Defamatory Libel (s. 298, s. 299, s. 300, and s. 301) Charges in Canada: Offences, Defences, Punishments

By Last Updated: November 22, 2022

What is Defamatory Libel?

Defamatory Libel Charges in CanadaDefamatory libel is covered under sections 297 to 317 of the Criminal Code of Canada.

Defamation is defined by the Oxford English Dictionary as “[t]he action of impugning a person’s good name or reputation”.  Commonly, defamation occurs via “libel”, which entails written statements, or “slander”, which entails spoken statements.

In Canada, defamation is referred to as “defamatory libel” and is an offence under the Criminal Code.

Defamatory libel is a hybrid offence in Canada.  This means that the Crown can elect to proceed either by summary conviction or indictment.

Examples

Common examples of defamatory libel include the following:

  • displaying posters around a city which contain false statements about a person to harm their reputation;
  • posting false Facebook and Twitter posts about a person to harm their reputation;
  • writing negative reviews about a medical clinic by lying about the qualifications of the doctor; and
  • tabloids writing articles about the marital status and fictitious affairs of a celebrity couple.

Defences

The defences available to a charge of defamatory libel are entirely dependent on the facts of the case.

However, some common defences to defamatory libel include the following:

  • excuses to defamatory libel under s.303(3) and ss.304-315 of the Criminal Code;
  • a breach of the Charter resulting in the exclusion of evidence the Crown can use to prove the offence.

Punishment

The punishment for defamatory libel will first depend on whether the accused knew the defamatory libel to be false.  Further, the punishment for defamatory libel will also depend on whether the Crown has chosen to proceed via summary conviction or indictment.

Defamatory libel charges, where the accused knew the defamatory libel to be false, are punished under s.300 of the Criminal Code as follows:

  • Summary: Maximum of 2 years less a day in jail and a $5,000.00 fine.
  • Indictment: Maximum of 2 years in jail.

Defamatory libel charges, where the accused did not know the defamatory libel to be false, are punished under s.301 of the Criminal Code as follows:

  • Summary: Maximum of 2 years less a day in jail and a $5,000.00 fine.
  • Indictment: Maximum of 5 years in jail.

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Overview of the Offence 

The definition of “defamatory libel” is outlined in s. 298(1) of the Criminal Code:

A defamatory libel is 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.

According to s. 298(2) of the Criminal Code, defamatory libel may be expressed directly or by insinuation or irony.

(a) in words legibly marked on any substance; or

(b) by any object signifying a defamatory libel otherwise than by words.

According to s. 299 of the Criminal Code, defamatory libel is “published” when a person:

(a) exhibits it in public;

(b) causes it to be read or seen; or

(c) shows or delivers it, or causes it to be shown or delivered, with intent that it should be read or seen by any person other than the person whom it defames.

The Crown must prove the actus reus (the “guilty act”) and the mens rea (the “guilty mind”) of a defamatory libel charge beyond a reasonable doubt to ground a conviction.

The actus reus of defamatory libel requires that the Crown prove beyond a reasonable doubt that:

  1. there was a matter that was published;
  2. the matter contained a false statement;
  3. the matter was published without lawful justification or excuse; and
  4. the matter was 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.

The mens rea of defamatory libel requires that the Crown prove beyond a reasonable doubt that:  

  1. the accused intended to defame the complainant.

The Guilty Act (Actus Reus)

The actus reus for defamatory libel requires that the Crown must prove beyond a reasonable doubt that:

  1. there was a matter that was published;
  2. the matter contained a false statement;
  3. the matter was published without lawful justification or excuse; and
  4. the matter was 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.

The Guilty Mind (Mens Rea)

The mens rea for defamatory libel requires that the Crown must prove beyond a reasonable doubt that:

  1. the accused intended to defame the complainant.

For clarity, a more detailed explanation of this mens rea requirement is found in the case of R v Lucas, 123 CCC (3d) 97, [1998] 1 SCR 439, where the Supreme Court of Canada outlined the elements of defamatory libel.

