On March 8th and June 6th, 2017, the Minister of Justice introduced bills to amend the Criminal Code. The purpose of Bills C-39 and C-51 is to repeal a number of criminal offences. Blasphemous libel is on the list, but seditious libel and defamatory libel are not.
Among other things, Bills C-39 and C-51 remove unconstitutional provisions from the Code. Slated for repeal are offences that were declared unconstitutional by the Supreme Court and other courts but remain in place because of Parliament’s inaction. Examples include the Code’s erstwhile abortion laws, which were invalidated in 1988, and its second degree felony-murder offence, found unconstitutional in 1990. After not being in force for more than twenty-five years, the provision was applied by a trial judge as recently as fall 2016.
Bills C-39 and C-51 also repeal Criminal Code provisions deemed obsolete, which “have no place in criminal law”, or are “likely” to be found unconstitutional. The list includes blasphemous libel (s.296), as well as challenging to duel, fraudulently pretending to practice witchcraft, and prohibitions on “crime comics”. While blasphemous libel is consigned to obsolescence, the Code’s other two forms of criminal libel – seditious and defamatory libel – stay in place. [Parenthetically, Bill C-51 proposes one daring amendment to s.299(c) to confirm the uncontested proposition that defamation requires publication to a third party, and not to the person defamed; see R. v. Lucas,  1 SCR 439.]
Blasphemous libel is unquestionably obsolete, having last been engaged in 1936, and is most certainly unconstitutional; meanwhile, seditious libel could also satisfy the government’s criteria of obsolescence and likely unconstitutionality. If so, repealing one but not the other is puzzling, if not arbitrary. In the case of blasphemous libel, a petition with 7406 signatures which called for its repeal might have made a difference. Then again, seditious libel (s.59(2)) is set among other provisions (ss.59-62) which, in the government’s mind, might make it awkward to single that one out for excision from the Code.
Defamatory libel is more worrying and more dangerous than its blasphemous and seditious counterparts, both because it is not obsolete and because its unconstitutionality is compelling, R. v. Lucas to the contrary. Importantly, the Code criminalizes two forms of defamatory libel: while s.300 prohibits defamatory statements that are knowingly false, s.301 criminalizes statements that are simply defamatory, whether the libel is true or false. Those convicted of defamatory libel are subject to imprisonment for up to five years under s.300, and up to two years under s.301.
Though Lucas did not address the issue, s.301 has consistently and repeatedly been found unconstitutional by trial courts in at least five provinces: Ontario, Alberta, Saskatchewan, Newfoundland & Labrador, and New Brunswick. Perhaps because the point was effectively conceded, none of those decisions was appealed by the Crown.
It is not seriously open to question that s.301 meets the criterion of “likely” unconstitutionality. It is severe in comparison with the tort of defamation, which treats truth as an absolute defence to a lawsuit. Penalizing truthful statements which are not actionable at common law – not to mention imprisoning offenders – is an excessive and manifestly unconstitutional use of the criminal sanction. This is reason enough to include s.301 in Bill C-51’s list of offences to repeal because of likely unconstitutionality.
Retaining s.301 is not only worrying but dangerous as well. Far from being obsolete, s.301 has been actively misused by police to harass and silence critics of those in positions of power. As Grant Wakefied, Karen MacKinnon, and others can attest, the Code’s defamatory libel provisions are relied on by authorities to pressure, harass, silence and punish individuals who are vocal, abrasive, and persistent in their criticism of officers and public officials. Wakefield and Charles Leblanc also discovered that once police lay a charge, a warrant can be obtained to search premises for incriminating evidence, whether linked to the libel or not.
In 2012, a s.301 charge against Leblanc led to a warrant and search that culminated in an independent review of the Fredericton police force. Though the charge did not proceed, Mr. Richard’s Report, released in November 2012, was critical of police for relying on s.301. In August 2014, Google shut Leblanc’s blog down at the request of Fredericton’s Chief Administrative Officer, who claimed that it contained “inaccurate and hurtful content about Fredericton police”. Having failed under s.301, police next tried a charge under s.300 – once again for blog posts about a Fredericton police officer. In the spring of 2017, the Crown decided against allowing that charge to proceed.
Not to be overlooked are private prosecutions which – although less frequent – can misuse the criminal law to punish those who expose individuals in positions of wealth and authority. In April 2017, the Manitoba Court of Appeal upheld a pre-enquete hearing allowing Peter Nygard’s criminal pursuit of the Canadian Broadcasting Corporation to proceed. Nygard’s private prosecution under ss.300 and 301 arose from the fifth estate’s program titled “Larger than Life,” which considered aspects of Nygard’s lifestyle, including his treatment of staff and sexual relationships with women.
