Law Times

Page 6 February 11, 2013 • Law Times COMMENt u Editorial obitEr By Glenn Kauth Accommodation at Catholic schools I t seems logical for students at Catholic schools to take religion courses. After all, such classes help distinguish Catholic schools from their public school counterparts. But at a time of increasing scrutiny on the issue of public funding for Catholic education, should Catholic schools be more pragmatic? At issue are the legal battles a few Ontario parents are waging to exempt their children from religious programs at Catholic schools. The parents, some of whom aren't Catholic but who nevertheless want to send their children to Catholic schools for the convenience or the quality of the education there, argue they have the right to exempt their children under provisions of the Education Act that opened up Catholic schools to people of other faiths in exchange for full public funding. But according to the Toronto Star, many Catholic schools have resisted such requests. Rather than full exemptions, schools have granted partial accommodation or denied the requests. As a result, at least one parent is considering court action to enforce the act. It's understandable that Catholic schools would want to protect their faith-based character. And, of course, it seems reasonable to expect students who attend Catholic schools to accept what that faithbased character entails. Schools have long made students take courses they don't want to take, so why should religion be any different? Of course, religion is different because it goes to the core of people's personal beliefs. And while Catholic schools have every right to uphold their religious character, the public funding they receive means they should have to accept students of other faiths and the realities that come with that. Moreover, if the law indicates that's how things should be, they need to follow those rules without leaving parents in the position of having to go to court in order to enforce their rights. The issue of exemptions is separate and apart from the question of public funding for Catholic schools, something a few people have of late been arguing to eliminate. While Ontario may have that debate in earnest some day, it's clear Catholic schools should accommodate the few people who want exemptions from religious programming in the meantime. It's not a big imposition. — Glenn Kauth Time to abolish outdated defamatory libel offence W hen lawyers talk about libel, we're referring to the civil tort of defamation. We talk about the new defence of responsible communication, the expanded defence of fair comment, and damage awards. We rarely talk about criminal liability. So it's time to start a dialogue about the appropriateness of the criminalization of defamation. We need to start talking about the Criminal Code offence of defamatory libel. You may not be aware of this odd criminal offence, but it's right there in s. 300 of the Criminal Code. The section makes it an indictable offence to publish a defamatory libel — yes, the Criminal Code uses that redundant language — that someone knows to be false. It's not necessary to establish proof of actual harm to reputation. Conviction can lead to a prison term not exceeding five years in addition to a fine. The offence originated in England at the time of the Court of Star Chamber with the intention of preventing duelling and, of course, penalizing criticism of state actors. However, it can now only be justified on the basis that it denounces attacks on reputation. The offence has survived a constitutional challenge at the Supreme Law Times most democratic countries Court of Canada (R. v. Lucas in 1998), although the court did do Social retain them. Indeed, the Girl the away with its most egregious asJustice bestseller The startsWithwith Dragon Tattoo off pect. Section 301 of the Criminal Swedish journalist Mikael Code also makes it an indictable Blomkvist's conviction for offence to publish a defamatory libel for which he receives a libel regardless of whether the three-month sentence and publisher knows of the falsity of a fine. The proliferation of the statement. Courts in several such laws notwithstanding, provinces, including Ontario, prosecution of citizens for have found this section to violate defamatory libel smacks of the Charter of Rights and FreeAlan Shanoff show trials we'd expect from doms. The Supreme Court, howcountries such as Russia and China. ever, hasn't yet considered its validity. Why should libel be subject to criminal Prosecution is no mere theoretical possibility. Late last year, the court convicted an sanction, including the potential for search Ottawa restaurant owner, Marisol Simoes, warrants and the seizure of computers and and sentenced her to a term of 90 days cellphones? The rationale used by the top under s. 300 for publishing false material court in Lucas, which focused on the "proconcerning an online restaurant reviewer. tection of reputation [as] a pressing and There are reports of a G20 summit activ- substantial objective in our society," justiist facing allegations of defamatory libel of fies a civil cause of action but doesn't extwo police officers; a Bayfield, Ont., man plain the need for criminal sanction. Why aren't civil remedies, includcharged in relation to allegations against a judge, a police officer, lawyers, and local ing the ability to seek an injunction and family and child services staff; and an Os- obtain a substantial damage award, sufhawa, Ont., man in trouble for publishing ficient? How can a democratic society justify the prosecution and incarceration nude photos of his former girlfriend. Canada isn't the only country to of those who have made offensive statecriminalize libel. While Britain abol- ments concerning state officials, particuished its criminal libel laws in 2010, larly on matters of public interest? Thomson Reuters Canada Ltd. One Corporate Plaza, 2075 Kennedy Rd., Toronto, ON • M1T 3V4 Tel: 416-298-5141 • Fax: 416-649-7870 • www.lawtimesnews.com Group Publisher . . . . . . . . . . . . . . . . . . . Karen Lorimer Editorial Director . . . . . . . . . . . . . . . . . . . Gail J. Cohen Editor. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Glenn Kauth Staff Writer . . . . . . . . . . . . . . . . . . . Michael McKiernan Staff Writer . . . . . . . . . . . . . . . . . . . . . . . .Yamri Taddese Copy Editor . . . . . . . . . . . . . . . . . . . . . . Mallory Hendry CaseLaw Editor . . . . . . . . . . . . . . . . . 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Publications Mail Agreement Number 40762529 • ISSN 0847-5083 Law Times is published 40 times a year by Thomson Reuters Canada Ltd., 2075 Kennedy Rd., Toronto, ON, M1T 3V4 • 416-298-5141 clb.lteditor@thomsonreuters.com circulations & subscriptions $179.00 + HST per year in Canada for print and online (HST Reg. #R121351134), $145 + HST per year for online only. Single copies are $4.50. Circulation inquiries, postal returns www.lawtimesnews.com It's true that some of the defamatory libel prosecutions related to highly offensive publications concerning private individuals. But in such cases, there were other charges authorities could have laid against the offenders. While the increasingly malicious attacks conveyed through online sources may appear to give to rise to a remedy, there's little justification for the criminal offence of defamatory libel. The Charter came into force in 1982. The Law Reform Commission of Canada advocated the abolition of the criminal offence of defamatory libel in a 1984 working paper. The commission concluded the crime of defamation wasn't an effective deterrent; didn't make a substantial contribution to dealing with the problem of defamatory publications; and served no purpose over and above the purposes fulfilled by the tort of defamation. Yet here we are in 2013 with the main substance of the law not having changed since its adoption from England in 1874. It's time we removed this offence from the Criminal Code. LT Alan Shanoff was counsel to Sun Media Corp. for 16 years. He currently is a freelance writer for Sun Media and teaches media law at Humber College. His e-mail address is ashanoff@gmail.com. and address changes should include a copy of the mailing label(s) and should be sent to Law Times One Corporate Plaza, 2075 Kennedy Rd. Toronto ON, M1T 3V4. Return postage guaranteed. 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