Criminal Libel In Canada: Why Does It Still Exist?

By Alexis Kuskevics

The practice of criminal libel in Canada is an archaic law that the country should proceed in abolishing, as discussed during the Making Criticism A Crime panel on Tuesday.

The law, which was established in 1985 under the Criminal Code of Canada, permits a citizen to launch criminal proceedings against an individual whose comments the citizen finds offensive. Those charged with criminal libel can be sentenced to jail for periods as long as five years if found guilty.

“I don’t agree with it. If there’s problems with the civil laws it’s got to be dealt within the civil law,” said panel member Jamie Cameron, former vice-president of the Canadian Civil Liberties Association. “You don’t bring it up with the criminal law.”

Cameron was part of a panel at Ryerson University that discussed the disadvantages of criminal defamation and the consequences it has on both those who accuse and those who are accused. She was joined by Ryerson University assistant journalism professor Lisa Taylor. James L. Turk moderated the discussion.

“You want to think hard about how these provisions have been purposed for inappropriate subjective; using the criminal law to silence critiques who are volubly critical of judges, police officers, and other kinds of public officers,” said Cameron. “That’s something that jumps out in the data set and really calls out for an answer and some thinking.”

Taylor, who is educated in both law and journalism, recently conducted an investigation on low-profile cases of criminal defamation in Canada. In her research she found that the cases – as recent as 2012 – doubled in the last seven years, ranging from 18 reported cases in 2005 to 37 reported cases in 2012. Due to limited resources, Taylor said that these numbers are potentially much higher than what she found in the databases.

“The numbers don’t tell the whole story, because what we need to understand is what the facts are behind these cases,” Taylor said. “We should be critical of power.”

This type of power includes public figures – such as politicians, police officials, and judges – who use criminal defamation as protection from the damage their reputation could suffer following criticism. It is a process that those with high authority initiate until “it just grinds people down so much that it stifles.” This concept is supported by the story of Karen MacKinnon, a woman who was jailed in 2011 after posting negative comments about a Drumheller police officer on Facebook.

“This offense does not have to exist,” Taylor said. “Those who occupy positions of power need to grow a thick skin and accept that this is what comes with the tremendous authority that they have in this world.”

Although criminal libel benefits from forbidding people of permanently damaging a person’s reputation or life, both Taylor and Cameron said that there are other options that can replace the law and its effect. Some of these alternatives include criminal harassment, uttering threats, intimidation, and extortion.

“The frequency of prosecution is much greater than we thought,” Cameron said. “This is just an overlay of the criminal law onto the existing set of civil laws.”

A law that can affect society and the material they read if there isn’t something to be done about it.

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