Defamatory Libel (Offence)

Defamatory Libel
	s. 300, 301, and 302 of the Crim. Code
Election / Plea
Crown Election	Indictment;
Jurisdiction	Prov. Court; Sup. Court w/ Jury (); Sup. Court w/ Judge-alone (); * Must be indictable.
Indictable Dispositions
Avail. Disp.	Discharge (730); Suspended Sentence (731(1)(a)); Fine (734); Fine + Probation (731(1)(b)); Jail (718.3, 787); Jail + Probation (731(1)(b)); Jail + Fine (734); Conditional Sentence (742.1)
Minimum	None
Maximum	2 or 5 years incarceration
Reference
	Offence Elements; Sentence Digests;

< Criminal Law/Sentencing
< Offences

Overview

Section 300, 301, and 302 describes three offences.

Pleadings

Offence Section	Offence Type	Crown Election	Defence Election s. 536(2)	Preliminary Inquiry
s. 300 [publishing defamatory libel known to be false], s. 301 [publishing defamatory libel] s. 302 [extortion by libel]	Hybrid Offence(s)			(under 14 years max)

Offences under s. 300 [publishing defamatory libel known to be false], 301 [publishing defamatory libel], or 302 [extortion by libel] are straight indictable. There is a Defence election of Court under s. 536(2).

Release

Offence(s)	Appearance Notice by Peace Officer s. 497	Summons by Judge or Justice s. 508(1), 512(1), or 788	Release by Peace Officer on Undertaking s. 498, 499, and 501	Release By a Judge or Justice on a Release Order s. 515 to 519	Direct to Attend for Fingerprints, etc. Identification of Criminals Act s. 2 ID Crim. Act
s. 300 [publishing defamatory libel known to be false], s. 301 [publishing defamatory libel], or s. 302 [extortion by libel]	Template:ReleaseProfileAll

When charged under s. 300 [publishing defamatory libel known to be false], 301 [publishing defamatory libel], and 302 [extortion by libel] , the accused can be given an appearance notice without arrest under s. 497 or a summons. If arrested, he can be released by the arresting officer under s. 498 or 499 on an undertaking with or without conditions. He can also be released by a justice under s. 515.

Reverse Onus Bail

If police decide to bring the accused before a Justice pursuant to s. 503, there will be a presumption against bail (i.e. a reverse onus) if the offence, prosecuted by indictment, was committed:

while at large under s. 515 [bail release], 679 or 680 [release pending appeal or review of appeal] (s. 515(6)(a)(i));
"for the benefit of, at the direction of, or in association" with a criminal organization (s. 515(6)(a)(ii));
where the offence involved a weapon, being a firearm, cross-bow, prohibited weapon restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance, while the accused was subject to a prohibition order preventing possession of these items (s. 515(6)(a)(viii)); or
where the accused is not "ordinarily a resident in Canada" (s. 515(6)(b)).

And, regardless of Crown election, if the offence alleged was one:

where the offence was an allegation of violence against an "intimate partner" and the accused had been previously convicted of an offence of violence against an "intimate partner" (s. 515(6)(b.1));
where the offence alleged is a breach under s. 145(2) to (5) while (s. 515(6)(c));
where the offence committed (or conspired to commit) was an offence under s. 5 to 7 of the CDSA that is punishable by life imprisonment (s. 515(6)(d));

Fingeprints and Photos

A peace officer who charges a person under s. 300 [publishing defamatory libel known to be false], 301 [publishing defamatory libel], and 302 [extortion by libel] of the Code can require that person to attend for the taking of fingerprints, photographs or other similar recordings that are used to identify them under the Identification of Criminals Act.

Publication Bans

For all criminal or regulatory prosecutions, there is a discretionary general publication ban available on application of the Crown, victim or witness to prohibit the publishing of "any information that could identify the victim or witness" under s. 486.5(1) where it is "necessary" for the "proper administration of justice". Other available publication bans include prohibitions for publishing evidence or other information arising from a bail hearing (s. 517), preliminary inquiry (s. 539) or jury trial (s. 648). There is a mandatory publication ban in all youth prosecutions on information tending to identify young accused under s. 110 of the YCJA or young victims under s. 111 of the YCJA.