Specifically, the Court made clear that knowledge of falsity is not sufficient for the Crown to obtain a conviction.  Instead, the Court outlined that the Crown must prove that the accused had subjective intent to defame the complainant OR that the accused was reckless as to the defamatory meaning of the matter published.

Defamatory Libel Defences

How to beat a Defamatory Libel Charge

The presence or absence of a defence to defamatory libel will depend on the specific circumstances of your case.  The following defences to defamatory libel are outlined in the Criminal Code:

The accused unknowingly sold newspapers containing libel

303 (3) No person shall be deemed to publish a defamatory libel by reason only that he sells a number or part of a newspaper that contains a defamatory libel, unless he knows that the number or part contains defamatory matter or that defamatory matter is habitually contained in the newspaper.

The accused unknowingly sold books or other publications containing libel

304 (1) No person shall be deemed to publish a defamatory libel by reason only that he sells a book, magazine, pamphlet or other thing, other than a newspaper that contains defamatory matter, if, at the time of the sale, he does not know that it contains the defamatory matter.

(2) Where a servant, in the course of his employment, sells a book, magazine, pamphlet or other thing, other than a newspaper, the employer shall be deemed not to publish any defamatory matter contained therein unless it is proved that the employer authorized the sale knowing that

(a) defamatory matter was contained therein; or

(b) defamatory matter was habitually contained therein, in the case of a periodical.

The accused published libel for a court or legislative proceeding

305 No person shall be deemed to publish a defamatory libel by reason only that he publishes defamatory matter

(a) in a proceeding held before or under the authority of a court exercising judicial authority; or

(b) in an inquiry made under the authority of an Act or by order of Her Majesty, or under the authority of a public department or a department of the government of a province.

The accused published a petition or paper to parliament or a legislature

306 No person shall be deemed to publish a defamatory libel by reason only that he

(a) publishes to the Senate or House of Commons or to the legislature of a province defamatory matter contained in a petition to the Senate or House of Commons or to the legislature of a province, as the case may be;

(b) publishes by order or under the authority of the Senate or House of Commons or of the legislature of a province a paper containing defamatory matter; or

(c) publishes, in good faith and without ill-will to the person defamed, an extract from or abstract of a petition or paper mentioned in paragraph (a) or (b).

The accused published proceedings from a parliamentary or judicial proceeding

307 (1) No person shall be deemed to publish a defamatory libel by reason only that he publishes in good faith, for the information of the public, a fair report of the proceedings of the Senate or House of Commons or the legislature of a province, or a committee thereof, or of the public proceedings before a court exercising judicial authority, or publishes, in good faith, any fair comment on any such proceedings.

(2) This section does not apply to a person who publishes a report of evidence taken or offered in any proceeding before the Senate or House of Commons or any committee thereof, on a petition or bill relating to any matter of marriage or divorce, if the report is published without authority from or leave of the House in which the proceeding is held or is contrary to any rule, order or practice of that House.

The accused published a report detailing a public meeting

308 No person shall be deemed to publish a defamatory libel by reason only that he publishes in good faith, in a newspaper, a fair report of the proceedings of any public meeting if

(a) the meeting is lawfully convened for a lawful purpose and is open to the public;

(b) the report is fair and accurate;

(c) the publication of the matter complained of is for the public benefit; and

(d) he does not refuse to publish in a conspicuous place in the newspaper a reasonable explanation or contradiction by the person defamed in respect of the defamatory matter.

The accused believed the material to be true and for the public benefit

309 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.

The accused published fair comments about a public person or work of art

310 No person shall be deemed to publish a defamatory libel by reason only that he publishes fair comments

(a) on the public conduct of a person who takes part in public affairs; or

(b) on a published book or other literary production, or on any composition or work of art or performance publicly exhibited, or on any other communication made to the public on any subject, if the comments are confined to criticism thereof.

The accused published material later proved to be true and for the public benefit

311 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.

The accused was invited by the complainant to publish the material

312 No person shall be deemed to publish a defamatory libel by reason only that he publishes defamatory matter

(a) on the invitation or challenge of the person in respect of whom it is published…

if he believes that the defamatory matter is true and it is relevant to the invitation, challenge or necessary refutation, as the case may be, and does not in any respect exceed what is reasonably sufficient in the circumstances.

