R. v. Tremblay, 2010 ONCA 469, released today, deals with a curious fact pattern. Simplified, a neighbor placed a sign on his property that said unfortunate things related to his neighbor (see photograph on right).
The Court of Appeal overturned the conviction saying freedom of speech includes the freedom to say pretty well anything, rational or not.
It may be this decision has relevance in the context of incoherent protests? There is a right to freedom of expression even if the expression is irrational.
[13] I agree with the Summary Conviction Appeal Judge (“SCAJ”) that the trial judge erred by restricting the scope of the s. 430(7) defence to the communication of information “in order to persuade by rational argument.” Not all communication consists of persuasion by rational argument, and it does not follow that just because the communication of information for that purpose is protected – see R v. Dooling (1994) 94 C.C.C. (3d) 5245 (Nfld. S.C.) – communication that is not made to persuade by rational argument is not protected.
[14] Respectfully, however, the SCAJ made two errors that require the finding of guilt to be set aside. First, in holding that the appellant did not attend at or near the complaints’ house only for the purpose of communicating information, the SCAJ erroneously conflated an act of attendance for the purpose only of communicating information with the consequences of that act. Secondly, the SCAJ erred in failing to recognize the ambiguous nature of the phrase “for the purpose only of communicating information,” and therefore the need to adopt an interpretation that is consistent with the s. 2(b) Charter value of freedom of expression.
As a result, the other neighbor suffered harm and had difficulty selling his property. The neighbor who placed the sign was charged with, and convicted of, mischief for his wilful interference with his neighbour’s lawful use and enjoyment of their property. Note, the accused did not threaten his neighbours or enter their property in any way.
The Court of Appeal overturned the conviction saying freedom of speech includes the freedom to say pretty well anything, rational or not.
It may be this decision has relevance in the context of incoherent protests? There is a right to freedom of expression even if the expression is irrational.
[13] I agree with the Summary Conviction Appeal Judge (“SCAJ”) that the trial judge erred by restricting the scope of the s. 430(7) defence to the communication of information “in order to persuade by rational argument.” Not all communication consists of persuasion by rational argument, and it does not follow that just because the communication of information for that purpose is protected – see R v. Dooling (1994) 94 C.C.C. (3d) 5245 (Nfld. S.C.) – communication that is not made to persuade by rational argument is not protected.
[14] Respectfully, however, the SCAJ made two errors that require the finding of guilt to be set aside. First, in holding that the appellant did not attend at or near the complaints’ house only for the purpose of communicating information, the SCAJ erroneously conflated an act of attendance for the purpose only of communicating information with the consequences of that act. Secondly, the SCAJ erred in failing to recognize the ambiguous nature of the phrase “for the purpose only of communicating information,” and therefore the need to adopt an interpretation that is consistent with the s. 2(b) Charter value of freedom of expression.
2 comments:
Is this your garbage in the Citizen?
"The contrast between police restraint and the behaviour of a few hooligans will long remain an image in Canadian minds."
are you in the same Universe???
The police ignored what was the equivalent of a Vancouver or Montreal hockey riot (perpetrated by much the same type of angry-airheads – and based on past situations, possibly aided by undercover provocateurs). The disturbing video scenes were then used as cover for the largest mass arrest of people in Canadian history.
Restraint????
I guess that James did not read the or see where Toronto police chief made up all that bullshit about the 5m...
In the end, of course, the violence during the G20 was profoundly counterproductive to genuine social activist causes.
It would never have made a difference even if it was totally peaceful.
The police acted like thugs. That is the image that will remain. And let's not forget that this fiasco cost over a billion... so James worth it?
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