If You Do Not Have Anything Nice to Say: Charter Issues with the Offence of Defamatory Libel
A post-truth era is upon us - we have seen this manifest in the USA, in our work spaces, in the ways we are managed, and the ways we are assessed. It is a difficult time for truth, which is where, in some cases, in the criminal context, defamatory libel comes in.
"The Criminal Code continues to include serious criminal offences for defaming other people. These provisions exist separately from ordinary civil defamation actions and can potentially criminalize true statements. They remain controversial, yet under-studied. While the narrower offence found in section 300 has been upheld at the Supreme Court of Canada, its more expansive sister provision in section 301 has never been evaluated by an appellate court. Accordingly, it remains a live option for prosecutions and continues to be charged in Canadian courts.
This paper outlines the existing debate and the Charter issues raised by section 301. It traces all relevant lower court decisions, each of which has ultimately struck this offence down. It argues that section 301 is unconstitutional because it infringes the freedom of expression found in section 2(b) of the Charter. This offence is likely to fail at both the minimum impairment and proportionality stages."