The accused published material to refute defamation being made against them or another person

312 No person shall be deemed to publish a defamatory libel by reason only that he publishes defamatory matter…

(b) that it is necessary to publish in order to refute defamatory matter published in respect of him by another person,

if he believes that the defamatory matter is true and it is relevant to the invitation, challenge or necessary refutation, as the case may be, and does not in any respect exceed what is reasonably sufficient in the circumstances.

The accused published material to answer inquiries made to them by the complainant

313 No person shall be deemed to publish a defamatory libel by reason only that he publishes, in answer to inquiries made to him, defamatory matter relating to a subject-matter in respect of which the person by whom or on whose behalf the inquiries are made has an interest in knowing the truth or who, on reasonable grounds, the person who publishes the defamatory matter believes has such an interest, if

(a) the matter is published, in good faith, for the purpose of giving information in answer to the inquiries;

(b) the person who publishes the defamatory matter believes that it is true;

(c) the defamatory matter is relevant to the inquiries; and

(d) the defamatory matter does not in any respect exceed what is reasonably sufficient in the circumstances.

The accused published material to give information to the complainant

314 No person shall be deemed to publish a defamatory libel by reason only that he publishes to another person defamatory matter for the purpose of giving information to that person with respect to a subject-matter in which the person to whom the information is given has, or is believed on reasonable grounds by the person who gives it to have, an interest in knowing the truth with respect to that subject-matter if

(a) the conduct of the person who gives the information is reasonable in the circumstances;

(b) the defamatory matter is relevant to the subject-matter; and

(c) the defamatory matter is true, or if it is not true, is made without ill-will toward the person who is defamed and is made in the belief, on reasonable grounds, that it is true.

The accused published material to right a wrong

315 No person shall be deemed to publish a defamatory libel by reason only that he publishes defamatory matter in good faith for the purpose of seeking remedy or redress for a private or public wrong or grievance from a person who has, or who on reasonable grounds he believes has, the right or is under an obligation to remedy or redress the wrong or grievance, if

(a) he believes that the defamatory matter is true;

(b) the defamatory matter is relevant to the remedy or redress that is sought; and

(c) the defamatory matter does not in any respect exceed what is reasonably sufficient in the circumstances.

Breach of Charter rights

The Crown must prove the elements of defamatory libel beyond a reasonable doubt.  The Crown will likely attempt to prove these elements using evidence obtained by police during their investigation.  However, this evidence must be obtained by police in a manner that complies with the Canadian Charter of Rights and Freedoms (the “Charter”).

The Charter affords every person a number of legal rights, such as the right to be secure against unreasonable search and seizure, the right not to be arbitrarily detained or imprisoned, the right to be informed of the reasons of their detention or arrest, and the right to counsel without counsel.

If the police obtain any evidence in violation of your Charter rights, then a court may exclude this evidence from being used by the Crown at the trial depending on the severity of the Charter violation.

Defamatory Libel Punishments

The sentence that you may receive for a conviction for defamatory libel will depend heavily on the circumstances of your case and whether the Crown elects to proceed summarily or by indictment.

Further, in the case of defamatory libel, the sentence you may receive for a conviction will also depend on whether you knew the defamatory libel to be false.  The Criminal Code provides for a higher possible sentence if you were aware that the defamatory libel was false.

s.300 of the Criminal Code – Defamatory Libel Known to be False

According to s.300 of the Criminal Code:

Every person who publishes a defamatory libel that they know is false is guilty of

(a) an indictable offence and liable to imprisonment for a term of not more than five years; or

(b) an offence punishable on summary conviction.

Defamatory Libel Known to be False – Summary Offence

If the Crown elects to proceed via summary conviction and you are convicted of defamatory libel, then you are potentially liable to a maximum sentence of two years less a day in jail or a $5,000.00 fine.

You also have available to you the option for an absolute or conditional discharge, suspended sentence, fine, fine and probation, jail and probation, jail and fine, and a conditional sentence.