Offence Designations

Offence(s)	Wiretap Eligible s. 183	Dangerous Offender Designated Offence s. 752	Serious Personal Injury Offence s. 752	AG Consent Required	Serious Criminality Offence s. 36 IRPA
s. 300 [publishing defamatory libel known to be false], s. 301 [publishing defamatory libel], and s. 302 [extortion by libel]			(under 10 years max)

See below in Ancillary Sentencing Orders for details on designations relating to sentencing orders.

Offence Wording

Defamatory Libel

...

Punishment of libel known to be false

300 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.

R.S., 1985, c. C-46, s. 300; 2019, c. 25, s. 118.

– CCC

Punishment for defamatory libel

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.

R.S., 1985, c. C-46, s. 301; 2019, c. 25, s. 118.

– CCC

Prior to September 19, 2019, s. 301 read:

~~Punishment for defamatory libel~~

~~301. Every one who publishes a defamatory libel is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years.~~*
R.S., c. C-34, s. 265.
* found unconstitutional, see below

– CCC

Extortion by libel

302 (1) Every one commits an offence who, with intent

(a) to extort money from any person, or

(b) to induce a person to confer on or procure for another person an appointment or office of profit or trust,

publishes or threatens to publish or offers to abstain from publishing or to prevent the publication of a defamatory libel.

Idem

(2) Every one commits an offence who, as the result of the refusal of any person to permit money to be extorted or to confer or procure an appointment or office of profit or trust, publishes or threatens to publish a defamatory libel.

Punishment

(3) Every person who commits an offence under this section 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.

R.S., 1985, c. C-46, s. 302; 2019, c. 25, s. 119.

– CCC

Draft Form of Charges

See also: Draft Form of Charges

		Pre-ambles
		"THAT [accused full name] stands charged that, between the <DATE> day of <MONTH>, <YEAR> and <DATE> day of <MONTH>, <YEAR>***, at or near <COMMUNITY/TOWN/CITY>, <PROVINCE>, he [or she]..." OR
		"THAT [accused full name] stands charged that, on or about the <DATE> day of <MONTH>, <YEAR>, at or near <COMMUNITY/TOWN/CITY>, <PROVINCE>, he [or she]..." OR
		"AND FURTHER at the same time and place aforesaid, he [or she]..."
Code Section	Subject of Offence	Draft Wording
		"..., contrary to section XXX of the Criminal Code.

Proof of the Offence

There are three offences relating to Defamatory Libel.

Proving publishing defamatory libel known to be false under s. 300 should include: ☐ identity of accused as culprit ☐ date and time of the incident ☐ jurisdiction (incl. region and province) ☐ the culprit publishes materials ☐ the materials amounted to defamatory libel ☐ the culprit knows the materials is false	Proving extortion by libel under s. 302 should include: ☐ identity of the accused as the culprit ☐ the jurisdiction of the incident ☐ the time and date of the incident ☐ the culprit does any one of the prohibited conduct: ☐ publishes, ☐ threatens to publish, ☐ offers to abstain from publishing, or ☐ offers to prevent the publishing ☐ the subject matter of publishing is defamatory libel ☐ the culprit intended to either ☐ extort money from any person or ☐ induce the person to confer on or procure for another person an appointment or office of profit or trust.

Interpretation of the Offence

Mens rea

The offence under s. 300 is a specific intent offence that requires knowledge of falsity and intention to defame.^[1]

Constitutionality

The offence of publishing defamatory libel under s. 301 is of no force and effect as it violates s. 2 of the Charter is not savable under s. 1 of the Charter.^[2]

Section 300 is constitutional.^[3]

↑ R v Stevens (1993), 82 CCC (3d) 97, 1993 CanLII 14706 (MB PC), per Giesbrecht J
R v Lucas, [1998] 1 SCR 439, 1998 CanLII 815 (SCC), per Cory J
↑ R v Lucas, 1995 CanLII 6024 (SK QB), (1995) 129 Sask R 53 (QB), per Hrbainsky J
R v Byron Prior, 2008 NLTD 80 (CanLII), per Hoegg J
R v Gill, 1996 CanLII 8147 (ON SC), 1996 CarswellOnt 1314 (Gen. Div.), per Lally J
↑ Lucas (SCC), supra
R v Stevens, 1995 CanLII 5594 (MB CA), per Scott CJ

Extortion

See "extortion" as defined in s. 346 (extortion).

