St. Lewis v. Rancourt defamation case: Rancourt files Application for leave to appeal to the Supreme Court of Canada

Denis Rancourt at the Supreme Court entrance to the Registry, on September 28, 2015

The defendant, then appellant, now applicant Denis Rancourt today served and filed an Application for leave to appeal to the Supreme Court of Canada requesting an appeal from the recent judgment of the Court of Appeal for Ontario in the St. Lewis v. Rancourt defamation case.

The full 343-page Application is publicly posted HERE-LINK, or HERE-PDF.

A summary of the Application is:

SUMMARY -- The appellate court showed animus toward the applicant. ●The appellate court made a new repressive law that allows permanent gag orders against persons with limited financial means. ●The appellate court approved the trial judge’s decision to disregard all evidence in the applicant’s favour because it was introduced by the other side. ●The appellate court ignored the applicant’s constitutional ground against the large costs for trial. ●The appellate court decided that the trial judge’s financial and emotional ties with the other side did not give an appearance of bias, and failed to consider whether the trial judge’s in-court statements show bias. ●This occurred in an appeal where the applicant could not complete his submissions due to being interrupted many times because he chose to speak in French.

The Application raises the following questions of national importance:

(i)    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)    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)    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)    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)    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.

A file number has not yet been assigned to the Application. The procedure foresees that the file number is to be assigned within 30 days.

"Free Speech is Dead in Canada (video)"--Brave The World

A video report about the St. Lewis v. Rancourt lawsuit at the University of Ottawa, by Julia Tourianski of Brave The World, was published today: LINK.

Rancourt loses Ontario appeal in defamation case

The decision of the Court of Appeal for Ontario was released on July 8, 2015, and is posted on CanLII here:

St. Lewis v. Rancourt, 2015 ONCA 513 (CanLII), <http://canlii.ca/t/gjxxd>


The Court of Appeal's rendition can be compared with the appeal factums of the two parties:

• Rancourt's (Appellant's) factum: LINK

• St. Lewis's (Respondent's) factum: LINK

• And with the Appellant's court-filed Notice of Constitutional Question: LINK

The summary of Rancourt's factum, on its page-1, is:

In this defamation trial, among other errors, the judge circumvented the jury by saying that the defendant (a blogger) had “no defence”. The judge said: “The defendant here has not introduced any evidence establishing a defence. Therefore, there is no defence for you to consider.” In fact, the defendant had explained his defences to the jury on the first day of trial and more than sufficient evidence to establish his defences was entered by the plaintiff while the defendant was present.

The media reports are based on a reading of the Court of Appeal's decision:

Ex-U of O prof loses defamation appeal

Chris Cobb, Ottawa Citizen

Published on: July 8, 2015 | Last Updated: July 8, 2015 5:53 PM EDT 

Libellous academic loses appeal

By Tony Spears, Ottawa Sun

First posted: Wednesday, July 08, 2015 02:21 PM EDT | Updated: Wednesday, July 08, 2015 02:28 PM EDT 

Another report was posted at this URL:

http://www.canadianlawyermag.com/legalfeeds/2783/appeal-court-upholds-defamation-finding-in-law-prof-case.html 

 

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.

Joanne St. Lewis v. Denis Rancourt -- Appeal will be heard in June 2015

The appeal from the trial decision in St. Lewis v. Rancourt was recently listed to be heard at the Court of Appeal for Ontario on June 26, 2015, at 10:30 AM.

The self-represented appellant's factum (Rancourt's argument) on appeal is HERE. The factum summary reads:

SUMMARY — In this defamation trial, among other errors, the judge circumvented the jury by saying that the defendant (a blogger) had “no defence”. The judge said: “The defendant here has not introduced any evidence establishing a defence. Therefore, there is no defence for you to consider.” In fact, the defendant had explained his defences to the jury on the first day of trial and more than sufficient evidence to establish his defences was entered by the plaintiff while the defendant was present.

The respondent's (St. Lewis's) responding factum is HERE. 

