Lucy’s Day in Court – A Short Story

Justice Bob Baddecision of the Ontario Inferior Court, was having a good day. Upon his arrival at the courthouse that morning, the first case he had heard had been one of disputed possession. Old Bill Fussbudget had filed a complaint that his neighbour, Jimmy Jackanapes had been stealing fruit from his apple tree. Last year it had been Jimmy who had laid the exact same complaint, regarding the exact same tree, against Bill. This had been going on, back and forth, for years. The tree lay right on the line between their adjacent properties and while inspectors had been sent out to assess the matter more times than either man could count, none had been able to come to a definitive decision as to which party held the legitimate title to the tree, which bore fruit that could rival the juiciest and tastiest of any grown commercially in the Niagra region.

Enter Justice Baddecision. In a decision, that he felt certain would go down in the annals of jurisprudence as the greatest display of wisdom since the days of King Solomon, he issued an order that the tree be cut down and chopped into firewood, half of which was to be given to one man and the other half to the other. When this ruling was announced, at first the courtroom fell silent, undoubtedly out of awe and admiration at the judicious manner in which a bitter dispute that had vexed the community for years had been resolved. When, after a few moments of this silence, the plaintiff recovered his voice sufficiently to ask what was to become of the current crop of apples, the last that the tree would ever bear, he was told that the apples were being taken into custody by the court.

On an entirely unrelated note, allow me to mention that Justice Baddecision and his wife were famous for their homemade apple cider, which had won numerous awards at municipal and provincial fairs. Later that year – and again, I must stress that this is told merely as a point of interest – they would finally win the coveted national award upon which they had set their sights for so very long.

Having started the day so well, the worthy judge awarded himself an early lunch from which he returned to the courthouse at a leisurely pace, to hear the case of John J. Moneygrubber versus Mrs. Poorwidow. The plaintiff, as it turns out, had become the owner of a house in which Mrs. Poorwidow and her family had formerly been tenants, when he bought the mortgage from a bank that was selling off its bad loans. Mrs. Poorwidow had been unable to make her mortgage payments ever since her husband died in Afghanistan. The small amount of money she was able to make in her part-time job went to feeding and clothing her eighteen children. Mr. Moneygrubber had foreclosed on the mortgage almost immediately upon buying it, but the defendant had resisted leaving, as she and her children had no other place to go. Now Mr. Moneygrubber was asking for an injunction ordering the lady and her brood to vacate the premises immediately.

Justice Baddecision, fair-minded and conscientious fellow that he was, carefully listened to the cases presented by both sides. He heard Mr. Moneygrubber argue that Mrs. Poorwidow was maliciously preventing him from tearing down her house and paving over the lot to provide extra parking for his building next door. He heard Mrs. Poorwidow explain how she had fallen through the cracks of Canada’s generous social safety net, having been told by social assistance workers time and again that she did not qualify since she had a job and was not a member of a visible minority, and that if evicted she and her children would be literally living on the streets. Then he made his decision.

He issued the injunction evicting Mrs. Poorwidow from her home, and awarded Mr. Moneygrubber $50, 000 in damages to boot, even though that had not been asked for, because he felt the remark about visible minorities to be a racist one which offended his progressive, liberal, sensibilities. Besides, he knew that section of town and its dreadful lack of adequate parking well, and who was this Mrs. Poorwidow to stand in the way of progress, anyway. Especially when it caused so much grief for his friend Mr. Moneygrubber, a member of his club, whom he golfed with frequently, and with whom he had enjoyed lunch just the other day.

Yes, the justice was having a very good day indeed. Full of self-satisfaction over the masterful way he had handled these two cases, he leaned back in his chair. He imagined he heard angels, chanting in Latin, singing the praises of his wisdom and justice.

Wait a minute.

The justice leaned forward. He had not imagined it. That was Latin he was hearing. Well, Latin of a sort. What he was hearing was being sung backwards. Not backwards in the sense of the fake, pig-Latin of schoolchildren, but real Latin sung backwards.

