Monday, 23 January 2012

Silencing Fredericton’s Gadfly

Information remains scarce about the action taken by the Fredericton Police last week against Charles Leblanc, an unemployed, blogger/amateur journalist and Fredericton’s social gadfly.  We know that Charles was arrested, that his computer equipment was seized, and that he must wait until April to find out what, if anything, he will be charged with.  The search warrant cited s.301 of the Criminal Code of Canada, defamatory libel, a provision that has been repeatedly struck down by Courts in Canada as an unjustified infringement on free speech under Canada’s Charter of Rights and Freedoms.

If ever a police action cried out for explanation and justification, this is it.  The Fredericton Police Force may cite due process as their reason for silence, but the bare facts of the matter raise unsettling questions.

Charles Leblanc has had a troubled relationship with the Fredericton Police Force which is expansively documented in the pages of his blog.  In 2009, he filmed an ugly incident in which Fredericton police beat a man outside a bar.  The incident led to assault charges against Fredericton Police Officer Stephen Stafford of which he was acquitted in June of 2011.

There have been subsequent incidents where Charles felt singled out and unfairly treated by Fredericton police officers.  He has used intemperate language at times in referring to police officers.  Charles is also a vocal critic of other actions taken by our public officials.

The public wonders what harm Charles has caused to anyone, what imminent danger to the public welfare Charles poses, that would justify his arrest and the seizure of his computer?  In my very limited understanding of the criminal law, these actions require that the police swear, in advance, an information containing the reasonable and probable grounds for the action sought.  What are they?  Charles is surely entitled to know the grounds for depriving him of his computer equipment.

Defamatory libel, by its nature, is not an offense that takes place in secret.  By all appearances, Charles pours out his thoughts indiscriminately in his blog, and a search of his computer is not going to shed any light on whether he did or did not utter a defamatory libel.  Any libels he has uttered are most likely available on his blog for the entire world to view.

Here is the rub, an area of the gravest concern about the police action against Charles Leblanc.  Charles’ blog at times reads as a diatribe against the Fredericton Police Force, and his intemperate language often takes the form of inflammatory language directed against the force and particular members of the force, insulting epithets such as “racist” and “pervert”.

If the alleged libel includes words uttered about members of the Fredericton Police Force, there is an obvious concern about the conflict of interest in a police force investigating such allegations.  In a similar case in Calgary recently (R v. John Kelly), the RCMP was called in to investigate alleged defamatory libel against the Calgary Police Force.

In this light the assault on free speech, the very basis on which Courts have struck down s.301 of the Criminal Code of Canada, takes on an ominous hue.

The Fredericton Police Force has put itself in a situation with no apparent positive outcome.  Its actions defy logic, it has an apparent conflict of interest, and its good faith in swearing an information against Charles Leblanc has to be questioned.  Allegations of defamatory libel, insofar as they are known to date, are flimsy both in law and fact.  They are on shaky legal ground because Criminal Code s.301 has been held to be unconstitutional in three or four other provinces, and a different outcome is unlikely in New Brunswick.

Once on a path of dubious good faith, more troubling questions arise about motive.  They took his Rogers modem, effectively silencing the man and providing no evidentiary value whatsoever.  Under a questionable warrant, they are now rifling though his computer, a device on which many individuals pour out their most private thoughts.  If Charles has done anything questionable in recent years, they will be onto it!  If Charles has associated with other individuals that cause grief to the powers that be, they will know who those individuals are.

The Supreme Court of Canada has made clear (in R. v. Lucas) that mere insults do not amount to criminal defamation.  In order to succeed on a charge of criminal defamation, the Crown has to prove a very grave insult (and typically a more serious factual attack on reputation), an intent to defame, and knowledge that the defamatory statements are false.  The language that Charles Leblanc deploys in his angry rants are the common coin of insult, typically dismissed by objective observers as such, and most likely arise from some basis of fact or belief that would make proof of knowledge of falsity very difficult to establish.

I do not live in Fredericton, I had not heard of Charles Leblanc until very recently, and I have never met the man.  There may indeed be some grave, yet undisclosed matters behind this heavy handed police action.  All that I have read and heard to date lead to very troubling hypotheses: a fishing expedition, payback, an effort to silence a troublesome gadfly.

On the question of payback, upon Constable Stafford’s acquittal last June his lawyer stated "It's important to remember that people who are charged with criminal offences effectively put their lives on hold for two years. Const. Stafford has had a loss of sleep, lack of confidence at time and stress on the family and at work."  Now it seems to be Charles Leblanc’s turn, and we’re still at a loss to see or hear from any victim.

Unless there is a crime and a victim that we don’t know about, my bet is that no charges will ever be laid and the Fredericton Police Force will succeed in its under-the-radar approach to intimidating and silencing the downtrodden but noisy masses.  That, in my book, constitutes abuse of process and breach of Charles Leblanc’s right to freedom of speech and from arbitrary arrest, search and seizure.  Fredericton’s best bet would be to apologize to Charles Leblanc and ensure he receives his equipment back post-haste.

Absent that, Charles' best bet, had he a few dollars or pro bono counsel, would be to get before a Judge and have the warrant quashed and seek damages for the unjustified invasion of his rights and his privacy.
                                                                                                                         Peter Dauphinee
                                                                                                                         January 23, 2012