Defamatory Libel defined

Definition

298. (1) 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.
Mode of expression
(2) A 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.

R.S., c. C-34, s. 262.

– CCC

Publishing defined

Publishing

299 A person publishes a libel when he

(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.

R.S., 1985, c. C-46, s. 299; 2018, c. 29, s. 31.

– CCC

Definition of Newspaper

Definition of newspaper

297 In sections 303 [proprietor and manager responsible], 304 [selling book containing defamatory libel] and 308 [fair report of public meeting], "newspaper" means any paper, magazine or periodical containing public news, intelligence or reports of events, or any remarks or observations thereon, printed for sale and published periodically or in parts or numbers, at intervals not exceeding thirty-one days between the publication of any two such papers, parts or numbers, and any paper, magazine or periodical printed in order to be dispersed and made public, weekly or more often, or at intervals not exceeding thirty-one days, that contains advertisements, exclusively or principally.
R.S., c. C-34, s. 261.
[annotation(s) added]

– CCC

Presumption Responsibility

Proprietor of newspaper presumed responsible

303 (1) The proprietor of a newspaper shall be deemed to publish defamatory matter that is inserted and published therein, unless he proves that the defamatory matter was inserted in the newspaper without his knowledge and without negligence on his part.

General authority to manager when negligence

(2) Where the proprietor of a newspaper gives to a person general authority to manage or conduct the newspaper as editor or otherwise, the insertion by that person of defamatory matter in the newspaper shall, for the purposes of subsection (1) [proprietor of newspaper presumed responsible], be deemed not to be negligence on the part of the proprietor unless it is proved that

(a) he intended the general authority to include authority to insert defamatory matter in the newspaper; or

(b) he continued to confer general authority after he knew that it had been exercised by the insertion of defamatory matter in the newspaper.

Selling newspapers

(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.
R.S., c. C-34, s. 267.
[annotation(s) added]

– CCC

Special Plea for Offence

Section 607(2) states:

607...

In case of libel

(2) An accused who is charged with defamatory libel may plead in accordance with sections 611 [plea of justification] and 612 [when plea of justification is necessary].
...
R.S., 1985, c. C-46, s. 607; R.S., 1985, c. 27 (1st Supp.), s. 126, c. 30 (3rd Supp.), s. 2, c. 1 (4th Supp.), s. 18(F); 1992, c. 1, s. 60(F); 1995, c. 22, s. 10; 2000, c. 24, s. 45; 2013, c. 13, s. 9; 2018, c. 11, s. 29.
[annotation(s) added]

– CCC

Libel, plea of justification

611 (1) An accused who is charged with publishing a defamatory libel may plead that the defamatory matter published by him was true, and that it was for the public benefit that the matter should have been published in the manner in which and at the time when it was published.

Where more than one sense alleged

(2) A plea that is made under subsection (1) [plea of justification in libel charge] may justify the defamatory matter in any sense in which it is specified in the count, or in the sense that the defamatory matter bears without being specified, or separate pleas justifying the defamatory matter in each sense may be pleaded separately to each count as if two libels had been charged in separate counts.

Plea in writing

(3) A plea that is made under subsection (1) [plea of justification in libel charge] shall be in writing and shall set out the particular facts by reason of which it is alleged to have been for the public good that the matter should have been published.

Reply

(4) The prosecutor may in his reply deny generally the truth of a plea that is made under this section.
R.S., c. C-34, s. 539.
[annotation(s) added]

– CCC

Plea of justification necessary

612 (1) The truth of the matters charged in an alleged libel shall not be inquired into in the absence of a plea of justification under section 611 unless the accused is charged with publishing the libel knowing it to be false, in which case evidence of the truth may be given to negative the allegation that the accused knew that the libel was false.

Not guilty, in addition

(2) The accused may, in addition to a plea that is made under section 611, plead not guilty and the pleas shall be inquired into together.

