By Mitchell Thompson
Criminal libel laws in Canada’s Criminal Code are being used increasingly to suppress speech that is critical of public officials and employees, Ryerson journalism professor Lisa Taylor said.
Speaking at Ryerson University on Nov. 1, 2016, alongside Osgoode Hall law professor Jamie Cameron and Ryerson journalism professor James Turk, Taylor said criminal laws against libel abuses of power should be done away with.
Cameron agreed, saying the laws in practice define criminal libel as “matter published which opens public officials to hatred, contempt or ridicule.” These can carry prison sentences if convicted, Cameron notes, and truth isn’t always a defence.
Taylor focused mainly on Sections 300 and 301 of the code. Section 300 carries a maximum penalty of five years in prison for libelous speech that is a “known falsehood.” Section 301, carrying a two-year maximum prison sentence, punishes defamatory libel—regardless of truth.
Though many dismiss both sections as “artifacts,” Cameron said, they are being used increasingly to “silence critics who are voluble.”
Taylor said 2005 to 2008 saw 18 criminal libel cases, which more than doubled to 37 cases from 2009 to 2012.
Although Taylor said it is unknown how many ended in convictions, most went to trial and a majority of the examples cited involve Section 301.
For example, Karen MacKinnon was charged under Section 301 twice for publishing matter online, specifically on Facebook and other websites, that could damage powerful people’s reputations. First, MacKinnon called a local politician and an Alberta Crown prosecutor “repulsive, corrupted, lying, thieving, deviant bastards both,” on Facebook. Soon after, she was charged under the same law a second time for calling that same prosecutor “a pet kangaroo.”
Whether or not these statements had merit was irrelevant, as Canadian Lawyer Magazine said “unlike s.300, where the Crown must prove beyond a reasonable doubt the accused knew what they were saying was false…a person can go to prison under s.301 even if what they’re publishing is completely true.” The magazine said that by her pretrial hearing, MacKinnon, “had spent $15,000 already on the case and she was told a jury trial would cost her another $30,000.”
Taylor compares these cases to “strategic lawsuits against public participation,” saying, though convictions are rare “the process is punishment. It grinds people down so damned much that it can stifle dissent.”
Taylor also criticizes Section 300, reserved for libel that is a “known falsehood.” Taylor said with this law, charges are applied selectively—mainly when material makes powerful people in government look bad— and that civil libel laws address most similar damages on their own. Police, judges and politicians can already launch civil libel suits if their reputations are damaged. This makes Sections 300 and 301 unnecessary dangers, Taylor said.
Cameron said these laws were initially introduced to control major papers but today are mostly used against bloggers identified as “troublemakers or rabble rousers,” with recent cases “setting ugly precedents.”
For example, Cameron cites Charles Leblanc, a blogger in New Brunswick whose computer was seized when he was charged with libel under Section 301 for publishing material that damaged a local police officer’s reputation. The case was eventually dismissed by the province’s Justice Department, believing the law to be unconstitutional though elsewhere, the charge may have proceeded.
Cases like this, Taylor said, obligate one to ask “why do these laws still exist?”
Taylor and Cameron both note that Section 301 has been struck down several times at the provincial level. Yet, Canadian Lawyer Magazine said because the Crown has never appealed, it remains untested by the Supreme Court and on the books. Section 300, meanwhile, was upheld by the Supreme Court in 1998, calling it a necessary safeguard against excessively “grave and serious,” attacks on reputations, known to be false, Cameron notes.
This goes against the position of the Law Reform Commission of Canada in 1984, which said “our Criminal Code should contain no crime of defamation, even in a restricted form,” which, Taylor said, the government disregarded. Still, Cameron, Taylor and Turk agree with the Commission.
Taylor said the powerful “need a thick skin and need to understand that not everyone will speak kindly of them. I see no alternative but to set this thing free like we were advised to do in 1984.”
Mitchell Thompson is a third-year journalism student at Ryerson. He is also the ideas co-editor for Folio and a contributor at Disinformation. He has previously written for Rabble, Canadian Dimension, Dissident Voice and others.