The Canadian Charter of Rights and Freedoms may guarantee freedom of expression, but this right is by no means absolute. Canada’s Criminal Code includes provisions that criminalize certain forms of expression, including hate speech, obscene materials, and perjury. You might be surprised to learn that the Criminal Code also includes provisions covering “defamatory libel,” which can carry a prison sentence of up to five years upon conviction.
If you are surprised to learn that libel is a criminal offence in Canada, it’s likely because you think of libel as a subject of tort law rather than criminal law. Such thinking is not wrong, as libel is also a subject of civil tort law, which allows people to sue for damages.
Many Canadians are confused about the country’s laws covering libel and its associate terms, slander and defamation. The criminal defence lawyers of the Greater Toronto Area’s Mass Tsang law firm enjoy sharing their in-depth knowledge about Canadian law with their clients. This blog post will clarify how Canada’s laws address libel, slander, and defamation.
You first need to understand that libel and slander are two forms of defamation, which in turn is defined as harming a person’s reputation by making public false or misleading statements about them. Libel is defamation leaves a permanent record, whether as published material, email, website posting, video, or broadcast TV or radio. Slander is defamation through publicly spoken statements that are not permanently recorded.
Under Canadian laws, libel and slander are often characterized collectively as defamation for legal purposes. Most defamation cases are addressed by civil tort laws, which differ by province. Ontario’s defamation laws are covered under the Libel and Slander Act.
When suing for defamation based on libel, a plaintiff does not need to prove that they suffered any damages. Courts will presume the statements were damaging if the plaintiff can establish them as untrue and meet other thresholds. To win a defamation case based on slander, the plaintiff must prove that the false words caused financial damages. This makes slander-based defamation cases much less common than libel-based cases.
Canada’s Criminal Code covers defamatory libel in Sections 300 and 301 of the Offences Against the Person and Reputation chapter. Under Section 300, any person “who publishes a defamatory libel that they know is false is guilty of” either an indictable offence that carries a maximum five-year prison term or a less-severe summary conviction offence. Section 301 omits the knowledge of knowing the libel to be false provision and carries a maximum two-year sentence as an indictable offence.
Criminal libel charges are often brought when a publication or person is accused of defaming a public official or government employee. Critics of the criminal libel law claim that government officials are increasingly using it to silence their critics and call the law a distinct threat to the country’s free speech. Section 301 has been struck down by several provincial superior courts but has yet to be addressed by Canada’s Supreme Court.
The Criminal Code provides several libel defences in Sections 304-315, many of which also apply in civil cases. Truth is a crucial defence in both criminal and civil tort law because a true statement cannot be defamatory. Section 311 of the Code states that “no person shall be deemed to publish a defamatory libel where he proves that the publication of the defamatory matter in the manner in which it was published was for the public benefit at the time when it was published and that the matter itself was true.”
Absolute privilege covers communications made in venues where people have expectations that they can freely speak before or comment about. This can include everything from parliament to courtrooms to open public meetings. The fair comment defence covers published comments on the conduct of people involved with public affairs, as well as criticism about literary works, art, and public performances. Qualified privilege protects communications provided in answer to inquiries.
While Canada’s Supreme Court has not made any rulings that have influenced defamatory libel in the Criminal Code, it has made several precedent-setting rulings in tort defamation law. Key among these decisions is Hill v. Church of Scientology of Toronto [1995] 2 SCR 1130, which held that lawsuit plaintiffs do not have to prove that malicious intent played a role in the defamation. The high court also dismissed arguments that the damages sought by the plaintiff were too high and would stifle free speech by making people fearful of being sued for defamation damages. Based on this ruling, Canada has a reputation for having one of the most plaintiff-friendly defamation tort laws among common law countries.
However, the high court expanded free speech and protection for journalists in WIC Radio Ltd. v. Simpson, [2008] SCC 40 and Grant v. Torstar [2009] 3 SCR 640. The former helped clarify the viability of the “fair comment” defence by asserting that it must be:
The latter established a “reasonable communications” for journalists defence, allowing journalists to report false information when news of public interest is breaking, and they made reasonable efforts to verify the information.
With more than 30 years of experience in the Greater Toronto Area, the criminal defence lawyers at Mass Tsang are highly skilled at mounting effective defences for their clients. Mass Tsang criminal lawyers have successfully defended thousands of Toronto-area criminal cases and have built a solid record of securing positive outcomes for their clients. If you or someone you know is facing criminal charges in the greater Toronto area, contact the expert lawyers at Mass Tsang for your free consultation.
