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[This edited version of the report has been prepared by Dr Robert N Moles]

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Networked Knowledge Editorial Note:

Kingston [Ontario] is the national prison capital of Canada, with six penal institutions in and around the city. This includes the oldest prison — Kingston Pen. In October 1993 six guards enetered the cell of a black inmate who subsequently died. They were exonerated by Corrections Canada, the police and the local crown attorney, but the mother of the dead prisoner took the evidence before a judge and got charges laid against the guards. To those involved it appeared that the State was out to abandon the case so wanted posters were made for the guards. The posters treated the guards in a manner similar to the way a gang of black men who had killed one white man would have ben treated by the local police. The police insignia and phone numbers were on the poster. The police used the law of criminal libel. This was a very rarely used section of the criminal code and was quite questionable constitutionally.

The Canadian Civil Liberties Assoc. defended those putting up the posters for free and below is a page from the decision. This shows the “inflammatory” wording of the posters and the dates. The law was struck down as unconstitutional. It had been used in the past to convict people for “libelling” by calling a person “reactionary”, or a police officer for calling him “dishonest”

The charges

The applicants, Ravin Gill and Bradley Waugh, stand charged that they, on or about the 2nd day of December, 1994, did publish a defamatory libel by exhibiting in public certain posters, contrary to section 302 of the Criminal Code of Canada. The posters are “wanted posters” of six different Kingston Penitentiary guards. Each poster had a picture of the guard and descriptive information. All of the posters bore a logo of the Kingston Police Force. The text of these posters was the same for each named individual, and read:

“The suspect is one of several people wanted in connection with the kidnap, torture and killing of Robert Gentles on October 24, 1993. The six are believed to be members of a criminal gang operating in the Kingston area. If you see the suspects or have information as to their whereabouts, notify the Kingston Police at 544-5000 or 549-4660. Caution, do not attempt to apprehend the suspects yourself. They have a long history of sadistic violence and are believed to have sociopathic tendencies. VIGILANCE IS EVERY CITIZEN’S DUTY.”

The applicants seek an order that s. 302 of the Criminal Code of Canada unlawfully infringes upon their rights as guaranteed by s. 2(b) of the Charter of Rights and Freedoms, which guarantees to every citizen of Canada freedom of thought, belief, opinion and expression, including freedom of the press and other media communication

Murray Hogben Whig-Standard Staff Writer reported “Libel case may set precedent: ‘We’re talking about agents of the state being defamed’

He said a potentially precedent-setting case that turns on an issue of freedom of speech is under way in Kingston. Yesterday lawyer Dan Scully appeared in court representing two Kingston men charged Dec. 9, 1994, with defamatory libel. Ravin Gill, 35, and Bradley Edward Waugh, 31, are accused of sticking up “wanted” posters that injured the reputation of guards who work at Kingston Penitentiary. The posters featured the pictures and names of six guards who were facing manslaughter charges at the time in the death of inmate Robert Gentles, who dies of asphyxiation in October 1993 during a scuffle with guards.

All charges against the guards were eventually dropped. Scully also appeared in court to represent the Canadian Civil Liberties Association, which is seeking intervenor status in the case because it considers it a freedom of speech issue. “If the Canadian Civil Liberties Association is given standing there is a much better chance that it’ll be a precedent-setting case,” Scully said.

Freedom Of Speech

“The defamation section [of the Criminal Code] is rarely used and it’s a section that the courts have held in the past in other jurisdictions to be one that infringes on … the Charter, which is the section that allows for freedom of expression,” Scully said. “I do think it’s an important case because here we’re talking about agents of the state being defamed and it’s the state now which is putting its resources to work against the people accused of the defamation.” Yesterday, Scully appeared in court for Gill, who he said has been in hospital for several weeks, and for Waugh, who was present. If found guilty, he added, they could face up to two years in jail.

Yesterday, Crown attorney Harry McDonald told Mr. Justice Lloyd Woods that he wasn’t ready yet to deal with the Civil Liberties Association’s application for intervenor status. With the agreement of the association the issue was adjourned to Dec. 19. Whether or not the association gets standing, jury selection will begin on Feb. 12 for the Feb. 19 trial.

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