Law Times

Law Times • December 12, 2016 Page 7 www.lawtimesnews.com Repealing law suits for modern times BY MATTHEW GOURLAY F ederal Minister of Justice Jody Wilson-Raybould has introduced legislation to repeal s. 159 of the Criminal Code. That provision es- tablishes the age of consent for anal inter- course as 18 years old. The age of consent for all other sexual activities is 16 years old. Indeed, until a few years ago, it was 14 years old. Why the difference with this particu- lar sexual act? The reason wasn't exactly a mystery. More than 20 years ago, the On- tario Court of Appeal provided an answer, when it struck down the provision as be- ing contrary to the equality rights of ho- mosexuals. But like most laws deemed un- constitutional by the courts, the govern- ment never bothered to repeal it. So there it sits in the Criminal Code, sandwiched between the offences of incest and bestial- ity. Professor Peter Sankoff has referred to the phenomenon as "zombie laws." Declared dead by the courts, they con- tinue to wander the pages of the Code. Mostly this is just annoying. But some- times it has disastrous consequences, as we saw most recently in the Travis Vader case in Alberta. Vader was convicted of two murders under a constructive mur- der provision declared unconstitutional by the Supreme Court a generation ago. (Once the error was pointed out, and a subsequent hearing held, the trial judge substituted convictions for manslaughter.) The judge's mistake in applying the dormant law was stunning, but some- thing like it was bound to happen eventually. While textbooks and annotations make clear which laws are alive and which are dead, the Code still says what it says. And so constructive murder and anal intercourse remain on the books. Bestiality has come under scrutiny as well. Earlier this year, the Supreme Court had to settle the issue of whether this offence requires actual penetration or just a sexual act between a person and a non-human animal. Although the offence has been in the Criminal Code in unchanged form for 60 years and has a common law lineage dat- ing back centuries, its elements had never been clearly defined. The case that finally caused the court to settle this question (R. v. D.L.W., 2016 SCC 22) involved appalling acts of child abuse by the accused of his own step-daughters, which also involved the family dog. This factual scenario led to the possibly unedi- fying spectacle of our country's leading le- gal minds debating what people from the Renaissance through to the 1950s meant by terms such as "sodomy" and "buggery" and how these offences contributed to the historical understanding of bestiality. While all of this might be interest- ing from an historical point of view, it's frankly ludicrous to think it should have any bearing on whether a person is guilty of an offence in 2016. Presumably, in con- temporary Canada, many of us would think that sex with animals is something that ought to be forbidden. But the discussion would focus on the harm it might cause to the animals involved (and pos- sibly also to the people who engage in it) rather than the linguistic habits of long-dead people arising mainly out of religious dogma and sexual taboos. As Justice Thomas Cromwell aptly not- ed for a majority of the court, "Parliament may wish to consider whether the present provisions adequately protect children and animals." His bottom line seemed to be the view that if the law is unclear to judges and scholars, it can't be invoked to exact a criminal penalty — a view with which I agree. The problem is this issue isn't likely to draw the attention of elected legisla- tors who have more pressing and popu- lar things to attend to. And, since the abolition of the law reform commission, Canada has had no dedicated expert body charged with developing law reform pro- posals. The result is a badly bloated and outdated criminal law, both substantively and procedurally. We usually think of English law as the fusty domain of wigs and Lords, but the English are actually far more active in law reform than we are. In just the past few months, the Law Commission has published impressive and practical proposals on the reforming law of misconduct in public office and simplify- ing sentencing procedure. Our own ef- forts, like the repeal of section 159, tend to be reactive and piecemeal rather than systematic. I hope that the coming mari- juana legalization proposal will prompt a re-thinking of how (and whether) we criminalize the consumption of drugs, but so far the indications seem to be that it will be another niche effort. Section 19 of the Code enacts the well- known principle that ignorance of the law is no excuse. In theory, this is based on the idea that everyone is presumed to know the law. Naturally, this supposition is ab- surd. Even most criminal lawyers have no more than a passing familiarity with much of what fills the Criminal Code. Now, ob- viously, people should know that crimes such as murder, robbery and sex with ani- mals are wrong without having to consult the law books. Yet the accused in D.L.W. was actually acquitted of bestiality because there hadn't been any penetration. Other gray areas, both at the macro and micro level, are legion. It's time for a more system- atic effort to redress these problems. LT uMatthew Gourlay handles criminal and regulatory matters at Henein Hutchison LLP with an emphasis on appellate litiga- tion. He's available at mgourlay@hhllp.ca. COMMENT Rebalancing defamation law in an online age BY MARK DONALD T he legal principles supporting freedom of expression are important to Canadians. That said, these principles have their lim- its. In a digital age, the laws around defa- mation have struggled to keep up. For clients who are dealing with Internet harassment and defamation, there are the substantial costs and hur- dles of bringing legal claims against anonymous online harassers. In my own practice, I've encountered clients