Last week, an opinion piece in The Globe and Mail highlighted a worrying issue that threatens to undermine every Canadian’s freedom of expression. In the article, professor David Pritchard and assistant professor Lisa Taylor argue a little-known law known as defamatory libel is being used to treat libel as a criminal offence. Defamation is traditionally dealt with under civil proceedings but research they intend to publish apparently shows it has been used in 400 completed criminal prosecutions between 2000 and 2016.
What is defamatory libel?
The name itself is confusing. After all, defamation can be broken down into two categories: libel when it is published and slander when it is spoken, therefore, libel is inherently defamatory. Name aside, defamatory libel exists under sections 300 and 301 of the Criminal Code of Canada. The federal law makes it an indictable offence for anyone to publish a defamatory statement they know to be false. Anyone found guilty of this offence faces up to five years in prison. The law also makes it a crime to publish a defamatory statement without the requirement of proving the perpetrator knew it was false, although this carries a shorter maximum sentence of two years. The law dates back to an act passed in the United Kingdom from 1843.
“The process of being investigated for criminal libel is significant punishment, even if no charges are filed”
According to Pritchard and Taylor the law is “enjoying a troubling resurgence in Canada”. As an outspoken critic of government, we have to agree with the word “troubling” here because the law could weaken our ability to criticize those in positions of power. Knowing you could end up in prison for writing something negative about a police officer or politician creates a chilling effect on free speech. Much more so than if paying damages, which is the result of most civil defamation cases, were the most severe punishment.
What basis is there for defamatory libel under common law?
Defamatory libel is applied as a limit to citizens’ Section 2 right to freedom of expression under the Canadian Charter of Rights and Freedoms. Judges have ruled defamatory libel to be justified in overriding Section 2 such as in this Court of Appeal of Manitoba case from 1995 where a man was convicted of hanging up false and defamatory posters of an ex-partner around a University.
The principle of defamatory libel being a justifiable limit on people’s right to free speech was established in the Supreme Court of Canada in 1998. In R v. Lucas, a held up picket signs outside a court and police headquarters criticizing a police officer for what they saw as his failure to act sooner in a serious child sexual assault incident.
What effect could defamatory libel have on society?
The thought that defamatory libel is being used to quell criticism of government employees is particularly worrying. In these post-truth times, people’s ability to hold those in power to account and to highlight issues in the public interest is arguably more precarious than ever, but critics are going to be more reluctant than ever to speak out if the prospect of criminal proceedings and a jail term hangs over their heads.
Not only is a criminal record likely to put a dampener on people’s willingness to speak out against government officials, the threat of the criminal trial process itself is enough to dissuade most people.
As Pritchard and Taylor point out: “Intrusive searches and seizures of computers, cell phones and other personal technology by police, for example, not only compromise privacy but also limit citizens’ ability to communicate. In short, the process of being investigated for criminal libel is significant punishment, even if no charges are filed or if charges are filed but later withdrawn.”
Defamation laws are there for a reason, namely to protect people’s reputations from unfair attack, and it is tempting to conclude if someone tries to correct another person’s inaccurate public image, the truth will always be their defence against a libel charge. In reality, if someone is accused of libel the burden is on them to convince a judge their statement is true. This has to be done beyond a reasonable doubt which can be very hard to do, especially when someone is trying to hide something.
It will be interesting to see Pritchard and Taylor’s research into how defamatory libel has been applied in the twenty years since the ruling of R v. Lucas. It is also time we all became more aware of how the law affects those accused of defamation.