In Canada, libel and slander are primarily civil matters, not criminal offences. However, the Criminal Code of Canada still recognizes criminal defamation, and in rare but serious cases, defamatory conduct can result in criminal charges, fines, and even imprisonment.
Understanding the distinction between civil defamation and criminal defamatory libel is critical. Many Canadians assume that libel and slander are “not crimes anymore.” That assumption is partially incorrect and can lead to serious legal consequences — especially in cases involving malicious intent, false allegations, or reputational harm tied to criminal accusations.
This article explains how libel and slander are treated under Canadian law, when defamation becomes criminal, what penalties apply, and how courts balance defamation law with freedom of expression under the Charter.
Defamation refers to false statements that harm a person’s reputation. Canadian law recognizes two main forms:
In modern practice, most defamation cases involve libel, particularly online content.
In Canada, libel and slander are most commonly pursued as civil claims rather than criminal prosecutions.
To succeed in a civil defamation action, the plaintiff must generally prove:
Once these elements are established, falsity and damages are presumed, subject to available defences.
Civil remedies may include damages, injunctions, or retractions — not jail.
Canada has not repealed criminal defamation. The relevant provisions are found in Part VII of the Criminal Code, R.S.C. 1985, c. C-46 .
“A defamatory libel is a matter published, without lawful justification or excuse, that is likely to injure the reputation of any person by exposing them to hatred, contempt or ridicule.”
— Criminal Code,
s. 298
This definition focuses on publication and serious reputational harm.
A person publishes defamatory libel if they:
Publication includes online content, social media posts, emails, and digital media.
“Every person who publishes a defamatory libel knowing that it is false is guilty of an indictable offence.”
— Criminal Code,
s. 300
Maximum penalty:
Up to 5 years imprisonment
This is the most serious criminal defamation offence and requires proof of knowledge of falsity.
“Every person who publishes a defamatory libel is guilty of an offence punishable on summary conviction.”
— Criminal Code,
s. 301
Note: Section 301 has been declared unconstitutional (R v Lucas, SCC) and is no longer enforceable in its original form. However, sections 298–300 remain operative.
| Aspect | Civil Defamation | Criminal Defamation |
|---|---|---|
| Purpose | Compensation & reputation repair | Punishment & deterrence |
| Prosecuted by | Private individual | Crown |
| Burden of proof | Balance of probabilities | Beyond a reasonable doubt |
| Penalties | Damages, injunctions | Fines, imprisonment |
| Frequency | Common | Rare |
| Intent required | Not always | Yes (especially s.300) |
Although libel and slander are most often addressed through civil lawsuits, Canadian law also recognizes limited forms of criminal defamation. The table below highlights the fundamental legal differences between civil and criminal defamation, including who brings the case, the level of proof required, and the potential consequences. Understanding these distinctions helps clarify when a defamation dispute remains a private matter and when it may escalate into criminal liability.
Criminal defamation is typically considered when:
Courts are cautious due to Charter concerns, but the offence remains available in extreme cases.
The Supreme Court of Canada upheld the constitutionality of section 300, emphasizing:
The Court recognized the tension between freedom of expression (s. 2(b)) and reputational protection, but confirmed that criminal defamation can be justified in limited cases.
While prosecutions are rare, Canadian courts have seen criminal defamation charges in cases involving:
The rise of social media has renewed attention on criminal defamation. Online publication satisfies the Criminal Code’s publication requirement, and digital permanence can aggravate harm.
Posts made “in anger” or “to expose someone” can cross into criminal territory if knowingly false.
Freedom of expression is protected under section 2(b) of the Charter, but it is not absolute.
Canadian courts consistently hold that:
While libel and slander are overwhelmingly treated as civil matters in Canada, criminal liability is still legally possible in narrow and serious circumstances. The Criminal Code reserves imprisonment for cases involving knowingly false statements, deliberate malice, and significant reputational harm.
The offence most likely to result in jail time is criminal defamatory libel under section 300, which applies when a person publishes defamatory material knowing it to be false. This knowledge requirement is critical: it ensures that criminal sanctions are not applied to mistakes, misunderstandings, or good-faith expressions of opinion.
| Offence | Maximum Penalty |
|---|---|
| Criminal defamatory libel (s. 300) | Up to 5 years imprisonment |
In practice, courts apply this provision cautiously due to concerns about freedom of expression. Most defamation cases never approach the criminal threshold. However, where allegations involve fabricated crimes, repeated harassment, or targeted campaigns intended to destroy a person’s reputation, the risk of criminal prosecution becomes real.
Defamation disputes often begin as private disagreements or civil claims, but they can escalate quickly, particularly when allegations involve criminal conduct, sexual misconduct, or professional wrongdoing. At the point where police involvement is suggested, or when a complainant threatens criminal action, the legal landscape changes fundamentally.
Statements made in emails, social media posts, demand letters, or even settlement discussions can later be scrutinized in a criminal context. Attempting to “explain” or “clarify” statements without legal guidance may inadvertently strengthen the case against you.
For this reason, it is critical not to assume that a defamation allegation is “only civil,” especially if law enforcement becomes involved or if the allegations are framed as knowingly false.
“When defamation allegations intersect with criminal law, early legal advice is essential. What appears to be a reputational dispute can escalate quickly.”
— Robbie Tsang , Criminal Defence Lawyer & Managing Partner
Criminal defamation cases occupy a complex legal intersection between civil liability and criminal prosecution. While civil defamation focuses on compensation and reputation repair, criminal proceedings introduce the risk of fines, a criminal record, and imprisonment.
One of the most significant risks in these cases is cross-exposure. Information disclosed during civil litigation — including pleadings, affidavits, emails, and recorded statements — may later be relied upon by the Crown in a criminal prosecution. Without a coordinated legal strategy, individuals may unintentionally undermine their own defence.
Criminal defence counsel plays a critical role in:
“Statements made in civil contexts can later be used in criminal proceedings. Strategic defence planning must account for both.”
— Heather Spence, Criminal Defence Lawyer & Partner
Although criminal defamation prosecutions remain rare, their consequences are severe. A conviction carries a far more lasting impact than civil damages, including reputational harm, employment consequences, and travel restrictions.
“Criminal defamation is rare, but when pursued, it is serious. The consequences extend far beyond damages.”
— Jeff Mass, Criminal Defence Lawyer & Founding Partner
The Greater Toronto Area criminal defence lawyers at Mass Tsang provide strategic representation in complex defamation matters, including cases involving criminal exposure.
If you are facing allegations that may result in criminal charges, early legal intervention is critical.
Contact Mass Tsang today for a confidential consultation.
Generally, no. Libel and slander are usually civil defamation matters. However, the Criminal Code still recognizes criminal defamatory libel in limited and serious circumstances.
Civil defamation focuses on compensation and reputation repair, while criminal defamation involves punishment and requires proof beyond a reasonable doubt, including intent and, in some cases, knowledge of falsity.
Yes, but only in rare cases. Publishing defamatory libel while knowing it is false can result in criminal charges and up to 5 years' imprisonment.
Criminal defamation is governed by sections 298 to 300 of the Criminal Code of Canada.
No. Online posts, emails, and social media content qualify as “publication” and can satisfy the elements of criminal defamatory libel.
Freedom of expression under the Charter is protected, but knowingly false statements that cause serious reputational harm are not fully protected.
You should seek legal advice immediately if police involvement is suggested, criminal charges are threatened, or allegations go beyond a civil lawsuit.