who have been anonymously accused online of murder, fraud, sexual assault and prostitution, among other se- rious offences. Some of my clients have even received death threats over Internet platforms such as Facebook and Instagram. Then there are the significant costs of finding the relevant information to identify the culprit. Applica- tions of this sort require a defamation victim to hire legal counsel to review documents, draft materials and attend court. Moreover, the judges sitting on these ap- plications to identify anonymous defamers rightly de- mand extensive submissions so they can properly bal- ance alleged harm against privacy and free expression concerns. This is particularly the case if the speech is political in nature or relates to whistleblowing, such as where an employee wants to call out an employer for breaking the law or where a member of a corporate board wants to shed light on company misfeasance. And that's just the beginning. Once the relevant foundational information is obtained via court order, counsel usually have to work with a host of websites, social media platforms and Internet service providers across numerous jurisdictions for months in order to put a name to the information they've obtained. After that, if you actually come up with the defamer's real identity, you often have to draft a Notice of Libel giving the prospective defendant a chance to apologize. Then, and only then, can you be confident you've ticked all the boxes to actually start a legal claim alleging defamation. While Canadians may be familiar with the term defamation, I believe many are not familiar with the time and cost that goes into preparing for these kinds of lawsuits in an online age. It is because of these expand- ing costs that reforming the law around defamation is a pressing issue. Without reform of the procedure sur- rounding online defamation claims, the cost of pursu- ing anonymous defamers becomes so great that the law's protection becomes skewed in favour of online trolls. So, what is to be done? First off, I believe that the law needs greater clarification that some of the procedural steps for a defamation claim, such as a service of libel notice, should not apply to anonymous online publica- tions. The requirement for libel notices arose in an age of media publishers that were easily identifiable, and it was intended to protect public publishers and broadcasters from perennially being afraid of publishing hot-button stories. However, libel notices arguably must be served personally on prospective defendants within very trun- cated timelines (arguably six weeks from the date the plaintiff became aware of the defamatory statements). This is not an easy task if your harasser is publishing anonymously from their parents' basement, as opposed to the headquarters of a major newspaper or broadcaster. Another option would be to make service by email in these cases more broadly acceptable. Again, one of the key considerations in any anonymous defamation pro- ceeding is the costs associated with getting the court's approval to serve the defendant in a manner other than personal service. By making email service explicitly ac- ceptable where the defendant does not provide a physi- cal address for service, the courts would be redressing the cost imbalance that presently exists between plain- tiffs and anonymous defendants. Obviously, there are some netizens who should rightly stay anonymous — good-faith whistleblowers and political or social activists. But the fairest way to balance these parties' interests with those of aggrieved claimants is a streamlined process that gets the legal question of "free expression versus good reputation" before the courts quickly. That way, this vital debate is more likely to be settled in a fair manner — on its merits, by a judge. Without doubt, the answer may sometimes be difficult, particularly where the presumptive defen- dant is perhaps a corporate/political whistleblower. For example, the leading case on whether anony- mous defamers should be identified, York University v. Bell Canada Enterprises, makes clear that the judge deciding such an application is obliged to consider not merely whether the publication was defamatory but, moreover, whether the publisher of the defamation could have a "reasonable expectation of privacy in rela- tion to the use of the internet for the purpose of publish- ing defamatory statements." This principle provides a ready-made solution for judges who are concerned about the implication of re- vealing the identity of online publishers who may have good, societally important reasons for keeping their identities private. Moreover, just in case free expression advocates are worried about the prospect of large corporate or gov- ernmental entities using defamation litigation to silence critics, one should also keep in mind Ontario's new Protection of Public Participation Act, 2015, which now places a high onus on prospective defamation plaintiffs to prove that their claims have merit and are not just strategic lawsuits against public participation suits. Canadians cannot allow the law of defamation to become slavish to those with thin skins. However, as Supreme Court Justice Ian Binnie stated in WIC Radio v. Simpson, we cannot view reputation as "regrettable but unavoidable road kill on the highway of public con- troversy." Piercing the veil of anonymity in the online world should by no means be easy, but that doesn't mean to say it should not be just a little easier. With just a little reform to the most basic procedures, Canadian defa- mation law can reaffirm its vital commitment to free expression without turning our reputations into pre- sumptive roadkill. LT uMark Donald is the principal of his own firm, which focuses on corporate, civil and media litigation. He can be reached at mark@markdonaldlaw.com. u SPEAKER'S CORNER A Criminal Mind Matthew Gourlay

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