Was that the Mass being sung in reverse?

What the devil was going on here?

The justice looked around for a possible source of this peculiar chant but at the moment, with the sole exception of himself, the courtroom appeared to be empty. Could it be coming from outside the building?

Then, it seemed like the courthouse was hit by an earthquake. The room began to shake, the lights went on and off several times, and then a huge crack opened up in the floor. Out of the crevice flames burst forth, giving off a pungent odour, like unto that of rotten eggs.

Someone must have caused an explosion in the basement, Baddecision thought, forgetting for the moment the weird backwards Latin. Then he saw something that nearly stopped his heart.

From the weird, sulfuric flames, which oddly seemed to be casting off darkness instead of light, arose a being. A monstrous being, it was at least five times the size of a human being, with the torso and arms of a man, but the head and legs of a goat, with huge reptilian wings, and a pointed tail. Around its huge, curved horns, a nimbus of darkness hung. Around its neck was a necklace of human skulls. It opened its hideous mouth and out came the most horrible sound you could ever imagine, as if a choir of hissing serpents and howling jackals had teamed up with an orchestra of fingernails against chalkboards, screeching brakes and tires, and rusty hammers falling angrily against anvils to perform Schoenberg’s Pierrot Lunaire while every human soul the beast had ever swallowed screamed out in agony. The creature radiated pure, malevolent evil that struck the judge with a sense of oppression, horror, disgust, and terror all at once.

Then the creature underwent a metamorphosis. Before the judge's eyes it shrunk in stature to the size of an ordinary man. Its non-human features began to disappear, leaving only cloven hooves and horn stumps to indicate the true identify of a distinguished looking man, with long dark hair tied in a ponytail, a goatee, wearing a very expensive, designer suit. The dark halo vanished and an aura of light, albeit a light that looked wrong somehow, as if it had been broken eons ago, began to surround the man.

The judge, horrified at the evidence of his own eyes that the ministers in the United Church he had attended since a boy, who had all assured him that the fiend that stood before him now could not possibly exist and was a superstitious invention of primitive peoples that we all know better than to take seriously these days, were rather ill informed, and, to be quite blunt about the matter, wrong, shook in fear.

“Relax, Your Honour”, the Prince of Darkness began, “I am…”

“I know who you are,” the quivering justice sputtered, “you are the…”

“The devil, Satan, Beelzebub, Mephistopheles, etc. ad naseum”, the fiend finished. “Yes, I have been called by many names. Since we are in a court of law I will go by my original name, Lucifer. You can call me Lucy for short as that is what I prefer”.

“ Lucy? That’s a girl’s name!” the judge, who was beginning to regain his composure, said with a sneer.

All of a sudden a trident appeared in the devil’s hand, and, as he pointed it at the justice, menacing looking lightning jumped from tine to tine.

Judge Baddecision straighted up completely and said “Who do you think you’re trying to scare with that pitchfork of yours.”

Putting the trident down, Lucy responded “That’s odd. It works most of the time.”

“You obviously haven’t met my mother-in-law”, Baddecision retorted. “After being subjected to her tongue for twenty minutes you will fear no other sharp object ever again.”

“Don’t get me started on mothers-in-law.”

“What do you know about it?”

“I had a mother-in-law once. Thousands of years ago, back before the Flood. I met this chick, a real sweet little thing, and drop-dead gorgeous. I married her and her mother never gave me a minute’s peace. I was just not good enough for her little girl.”

“I can’t imagine why she would have thought that.”

“Oh shut up. It was the same thing day after day. Why did you marry him? He’ll never amount to anything. He got himself kicked out of heaven didn’t he? What kind of a future is he going to provide for you in hell? And how on earth are you going to be able to afford to raise my grandchildren? Nephilim eat ten times more than regular size children?”

“What happened to her?”

“She drowned in the Flood. I guess I ought to thank God for that one.”

“Well, she sounds bad, but I still don’t think she could hold a candle to mine.”

“I will have to make her acquaintance. She sounds like she could be of much use to me in the torture chambers of hell”.

