Canadian Lawyer

34 O c t O b e r 2 0 1 4 w w w . C A N A D I A N L a w y e r m a g . c o m believed to be corruption in local govern- ment, even naming the individuals she had allegedly defamed, all postings must be "civil and temperate." MacKinnon returned to posting on Facebook, but her comments became much less political in nature. Before her criminal charges, she was publishing lengthy comments about town hall about once a week, this slowed to around once every few months during her probation. The comments she had made in the past were often personal in nature. Some could be described as mean-spirited, while oth- ers were specific allegations of improper behaviour. These all slowed to a crawl after 2012. But one of the few comments she did make, an almost offhand remark on a BC Civil Liberties Association story, referred to the prosecutor who she had been charged with defaming as a "pet kangaroo." That was enough to land her in jail and she was, for the second time, charged under s. 301, along with a breach of probation charge. While MacKinnon is likely the only person in recent Canadian history to be charged twice with this obscure criminal provision, her case is typical in at least one way — one of the people she allegedly defamed was involved with the criminal justice system. "Most of the reported cases that I've seen, there's some sort of connec- tion to the criminal justice system," says Cara Zwibel, director of the fundamental freedoms program for the Canadian Civil Liberties Association. "I'm not sure why, but my guess is that if I were to walk into the police station and report that someone had libeled me, they would tell me to sue them." In fact, almost every case of s. 301 being brought up in the Charter era has to do with an agent of the Crown. Dan Scully, a lawyer in Kingston, Ont., worked on one of those cases. In 1996, two men, Bradley Waugh and Ravin Gill, were charged under s. 301 for putting up fake "wanted" posters of Kingston Penitentiary guards after a man was killed in custody. "If they hadn't been correc- tions officers, I don't think we would have seen charges," says Scully. "Really they were being prosecuted for defam- ing agents of the Crown." The Canadian Civil Liberties Association intervened and Justice Thomas Lally ruled in favour of the accused and declared s. 301 uncon- stitutional. For the last 20 years, Scully hasn't seen another case involving s. 301. "But I would bet if I do, it would be because a police officer, a corrections officer, or a Crown attorney who has been defamed." In case after case, this pattern has played out. In R. v. Lucas, John and Johanna Lucas were accused of defaming a Saskatchewan police officer. In 2002, Stephen Charles Osborne was charged with defaming a New Brunswick judge. For Byron Prior in 2008, it was a Newfoundland police offi- cer. For Dan Keller in 2011, the accuser was an undercover Ontario police officer. Charles LeBlanc was arrested for allegedly defaming a Fredericton police officer in 2011. In all of the cases that went to trial, s. 301 was declared unconstitutional. Keller and LeBlanc both had charges against them dropped. If you were to write the Criminal Code today, would you ensure that you included a section dealing with criminalization of defamation? You wouldn't. Lorne Honickman, Brauti Thorning Zibarras LLP Introducing the new CriminalSource ™ on WestlawNext ® Canada. Nothing else compares. The new CriminalSource™ is home to Canada's largest collection of case law, annotations, and commentary from criminal law experts – all presented to you in every search. So you spend less time searching and more time finding. • Never miss a case using the unmatched collection of reported and unreported Criminal and related cases exclusive to CriminalSource™ – including the Canadian Criminal Cases (the CCCs) • Get relevant Criminal Law expert insight and analysis in minutes to help you interpret the law – and build a legal strategy in less time and with more confidence • Link directly from any section of the Criminal Code to detailed commentary and annotations from Canada's leading criminal law experts – including Martin's Annotated Criminal Code, Martin's Annotated Related Criminal Statutes, Tremeear's Annotated Criminal Code and Tremeear's Annotated Related Criminal Statutes With so much at stake, every case deserves the best research. See for yourself. Watch a demo at westlawnextcanada.com/criminalsource Call 1-866-609-5811 00223AX-A46862

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