The Criminal Code of Canada provides the following offence :
Defamatory libel: Criminal Code Art. 297 defines “defamatory libel” as “matter published, without lawful justification or excuse, that is likely to injure the reputation of any person by exposing him to hatred, contempt or ridicule, or that is designed to insult the person of or concerning whom it is published”.
Persons found guilty of publishing defamatory libel are liable to imprisonment for a term not exceeding two years (Art. 301). In the case that a person publishes a defamatory libel that the person knows to be false, the person is liable to imprisonment for a term not exceeding five years (Art. 300).
According to Art. 299, a person “publishes” a libel when he exhibits it in public, causes it to be read or seen, or shows or delivers it, or causes it to be shown or delivered, with intent that it should be read or seen by the person whom it defames or by any other person.
Under Art. 302, a person, who, with intent to extort money from any person, or to induce a person to confer on or procure for another person an appointment or office of profit or trust, publishes or threatens to publish or offers to abstain from publishing or to prevent the publication of a defamatory libel is guilty of extortion by libel. The offender is liable to imprisonment for a term not exceeding five years.
The Criminal Code provides various grounds for exemption from criminal liability, including:
• Selling a publication containing defamatory matter without knowledge thereof (Art. 304)
• Publishing proceedings of courts of justice (Art. 305)
• Publishing defamatory matter contained in parliamentary papers (Art. 306)
• Fair report of parliamentary or judicial proceedings (Art. 307)
• Fair report of a public meeting (Art. 308)
• Public benefit: “No person shall be deemed to publish a defamatory libel by reason only that he publishes defamatory matter that, on reasonable grounds, he believes is true, and that is relevant to any subject of public interest, the public discussion of which is for the public benefit” (Art. 309)
• Fair comment on public person or work of art (Art. 310)
• Truth (qualified): “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” (Art. 311)
• Publication invited or necessary (Art. 312)
• Answer to inquiries (Art. 313)
• Giving information to person interested (Art. 314)
• Publication in good faith for redress of wrong (Art. 315)
• Proving publication by order of legislature (Art. 316)
Criminal Defamation of Public Officials
Criminal Defamation of the Head of State
Seditious libel is an offence of the Criminal Code of Canada. According to Art. 61, any person who speaks seditious words, publishes a seditious libel, or is a party to a seditious conspiracy, is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years.
Criminal Code Art. 59 defines seditious words as “words that express a seditious intention”; seditious libel as “a liable that that expresses a seditious intention”; and seditious conspiracy as “an agreement between two or more parties to carry out a seditious intention”. Under Art. 59(4), “Without limiting the generality of the meaning of the expression ‘seditious intention’, every one shall be presumed to have a seditious intention who teaches or advocates, or publishes or circulates any writing that advocates, the use, without the authority of law, of force as a means of accomplishing a governmental change within Canada.”
An exception is provided under Art. 60 as follows: “Notwithstanding subsection 59(4), no person shall be deemed to have a seditious intention by reason only that he intends, in good faith, to show that Her Majesty has been misled or mistaken in her measures; to point out errors or defects in the government or constitution of Canada or a province, Parliament or the legislature of a province, or the administration of justice in Canada; to procure, by lawful means, the alteration of any matter of government in Canada; or to point out, for the purpose of removal, matters that produce or tend to produce feelings of hostility and ill-will between different classes of persons in Canada.”
Criminal Defamation of the State and its Symbols
See, however, the offence of seditious libel under “Criminal defamation of the head of state”.
Criminal Defamation of Foreign Heads of State
Criminal Defamation of Foreign States and Symbols
Criminal Defamation of the Deceased
Blasphemous libel (Criminal Code Art. 296): Persons who publish a blasphemous libel are liable to imprisonment for a term not exceeding two years.
The Criminal Code provides that “It is a question of fact whether or not any matter that is published is a blasphemous libel” (Art. 296(2)); and
“No person shall be convicted of an offence under this section for expressing in good faith and in decent language, or attempting to establish by argument used in good faith and conveyed in decent language, an opinion on a religious subject” (Art. 296 (3)).