“You can have her. Now what in blazes are you doing in my court”.

“Don’t you know? I’m the plaintiff in your next case.”

“What?”

The judge turned to his desk to pick up his file on the next case when he noticed, for the first time, something unusual about it. It was a scroll, made out of a kind of suspicious parchment. Baddecision instinctively knew that he did not want to know what kind of skin had gone into making that scroll. The ink was clearly human blood but it was written entirely in a sort of hieroglyphic writing that used nothing but images of torture, suffering, and death.

“How am I supposed to read this?”

“My bad”, the devil said. “You should have been given the English translation.”

He snapped his fingers, manicured but with each nail filed to a sharp point, and the scroll vanished to be replaced with a more ordinary looking legal document in English.

“Lucifer versus Everett Body,” the judge read. Looking up he asked “Who is this Everett Body? Shouldn’t he be here if you are suing him?”

“What are you talking about?” Lucy said, grabbing the brief. “Curse those idiots in the secretary pool down in legal. They never seem to be able to get anything right. That is a typo. It is supposed to be Everybody.”

“Everybody?”

“Everybody. As in every single person on Earth.”

“What kind of complaint could you possibly have against everybody?”

“It is a defamation suit. I am sick and tired, after thousands of years, of everybody on this little mudball you call a planet, defaming my character”.

“There are two kinds of defamation, libel which covers written material and slander which covers speech. This is…”

“Both. I have been libeled in writing and slandered by word of mouth throughout the ages.”

“But you’re the devil! How can anything anybody ever said possibly defame you?”

“Everything everybody has ever said about me has defamed me. It is all negative. I have the worst reputation of anyone in history.”

“Aren’t the things said about you true?”

“No. Well, not all of them. People blame me for their own bad decisions all the time. How many times have you heard someone say ‘the devil made me do it’? I didn’t make a single one of those people do the things they blamed me for.”

“Weren’t you the one who tempted Adam and Eve in the Garden of Eden, leading to the fall of mankind?”

“Yes, but I didn’t make Adam and Eve eat that fruit. I tempted them to do so, but they chose the fruit of their own free will. It was easy. My job was half-done for me. You should have seen how luscious that fruit was. You would understand, having a soft spot for apples yourself.”

The devil gave Judge Baddecision a knowing wink.

“How do you know about that?”

“Oh please, consider who you are talking to. At any rate, my point is that the things that everybody says about me have sullied my character, tarnished my reputation, and caused me a great deal of emotional pain.”

These words were spoken with a great amount of emotion and at the end, Lucy began to sob violently. Tears fell upon the judge’s desk which burned through it as if they were made of acid. Quickly grabbing a box of tissue, the judge handed it to the devil who wiped his eyes and loudly blew his nose.

“Shouldn’t I be hearing a violin right about now?” the judge sarcastically asked.

“No, I had to give my fiddle away to a little twerp named Johnny down in Georgia a few years back and I haven’t got around to replacing it yet. That’s part of the reason for this lawsuit. I need money. Fiddles of gold aren’t cheap and boy with the way the price of brimstone has been going these days it is likely to be a cold day in hell very soon unless I can get my claws on some moolah.”

“Why don’t you go talk to Mick and Keith? They are rolling in the cash and aren’t they supposed to have sympathy for you or something like that?”

“Yeah, well talk is cheap. They can sing about their sympathy all they want, I have yet to see a dime from either of them, no matter how many times I’ve hit them up for money over the years. Besides, ever since Mick was knighted he has no time for me anymore, like he’s too cool for me now. I invented cool!”

The devil began to blub and sob even louder than before. As more of his desk was disintegrated, the judge was at a loss for what to do.

“Mick doesn’t love me anymore!”

Judge Baddecision, awkwardly threw his arms around Lucy and began to pat him on the back.

“There, there. I’m sure that’s not true. Mick still loves you.”

“Then why doesn’t he return any of my phone calls? Or respond to my friend requests on Facebook?”

“He’s a busy and important man.”

