Canadian Lawyer

w w w . C A N A D I A N L a w y e r m a g . c o m O c t O b e r 2 0 1 4 33 I n 2011, an RCMP officer called Karen MacKinnon at her home in Drumheller, Alta. and asked her to come into the station for an interview. He wanted to talk to her about comments she had made on Facebook. She was wary at first, but agreed to meet with him and drove down to the station in her truck. 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 print- ed 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 jus- tice 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 reason- able 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 prec- edents 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 deter- mine 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 defa- mation 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 constitution- ality 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 speech I n 2011, an RCMP officer called Karen MacKinnon at her home in Drumheller, Alta. and asked her to come into the station for an interview. He wanted to talk to her about comments she had made on Facebook. She was wary at first, but agreed to meet with him and drove down to the station in her truck. 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

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