Criminal Law and Media
The vast majority of libel cases in Canada are brought in civil court and prosecutions for criminal defamation are rare, although not unheard of . Recent research, however, has suggested that the number of convictions for criminal defamation are on the rise and being used “with increasing frequency to shut down political dissent and criticism of police officers, judges and powerful institutions, relatively speaking. Reports have highlighted, for example, the prosecution of a woman in Alberta for calling a local politician and a prosecutor “repulsive, corrupted, lying, thieving, deviant bastards both” .
In 2012, a restaurant owner in Ottawa was sentenced to 90 days in jail for libelling a woman who posted bad reviews of the restaurant online. The restaurant owner retaliated through various measures including “sending lewd emails” to the woman’s boss and setting up a face account under name on an “adult dating site”. The court reportedly also ordered the restaurant owner to take an anger management course, undergo counselling and perform 200 hours of community service .
There are very few examples of criminal defamation cases brought against the media. As noted by the Committee to Protect Journalists, in 2011 Canadian fashion designer Peter Nygard filed criminal defamation charges against the Canadian Broadcasting Company over a documentary on Nygard aired in April 2010. A judge in Manitoba allowed the case to proceed in July 2015. The current status of proceedings is not known .
In its 1998 ruling in R. v. Lucas, the Canadian Supreme Court upheld the constitutionality of Criminal Code Art. 300, which punishes defamatory libel known to be false. The Court stated:
“Although it is important to recognize the right of the person defamed to sue for monetary damages it is equally if not more important that society discourage the intentional publication of lies calculated to expose another individual to hatred and contempt. The harm addressed by s. 300 is so grave and serious that the imposition of a criminal sanction is not excessive but rather an appropriate response. Defamatory libel can cause long lasting or permanent injuries to the victim. The victim may be forever demeaned and diminished in the eyes of her community. The conduct which injures reputation by criminal libel is just as blameworthy as other conduct readily accepted as criminal, such as a deliberate assault or causing damage to property […] The other reason for the existence of both a criminal and a civil remedy for defamation lies in a recognition of the problems and weaknesses that exist in civil proceedings in our present society. Civil proceedings can be prohibitively expensive for many Canadians. Even if a victim can afford to bring an action before the civil courts, a civil action will have little, if any, deterrent effect on impecunious defendants […] Further, to accept the position that because offensive conduct can be pursued through private litigation it cannot be prosecuted criminally would seriously undermine Parliament’s authority to determine what conduct amounts to a public wrong. As far as defamation is concerned, civil and criminal processes can effectively co exist. The criminal offence is not overbroad or ineffectual simply because a civil remedy exists .”
The Court’s ruling contrasted with the findings in 1984 of the Law Reform Commission of Canada, whose report stated: “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. Accordingly, we recommend that our Criminal Code should contain no crime of defamation, even in a restricted form .”
It should be noted, however, that the Supreme Court has not yet considered the constitutionality of Art. 301, which punishes defamatory libel, even in cases in which the allegedly libellous content may be true. However, a number of provincial courts (Alberta, Saskatchewan, Ontario, New Brunswick and Newfoundland and Labrador) have ruled that Art. 301 is unconstitutional . The government did not appeal the rulings in those cases.
Recent Legal Changes
Notes and Acknowledgements
Information for Canada was originally collected by IPI as part of a study commissioned by the Office of the Representative on Freedom of the Media of the Organization for Security and Co-operation in Europe (OSCE). It is reprinted here with the permission of the OSCE. Last update: March 2017.
The information contained in this database is for informational and advocacy purposes only. If you are a journalist facing a defamation claim, you should seek legal advice from a qualified attorney. However, if you are unable to find such an attorney, IPI may be able to assist you in doing so. Please contact us at info(at)ipi.media.