The trouble with criminal speech

MacKinnon, who was in her late 40s at the time, was a former town councillor in Drumheller, which has a population of around 8,000 and is best known for the dinosaur fossils unearthed in the area. She served as a councillor for three years before she was ejected. MacKinnon, was a rabble-rouser on the town council and after she was disqualified, began posting specific allegations of corruption on her Facebook page about town officials.

After waiting for a few hours at the station, MacKinnon sat down with the officer. He had in front of him a number of printed out pages with Facebook posts MacKinnon had made about Drumheller politics. The officer was particularly interested in one pithy, but crude and potentially defamatory comment that stated two prominent Drumheller residents, one a town official and the other a former (and future) Crown attorney as being “repulsive, corrupted, lying, thieving, deviant bastards both.”

“And the cop says to me, ‘what do you mean by that?’ And he’s pounding his finger at this ridiculous statement typed out,” MacKinnon tells Canadian Lawyer. “So I sort of sarcastically told him that by repulsive I meant — and I pretended to retch, like I was gagging.” MacKinnon says the officer wasn’t impressed by her dramatic performance. MacKinnon, who had yet to be charged with a crime, says the officer told her she would be released if she abided by two conditions: she had to have no contact, directly or indirectly, with the two men she had mentioned in her comment and she had to stay off of Facebook.

MacKinnon had no problem with the former, but she would not abide by the latter. “And I slapped the desk, and said, ‘fuck that,’” says MacKinnon. “I said, ‘I’m going on Facebook as soon as I get home and I am going to post every single word of this interview that I can recall.’” She says the officer looked “bug-eyed angry” and grabbed her by her upper arm and yanked her out of her chair. “I had high-heeled boots on, but he yanked me so high in the air, I was on my tippy-toes. Then he marched me downstairs, took my boots, my coat, and jewellery and threw me in the clink.”

At midnight that night, MacKinnon was put in front of a justice of the peace by speakerphone and became one of a handful of Canadians to be charged under s. 301 of the Criminal Code.

MacKinnon, like almost all Canadians, had never heard of s. 301. It is an obscure section, part of a broader subdivision of the Code that deals with defamatory libel. It states: “Every one who publishes a defamatory libel is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years.” Unlike s. 300, where the Crown must prove beyond a reasonable doubt the accused knew what they were saying was false, a defamatory libel under s. 301 doesn’t have to be false. In other words, a person can go to prison under s. 301 even if what they’re publishing is completely true.

When MacKinnon was charged, no one made any effort to determine if her accusations of corruption had any merit. It didn’t matter since she could be charged even if they were true.

Defamation was first made a criminal offence in Canada in 1874 and the laws have remained essentially unchanged since 1892. They were adopted from English legal codes with precedents dating back to the infamous Court of Star Chamber in the 17th century, which made it a crime to punish defamatory libel in order to suppress dueling and keep the peace. It’s hard to determine exactly how many Canadians have been charged under the defamatory libel section of the Criminal Code, but according to a 2005 Organization for Security and Co-operation in Europe study on libel and insult laws, 57 people up to that point had been charged with the crimes, with 23 convictions, including nine prison sentences. The average sentence was 270 days.

Since the Charter of Rights and Freedoms was introduced in 1982, the defamatory libel provisions, especially s. 301 have been under siege. In 1984, the Law Reform Commission of Canada released a working paper on defamatory libel, recommending it be struck from the Code. “We do not feel that a crime of defamation would be able to do better that which is already done by the civil law of defamation,” read the report. “Accordingly, we recommend that our Criminal Code should contain no crime of defamation, even in a restricted form.”

While the Supreme Court of Canada upheld the constitutionality of s. 300, court after court in Canada has struck down s. 301, focusing on the fact a person can be convicted of defamatory libel even if they told the truth. In 1992, an Alberta Court of Queen’s Bench justice declared s. 301 unconstitutional in R. v. Finnegan. The Saskatchewan Court of Queen’s Bench followed suit in R. v. Lucas in 1995. Then came the Ontario Court of Justice’s R. v. Gill in 1996, the New Brunswick Court of Queen’s Bench’s 2004 ruling in R. v. Osborne, and the Newfoundland and Labrador Supreme Court, Trial Division’s R. v. Prior in 2008. In none of these cases did the Crown appeal, so s. 301 has never been tested by an appellate court in any of these jurisdictions, let alone by the Supreme Court of Canada. Because of this, people like Karen MacKinnon are still charged with a criminal violation under a provision of the Code that has been struck down in five different provinces.

By the time MacKinnon’s preliminary hearing came up in October 2012, a year and a half after she’d been charged, she had become well versed in the history of s. 301 and knew it would likely not stand up to judicial scrutiny. But she had spent $15,000 already on the case and she was told a jury trial would cost her another $30,000. In August of that year, MacKinnon’s first love had suddenly died — she wasn’t able to post a condolence on Facebook because of a court order that she stay off social media. “It broke my heart, I can’t even explain to you how tortured I felt,” she says. She told her lawyer to tell the prosecutor she would apologize for her comments if they dropped the charges. MacKinnon received two years probation. While the judge said she was still allowed to post on social media about what she believed to be corruption in local government, even naming the individuals she had allegedly defamed, all postings must be “civil and temperate.”