Effect of plea on punishment

(3) Where a plea of justification is pleaded and the accused is convicted, the court may, in pronouncing sentence, consider whether the guilt of the accused is aggravated or mitigated by the plea.
R.S., c. C-34, s. 540.

– CCC

Special Requirements on Counts

Special Provisions respecting Counts

Sufficiency of count charging libel

584 (1) No count for publishing a seditious or defamatory libel, or for selling or exhibiting an obscene book, pamphlet, newspaper or other written matter, is insufficient by reason only that it does not set out the words that are alleged to be libellous or the writing that is alleged to be obscene.

Specifying sense

(2) A count for publishing a libel may charge that the published matter was written in a sense that by innuendo made the publication thereof criminal, and may specify that sense without any introductory assertion to show how the matter was written in that sense.

Proof

(3) It is sufficient, on the trial of a count for publishing a libel, to prove that the matter published was libellous, with or without innuendo.
R.S., 1985, c. C-46, s. 584; 2018, c. 29, s. 64.

– CCC

Sufficiency of count relating to fraud

586 No count that alleges false pretences, fraud or any attempt or conspiracy by fraudulent means is insufficient by reason only that it does not set out in detail the nature of the false pretence, fraud or fraudulent means.
R.S., c. C-34, s. 515.

– CCC

Special Verdicts

Verdicts in cases of defamatory libel

317 Where, on the trial of an indictment for publishing a defamatory libel, a plea of not guilty is pleaded, the jury that is sworn to try the issue may give a general verdict of guilty or not guilty on the whole matter put in issue on the indictment, and shall not be required or directed by the judge to find the defendant guilty merely on proof of publication by the defendant of the alleged defamatory libel, and of the sense ascribed thereto in the indictment, but the judge may, in his discretion, give a direction or opinion to the jury on the matter in issue as in other criminal proceedings, and the jury may, on the issue, find a special verdict.
R.S., c. C-34, s. 281.

– CCC

Defences

Defamatory Libel Defences

Principles and Factors of Sentencing

Maximum Penalties

Offence(s)	Crown Election	Maximum Penalty
s. 300 [publishing defamatory libel known to be false]	N/A	5 years incarceration
s. 302 [extortion by libel]	N/A	2 years incarceration

Offences under s. 300, 301 and 302 are straight indictable. The maximum penalty is 5 years incarceration for s. 300 and 302 and 2 years incarceration for s. 301.

Minimum Penalties

These offences have no mandatory minimum penalties.

Available Dispositions

Offence(s)	Crown Election	Discharge s. 730	Suspended Sentence s. 731(1)(a)	Stand-alone Fine s. 731(1)(b)	Custody s. 718.3, 787	Custody and Probation s. 731(1)(b)	Custody and Fine s. 734	Conditional Sentence (CSO) s. 742.1
s. 300 [publishing defamatory libel known to be false], 301 [publishing defamatory libel], 302 [extortion by libel]	N/A

All dispositions are available.The judge may order a discharge (s. 730), suspended sentence (s. 731(1)(a)), fine (s. 731(1)(b)), custody (s. 718.3, 787), custody with probation (s. 731(1)(b)), custody with a fine (s. 734), or a conditional sentence (s. 742.1).

Consecutive Sentences

There are no statutory requirements that the sentences be consecutive.

Costs

Costs to successful party in case of libel

751. The person in whose favour judgment is given in proceedings by indictment for defamatory libel is entitled to recover from the opposite party costs in a reasonable amount to be fixed by order of the court.
R.S., 1985, c. C-46, s. 751; 1995, c. 22, s. 6.

– CCC

How recovered

751.1 Where costs that are fixed under section 751 are not paid forthwith, the party in whose favour judgment is given may enter judgment for the amount of the costs by filing the order in any civil court of the province in which the trial was held that has jurisdiction to enter a judgment for that amount, and that judgment is enforceable against the opposite party in the same manner as if it were a judgment rendered against that opposite party in that court in civil proceedings. 1995, c. 22, s. 6.

