Repeal Defamatory Libel | Centre for Free Expression

Home / Blog / Repeal Defamatory Libel

REPEAL DEFAMATORY LIBEL

On March 8th and June 6th, 2017, the Minister of Justice introduced bills to amend the Criminal Code.
The purpose of Bills C-39 and C-51 is to repeal a number of criminal offences. Blasphemous libel is on
the list, but seditious libel and defamatory libel are not.

Among other things, Bills C-39 and C-51 remove unconstitutional provisions from the Code.
Slated for
repeal are offences that were declared unconstitutional by the Supreme Court and other courts but
remain in place because of Parliaments inaction. Examples include the Codes erstwhile abortion laws,
which were invalidated in 1988, and its second degree felony-murder offence, found unconstitutional in
1990. After not being in force for more than twenty-five years, the provision was applied by a trial judge
as recently as fall 2016.

Bills C-39 and C-51 also repeal Criminal Code provisions deemed obsolete, which have no place in
criminal law, or are likely to be found unconstitutional. The list includes
blasphemous libel
(s.296), as
well as challenging to duel, fraudulently pretending to practice witchcraft, and prohibitions on crime
comics. While blasphemous libel is consigned to obsolescence, the Codes
other two forms of criminal
libel seditious and defamatory libel stay in place. [Parenthetically, Bill C-51 proposes one daring
amendment to s.299(c) to confirm the uncontested proposition that
defamation requires publication to a
third party, and not to the person
defamed; see R. v. Lucas , [1998] 1 SCR 439.]

Blasphemous libel is unquestionably obsolete, having last been engaged in 1936, and is most certainly
unconstitutional; meanwhile, seditious libel could also satisfy the governments criteria of obsolescence
and likely unconstitutionality. If so, repealing one but not the other is puzzling, if not arbitrary. In the case

https://cfe.ryerson.ca/blog/2017/07/repeal-defamatory-libel[08/07/2017 9:24:02 AM]

Repeal Defamatory Libel | Centre for Free Expression

of blasphemous libel, a petition with 7406 signatures which called for its repeal might
have made a
difference. Then again, seditious libel
(s.59(2)) is set among other provisions (ss.59-62) which, in the
governments mind, might make it awkward to single that one out for excision from the Code.

Defamatory libel is more worrying and more dangerous than its blasphemous and seditious counterparts,
both because it is not obsolete and because its unconstitutionality is compelling, R. v. Lucas to the
contrary. Importantly, the Code criminalizes
two forms of defamatory libel: while s.300 prohibits
defamatory statements that are knowingly false, s.301 criminalizes statements that are simply
defamatory, whether the libel is true or false. Those convicted of defamatory libel are subject to
imprisonment for up to five
years under s.300, and up to two years under s.301.

Though Lucas did not address the issue, s.301 has consistently and repeatedly been found
unconstitutional by trial courts in at least five provinces: Ontario, Alberta, Saskatchewan, Newfoundland
&
Labrador, and New Brunswick. Perhaps because the point was effectively conceded, none of those
decisions was appealed by the Crown.

It is not seriously open to question that s.301 meets the criterion of likely unconstitutionality. It is severe
in comparison with the tort of defamation, which treats truth as an absolute defence to a lawsuit.
Penalizing truthful statements which are not actionable at common law not to mention imprisoning
offenders is an excessive and manifestly unconstitutional use of the criminal sanction. This is reason
enough to include s.301 in Bill C-51s list of offences to repeal because of likely unconstitutionality.

Retaining s.301 is not only worrying but dangerous as well. Far from being obsolete, s.301 has been
actively misused by police to harass and silence critics of those in positions of power. As Grant
Wakefied,
Karen MacKinnon, and others can attest, the Codes defamatory libel provisions are relied on
by authorities to pressure, harass, silence and punish individuals who are vocal, abrasive, and persistent
in their criticism of officers and public officials. Wakefield and Charles Leblanc also discovered that once
police lay
a charge, a warrant can be obtained to search premises for incriminating evidence, whether
linked to the libel or not.

In 2012, a s.301 charge against Leblanc led to a warrant and search that culminated in an independent
review of the Fredericton police force. Though the charge did not proceed, Mr. Richards Report ,
released in November 2012, was critical of police for relying on s.301.
In August 2014, Google shut
Leblancs blog down at the request of Frederictons Chief Administrative Officer, who claimed
that it
contained inaccurate and hurtful content about Fredericton police. Having failed under s.301, police
next tried a
charge under s.300 once again for blog posts about a Fredericton police officer. In the
spring of 2017, the Crown decided against allowing that charge to proceed.

https://cfe.ryerson.ca/blog/2017/07/repeal-defamatory-libel[08/07/2017 9:24:02 AM]

Repeal Defamatory Libel | Centre for Free Expression

Not to be overlooked are private prosecutions which although less frequent can misuse the criminal
law to punish those who expose individuals in positions of wealth and authority. In April 2017, the
Manitoba Court of Appeal upheld a pre-enquete hearing allowing Peter
Nygards criminal pursuit of the
Canadian Broadcasting Corporation to proceed. Nygards private prosecution under ss.300 and 301
arose from The Fifth Estates program titled Larger than Life, which considered aspects of Nygards
lifestyle, including his treatment of staff and sexual relationships with women.