MacKinnon returned to posting on Facebook, but her comments became much less political in nature. Before her criminal charges, she was publishing lengthy comments about town hall about once a week, this slowed to around once every few months during her probation. The comments she had made in the past were often personal in nature. Some could be described as mean-spirited, while others were specific allegations of improper behaviour. These all slowed to a crawl after 2012. But one of the few comments she did make, an almost offhand remark on a BC Civil Liberties Association story, referred to the prosecutor who she had been charged with defaming as a “pet kangaroo.” That was enough to land her in jail and she was, for the second time, charged under s. 301, along with a breach of probation charge.

While MacKinnon is likely the only person in recent Canadian history to be charged twice with this obscure criminal provision, her case is typical in at least one way — one of the people she allegedly defamed was involved with the criminal justice system. “Most of the reported cases that I’ve seen, there’s some sort of connection to the criminal justice system,” says Cara Zwibel, director of the fundamental freedoms program for the Canadian Civil Liberties Association. “I’m not sure why, but my guess is that if I were to walk into the police station and report that someone had libeled me, they would tell me to sue them.”

In fact, almost every case of s. 301 being brought up in the Charter era has to do with an agent of the Crown. Dan Scully, a lawyer in Kingston, Ont., worked on one of those cases. In 1996, two men, Bradley Waugh and Ravin Gill, were charged under s. 301 for putting up fake “wanted” posters of Kingston Penitentiary guards after a man was killed in custody. “If they hadn’t been corrections officers, I don’t think we would have seen charges,” says Scully. “Really they were being prosecuted for defaming agents of the Crown.” The Canadian Civil Liberties Association intervened and Justice Thomas Lally ruled in favour of the accused and declared s. 301 unconstitutional.

For the last 20 years, Scully hasn’t seen another case involving s. 301. “But I would bet if I do, it would be because a police officer, a corrections officer, or a Crown attorney who has been defamed.”

In case after case, this pattern has played out. In R. v. Lucas, John and Johanna Lucas were accused of defaming a Saskatchewan police officer. In 2002, Stephen Charles Osborne was charged with defaming a New Brunswick judge. For Byron Prior in 2008, it was a Newfoundland police officer. For Dan Keller in 2011, the accuser was an undercover Ontario police officer. Charles LeBlanc was arrested for allegedly defaming a Fredericton police officer in 2011. In all of the cases that went to trial, s. 301 was declared unconstitutional. Keller and LeBlanc both had charges against them dropped.

LeBlanc’s case, in particular, caused a stir of controversy. The Crown, after obtaining an external legal opinion, concluded s. 301 would inevitably be declared unconstitutional and dropped the charges. The City of Fredericton ordered an independent review into the matter.

While many of MacKinnon’s comments could be construed as defamatory in a civil court, her posts were considerably tamer than what most other people charged with s. 301 have said. Many of the alleged defamatory remarks of other defendants had to do with false allegations of rape and other forms of sexual impropriety. And yet, even in cases where people allegedly engaged in egregious forms of defamation, s. 301 has been ruled unconstitutional.

Lorne Honickman, a defamation lawyer with Brauti Thorning Zibarras LLP, points out state actors aren’t prohibited from suing for defamation in civil court. “Politicians, government officials, they have the same access to the world of defamation law as anyone else,” he says. The civil tort of defamation has expanded considerably over the years, both for plaintiffs and defendants, while criminal defamation has remained static for over a century. Honickman notes that the defence of fair comment, which deals in issues of public interest, isn’t available to criminal defendants. “What more would ever fall into the category of public interest than issues dealing with government officials or actors?” says Honickman. “If you were to write the Criminal Code today, would you ensure that you included a section dealing with criminalization of defamation? You wouldn’t.”

The law seems unlikely to change, however. Despite calls from certain corners of the bar, the government is unlikely to do a comprehensive review of the Criminal Code to remove antiquated provisions such as defamatory or blasphemous libel. And even while lower courts declare the law unconstitutional, the Crown has demonstrated an unwillingness to appeal when it comes to s. 301, so it’s unlikely to make it to higher courts. If, somehow, s. 301 did make it to the Supreme Court of Canada, it almost certainly would be struck down. The reasoning that most lower-court judges have relied on in declaring s. 301 unconstitutional comes from Chief Justice Beverley McLachlin’s 1992 ruling in R. v. Zundel.  “A law which forbids expression of a minority or ‘false’ view on pain of criminal prosecution and imprisonment, on its face, offends the purpose of the guarantee of free expression,” wrote McLachlin.

But if s. 301 is to be taken to the Supreme Court of Canada, MacKinnon is unlikely to be the one to do it. She has decided to fight the charge this time, but due to the costs she incurred the last time she was charged, MacKinnon has decided to not retain counsel, at least for now. She’s had three hearings so far, and at one of them, the duty counsel provided by the Crown was one of the people she was alleged to have defamed. “It’s mind-boggling,” she says. “I don’t even know how they can trick themselves into thinking any of this is being done right.”