This brief history makes it plain that at the very least, the government should repeal s.301 and remove it from the Code on the unarguable grounds that it is unconstitutional and facilitates the abuse of police and private authority.
That leaves s.300 which, at first glance, stands on stronger footing because the offender must know the defamatory material is false. Even so, one wonders how the Court would decide Lucas today. Upholding s.300 rested on shaky ground because the Court cited Hill v. Church of Scientology,  2 SCR 1130, to justify the criminalization of libel. At the time, Church v. Scientology was heavily criticized for emphatically refusing to reform the common law of defamation and bring it into compliance with the Charter. Though it was bad enough that the Court relied on a common law tort decision to uphold a serious criminal offence, the foundation of Lucas took a further jolt in 2009, when Grant v. Torstar was decided.
Almost fifteen years after Church of Scientology, the Court modified the common law to boost its protection of expressive freedom. Between 1995 and 2009, it had become embarrassing that Canada’s defamation law lagged so far behind developments in other countries, like the UK and Australia, which did not even protect constitutional rights. Grant was only able to avoid overruling Church of Scientology by introducing a new defence of responsible communication. This is worth noting because of the Court’s practice, in recent years, of overruling its own Charter precedents; Lucas is sufficiently compromised by its reliance on Church of Scientology to warrant fresh consideration.
In addition, their convictions are profoundly troubling because the Court sent Mr. and Mrs. Lucas to jail for speaking truth to power. The two wore placards and picketed outside a Saskatchewan courthouse to name and protest the conduct of a police officer. The officer in question mismanaged dozens of wrongful sexual assault charges against 16 members of a foster family, and failed to deal with a known problem of predatory, familial sexual violence. Though the placards, in literal terms, were damaging and unfair, they spoke the language of hyperbole to cast light on a travesty of justice which was hiding, “in plain view”, in the shadows. The Lucases’ placards served the public interest because they were driven by cores values of transparency and accountability.
That is not the way the Supreme Court saw it. The judges acknowledged the backdrop to the protest and charges, but dismissed the Lucas placards as valueless and harmful. According to the Court, their protest had “negligible value” and was “indeed inimical to the core values of freedom of expression”. In punishing the two for standing up for the foster family and victims of ongoing sexual violence, the Court focused on the officer’s vulnerability. In a strange reversal, the majority opinion spoke empathetically of the need for the criminal law to protect front line workers who might not recover civil damages against offenders like the Lucases. In other words, the criminal law, including the availability of imprisonment, can serve as a viable and desirable alternative to imperfections in the civil system of justice.
Additionally, it is important that the Lucases were corroborated, or vindicated, by events after the fact. First, members of the extended foster family who were falsely charged successfully sued the officer for malicious prosecution, and he left the force. Second, the truth about the family’s sexual violence emerged when the three siblings publicly recanted their allegations and admitted that their accusations against the foster family were entirely fabricated. (See Scandal of the Century, the fifth estate, CBC, aired November 29, 2000).
This saga tells of two serious miscarriages of justice: dozens of wrongful charges which were stayed, without vindication for members of the foster family, and the s.300 convictions and imprisonment of the Lucases. Overall, from the charges to the malicious prosecution lawsuit, these events generated three Supreme Court of Canada decisions.
The takeaway for Bill C-51 and the government’s stated commitment to the removal of obsolete and unconstitutional criminal laws is this. Defamatory libel is an artifact of a bygone era when defamatory words were criminalized to deter duelling and prevent breaches of the peace. Whether as s.300 or s.301, this offence no longer has a place in criminal law – in the words of Bill C-51 – because it does not comply with the Charter and demonstrably has been used to silence and punish those whose criticism is aimed at public or private authority figures.
To the extent the criminal law can play a role in punishing attacks on reputation, the offence or offences must be narrowly limited to extreme circumstances that are carefully defined by language which targets specific relationships, circumstances, or activities. Above all, any such offence or offences must preclude authorities from engaging the criminal law to immunize themselves from criticism and silence their critics.
The defamatory libel provisions of the Criminal Code must be repealed, wholesale and across the board. To be clear, the scale of this project embraces ss.297-317 of the Code. The House of Commons has risen for the summer, and discussion of these Bills will not resume until fall 2017. That break in parliamentary proceedings presents an opportunity and a challenge to advocates of expressive freedom to launch a movement and demand repeal of these provisions.