(MP Iqra Khalid, who opposes free speech)
DEFAMATORY LIBEL laws are still on the books!
1. Important Links
CLICK HERE, for a prior review of Bill C-71 (firearms)
CLICK HERE, for a prior review of Bill C-75 (terrorism)
CLICK HERE, for global efforts to ban criticism of Islam.
CLICK HERE, for “defamatory libel” in the Criminal Code.
CLICK HERE, for previous version.
CLICK HERE, for Canadian Charter of Rights & Freedoms.
CLICK HERE, for R. v. Stevens, 1993 CanLII 14706 (MB PC).
CLICK HERE, for cases linked to R. v. Stevens.
CLICK HERE, for R. v. Lucas, (1998)
2. From The Criminal Code
- Under 301 defamatory libel is punishable by up to 2 years. However, in Section 300 publishing defamatory libel is punishable by up to 5 years. What exactly is the difference?
- Bill C-75 (terrorism and other offences) included provisions to make terrorism eligible to be tried summarily (for lesser punishments). However, mean words is automatically indictable. Seriously?
- Obvious question: but in a free society, why would civil infractions be criminalized?
- Under Section 298(1) and (2), irony and satire seem to be included.
- Under Section 303, newspaper editors are “assumed” to be liable. So much for the presumption of innocence in our criminal “justice” system.
- However, when publishing a “book” (under Section 304), the publisher is assumed not to be have known.
3. Defenses To Defamatory Libel
Well, there are some defenses, which is good to know. For example, it’s not a crime if bad things are said in the context of divorce proceedings, or parliamentary or judicial proceedings.
Fair report of public meeting
308 No person shall be deemed to publish a defamatory libel by reason only that he publishes in good faith, in a newspaper, a fair report of the proceedings of any public meeting if
(a) the meeting is lawfully convened for a lawful purpose and is open to the public;
(b) the report is fair and accurate;
(c) the publication of the matter complained of is for the public benefit; and
(d) he does not refuse to publish in a conspicuous place in the newspaper a reasonable explanation or contradiction by the person defamed in respect of the defamatory matter.
R.S., c. C-34, s. 272.
309 No person shall be deemed to publish a defamatory libel by reason only that he publishes defamatory matter that, on reasonable grounds, he believes is true, and that is relevant to any subject of public interest, the public discussion of which is for the public benefit.
R.S., c. C-34, s. 273.
Fair comment on public person or work of art
310 No person shall be deemed to publish a defamatory libel by reason only that he publishes fair comments
(a) on the public conduct of a person who takes part in public affairs; or
(b) on a published book or other literary production, or on any composition or work of art or performance publicly exhibited, or on any other communication made to the public on any subject, if the comments are confined to criticism thereof.
R.S., c. C-34, s. 274.
When truth a defence
311 No person shall be deemed to publish a defamatory libel where he proves that the publication of the defamatory matter in the manner in which it was published was for the public benefit at the time when it was published and that the matter itself was true.
R.S., c. C-34, s. 275.
Publication invited or necessary
312 No person shall be deemed to publish a defamatory libel by reason only that he publishes defamatory matter
(a) on the invitation or challenge of the person in respect of whom it is published, or
(b) that it is necessary to publish in order to refute defamatory matter published in respect of him by another person,
if he believes that the defamatory matter is true and it is relevant to the invitation, challenge or necessary refutation, as the case may be, and does not in any respect exceed what is reasonably sufficient in the circumstances.
R.S., c. C-34, s. 276.
Answer to inquiries
313 No person shall be deemed to publish a defamatory libel by reason only that he publishes, in answer to inquiries made to him, defamatory matter relating to a subject-matter in respect of which the person by whom or on whose behalf the inquiries are made has an interest in knowing the truth or who, on reasonable grounds, the person who publishes the defamatory matter believes has such an interest, if
(a) the matter is published, in good faith, for the purpose of giving information in answer to the inquiries;
(b) the person who publishes the defamatory matter believes that it is true;
(c) the defamatory matter is relevant to the inquiries; and
(d) the defamatory matter does not in any respect exceed what is reasonably sufficient in the circumstances.
Good to know that truth is a valid defense. Also, “public benefit” considered to be a defense. But don’t we have something called the Charter of Rights and Freedoms? Aren’t there fundamental freedoms guaranteed to us? Let’s take a look.
But first, let’s look at a silly comparison: what are the punishments for advocating genocide?
4. Canadian Criminal Code
318 (1) Every one who advocates or promotes genocide is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years.
Definition of genocide
(2) In this section, genocide means any of the following acts committed with intent to destroy in whole or in part any identifiable group, namely,
(a) killing members of the group; or
(b) deliberately inflicting on the group conditions of life calculated to bring about its physical destruction.
(3) No proceeding for an offence under this section shall be instituted without the consent of the Attorney General
That’s right. Advocating genocide is an indictable offense, punishable by up to 5 years in prison.
Think that through. Insulting people publicly can be treated just as harshly as actually calling for people to be exterminated.
5. Fundamental Freedoms, Canadian Charter
On the surface, yes, fee speech, belief, expression and opinion are guaranteed. Yet these “defamatory libel” laws are still on the books. So what happens when they collide?
6. Charter V.S. Criminal Code
From the case: R. v. Stevens (1993),
1. Is s. 300 of the Criminal Code of Canada an infringement of freedom of expression as guaranteed under s. 2(b) of the Canadian Charter of Rights and Freedoms?
2. If s. 300 of the Criminal Code is an infringement of the Charter can it be upheld under s. 1 of the Charter as a reasonable limit prescribed by law and demonstrably justified in a free and democratic society?
While I have struck down certain portions of ss. 298 and 299 for failing the proportionality test under s. 1, this result has no impact in the present case in view of the findings of fact previously made by this court.
Accordingly, I find Mr. Stevens guilty of the offence under s. 300
of the Criminal Code as charged.
This Judge rules that yes, it is a violation of the Charter, but a justifiable one under Section 1.
From the case: R. v. Lucas (1998),
 In his reasons for sentence ((1995), 1995 CanLII 4081 (SK QB), 132 Sask. R. 71), the trial judge stated “that John David Lucas was the instigator and Johanna Erna Lucas was his follower” (p. 74). This finding raises the possibility that Mrs. Lucas’s knowledge might have derived at least in part from what she was told by Mr. Lucas, and she may therefore have believed that the message was true even though in fact it was not.
 In the absence of findings of fact by the trial judge related to subjective knowledge, there is insufficient evidence before this Court to prove beyond a reasonable doubt that Mrs. Lucas knew that the messages on the placard she carried were false. Accordingly, her conviction must be set aside.
 Ordinarily, a new trial would be ordered. However, in light of the Crown’s statement that in the circumstances the Crown would not proceed with a new trial, I would direct an acquittal of Mrs. Lucas.
An acquittal here, but only because the person didn’t know the statements weren’t true.
7. Do We Really Have Free Speech?
To a point, yes. However, a free speech absolutist would argue that no, that isn’t free speech.
However, in the world of everyone criticizing everyone, this type of law seems to easy to be abused. One person’s satire and trolling is another person’s hate and defamatory libel.
There are several other cases to go through. But the point here remains:
DEFAMATORY LIBEL laws are still on the books!
There are plenty of “civil” cases for defamation even in recent years. However, “criminal” cases for defamation seem to be a thing of the past. Probably since there are far more important things for police and prosecutors to busy themselves with.
Still, good to know this….