Defamatory Libel Known to be False – Indictable Offence

If the Crown elects to proceed via indictment and you are convicted of defamatory libel, then you are potentially liable to a maximum sentence of 5 years in jail.

You also have available to you the option for an absolute or conditional discharge, suspended sentence, fine, fine and probation, jail and probation, jail and fine, and a conditional sentence.

s. 301 of the Criminal Code – Defamatory Libel

According to s.301 of the Criminal Code:

301 Every person who publishes a defamatory libel is guilty of

(a) an indictable offence and liable to imprisonment for a term of not more than two years; or

(b) an offence punishable on summary conviction.

Defamatory Libel – Summary Offence

If the Crown elects to proceed via summary conviction and you are convicted of defamatory libel, then you are potentially liable to a maximum sentence of two years less a day in jail or a $5,000.00 fine.

You also have available to you the option for an absolute or conditional discharge, suspended sentence, fine, fine and probation, jail and probation, jail and fine, and a conditional sentence.

Defamatory Libel – Indictable Offence

If the Crown elects to proceed via indictment and you are convicted of defamatory libel, then you are potentially liable to a maximum sentence of 2 years in jail.

You also have available to you the option for an absolute or conditional discharge, suspended sentence, fine, fine and probation, jail and probation, jail and fine, and a conditional sentence.

Frequently Asked Questions

What is an example of libel?

A man and woman go on an unsuccessful date.  Following the date, the man makes various posts on his Facebook and Twitter accounts about the woman.  Specifically, the man names the woman and falsely details that she is a drug addict and that she has sexually transmitted diseases.

In this example, there was a matter published (i.e., Facebook and Twitter posts about the woman made available online).  The matter included false statements and was done without lawful justification or excuse.  Further, the man published the matter to injure the woman’s reputation or to solely insult the woman following their unsuccessful date.

Is libel a criminal offence in Canada?

Yes, libel – formally known as defamatory libel – is a criminal offence in Canada and is covered under sections 297 to 317 of the Criminal Code of Canada.

Can I go to jail for libel in Canada?

Yes, you can go to jail for defamatory libel.  This can occur even if it is someone’s first criminal offence.

The amount of jail time can vary depending on the facts of the case, whether the Crown has chosen to proceed via summary conviction or indictment, and whether the accused was aware of the false statement before publishing the libel.

Published Decisions

R v Lucas, 123 CCC (3d) 97, [1998] 1 SCR 439

A police officer investigated various allegations of sexual abuse involving children.  The officer learned that an older child in a special care foster home was sexually assaulting his sisters.  However, the officer decided to keep all children in the same home based on the information he received from the children’s therapist.  This information later became available to several individuals who then protested outside buildings where the officer worked.  The picketed signs contained statements, such as “Did [the officer] just allow or help with the rape/sodomy of an 8-year-old?” and “If you admit it [officer] then you might get help with your touching problems.”  The Court found that the statements were published in a manner to harm the officer’s reputation and that the accused individuals had knowledge that the statements were false.

You can read the full decision here.

R v Stevens, 96 CCC (3d) 238, [1995] 4 WWR 153

The accused and the complainant were in a brief relationship.  The complainant soon ended her relationship with the accused.  The accused responded by displaying posters around the university campus where the complainant worked.  These posters detailed that the complainant was desperate, suicidal, had an abortion, and was a sex offender.  The Court found that these allegations were false and purely defamatory.  The Court convicted and sentenced the accused for defamatory libel under s.300 of the Criminal Code.

You can read the full decision here.

R v Marsden, 2019 ONSC 6424

The accused had concerns that his 15-year-old son was not being treated fairly by his teenage band.  The accused voiced these concerns to both the band manager and supervisor, who took no action to remedy the situation.  The accused then displayed several posters which alleged certain inappropriate behaviour done by the band manager and supervisor.  The Court found that, despite having an incendiary tone, the posters were clearly marked as “allegations” and were substantially accurate.  As such, the trial was quashed.

You can read the full decision here.

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Michael Oykhman is a senior lawyer and founder of Strategic Criminal Defence, a full-service criminal law firm with central law offices across Western Canada and Ontario.

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