The private respondent's/plaintiff's legal-costs are entirely funded by the non-party University of Ottawa. The defendant's pre-trial motion that this funding was improper and constituted maintenance and champerty was dismissed prior to trial. (See court documents HERE.)

The appellant made two motions to the Court of Appeal, which were determined prior to the listing for hearing of the appeal:

1. A first motion was for the appellant to obtain non-public communications made during trial between the defendant's lawyer and the trial judge. This motion was dismissed. The motions judge decided not to order disclosure of the communications.

2. A second motion was to overturn a Registrar's decision, based on a technicality, to not accept the filing of the appellant's supplementary factum respecting costs of the trial, in which it was argued that the costs were unconstitutional. The motion was dismissed and the supplementary factum (HERE) was denied filing.

St. Lewis v. Rancourt: Notice of Appeal served and filed

The defendant Denis Rancourt will appeal the judgement resulting from the May-June 2014 trial of the St. Lewis v. Rancourt defamation case.

The Notice of Appeal has been served to the plaintiff and filed to the Court of Appeal for Ontario, and is posted HERE, and as a PDF file HERE.

The Overview section in the Notice of Appeal reads:

OVERVIEW

1. This appeal raises fundamental questions about:
(a)    the sufficient conditions that give rise to a reasonable apprehension of bias, regarding financial and institutional ties, in-court procedural decisions, the charge to the jury, and express findings from the bench;
(b)    the right of a litigant to argue an abuse-of-process remedy in a defamation trial, which was pleaded in pleadings that were not stuck out;
(c)    the right of a defendant to have his pleaded defences and remedies considered by the jury in a defamation trial;
(d)    whether the charge to the jury in a defamation trial can limit the jury members to either accept or reject specified meanings of the words complained of;
(e)    whether an imbedded video that is an integral part of a web article (“blogpost”) complained of and that is essential to the context of the alleged libel in a defamation action must be shown to the jury at trial;
(f)    the limiting of a defendant’s freedom of expression by a permanent injunction that forbids future unknown statements about the plaintiff, following a successful defamation action;
(g)    costs policy principles, the Charter principle of freedom of expression, and the common law of awarding costs, for costs of a defamation trial against an impecunious defendant when there are no costs to the plaintiff.

All/most court-filed documents of both parties in the overall action and its appeals are HERE.

University of Ottawa paying for pointless legal battles -- Sun News

Ezra Levant interviewed Executive Director of the Ontario Civil Liberties Association Joseph Hickey on May 23, 2014, about the St. Lewis v. Rancourt lawsuit.

Click image for link to Sun News video report

Related Links:
OCLA campaign: Public Money is Not for Silencing Critics
Cynthia McKinney's petition: Give a Fair Court Hearing to Denis Rancourt 

Original video link (dead link):
http://www.sunnewsnetwork.ca/video/3585179969001 

Denis Rancourt has lost the defamation lawsuit -- Summary and update

By Denis Rancourt

TABLE OF CONTENT

• Jury awarded damages of $350,000.
• Permanent injunction and take down order
• Plaintiff seeks judicial finding of contempt of court
• Strong case for appeal
• Need financial help and pro bono lawyer for appeal
• Trial judge's ties to the University of Ottawa
• Links to media reports

The last day of trial was June 6, 2014.

The six-person jury found that two 2011 blogposts on the U of O Watch blog were defamatory of Joanne St. Lewis.

The jury awarded $100,000. in general damages (the plaintiff wanted $500,000.), $250,000 in aggravated damages (equal to the amount requested by the plaintiff), and zero dollars in punitive damages (the plaintiff wanted $250,000. and to give half to the University of Ottawa), for a total of $350,000.

After the jury left, the trial judge made an order for a permanent injunction against me. The orders from the trial are HERE.

The judge's court order has forced me to remove my two blogposts complained of, and thus the links to these blogposts no longer exist: HERE, and HERE.