– CCC

Principles

Ranges

see also: Defamatory Libel (Sentencing Cases)

Damages Orders

Miscellaneous Provisions

Costs to successful party in case of libel

751 The person in whose favour judgment is given in proceedings by indictment for defamatory libel is entitled to recover from the opposite party costs in a reasonable amount to be fixed by order of the court.
R.S., 1985, c. C-46, s. 751; 1995, c. 22, s. 6.

– CCC

How recovered

751.1 Where costs that are fixed under section 751 are not paid forthwith, the party in whose favour judgment is given may enter judgment for the amount of the costs by filing the order in any civil court of the province in which the trial was held that has jurisdiction to enter a judgment for that amount, and that judgment is enforceable against the opposite party in the same manner as if it were a judgment rendered against that opposite party in that court in civil proceedings.
1995, c. 22, s. 6.

– CCC

Ancillary Sentencing Orders

See also: Ancillary Orders

Offence-specific Orders

Order	Conviction	Description
DNA Orders	s. 300 or 302	For conviction under s. 300 or 302, a DNA order is discretionary as a secondary designated offence listed under s. 487.04 (a) or (b).

General Sentencing Orders

Order	Conviction	Description
Non-communication order while offender in custody (s. 743.21)	any	The judge has the discretion to order that the offender be prohibited "from communicating...with any victim, witness or other person" while in custody except where the judge "considers [it] necessary" to communicate with them.
Restitution Orders (s. 738)	any	A discretionary Order is available for things such as the replacement value of the property; the pecuniary damages incurred from harm, expenses fleeing a domestic partner; or certain expenses arising from the commission of an offence under s.402.2 or 403.
Victim Fine Surcharge (s. 737)	any	A discretionary surcharge under s. 737 of 30% of any fine order imposed, $100 per summary conviction or $200 per indictable conviction. If the offence occurs on or after October 23, 2013, the order has smaller minimum amounts (15%, $50, or $100).

General Forfeiture Orders

Forfeiture	Conviction	Description
Forfeiture of Proceeds of Crime (s. 462.37(1) or (2.01))	any	Where there is a finding of guilt for an indictable offence under the Code or the CDSA in which property is "proceeds of crime" and offence was "committed in relation to that property", the property shall be forfeited to His Majesty the King on application of the Crown. NB: does not* apply to summary offences*.
Fine in Lieu of Forfeiture (s. 462.37(3))	any	Where a Court is satisfied an order for the forfeiture of proceeds of crime under s. 462.37(1) or (2.01) can be made, but that property cannot be "made subject to an order", then the Court "may" order a fine in "an amount equal to the value of the property". Failure to pay the fine will result in a default judgement imposing a period of incarceration.
Forfeiture of Weapons or Firearms (s. 491)	any	Where there is finding of guilt for an offence where a "weapon, an imitation firearm, a prohibited device, any ammunition, any prohibited ammunition or an explosive substance was used in the commission of [the] offence and that thing has been seized and detained", or "that a person has committed an offence that involves, or the subject-matter of which is, a firearm, a cross-bow, a prohibited weapon, a restricted weapon, a prohibited device, ammunition, prohibited ammunition or an explosive substance has been seized and detained, that the item be an enumerated weapon or related item be connected to the offence", then there will be a mandatory forfeiture order. However, under s. 491(2), if the lawful owner "was not a party to the offence" and the judge has "no reasonable grounds to believe that the thing would or might be used in the commission of an offence", then it should be returned to the lawful owner.
Forfeiture of Offence-related Property (s. 490.1)	any	Where there is a finding of guilt for an indictable offence, "any property is offence-related property" where (a) by means or in respect of which an indictable offence under this Act or the Corruption of Foreign Public Officials Act is committed, (b) that is used in any manner in connection with the commission of such an offence, or (c) that is intended to be used for committing such an offence". Such property is to be forfeited to Her Majesty in right of the province. NB: does not* apply to summary offences*.

Record Suspensions and Pardons

Convictions under s. 300, 301, and 302 are eligible for record suspensions pursuant to s. 3 and 4 of the Criminal Records Act after 5 years after the expiration of sentence for summary conviction offences and 10 years after the expiration of sentence for all other offences. The offender may not have the record suspended where the offender was (1) convicted of 3 or more offences with a maximum penalty of life, and (2) for each 3 offences he "was sentenced to imprisonment for two years or more".