Court File No. - 00-000133
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
-AND-
CALVIN CUMBERLAND
CHARGE TO JURY
OF THE HONOUPABLE MR. JUSTICE T. A. PLATANA
the 17th day of January, 2001,
at the City of Thunder Bay, and Province of Ontario
APPEARANCES:
Assistant Crown Attorney
Counsel for the Accused
Court Reporter
Trevor Jukes Representing Hirnself
Lenore McKevitt
Charge to the Jury Platana, S.C.J.
Those are some general comments. Let me turn now more specifically to the law that applies in this particular case.
Let me remind you, that Mr. Cumberland is charged on an indictment that says he did on or about the 23rd day of May 2000, and the 24th day of May 2000, at the City 'of Thunder Bay in the Northwest region in the Province of Ontario, publish a defamatory libel, knowing that it was false, by posting posters defaming xxx xxxxxxxx contrary to Section 300 of the Criininal Code of Canada.
That is the charge which the accused is facing.
Let me read you the exact section of the Crinilnal
Code. That section, which is 300, says:
"Everyone who publishes a defamatory libel, that he knows is false, is guilty of an indictable
offence.
In order for you to understand and come to a conclusion on that section, it's necessary that I
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Charge to the Jury
Platana, s.c.j.
"Caution Attention." There's a picture of an individual on it, and the name xxx xxxxxxxx appears. The writing on the document says, "This man is known to be working for an insidious organization accused of causing peoples deaths. Protect yourself from organized crime. If you approached by this man be prepared to defend yourself." That is the wording on one of the documents which the Crown relies upon.
The second document which the Crown relies upon, and again filed as an exhibit, is one which says, "Tax trouble, screw Revenue Canada. See www.tbaytel net/acumberland."
Let me indicate to you directly at this point in time, that for purposes of your deliberations I would instruct you that this particular exhibit in and of itself does not appear to bear any relation to xx.xxxxxxxx. I'll have more to say of that aspect afterwards. I would also indicate to you that from my recollection of the evidence there is no witness who suggested in any way that they saw
Mr. Cumberland placing this particular document anywhere. Now again, let me remind you, if my recollection of the evidence on that regard differs from yours, you must accept your view of the evidence.
Let me specify for you now, a charge of defamatory libel therefore, requires as an element of the offence physical publication of the alleged defamatory material in one of the three specific manners outlined in the Code. Furthermore, the Crown must prove that the matter in question was objectively defamatory. That it was likely to injure the reputation of the person by exposing him to hatred, contempt or ridicule or that it was designed to insult the person of or concerning whom it was published.
The Crown must also prove that the accused knew that the defamatory libel was false and that there was intent to defame.
Let me review with you now some of the evidence which I believe you may find of some assistance in your assessment of whether each of these elements
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found in public parks, on downtown streets, and outside public buildings.
In considering the issue of whether the poster was likely to injure the reputation or designed to insult the person of whom it was published, you also have the evidence of Mr. xxxxxxxx himself as to his own reaction when he saw the poster and the consequences immediately there afterwards. You will recall that he left work that day. It was indicated to him, I believe, by his superiors that he appeared to be upset enough that he should go home.
Finally now as an essential element, in order to sustain a conviction for this charge, the Crown must prove that the accused published the defamation that he knows is false.
The knowledge required by that phrase is subjective. You must therefore determine whether the accused knew that the published statements were false. The question is whether he knew that the message as it would be
understood by a reasonably prudent person was false.
Now there is certainly no direct evidence that Mr. Cumberland had any subjective knowledge that the message on the posters was false, and you have no direct evidence that he intended to defame Mr. xxxxxxxx. He did not testify on his own behalf, nor did he call any witnesses in his defence, and let me remind you that is the right of an accused person. No one has to prove their own innocence.
The Crown called no evidence specifically as to his knowledge.
You may, however, draw inferences, as long as those inferences are based on facts, which you find from the evidence. Therefore the question is, is there any evidence which you may wish to consider to determine whether you can find that Mr. Cumberland subjectively knew that the information was false and that it was intended to defame.
I would suggest to you that you might need to look at the evidence as to Mr. Cumberland's knowledge of....
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This is not the transcript and may contain errors.
If you want exact transcript cantact Calvin Cumberland
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