Monday, 23 January 2012

Editorial: Criminel libel, mental illness and police overreaction

Taxpayers should hope the Leblanc libel case gets thrown out

According to the Criminal Code of Canada, under section 298 (1), defamatory libel is defined as, “…matter published, without lawful justification or excuse, that is likely to injure the reputation of any person by exposing him to hatred, contempt or ridicule, or that is designed to insult the person of or concerning whom it is published. “

In section 298 (2), the mode of expression of the defamation is defined as, “being expressed directly or indirectly by insinuation or irony, (a) in words legibly marked on any substance ; or (b) by any object signifying a defamatory libel otherwise than by words.”

When an alleged defamatory libel is published, as per section 299 of the Criminal Code, a person becomes libel, "(a) when he exhibits it in public, (b) causes it to be read or seen; or (c) shows or delivers it, or causes it to be shown or delivered, with intent that it should be read or seen by the person whom it defames or by any other person.”

Punishment for defamatory libel ranges from two to five years in jail. If, in section 300 of the Code, if a person is aware the information published is libel, he can receive a term not exceeding five years. If he doesn’t know it’s libel, as stated in section 301, then the term is not to exceed two years.

Nowhere in this section of the Criminal Code of Canada, pertaining to defamatory libel, is new social media such as blogging addressed within the context of these definitions. It only mentions newspapers as related to publication. There is no specific legislation dealing with unconventional reporting online such as blogging. 

Libel, or defamation, can be dealt with in a criminal or civil action in Canada. A civil action is filed through a lawsuit and settled with monetary damages. Criminal action can result in a jail term, hence the punishment portion of section 300 and 301 in the Code. But criminal defamation is rarely enforced in Canada and has been ruled unconstitutional in three provinces. When it has been trotted out for use in the past, it was mostly by authority figures seeking redress for damage to their reputation.

The most commonly known libel case in New Brunswick is that of Beutel  v. Ross. Editorial page cartoonist Josh Beutel was sued for defamation by teacher Malcolm Ross in 1993 after depicting Ross in a cartoon comparing him to a Nazi. Ross was known for his anti-semetic views, and had gotten press for expressing them inappropriately in a classroom. Beutel was found libel in the case in 1998 and ordered to pay damages to Ross of $7500. However, Beutel appealed the decision and it was set aside in 2001, with Ross ordered to pay Beutel $5000.

The Beutel v. Ross case was a civil action. There is no known case of criminal libel being brought forth in New Brunswick that this publication could find in it’s research on the issue. Until last Friday.

On that day, Fredericton City Police executed a warrant to search and seize computer equipment from local blogger Charles Leblanc on charges of criminal defamation against one of its own, Cpl. Fred L’Oiseau.  

For some time it has been known there is no love lost between Leblanc and L’Oiseau, the two having crossed paths in the past and taken a dislike to one another. Some call it the local version of the wider family squabble under the francophone roof of Acadian vs. Quebecois, the two having feuded for centuries after landing on North American soil, with the Acadians calling the Quebecois arrogant, while the Quebecois treat their New Brunswick brethren as something akin to country hicks. The situation between Leblanc and L’Oiseau was compounded in June of last year when L’Oiseau singled out LeBlanc on the street and ticketed him for not wearing a helmet while on his bicycle, a minor by-law infraction that is often broken by the general public in the city’s downtown under the noses of police.

LeBlanc went home and wrote on his blog about what he felt as being unfairly ticketed for something that is a common occurrence, noting also that police are aware he is on social assistance and couldn’t afford to pay the fine. Leblanc began lampooning L’Oiseau regularly on his blog. In a July post, he inferred that during their exchange, L’Oiseau allegedly touched him inappropriately, referring to L’Oiseau as a “pervert”.  Speculation suggests this is where the police began their investigation that culminated in the raid on LeBlanc’s premises last Friday.

It is clear, given the definition of defamation in the Criminal Code of Canada as outlined above, that Leblanc has some explaining to do. Often he cities his ADHD mental illness as the reason for much of his impulsive behaviour, and while it is indeed likely the strongest explanation for LeBlanc thoughtlessly skewering some public figures on his blog, his refusal to take medication for the illness puts part of the blame on him for his current woes. LeBlanc has been heard to question why he should take a medication that makes it easier for society to deal with him when it is society that needs to learn how to deal with people who have mental illness. And while he has a point, it does nothing for his immediate situation. The longer LeBlanc goes without medication to regulate his illness, the more he will deteriorate as he ages which could lead to further problems with authority figures. Nobody wants to see that happen.

L’Oiseau, for his part, is also to blame for his predicament of being the object of ridicule on LeBlanc’s blog. He tweaked the nose of the lion by doing something as petty as issuing a by-law ticket on a minor infraction when it was common knowledge Leblanc didn’t have the means to pay for it. Such action gives credence to LeBlanc’s claims against L’Oiseau, and the Fredericton City Police at large, as being a corrupt organization with little respect or compassion for the less fortunate. How, one wonders, does it help the situation when police torment a mentally ill man that lives in poverty by issuing him tickets for minor offences he can’t pay for, and then storm into his home to silence him because they don’t like him complaining about it in a public forum? The resources of an entire department are being used to bully one man who is often dismissed as crazy. Simply because he’s considered crazy doesn’t give officials the right to trample Leblanc’s civil rights. The mentally ill are entitled to their rights as much as the next person, and the police need to be properly trained to understand how to deal with them. It doesn’t appear the Fredericton City Police currently have the skills to do so. Perhaps Chief MacKnight could consider sending his personnel on a few courses to learn how, starting with Cpl. L’Oiseau.

The entire exercise on Friday smacks of what is known as “libel chill”, a term that describes how in using such heavy-handed tactics in the name of criminal libel, the state sends a message to society that this is what will happen to those who loudly protest its actions. It is a way to quiet dissent. Regardless of what city-dwellers think of LeBlanc, it should make them nervous their police force is acting in this manner. It is a slippery slope that can lead to the erosion of respect for other rights that could impact their own quality of life.

In the meantime, both sides in this situation need to pull back and look at the bigger picture because it will be the taxpayer left holding the bag for court costs in what is looking more and more like than an ego-filled pissing contest. LeBlanc needs to find more suitable ways of discussing his displeasure with the Fredericton City Police or his blog will soon have no readers because many taxpayers are his readers, and they will be fed up. The police need to look at the optics of this thing, i.e. city taxpayers already had to pay $200,000 for the Const. Stafford debacle and now it looks as though they may be on the hook for costs because a police officer has nothing better to do than worry about the blathering of a small-time blogger.

Things are out of hand.

With the Crown yet to decide on whether it will move forward on the charges against Leblanc, there is a window of opportunity for some sanity to prevail. It can decide not to pursue the criminal route and send the file back. Barring that, it is hoped if proceedings move forward, a judge will throw it out for being the ridiculous dispute that it is, forcing cooler heads before a man is sent to jail, and a fine police force is permanently damaged in the eyes of those it serves.