“Its all because of what people say about me. It’s turned Mick against me. Its destroying my self-esteem!”

“Yes, well, I’m very sorry for you and all that, but I still don’t see how you think you have a case here.”

“I understand that according to your defamation laws, once a complaint has been made there is a presumption of guilt against the defendant until he proves himself innocent.”

At this point the judge began to feel rather uncomfortable but he answered “Yes, that is correct”.

“Well, I have made my complaint. I charge everyone in the world with defaming me, in print or by word of mouth. Everything that has ever been said about me has damaged my reputation, hurt my self-esteem, and caused me emotional trauma from which my doctor says I will never recover.”

Here, Lucy handed the judge an affidavit from his therapist stating, that indeed it was his professional opinion that the devil was irreparably psychologically damaged and would never recover.

“The burden of proof is now upon the defence.”

“Where is the advocate for the defendants?”

“I don’t know. That’s not my problem. This is a civil case. Defendants are responsible for providing their own defence.”

“Well what do you say to the truth defence? Perhaps you didn’t make everybody do what they have said you made them do, but surely much of the bad press you have received is accurate?”

“Accurate yes, but it has still impacted me emotionally and harmed my reputation. My understanding is that under your law truth can be offered as a justification of defamatory speech but it is not an absolute defence.”

“Well”, Baddecision hemmed and hawed, “That is true. But come on now, you are the source of all evil in the universe. Surely you cannot expect people to be going around singing your praises and tossing you bouquets all day long? You must admit that you have deserved your negative image?”

Here Lucy gasped in shock.

“Well, I never. I am the victim here, and you, a forward thinking, progressive judge, are blaming the victim!”

“I didn’t mean it like…”

“I imagine that next you are going to say that I deserve it because I am a demon. When will the prejudice and stereotyping of my race ever end?”

“Hey! I didn’t say anything like that. Some of my best friends are demons!”

“Yeah, like I haven’t heard that one a billion times. I think maybe I had better report your remarks to the Ontario and Canadian Human Rights Commissions”.

The judge’s face began to change colour, alternating between various shades of green and grey. His knees began to knock and his legs began to wobble. He shook all over. He suddenly found breathing to be difficult and could see stars swimming around his head, as he contemplated with horror, the thought of being hauled up on a human rights charge.

“No, no, no. I rule in your favour. Everybody is guilty of defaming you. I’ll give you everything you want, damages, costs, you name it. I hearby issue a cease-and-desist order forbidding anybody on this planet from every saying anything negative against you again. Just don’t involve the Human Rights Commissions.”

“Thank you, Your Honour, you have been most reasonable. We must do lunch one of these days”.

As Lucy began to sink back down into the Stygian depths, the judge returned to his seat, and wiped his brow.

“Damn you to hell” he whispered.

“You’re too late to pass that sentence. That happened a long time ago”, a sinister voice muttered, coming up from out of the crack that still was smoking in the floor of the courtroom.

Defamation Law in the Dominion of Canada

James Boswell, in his exquisite biography of Samuel Johnson recounts a conversation with his friend and subject in which he said “Sir, you'll never make out this match, of which we have talked, with a certain political lady, since you are so severe against her principles.”

To this Dr. Johnson replied “Nay, Sir, I have the better chance for that. She is like the Amazons of old; she must be courted by the sword. But I have not been severe upon her.”

Boswell, begging to differ, responded “Yes, Sir, you have made her ridiculous.”

Dr. Johnson then came back with “That was already done, Sir. To endeavour to make HER ridiculous, is like blacking the chimney.”

I often feel that a paraphrase of this particular witticism would be appropriate in the mouths of judges when dismissing frivolous defamation law suits. There are far too many people in this day and age, who the moment somebody has “been severe upon them” vocally or in print, rush to their lawyer and file a defamation suit in the hopes of having their hurt feelings assuaged by being made richer at the expense of their detractors.

