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From: robinson@ubc-cs.UUCP (Jim Robinson)
Newsgroups: net.politics,net.legal
Subject: Re: Gone with the wind.
Message-ID: <73@ubc-cs.UUCP>
Date: Wed, 23-Oct-85 22:17:50 EDT
Article-I.D.: ubc-cs.73
Posted: Wed Oct 23 22:17:50 1985
Date-Received: Fri, 25-Oct-85 04:23:18 EDT
References: <913@decwrl.UUCP> <863@lsuc.UUCP>
Reply-To: robinson@ubc-cs.UUCP (Jim Robinson)
Organization: UBC Department of Computer Science, Vancouver, B.C., Canada
Lines: 116
Xref: watmath net.politics:11672 net.legal:2493
Summary: 

In article <863@lsuc.UUCP> dave@lsuc.UUCP (David Sherman) writes:
[Don Black asks: ]
>>      If they suffer no loss as individuals, why should they be allowed 
>> to sue?  Can they show that the untrue statements caused a loss of profit?
>
>It's precisely because the statements cause harm to the group as
>a whole, and not to the individual plaintiff, that it's appropriate
>to have a criminal remedy. 

Unless I am mistaken it is necessary in a libel case to prove that
the falsehoods printed resulted in damage to the reputation of the plaintiff.
Since at no time was it undertaken to determine whether Zundel's publications
resulted in such damage to the collective reputation of Jews in general,
and since it is very unlikely that any significant  damage was done
(most people having better things to do than listen to the rantings of
neo-Nazis) I would guess that had the Zundel case been tried as a regular
libel case that he would have been acquitted. So what it appears we have here
in Canada are two "libel" laws: one that can put you in *jail* without the 
need to prove injury was done to the plaintiff's reputation, and one
that can *fine* you *only if* said damage had been sustained. This seems
to me to be at the very least a serious inconsistency. An inconsistency
that was not properly addressed above by Dave Sherman.

>..............................No-one is seeking damages from Zundel.
>We were simply trying to stop him from publishing his damaging filth.

I do not see why only a criminal remedy can achieve this objective.
I imagine a civil court could just as easily be used to fine Zundel
and prevent him from publishing further Holocaust material by the
issuance of an injunction. (Not being a lawyer I would be interested 
in hearing if this is indeed not feasible.)

What this all boils down to is that I have a great deal of trouble
watching people (even escapees from the loony bin) being put in 
jail for *telling lies*. 

>Zundel and Keegstra were convicted under two very clear sections
>of the Criminal Code - much clearer than just "hate literature".
>See ss. 177 and 281.2 of the Criminal Code of Canada. Those sections
>are drafted in a way that provides numerous defenses to the accused,
>including, of course, truth.

The following is essentially a reposting of an article I wrote concerning
my perceived deficiencies of section 177 of the Criminal Code of Canada.

***********************************************************************

As Dave Sherman pointed out the issue was *not* freedom of speech. This 
is due to the fact that section 177 of the Criminal Code places what I
consider to be an unduly harsh restriction on that freedom that is so
dear to so many of us. This is what section 177 says:
"Everyone who wilfully publishes a statement, tale, or news that he knows
is false and that causes or is likely to cause injury or mischief to a 
public interest  is guilty of an indictable offence and is liable to
imprisonment for two years."

First off, I personally do not think that the public is best served by
unnecessary restrictions on freedom of speech. On the contrary, I 
believe that it is imperative that any democratic society be given
as much access to as much information as possible. It is only then 
that the legitimate debate which is the cornerstone of a democracy can
be guaranteed. It is unfortunate that society would have to suffer the 
occasional Ernst Zundel in such a setup, however, the possible abuses
of the alternative far outweigh the need to deter every wacko that comes
along from espousing his views.

So why do I think section 177 is unduly harsh and/or unnecessary ?

- I believe that Canada has got to be one of the most tolerant countries
  on this planet. I do *not* think that the average Canadian can be swayed
  by an argument merely because it has been given semi-official status
  by virtue of it being in print. No, I believe that Canadians are more
  than capable of recognizing garbage for themselves and of acting
  accordingly. It should be noted that this tolerant state of affairs
  that exists today in this country was brought about without previously
  having to  jail the intolerant minority among us. If, however,
  one believes that basically the people are like sheep that have to
  be led, then this argument is undoubtedly falling on deaf ears.

- Section 177 is extremely vague. The term public interest is used
  but not defined. As the law stands it would appear to me that it
  could well be applied to routine libel cases which were never meant
  to be tried in a **criminal** court. All that is apparently
  necessary is that the injured party has to be ruled to be a public  
  interest. Needless to say what really worries me is that the most
  obvious public interest is the government whose massive resources 
  dwarf those of the average citizen.  

- Continuing on the theme of vagueness consider the phrase "is likely
  to cause injury or mischief". The "is likely" part implies to me
  that the author of the contentious publication needs some kind of 
  crystal ball. But the real problem with the phrase is the use of
  the word "mischief". Among other definitions for that word my 
  dictionary gives: (i) a source of harm or irritation, and (ii) action
  that annoys. Do we really want to throw people in jail because they
  have printed lies that "irritate" or "annoy" a "public interest"???
  If I say (print) something like "this country's current economic
  malaise can be blamed entirely on the existence of crown corporations(*)";
  a statement that is obviously untrue and yet is likely to cause
  mischief to ( read annoy ) a public interest ( read crown corporation ),
  could a jury observe the letter of the law and return anything 
  but a guilty verdict? 

It is my  belief that section 177 is a law waiting to be abused.
Maybe not today, maybe not next week, month, or year, but as surely
as governments have abused other loopholes, at some point a government 
will not be able to resist the temptation of abusing this law to 
the detriment of all of us.

(*) note to American readers: crown corporations are corporations 
    which are owned by the government, e.g. PetroCan - the "peoples'"
    oil company; and Air Canada, the carrier of the masses.

***********************************************************************

J.B. Robinson