Rancourt v. St. Lewis: Rancourt serves attorneys general with Notice of Constitutional Question

This (LINK) (PDF) is the Notice of Constitutional Question that was served to the attorneys general and to the respondent and filed at the Supreme Court of Canada, on October 7, 2015, in the application for leave to appeal, Court File Number 36653, in the case Rancourt v. St. Lewis.

The trial and appeal went very wrong and the attorney generals (of Ontario and Canada) need to intervene at the Supreme Court in order to protect the interests of Canadians and the integrity of the justice system.

Former US Congresswoman Cynthia McKinney in May 2014 had already indicated how wrong things could go in this case (LINK). She was more than right.

There are five constitutional questions being put to the Supreme Court:

i. Constitutionality of the common-law “Astley test”:
Is the common-law “Astley test” used in ordering permanent injunctions against unknown expression following findings of defamation constitutional and consistent with Canada’s obligations pursuant to the International Covenant on Civil and Political Rights, and was the applicant’s right of freedom of expression thereby violated by the permanent injunction?

ii. Rights infringed or denied by selecting trial evidence in barring defences:
Under what conditions, if any, can a judge disregard evidence on the trial record because one party did not “call” or “introduce” it, in deciding whether to put defences to the jury, and were the applicant’s Charter rights of a fair trial and of freedom of expression thereby infringed or denied by the lower courts themselves?

iii. Freedom of expression infringed or denied by costs of defamation trial:
Under what conditions are costs of trial ordered against a defendant in a defamation action unconstitutional and incompatible with Canada’s obligations pursuant to the International Covenant on Civil and Political Rights, and did the lower courts themselves violate the applicant’s right of freedom of expression with costs?

iv. Constitutionality of the Canadian common law of judicial bias:
Is the Canadian common law test for reasonable apprehension of bias (judicial bias) unconstitutional by virtue of being a violation of Article 14(1) of the International Covenant on Civil and Political Rights, and did the lower courts themselves thereby violate the applicant’s right to a fair trial?

v. French language Charter rights infringed or denied by the appellate court itself:
Did the appellate court itself violate the applicant’s equal-language Charter rights and privileges?

The Ontario Civil Liberties Association opposes the University of Ottawa's funding of the legal costs of the plaintiff/respondent: HERE-LINK.
A recent video-report about the case was published by Brave The World: HERE-LINK.
A blog-article history of the case is HERE-LINK.
All the court-filed documents in the case are HERE-LINK.

Professor Mark Mercer asks Attorney General to intervene to protect the right to freedom of expression in Ontario

OCLA press release: ENGLISH / FRANCAIS

The letter is posted here: OCLA-LINK.

May 19, 2015

The Attorney General of Ontario
Constitutional Law Branch
4th floor
720 Bay Street
Toronto, Ontario M5G 2K1
fax: (416) 326-4015

Hon. Madeleine Meilleur:

Re:    Notice of Constitutional Question, Court of Appeal for Ontario File No. C59074
    St. Lewis v. Rancourt

The Ontario Civil Liberties Association (OCLA) is a proponent of freedom of expression for all Ontarians, on all issues. OCLA is concerned that freedom of expression is in decline in Ontario.

You have been served with a Notice of Constitutional Question (“Notice”), in the above-cited appeal that is listed to be heard in Toronto on Friday, June 26, 2015. A copy of the Notice is attached.

The questions raised in the Notice are vital constitutional questions about the Canadian Charter of Rights and Freedoms guarantee of freedom of opinion and expression for all citizens of Ontario.

Defamation law is the main legal instrument used to infringe or deny the Charter right of freedom of opinion and expression, and it is the dominant government-sponsored source of chill against free expression in our society.

OCLA asks that you intervene in this appeal in order to protect the Charter right of expression for all citizens of Ontario. This is particularly important because the defendant/appellant in this case is self-represented, while being opposed by a major law firm being financed without limit using public money.

The common law tort of defamation is in direct opposition to the Charter right of expression, and it is the only tort in which both malice (of defamation) and damages are presumed, rather than needing to be proved by the plaintiff. In this tort, the defendant has a reverse onus to show that the particular defamation is protected by law by virtue of a pleaded common law or statutory defence.

Under such legal circumstances, it was an egregious violation of the appellant’s Charter right of expression for the trial judge to refuse to put the defendant’s defences to the jury, which were pleaded defences that were never struck out, and for which there was ample supporting evidence on the trial record.

OCLA asks that you make a representation in this appeal that barring pleaded and standing defences in a defamation trial is incompatible with the Charter right to freedom of opinion and expression.

The second of three constitutional issues in the Notice is that the recent common law of permanent injunctions (permanent gag orders), against a defendant following a finding of defamation, includes permanent prohibitions of unknown expression, and is thus unconstitutional.

The said common law has never been challenged previously in an appellate court in Canada.

This unfortunate recent development in Canadian common law is at odds with Canadian values of freedom of expression, and the said common law expressly discriminates on the basis of financial means.

OCLA asks that you make a representation in this appeal that the said recent common law of permanent injunction in defamation cases is incompatible with both Charter and Ontario values.

Finally, the Notice challenges the constitutionality of massive costs of trial against an individual defendant, opposed by unlimited public money, in a defamation case.

The excessive chill on expression from extravagant defamation-trial costs ordered against a defendant, while not actually paid by a private plaintiff, is evident. In this case, the trial court permanently barred a blogger from future unknown expression because he has no money, and then turned around and ordered him to pay the huge legal costs of trial, even though the costs had already been paid in full using public money.

Furthermore, such a costs order, in the circumstances of this case, is in violation of Canada’s (and Ontario’s) obligations under the International Covenant on Civil and Political Rights.

OCLA asks that you make a representation in this appeal to argue that costs such as those ordered in the circumstances of this case are an unreasonable suppression of the Charter right of freedom of opinion and expression.

Your contributions in this appeal are essential to ensure that the law constraining the Charter right of freedom of opinion and expression is consistent with the values of Ontario’s free and democratic society, and with international obligations.

Yours truly,

Mark Mercer, PhD
Chair, Department of Philosophy, Saint Mary’s University
President, Society for Academic Freedom and Scholarship
Member, OCLA Advisory Board

Department of Philosophy
Saint Mary’s University
923 Robie Street
Halifax, NS
B3H 3C3

Ontario Civil Liberties Association
180 Metcalfe Street, Suite 204
Ottawa, ON
K2P 1P5

(Letter footnotes are excluded, see link for original.)

St. Lewis v. Rancourt -- Notice of Constitutional Question

This (LINK) is the May 12, 2015, Notice of Constitutional Question, in the appeal listed to be heard on June 26, 2015, at the Court of Appeal for Ontario, in Toronto; in the defamation case St. Lewis v. Rancourt.

The Notice is to inform the Attorney General of Canada, and the Attorney General of Ontario, that the appeal will include constitutional claims or challenges, which are described in the Notice.

There are three claims argued in the Notice:

1. That the trial judge infringed or denied the defendant's Charter right to freedom of opinion and expression when he barred the jury from considering any of the pleaded defences.
2. That the ordered permanent injunction for unknown expression is unconstitutional.
3. That the costs of trial infringe the Charter right to freedom of opinion and expression, and are a violation of the International Covenant on Civil and Political Rights.

All/most court-filed documents in the appeal are HERE.

The factums (arguments) for the appeal are linked HERE.

The full court transcript of the trial is linked HERE.