Much of the blame for the problem lies in the laws themselves. The British/Canadian parliamentary monarchy system is the best form of government the world has ever known. The Common Law is the fairest, most just, set of laws any human society has ever evolved. The best elements in the American republican system are elements which the United States kept from the British tradition when the Americans seceded from the British Empire to form their Republic.

In the case of laws pertaining to defamation however, whether libel (written defamation) or slander (spoken defamation) our laws have long been in need of a major overhaul. This is one of the few instances – perhaps the only instance - in which I would say that the Americans have actually improved on our system.

I am sometimes inclined to agree with the late Dr. Murray N. Rothbard that libel and slander laws should be abolished altogether. In The Ethics of Liberty, (1) Dr. Rothbard argued that laws against libel and slander are based on the idea that a man has a property right to his reputation. This idea, he further argued, is false because a man’s reputation does not consist of ideas in his own head but rather ideas in the heads of other people. Since a man has no property right to ideas in other people’s heads, Dr. Rothbard reasoned, he has no right to legal protection of his reputation against libel and slander.

That is an intriguing argument but it has a weakness in that it relies upon the classical liberal worldview. Classical liberalism teaches that human beings are sovereign individuals who possess natural rights, that the only valid societies are societies based upon voluntary agreement between individuals, and that the only valid laws are those which protect the rights of individuals. For those who accept this worldview, the starting point for the justification of any particular law must be the right or rights of the individual which it protects.

If it is false to say that a person has a right to his reputation – to be thought well of in the minds of others – it is nevertheless true that damaging a person’s reputation can cause suffering for that person, and not just hurt feelings. Damaging a man’s reputation can hurt his career, his business, and his livelihood. If a person maliciously sets out to cause this kind of harm to another person by telling lies about him then surely the law is justified in providing the person so harmed with a means of legal redress.

Dr. Rothbard’s argument breaks down because his premise is false. Protecting the natural rights of individuals is not the sole or even the primary justification for law. Laws exist, because human beings are both social creatures – it is our nature to live together in families, communities, and societies – and individual persons, with personal interests. There is often tension between one person’s interests and another person’s interests, and between our personal interests and those of the community. We also have a flawed moral nature that disposes us towards hurting others if it is to our advantage. Our human nature therefore requires laws so that disputes can be settled peacefully and grievances redressed without an escalation into violence that threatens all of society, and so that those who in willful disregard to the laws of society harm other people can be held accountable.

There are two main categories of law. Criminal law prohibits and prescribes punishment for acts in which people intentionally and without justification harm other people by killing them, stealing their property, etc. Civil law provides a legal framework in which disputes between people who have been unable to come to a private agreement can be settled.

Where do laws against libel and slander fit in?

Defamation laws fall under civil law, under the category of personal injury. Defamation is considered to be speech which injures another person entitling that person to compensation.

Since defamation law is civil rather than criminal complainants are not held to the strict standards required of the Crown in criminal law. This is where the problem with libel and slander laws lies.

The strict requirements placed upon the Crown in criminal law are there for a reason. They are there to protect people from wrongful prosecution. To even proceed with a case the Crown attorney must demonstrate to the court that a crime has taken place and that the evidence points towards the defendant. At no point does the burden of proof shift from the Crown to the defence and in order to obtain a conviction, the Crown is required to establish guilt beyond reasonable doubt.

The criminal justice system of the English speaking world is weighted in this way, against the prosecution and in favour of the accused, because a key principle of that system as it has evolved is that it is better for a large number of guilty people to go unpunished than for a single innocent person to be punished for a crime he did not commit. This is one of the most admirable aspects of our justice system.

The reason a similar burden is not placed upon the complainant in civil law is that civil law is not supposed to be punitive. It is there to mediate disagreements not to punish people for criminal acts. If your living room window is broken because your neighbor threw a baseball through it that is basically all you have to demonstrate to the court to be entitled to compensation from your neighbor.

An injured reputation, however, is not quite like a broken window. A window cost you a specific amount of money to install in the first place and will cost you so much to repair. That is easily assessed and places a limit on how much compensation you can ask for.

