Canada’s Criminal Code: Insults As Bad As Advocating Genocide

(MP Iqra Khalid, who opposes free speech)

Author’s Note: The topic of online trolling was originally meant to be brought up as satire. However, the actual text of the law merits a serious piece.

DEFAMATORY LIBEL laws are still on the books!

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)

FROM THE CRIMINAL CODE

Defamatory Libel
Definition of newspaper
297 In sections 303, 304 and 308, newspaper means any paper, magazine or periodical containing public news, intelligence or reports of events, or any remarks or observations thereon, printed for sale and published periodically or in parts or numbers, at intervals not exceeding thirty-one days between the publication of any two such papers, parts or numbers, and any paper, magazine or periodical printed in order to be dispersed and made public, weekly or more often, or at intervals not exceeding thirty-one days, that contains advertisements, exclusively or principally.
R.S., c. C-34, s. 261.

Marginal note:
Definition
298 (1) A defamatory libel is matter published, without lawful justification or excuse, that is likely to injure the reputation of any person by exposing him to hatred, contempt or ridicule, or that is designed to insult the person of or concerning whom it is published.

Marginal note:
Mode of expression
(2) A defamatory libel may be expressed directly or by insinuation or irony
(a) in words legibly marked on any substance; or
(b) by any object signifying a defamatory libel otherwise than by words.
R.S., c. C-34, s. 262.

Marginal note:
Publishing
299 A person publishes a libel when he
(a) exhibits it in public;
(b) causes it to be read or seen; or
(c) shows or delivers it, or causes it to be shown or delivered, with intent that it should be read or seen by any person other than the person whom it defames.
R.S., 1985, c. C-46, s. 299; 2018, c. 29, s. 31.
Previous Version

Marginal note:
Punishment of libel known to be false
300 Every one who publishes a defamatory libel that he knows is false is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years.
R.S., c. C-34, s. 264.

Marginal note:
Punishment for defamatory libel
301 Every one who publishes a defamatory libel is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years.
R.S., c. C-34, s. 265.

Marginal note:
Extortion by libel
302 (1) Every one commits an offence who, with intent
(a) to extort money from any person, or
(b) to induce a person to confer on or procure for another person an appointment or office of profit or trust,
publishes or threatens to publish or offers to abstain from publishing or to prevent the publication of a defamatory libel.

Marginal note:
Idem
(2) Every one commits an offence who, as the result of the refusal of any person to permit money to be extorted or to confer or procure an appointment or office of profit or trust, publishes or threatens to publish a defamatory libel.

Marginal note:
Punishment
(3) Every one who commits an offence under this section is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years.
R.S., c. C-34, s. 266.

Marginal note:
Proprietor of newspaper presumed responsible
303 (1) The proprietor of a newspaper shall be deemed to publish defamatory matter that is inserted and published therein, unless he proves that the defamatory matter was inserted in the newspaper without his knowledge and without negligence on his part.

Marginal note:
General authority to manager when negligence
(2) Where the proprietor of a newspaper gives to a person general authority to manage or conduct the newspaper as editor or otherwise, the insertion by that person of defamatory matter in the newspaper shall, for the purposes of subsection (1), be deemed not to be negligence on the part of the proprietor unless it is proved that
(a) he intended the general authority to include authority to insert defamatory matter in the newspaper; or
(b) he continued to confer general authority after he knew that it had been exercised by the insertion of defamatory matter in the newspaper.

Marginal note:
Selling newspapers
(3) No person shall be deemed to publish a defamatory libel by reason only that he sells a number or part of a newspaper that contains a defamatory libel, unless he knows that the number or part contains defamatory matter or that defamatory matter is habitually contained in the newspaper.

Selling book containing defamatory libel
304 (1) No person shall be deemed to publish a defamatory libel by reason only that he sells a book, magazine, pamphlet or other thing, other than a newspaper that contains defamatory matter, if, at the time of the sale, he does not know that it contains the defamatory matter.

Marginal note:
Sale by servant
(2) Where a servant, in the course of his employment, sells a book, magazine, pamphlet or other thing, other than a newspaper, the employer shall be deemed not to publish any defamatory matter contained therein unless it is proved that the employer authorized the sale knowing that
(a) defamatory matter was contained therein; or
(b) defamatory matter was habitually contained therein, in the case of a periodical.
R.S., c. C-34, s. 268.

Some observations:

  1. 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?
  2. 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?
  3. Obvious question: but in a free society, why would civil infractions be criminalized?
  4. Under Section 298(1) and (2), irony and satire seem to be included.
  5. Under Section 303, newspaper editors are “assumed” to be liable. So much for the presumption of innocence in our criminal “justice” system.
  6. However, when publishing a “book” (under Section 304), the publisher is assumed not to be have known.

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.

Marginal note:
Public benefit
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.

Marginal note:
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.

Marginal note:
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.

Marginal note:
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.

Marginal note:
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?

FUNDAMENTAL FREEDOMS OF CANADIAN CHARTER

Advocating genocide
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.
Marginal note:
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.
Marginal note:
Consent
(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.

FUNDAMENTAL FREEDOMS OF CANADIAN CHARTER


Fundamental freedoms
2. Everyone has the following fundamental freedoms:
(a) freedom of conscience and religion;
(b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication;
(c) freedom of peaceful assembly; and
(d) freedom of association.

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?

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?
ANSWER: Yes
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?
ANSWER: Yes
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),

[129] 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.

[130] 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.

[131] 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.

DO WE 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….

Leave a Reply