In 2011, Ms. MacKinnon, a former Drumheller municipal councillor, was charged with the offence of “defamatory libel” under section 301 of the Criminal Code for colourful comments she posted on social media critical of town officials. What she didn’t know, and what the prosecutors and the court should have known, was that section 301 of the Criminal Code had been declared unconstitutional in Alberta in the 1992 case of R. v. Finnegan, almost 20 years earlier. In fact, at the time she was charged, the superior courts of three other provinces—Saskatchewan, Ontario, and Newfoundland and Labrador—had also declared section 301 to be unconstitutional. Since 2011, the New Brunswick Court of Queen’s Bench has joined them. There is thus a growing national consensus that section 301 is an unjustified criminal restriction on freedom of speech.
When Ms. MacKinnon continued to post candid commentary on her Facebook page, she was charged with violating the court order. It was only later that Ms MacKinnon realized that she never should have been charged under section 301 in Alberta in the first place. The CCF agrees that section 301 violates the right to freedom of expression because it can be used to silence criticism, even truthful criticism, of public officials on matters of public importance. Ms MacKinnon should never have been charged under a law that had been declared unconstitutional in that jurisdiction, and she should not continue to face fines and jail time for violating an order based on that charge.
The CCF is pleased to be supporting Ms MacKinnon’s application for leave so that the Supreme Court of Canada can strike this unconstitutional law from the books once and for all.
August 17, 2017 – Unfortunately, the Supreme Court of Canada declined the leave application and will not be hearing this case. The CCF is disappointed by the Court’s decision and is determined to fight for all Canadians’ constitutional right to criticize elected officials once again in the future.
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