It is much harder, if not impossible, to assess damages on harm to your reputation. Without that limiting factor, laws under which people can claim compensation from others become potential weapons in the hands of those who would abuse the system to harm their opponents.

Which is exactly what libel and slander laws have become.

There is another difference between libel laws and other civil laws. The man who takes his neighbor to court for a broken window has to at least prove that his window was broken. Libel complainants are held to a less strict requirement. They do not have to show that their reputation was actually damaged, only that the words of the defendant have a tendency to cause such damage.

Is this a good or a bad thing? Many people would probably say that if Person A published a statement that Person B is a sexual pervert and a serial killer, without proof and in fact knowing that he is telling a lie that that is sufficient for Person B to press a libel action against Person A regardless of whether anyone believed him or not. Most of us would probably be uncomfortable with the suggestion that people should be allowed to go around telling those kinds of lies about other people without fear of repercussions.

If, however, Person B is entitled to sue Person A over such statements without proving that they have actually damaged his standing in the sight of others, hurting his social position or his business and livelihood, then what exactly is he to be compensated for if he wins his suit? Is he actually seeking compensation for an injury or punishment for a wrong?

If one person can sue another person for libel without demonstrating that he has been denied access to certain social circles, that he has lost customers, been refused a job or promotion, been demoted or fired, or otherwise suffered a tangible, quantifiable, injury as a result of the second person’s statements then surely such laws are more punitive than compensatory and defendants in libel cases should be entitled to protection from the same safeguards against wrongful prosecution which exist in criminal trials.

It is reasonable for the system to be slanted in favour of the defence and the burden placed upon the prosecution in criminal trials. This does not mean that it is reasonable for the system to be slanted against the defence in non-criminal trials. It is never reasonable for the system to be slanted against the defence. When the system is slanted against the defence it becomes an instrument of injustice.

Those who fail to see the problem with our defamation laws frequently make the point that “words can hurt people”. So they can. Words can hurt someone’s feelings. People’s feelings, however, are not protected by the law, nor should they be. More importantly, words can cause a person to lose friends and can destroy his career. For this reason a certain degree of legal protection should exist for a person’s reputation.

It is curious, though, the way some people seem to think that a person’s reputation should have greater legal protection than his person or property. Progressive liberals, for example, whose beliefs are quite different from those of classical liberals, sometimes do not appear to place much value in the law’s protection against criminal violence to one’s person and property. They often, as I see it, allow their tendency to regard the perpetrators of violent crimes as victims of society (because of poverty, discrimination, or some such reason) to overshadow the more substantial victimhood of the people against whom violent crimes are committed. Proposals to make the system tougher on violent crimes against people and their property, are typically met with suspicion from progressive liberals who frequently denounce such ideas as a form of fascism. Yet the same progressive liberals are often the strongest supporters of our current libel and slander laws, slanted towards the complainant though they be. Indeed, they are the primary supporters of “hate speech” laws, which are an extension of the concept of legal defamation into the realm of interaction between social groups, and which are even more slanted towards the complainant than regular personal defamation laws.

Yes, words can hurt people. Laws, however, can hurt people too. Furthermore, people need far more protection from the abuse of laws than they do from people’s words. Laws exist to protect people but they made effective by government power which itself can sometimes be a bigger threat to people than the things laws protect people from. The question Juvenal placed, in his sixth Satire, in the mouth of a husband advised by his friends to keep his wife under lock and key, has become a timeless insight into the threat inherent within protective power: Quis custodiet ipsos custodies? - Who will guard the guards?

Progressive liberals clearly recognize this threat when it comes to criminal law and err on the side of making criminal law ineffective in protecting people against violent crime – which is admittedly better than erring in the other direction. They do not give the impression that they recognize that the same threat exists in civil law.

Civil law can be abused, however, to harass and persecute people. This is particularly true of defamation law.

How then should this tort be tweaked?

