Calgary, Alberta—The Canadian Constitution Foundation supports Karen MacKinnon as she takes her free speech fight to Supreme Court of Canada.
We hope the Supreme Court of Canada finally resolves the dubious constitutional status of section 301 of the Criminal Code, which is used in cases like Karen’s to punish speech insulting politicians and authority figures. Future whistle-blowers should not face criminal charges for their outspoken criticism of public officials.
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. Facing jail time and a criminal record, and lacking sufficient financial resources to mount a proper legal defence, Ms. MacKinnon entered into an agreement with the Crown at a preliminary hearing. This resulted in an order from the Alberta Court of Queen’s Bench that she remain “civil and temperate” while using social media.
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. Unfortunately, her appeals up to an including the Alberta Court of Appeal have failed because she failed to challenge the charges under section 301 when she entered into her initial agreement. She is therefore stuck being repeatedly charged for violating an order that is based on charges that should never have been brought under a law that has been declared unconstitutional.
If someone believes they have been libelled, they are free to sue their accusers; they shouldn’t get to sic the police and Crown prosecutors on you to intimidate you into silence.
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.
Karen MacKinnon said:
I never said anything I did not sincerely believe to be true based upon my experience. How can it be that I’m not allowed to say how things really are? It deeply concerns me that an unconstitutional provision like section 301 is still being used to prosecute and police speech in Canada. I know from my experience that the mere threat of prosecution has had the effect of chilling my free speech right.
CCF Staff Lawyer, Derek From, said:
Criminal prosecutions under section 301 are most often used to silence criticism of public officials. And, because of the broad wording of the provision, a whistleblower can face criminal charges for honestly calling attention to abuses of power in a public office. To date, the superior courts in five provinces have declared section 301 unconstitutional, but because Crown prosecutors have chosen not to appeal these decisions, section 301 is still being used to silence political speech in cases like Karen’s. It’s time the Supreme Court settled the unconstitutionality of section 301 once and for all.
The Canadian Constitution Foundation (“Freedom’s Defence Team”) is a registered charity, independent and non-partisan, whose mission is to defend the constitutional freedoms of Canadians through education, communication and litigation.
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