Charges of defamatory libel against two Kingston men have been found to be unconstitutional, and an Ontario legal precedent has been set. Bradley Waugh and Ravin Gill were charged with six counts each of defamatory libel, an indictable offence carrying a maximum penalty of two years imprisonment for each count.
Waugh and Gill were arrested while postering downtown Kingston on December 2, 1994. The "wanted" posters described six Kingston prison guards implicated in the suspicious death of Robert Gentles in Kingston Penitentiary in 1993.
Section 301 of the Canadian Criminal Code (under which the two were charged) states: "Every one who publishes a defamatory libel is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years."
On December 19, 1995, the presiding judge granted the Canadian Civil Liberties Association (CCLA) intervenor status. The CCLA argued that section 301 was unconstitutional, and infringed the defendants' rights to freedom of thought and expression guaranteed under section 2 (b) of the Charter of Rights and Freedoms. The Crown had previously argued that although section 301 has been overturned in several cases, these involved offensive subject matter rather than the defamation of a specific person or people.
He stated that the intention of section 301 was to protect individuals, and that the guards of Kingston Penitentiary had rights as important as those of the accused.
In response to this argument, Judge Lally quoted Madam Justice McLachlin of the Supreme Court of Canada. In 1992, the Supreme Court found section 301 to be unconstitutional and thus inapplicable to the case at hand, that of the hate propaganda of Ernst Zundel.
Madam Justice McLachlin states, "Our law is premised on the view that only serious misconduct deserves criminal sanction."
She goes on to say that although such crimes as libel can be punished by law, the harm caused by the act of libel must be "clear and pressing" and the charge must not be permitted to inhibit anyone's freedom of expression.
Under section 1 of the Charter of Rights and Freedoms it is stated that certain limits to some rights will be considered reasonable in order to maintain "a free and democratic society". John Laskin, representing the CCLA, had argued that "section 301 is not a reasonable limit on free speech, since section 300 remains to prosecute those who bear false witness against their neighbour".
Judge Lally agreed with the arguments put forward by Dan Scully and Laskin, the defendants' lawyers and concluded that, "There will therefore be an order... declaring section 301 of the Criminal Code of Canada unconstitutional and of no force and effect[in Ontario]." This section of the criminal code has also been found unconstitutional in Alberta and Saskatchewan.
The Crown has until April 29 to declare its intention to appeal, but it seems that the case has been satisfactorily resolved, and appeal would not be likely to overturn Judge Lally's decision. The Kingston Whig-Standard reported that "Waugh said he believes the charges against him and Gill were an attempt to silence critics of the local police and their handling of the investigation of Gentles' Death."
Robert Gentles died after six guards from Kingston Pen maced and forcibly removed him from his cell. On Monday, April 2nd and April 3rd, Julian Falconer, the lawyer of Carmeta Gentles, will be appearing in Frontenac County Court to have the private prosecution of the six prison Guards reinstated.
The six Guards were originally charged with manslaughter but the crown dropped the charges against four of the guards and then stayed the charges against the remaining two. Robert Gentles was a founding member of the Prison Violence Project, a prisoner based group documenting Human Rights violations in Canadian prisons. The supicious death of Gentles, a politically active African-Canadian inmate, at the hands of six white guards has raised concern that his death was politically and racially motivated.