For starters it needs to be made clearer that only false statements can be considered defamatory. Laws should never prohibit people from speaking the truth and people should never be punished by law for speaking the truth. Most people assume that “false” is part of the essential definition of defamation, and it is generally accepted that truth or accuracy of statement is a valid defence in defamation cases. The courts, however, have not consistently seen it this way. That needs to change.

One of the most disturbing rulings in the history of Canadian law was the ruling in the CHRT v. Taylor and Western Guard case that truth was not a defence. Now that ruling pertained only to Section 13, the “hate speech” clause of the Canadian Human Rights Act, the constitutionality of which is about to be debated in the courts. The Canadian Human Rights Act is a separate category of civil legislation but the theoretical justification for Section 13 is derived at least in part from the concept of defamation. “Hate speech” is said to injure the reputation of social groups – races, nationalities, religions, sexes, groups with a particular sexual orientation, etc. – the way libel and slander injure the reputation of individual persons.

Section 13 was particularly bad law, being so slanted towards the complainant that until the ruling in Warman v. Lemire in 2009, when the defence persuaded the tribunal adjudicator that the law itself was unconstitutional, the defence never won. This is because Section 13 – like the entire Canadian Human Rights Act – was written to serve a political agenda. Ordinary personal defamation law is not quite that bad. It needs to be made unquestionably clear, however, that in defamation cases truth is not just a defence, but an absolute defence.

Secondly, malice must be defined as an essential component of defamation. In civil law one does not ordinarily have to show malicious intent in order to obtain compensation. The way it currently stands in Canadian defamation laws, no burden of proving malicious intent is placed upon the plaintiff, but if he can prove malicious intent it is allowed to negate the truth defence. This needs to be reversed. The truth defence must be made absolute, so that demonstration of intent can not negate it, and a burden of demonstrating malice placed upon the plaintiff.

Defamation law differs from other civil laws in several ways as we have seen. Since laws against libel and slander have the effect of placing limitations upon our freedom so publicly speak our mind the demonstration of malice must become an absolute requirement on the part of the complainant in order for these laws to brought into harmony with the spirit of British/Canadian law viewed as a whole.

Every society recognizes that there must be limits on personal freedom. Some societies regard freedom as something given to their members by government and which is limited to those liberties clearly defined by law. Societies within the tradition which evolved in Britain do not think this way. We regard freedom as something people possess as a gift from God, not a gift from government, and in our tradition laws define the limits on liberty, not the extent of liberty. Under the Crown, people are free to do whatever is not expressly prohibited by law, and government needs to justify the limitations it places on our liberty.

The justification for the major prohibitions of criminal law is fairly obvious. Acts like murder, robbery, rape and assault are acts which are clearly malum in se – wrong in themselves. Nevertheless, to convict a person of having committed one of these crimes, the Crown needs to demonstrate that the person knew he was committing a crime. The principle behind this is actus non facit reum nisi mens sit rea – the act does not make one guilty unless the mind is guilty. If this burden is placed upon the prosecution in cases of murder, rape and robbery, how much more then does it make sense to require a demonstration of malicious intent before we place limits on a person’s freedom to speak their mind.

What does it mean to demonstrate malice in a defamation case?

To show that the person making the defamatory remark a) knew that what he was saying was false and b) spoke with the intent that his remark would be believed by others so as to damage the complainant’s social status, career, or livelihood.

Finally, if someone files a complaint of libel or slander against someone, over some petty remark, in order to waste that person’s time and money in a lengthy court battle, then he should be held in contempt of court and charged with mischief in a criminal court.

The recent decision of Mr. Justice Peter Annis in John Baglow v. Roger Smith and Connie and Mark Fournier is a refreshing indicator that judges in this country are starting to wake up to how our defamation laws can be misused against opponents in the age of the internet. Lets hope this trend continues and that the changes suggested above are implemented to protect people from the abuse of libel and slander laws and make our defamation laws more compatible with the spirit of the British/Canadian legal tradition, rooted in justice and liberty.

(1) Murray N. Rothbard, The Ethics of Liberty, (Atlantic Highlands: Humanities Press, 1982)