Sometimes, the squeaky wheel gets the grease; sometimes, it gets removed. Karen MacKinnon, a former Drumheller, Alta., town councillor, knows this from experience.
On March 25, 2011, MacKinnon was charged with defamatory libel under section 301 of the Criminal Code after she posted on Facebook that two prominent members of her southern Alberta community, including a town official, were "repulsive, corrupted, lying, thieving, deviant bastards both." Although the comment was almost tame by the standard of much social media political commentary, the Crown thought it sufficient to charge her with a criminal offence.
Here’s why it happened.
During her time as a town councillor, MacKinnon noticed what appeared to her to be some costly problems with the town’s administration. For example, staff was permitted to bank vacation time indefinitely, incurring an accrued liability of nearly $600,000 for the municipality. An auditor called it a "grave liability" that could cripple the town, yet MacKinnon’s efforts to discuss the matter and institute a use-it-or-lose-it vacation time policy were rebuffed.
From time to time, other matters would arise that caused MacKinnon concern, including inexplicable secrecy over a $75-million overland water pipeline between Drumheller and Balzac. After voicing concerns about a number of issues, MacKinnon was summarily disqualified from serving on council in 2007, on the basis of what she believes to have been incomplete legal advice.
MacKinnon was understandably devastated. With the next municipal election just weeks away and her reputation badly damaged, she had no chance of mounting a successful re-election campaign. Yet she refused to go away quietly. She continued her public service by becoming an outspoken critic of the town’s administration, including in colourfully candid language on social media.
After the police knocked on her door that March day and ultimately tossed her in jail for her Facebook comment, a deflated MacKinnon, afraid of going to trial, and risking a prison sentence and criminal record, agreed to remain "civil and temperate" while using social media, which was later adopted into a provincial court order.
Unbeknownst to MacKinnon at the time, the law under which she was charged had been declared unconstitutional in Alberta almost 20 years earlier. Section 301 of the Criminal Code reads: "Every one who publishes a defamatory libel is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years." Under section 301, even truthful comments can be defamatory and, unlike the common law tort of defamation, it can result in a criminal conviction.
Clearly, the Crown should have known it was charging MacKinnon with an unconstitutional offence. It takes about a minute of online legal research or reading the notes to the annotated Criminal Code to discover this. One would also have hoped the court would have known, too. In fact, at the time she was charged, the superior courts of three other provinces — Saskatchewan, Ontario and Newfoundland and Labrador — had also declared section 301 unconstitutional. Since 2011, the New Brunswick Court of Queen’s Bench has joined them.
Curiously, none of those five decisions was appealed by the Crown, and so the Supreme Court of Canada has not had an opportunity to provide national certainty on the constitutionality of this speech-restricting criminal law. This means the Crown will still occasionally bring charges under section 301 — although only ever to shield public officials such as politicians and police from criticism, never average private citizens.
Last week, MacKinnon asked the Supreme Court of Canada to review her case and strike down section 301 nationally, once and for all.
If the court takes the case, as it should, her colourful Facebook comments will have done every Canadian a service by ensuring that no one else has his or her speech rights restricted based on this unconstitutional law.
Derek James From is a lawyer with the Canadian Constitution Foundation in Calgary.
— Troy Media