Why some experts say a law created to prevent duelling is a threat to free speech

When a Winnipeg man plastered posters around the University of Manitoba campus in 1991 that claimed his ex was overweight, balding and suicidal, he may not have realized he was breaking a law older than Canada’s Criminal Code.

But he was, as a Court of Appeal judge who upheld the man’s conviction wrote in his decision. Specifically, the judge said, the Winnipeg man had broken a defamatory-libel law in Canada that had “essentially remained unchanged” since it was first written in 1843, before being enshrined in the country’s first Criminal Code in 1892.

Though Canada’s criminal law on libel — publishing a defamatory statement about someone — has come to be seen by many in the legal community as something of a relic, its use appears to be on the rise.

And that may present challenges to free expression, some experts warn.

While most libel cases are tackled by lawsuits in civil courts instead of criminal trials, the charge has remained on the books, and was upheld as constitutional in a 1998 Supreme Court decision.

That decision also observed the charge was originally created to prevent duels, and lumped it in with other “rarely invoked” charges like theft from oyster beds and high treason.

But Lisa Taylor, a lawyer-turned-researcher at Ryerson University’s School of Journalism and Centre for Free Expression, says the charge is making a mini comeback.

Taylor and a colleague published research last year that found more than 400 prosecutions using the criminal charge since 2000 — at a rate per year that doubled between 2000 and 2015.

One troubling aspect of their findings is that roughly a third of cases dealt with libel against public officials, from police officers to politicians, she said. In effect, it is being used to criminalize speech against government officials.

“When we started looking at the period from 2000 to 2015, we saw a significant and steady year-over-year increase [in] how often these investigations were being launched,” Taylor says. She argues that’s a problem.

She’s one of a cohort of Canadian legal experts who say the Supreme Court got it wrong, arguing the charge is an intrusion on freedom of expression that leaves the door open for abuse and needs to be repealed.

It also contradicts trends elsewhere.

In the U.S., the number of states with criminal libel laws has been declining since the 1960s, Taylor wrote in her paper. The offence was struck down in the U.K. in 2009. It was also struck down in Grenada in 2012 and in Jamaica in 2013 — both Commonwealth nations that, like Canada, inherited criminal libel laws from the British.

“We and others [have] argued that this should be removed, and it wasn’t, and I haven’t heard a good reason for it,” said Cara Zwibel, director of the fundamental freedoms program at the Canadian Civil Liberties Association.

The association argued in 2017 for the law to be abolished during a Criminal Code cleanup designed to remove so-called “zombie laws” — those which are outdated and unenforced, usually because they’ve been struck down by courts.

“I really don’t know why it’s still on the books.”

From duels to cyber-smearing

Criminal defamatory libel exists in two sections of Canada’s Criminal Code: Section 300, which criminalizes the publication of libel known to be false, and Section 301, which criminalizes the publication of all defamatory libel.

The 1998 Supreme Court decision upheld the former, concluding Section 300 did not violate the right to freedom of expression under the Charter of Rights and Freedoms.

Instead, Justice Peter deCarteret Cory observed that while the law’s origins were in preventing breaches of the peace like duelling — it was intended, he wrote, to provide a legal alternative to “duels fought in defence of the honour of defamed parties” — the purpose of criminal defamatory libel laws has long since shifted to protecting personal reputation.

Section 301, meanwhile, has been struck down by a handful of provincial superior courts, but has never been tested at the Supreme Court.

In spite of its roots in old-timey duelling, Taylor said she found that the law’s application in the last 20 years has been very modern — it’s been used to prosecute damages to reputation like cyber-smearing and online slut-shaming. Such cases account for about two-thirds of the prosecutions she reviewed since 2000.

But she and other like-minded legal experts argue Canadian jurisprudence now has more finely honed tools to prosecute revenge porn and other types of smearing, from cyberbullying and revenge porn legislation to Criminal Code provisions against uttering threats and criminal harassment.

“The defamatory libel provisions, as they stand now in the Criminal Code, are very poorly drafted to deal with that kind of problem,” said Jamie Cameron, a professor at York University’s Osgoode Hall Law School.

“It would be a better idea to scrap those provisions and, if you need new ones, to draft the new provisions and customize them to the particular type of extreme harm that you’re trying to punish.”

Potential for abuse

Critics of the criminal defamation laws say most libel cases belong in civil courts anyway, where they’re dealt with as a matter between two individuals, instead of taken on by the state as an offence against society.

David Hutt, a Halifax media defamation lawyer, said prosecutions of libel could bog down already-overburdened courts, and unlike a lawsuit, don’t offer the accused any chance to get back the cost of defending themselves.

“This allows a complainant to wield a very heavy hammer, because they’re so insulated from the costs of the prosecution,” he said.

The other harm of the law remaining on the books, Taylor argues, is the potential to criminalize speech that’s critical of the government.

A prominent example includes Fredericton blogger Charles LeBlanc, who was charged with defamatory libel in 2012.

He posted a photo of a police officer who ticketed him for not wearing a bicycle helmet, calling him a “fascist cop” and “sexual pervert Quebecois Const.” The charge was later abandoned and an inquest ordered that concluded Fredericton police should have “farmed out” the investigation.

The criminal provision “runs the risk that you’re significantly interfering with free speech,” said Michael Lacy, president of the Criminal Lawyers’ Association of Ontario.

It could have a chilling effect, he argues, by “subjecting someone, even if they’re acquitted at the end of the day … to the threat of criminal prosecution as well as potential imprisonment.”

Taylor says the criminal law has “long outlived its usefulness, and it’s entirely inconsistent with the Charter of Rights that says we have a right to free expression.”

“No speech is without limits,” she notes. But the question, she says, is “how harsh are the limits going to be?”