said if the Crown could prove Prior knowingly published defamatory libel, it would have charged him under a different section of the criminal code that says "everyone who publishes a defamatory libel that he knows is false is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years."
That law has withheld court challenges. Section 301 - the law which does not mention the matter of truth - has been struck down as unconstitutional by three other superior courts in Canada.
"The sections catch different types of offender. To me, it naturally follows that their purpose or objectives must be different," wrote Hoegg. "I then determined that the objective (of Section 301) was not so pressing and important as to override freedom of expression. The section is offensive to modern day notions of justice."
The decision only applies to criminal applications of defamation law. Hoegg said Prior could possibly be sued in civil court over his allegations.
Three years ago, a federal politician filed a statement of claim in the Supreme Court of Newfoundland and Labrador to have a website that contained allegations about him by Prior removed. In the statement, the politician said a website posted by Prior accuses him and other prominent Newfoundlanders of wrongdoing.
A website containing the allegations is still active ( see 1). Prior claims to be a victim of physical and sexual abuse.
Byron Prior's web page