In addition the plaintiff, whose legal costs are paid by the University of Ottawa, orally submitted, through her lawyer, that a "show cause" hearing should be set to make a judicial finding of contempt of court against me, regarding documents published during the trial.

The judge ordered that there would be this "show cause" hearing on September 25, 2014.

The judge said in court that the September 25, 2014, "show cause" hearing could result in a jail sentence against me.

My desire is to appeal the result of the trial. I believe I have a very strong case for appeal. So does Cynthia McKinney who started the petition entitled "Give a Fair Court Hearing To Denis Rancourt": LINK-petition. The petition presently has over 900 signatures and over 200 comments.

I have a strong case because the trial judge cancelled my main ("Jameel") defence while I was trying to present it to the jury (LINK to statement on walking out of trial), and then, in his charge to the jury at the end of the evidence, the judge cancelled all my remaining defences by saying:

"The defendant has not introduced any evidence establishing a defence therefore there is no defence for you to consider."

In fact, the plaintiff had already introduced ample evidence supporting the legal defence of "fair comment", and I had explained this defence to the jury in my opening statement.

I need to raise enough money (approximately $20,000.) to pay for the required court transcripts (one cannot appeal without buying the court transcripts of the trial). And, I need to find a lawyer who will agree to do the appeal on a pro bono basis (i.e., for the public good).

The trial judge has all of his university degrees from the University of Ottawa, and is a regular and annual donor to the University of Ottawa (LINK to recusal motion court documents).

The judge gives money to the university that is using money to finance the plaintiff in the lawsuit; without a spending limit, "without a cap" in the words of president Allan Rock.  

Media links in this case are:
LINK--May 15, 2014--Ottawa-Citizen
LINK--May 16, 2014--Ottawa-Citizen
LINK--May 22, 2014--Ottawa-Citizen
LINK--May 23, 2014--PressTV (TV and print)
LINK--May 23, 2014--SUN-News (TV)
LINK--June 5, 2014--Ottawa-Citizen (with video)
LINK--June 5, 2014--Ottawa-SUN (with video)
LINK--June 6, 2014--Canadian-Lawyer-Magazine
LINK--June 6, 2014--Ottawa-Citizen
LINK--June 6, 2014--Ottawa-SUN

L'ancien professeur [Rancourt] condamné à payer 100 000 $ d'indemnités -- La Rotonde (French media)

L'ancien professeur condamné à payer 100 000 $ d'indemnités (LINK)
Marc-André Bonneau, La Rotonde, 21 octobre 2013

Extract:

Un procès financé par l’argent public
Les frais juridiques de la plaignante sont assumés par l’Université. Allan Rock a alloué un budget sans limite au procès, situation que l’Association des libertés civiles de l’Ontario (ALCO) a dénoncée. L’ALCO a lancé une campagne publique intitulée « Public Money is Not for Silencing Critics », qui a dénoncé qu’il « n’est pas éthique d’un point de vue de la liberté académique, que l’Université s’engage à protéger » le fait que l’administration finance cette poursuite pour diffamation contre M. Rancourt. [...] [article entié ici]

Canadian Centre for Ethics in Public Affairs article discusses defamation law in our society

Keeping criticism honest and civil (LINK)

By Professor Mark Mercer, CCEPA blog, On October 16, 2013

Extract from the article:

I think that the mechanism by which to keep comment and criticism honest and civil is comment and criticism itself. When someone speaks a falsehood about one, speak the truth back. Expose the other’s shoddy evidence or reasoning. When insulted, note that an insult isn’t evidence or argument against one, or even a criticism.

If it is false that [six words removed on June 9, 2014, pursuant to COURT ORDER], explain to the world that you didn’t. If you are upset by a phrase or a tone, criticise publicly the use of that phrase or tone. If you didn’t lie, expose the lie that you did. This all can be done easily and effectively without employing a single lawyer.

There are at least two worries about the strength of this mechanism. One is that people are credulous and won’t respond to the truth, especially if they like the falsehood or it gets repeated. The other is that not many people have access to a medium through which to tell their side of the story.