“In some countries, insulting politicians can lead to jail.” That’s the provocative subtitle of a recent article in The Economist that lumped Canada in with Burma, China and Vietnam as countries that still prosecute citizens who defame public officials. It may come as a surprise to find ourselves in such dubious company, but look up Section 301 of the Criminal Code and there it is: the offence of “defamatory libel.”
But surely Section 301 is no longer enforced in Canada? Again, surprisingly, it is. While most libel cases are private actions between two individuals, the Supreme Court of Canada is currently deciding whether to hear the appeal of Karen MacKinnon, a municipal whistle-blower who was charged by prosecutors in Alberta with the crime of defamatory libel.
In 2011, MacKinnon was forced from the Drumheller town council after questioning some of her colleagues’ handling of town funds and contracts. Frustrated, she took to Facebook and unloaded on two of them, calling them “repulsive, corrupted, lying, thieving, deviant bastards both.” Salty stuff, to be sure, but hardly exceptional by free-wheeling social media standards.
A few days later, the RCMP knocked on her door. She was questioned and charged with the crime of publishing a “defamatory libel.” MacKinnon offered to apologize, but was told the price of staying the charges would be a court order, under which she would agree to keep all social media postings about the two individuals “civil and temperate.” Facing jail time and a criminal record and lacking the resources to fight back, she reluctantly consented.
Almost two years later, MacKinnon’s outrage got the better of her again. She posted a second Facebook message, calling the first town official “lying thieving utterly corrupt,” and referring to the other as “his pet kangaroo.” The government charged her again under Section 301, and with violating the terms of the earlier court order.
This time, MacKinnon was prepared. She’d done the work the prosecutor should have done back in 2011 and learned that an Alberta court had declared Section 301 unconstitutional back in 1992. Corrected, and one hopes chagrined, the Crown dropped the new charge, but proceeded to charge her with violating the earlier court order – which had been based on the same impugned law. She was fined $3,900.
Since Alberta first declared Section 301 unconstitutional, courts in Saskatchewan, Ontario, and Newfoundland have followed suit. They have held that defendants charged with defamation under the Criminal Code face a higher bar than individuals facing civil defamation claims, where truth is a complete defence. To be acquitted of a defamatory libel charge, a person must prove both that offending statement was true and that it relates to “a subject of public interest … for the public benefit.” This content-based test places an extra burden on freedom of expression and reverses the usual presumption of innocence in criminal cases.
While criminal charges for defamatory libel are rare in Canada, when they are brought, it is invariably to protect the reputations of public figures like politicians, judges and law enforcement officers. This is where Section 301 takes on the comminatory quality of criminal defamation laws in authoritarian regimes.
As the Supreme Court of Canada explained in 1992, the purpose of free speech “is to permit free expression to the end of promoting truth, political or social participation, and self-fulfillment.” When MacKinnon could no longer participate in politics as a member of the town council, she continued her political engagement online. That was her right under the Charter. If her targets objected to her commentary, they were free to bring private libel actions against her, just as any other citizen could. Government officials should not be able to hide behind an additional layer of criminal restrictions on critical speech.
Section 301 is a blot on Canada’s free speech record, an unnecessary limit on political expression that landed us on a list with the world’s most illiberal regimes. Now, the Supreme Court has a chance to wipe the record clean. It should affirm the right of Canadians to criticize our public officials—even in the most candid and colourful terms—without risking the RCMP’s knock on the door.
(Image by Hamza Butt under CC 2.0).
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