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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 35 LeBlanc's case, in particular, caused a stir of controversy. The Crown, after obtaining an external legal opinion, con- cluded s. 301 would inevitably be declared unconstitutional and dropped the charg- es. The City of Fredericton ordered an independent review into the matter. While many of MacKinnon's com- ments could be construed as defamatory in a civil court, her posts were consider- ably tamer than what most other people charged with s. 301 have said. Many of the alleged defamatory remarks of other defendants had to do with false allega- tions of rape and other forms of sexual impropriety. And yet, even in cases where people allegedly engaged in egregious forms of defamation, s. 301 has been ruled unconstitutional. Lorne Honickman, a defamation law- yer with Brauti Thorning Zibarras LLP, points out state actors aren't prohibited from suing for defamation in civil court. "Politicians, government officials, they have the same access to the world of defamation law as anyone else," he says. The civil tort of defamation has expanded considerably over the years, both for plaintiffs and defendants, while criminal defamation has remained static for over a century. Honickman notes that the defence of fair comment, which deals in issues of public interest, isn't available to criminal defendants. "What more would ever fall into the category of public inter- est than issues dealing with government officials or actors?" says Honickman. "If you were to write the Criminal Code today, would you ensure that you includ- ed a section dealing with criminalization of defamation? You wouldn't." The law seems unlikely to change, how- ever. Despite calls from certain corners of the bar, the government is unlikely to do a comprehensive review of the Criminal Code to remove antiquated provisions such as defamatory or blasphemous libel. And even while lower courts declare the law unconstitutional, the Crown has demonstrated an unwillingness to appeal when it comes to s. 301, so it's unlikely to make it to higher courts. If, somehow, s. 301 did make it to the Supreme Court of Canada, it almost certainly would be struck down. The reasoning that most lower-court judges have relied on in declaring s. 301 unconstitutional comes from Chief Justice Beverley McLachlin's 1992 ruling in R. v. Zundel. "A law which forbids expression of a minority or 'false' view on pain of criminal prosecution and imprisonment, on its face, offends the purpose of the guarantee of free expres- sion," wrote McLachlin. But if s. 301 is to be taken to the Supreme Court of Canada, MacKinnon is unlikely to be the one to do it. She has decided to fight the charge this time, but due to the costs she incurred the last time she was charged, MacKinnon has decided to not retain counsel, at least for now. She's had three hearings so far, and at one of them, the duty counsel provided by the Crown was one of the people she was alleged to have defamed. "It's mind- boggling," she says. "I don't even know how they can trick themselves into thinking any of this is being done right." LeBlanc's case, in particular, caused a stir of controversy. The Crown, after declaring s. 301 unconstitutional comes from Chief Justice Beverley McLachlin's 1992 ruling in R. v. Zundel. "A law which forbids expression of a minority or 'false' has decided to fight the charge this time, but due to the costs she incurred the last time she was charged, MacKinnon has decided to not retain counsel, at least for now. She's had three hearings so far, and TIME: EVENT: 12-month, part-time, executive LL.M. for lawyers and business professionals Advance your career to the next level! Learn important legal and business concepts that can be immediately applied to better serve your clients. Explore the implications of real-life cases in an increasingly complex global business environment. Acquire in-depth knowledge of how the law interacts with both the private and public sectors. For more information please contact Jane Kidner, Assistant Dean Professional Legal Education at j.kidner@utoronto.ca http://www.law.utoronto.ca/programs/GPLLM.html or visit our website: ntitled-3 1 14-08-07 2:58 PM

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