This brief history makes it plain that at the very least, the government should repeal s.301 and remove it
from the Code on the unarguable grounds that it is unconstitutional and facilitates the abuse of police and
private authority.

That leaves s.300 which, at first glance, stands on stronger footing because the offender must know the
defamatory material is false. Even so, one wonders how the Court would decide Lucas today. Upholding
s.300 rested on shaky ground because the Court cited Hill v. Church of Scientology , [1995] 2 SCR 1130,
to justify the criminalization of libel. At the time, Church v. Scientology was heavily criticized for
emphatically refusing to reform the common law of defamation and bring it into compliance with the
Charter.
Though it was bad enough that the Court relied on a common law tort decision to uphold a
serious criminal offence, the foundation of Lucas took a further jolt in 2009, when Grant v. Torstar was
decided.

Almost fifteen years after Church of Scientology, the Court modified the common law to boost its
protection of expressive freedom. Between 1995 and 2009, it had become embarrassing that Canadas
defamation law lagged so far behind developments in other countries, like the UK and Australia, which
did not even protect constitutional rights. Grant was only able to avoid overruling Church of Scientology
by
introducing a new defence of responsible communication. This is worth noting because of the Courts
practice, in recent years, of overruling its own Charter precedents; Lucas is sufficiently compromised by
its reliance on Church of Scientology to warrant fresh consideration.

In addition, their convictions are profoundly troubling because the Court sent Mr. and Mrs. Lucas to jail for
speaking truth to power. The two wore placards and picketed outside a Saskatchewan courthouse to
name
and protest the conduct of a police officer. The officer in question mismanaged dozens of wrongful
sexual assault charges against 16 members of a foster family, and failed to deal with a known problem of
predatory, familial sexual violence. Though the placards, in literal terms, were damaging and unfair, they
spoke the language of hyperbole to
cast light on a travesty of justice which was hiding, in plain view, in
the shadows. The Lucases placards served the public interest because they were driven by cores values

https://cfe.ryerson.ca/blog/2017/07/repeal-defamatory-libel[08/07/2017 9:24:02 AM]

Repeal Defamatory Libel | Centre for Free Expression

of transparency
and accountability.

That is not the way the Supreme Court saw it. The judges acknowledged the backdrop to the protest and
charges, but dismissed the Lucas placards as valueless and harmful. According to the Court, their protest
had negligible value and was indeed inimical to the core values of freedom of expression. In
punishing the two for standing up for the foster family and victims of ongoing sexual violence, the Court
focused on the officers vulnerability. In a strange reversal, the majority opinion spoke empathetically of
the need for the criminal law to protect front line workers who might not recover civil damages against
offenders like the Lucases. In other words, the criminal law, including the availability of
imprisonment, can
serve as a viable and desirable alternative to imperfections in the civil system of justice.

Additionally, it is important that the Lucases were corroborated, or vindicated, by events after the fact.
First, members of the extended foster family who were falsely charged successfully sued the officer for
malicious prosecution, and he left the force. Second, the truth about the familys sexual violence emerged
when the three siblings publicly recanted their allegations and admitted that their accusations against the
foster family were entirely fabricated. (See Scandal of the Century, The Fifth Estate, CBC, aired
November 29, 2000).

This saga tells of two serious miscarriages of justice: dozens of wrongful charges which were stayed,
without vindication for members of the foster family, and the s.300 convictions and imprisonment of the
Lucases. Overall, from the charges to the malicious prosecution lawsuit,
these events generated three
Supreme Court of Canada decisions.

The takeaway for Bill C-51 and the governments stated commitment to the removal of obsolete and
unconstitutional criminal laws
is this. Defamatory libel is an artifact of a bygone era when defamatory
words were criminalized to deter duelling and prevent breaches of the peace. Whether as s.300 or s.301,
this offence no longer
has a place in criminal law in the words of Bill C-51 because it does not comply
with the Charter and demonstrably has been used to silence and punish those whose criticism is aimed
at public or private authority figures.

To the extent the criminal law can play a role in punishing attacks on reputation, the offence or offences
must be narrowly limited to extreme circumstances that are carefully defined by language which targets
specific relationships, circumstances, or activities. Above all,
any such offence or offences must preclude
authorities from engaging the criminal law to immunize themselves from criticism and silence their
critics.

The defamatory libel provisions of the Criminal Code must be repealed, wholesale and across the board.

https://cfe.ryerson.ca/blog/2017/07/repeal-defamatory-libel[08/07/2017 9:24:02 AM]

Repeal Defamatory Libel | Centre for Free Expression

To be clear, the scale of this project embraces ss.297-317 of the Code.

The House of Commons has
risen for the summer, and discussion of these Bills will not resume until fall 2017. That break in
parliamentary proceedings presents an opportunity and a challenge to advocates of expressive freedom
to launch a movement and demand repeal of these provisions.

POSTED JULY 5, 2017 - BY JAMIE CAMERON

Speech Restrictive Laws

SHARE:

https://cfe.ryerson.ca/blog/2017/07/repeal-defamatory-libel[08/07/2017 9:24:02 AM]