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David Pritchard is a professor at the University of Wisconsin-Milwaukee. Lisa Taylor is an assistant professor in the School of Journalism at Ryerson University and a Senior Fellow of Ryerson’s Centre for Free Expression

Twenty years ago this month, the Supreme Court of Canada upheld the convictions of a Saskatoon couple, John and Johanna Lucas, who were charged with criminal defamatory libel for carrying placards featuring messages harshly critical of a police officer. The case represents the Court’s sole assessment of a law that criminalizes the sort of speech that is ordinarily dealt with in civil courts.

Defamatory libel is civil defamation’s decidedly more brutish cousin: rather than paying monetary damages, its transgressors can be incarcerated for up to five years. Despite its draconian penalties, there’s a good chance you’ve never heard of defamatory libel, in large measure because most Canadian legal experts operate under the false assumption that criminal libel is a legal relic. Until relatively recently, that was true — a 1984 report of the Law Reform Commission, which unsuccessfully recommended abolishing the charge, concluded that “defamatory libel is rarely prosecuted,” a conclusion based on data that showed an average of about three criminal-libel prosecutions a year.

Recently, however, we undertook a study of criminal-libel cases and concluded that, while it’s flown beneath the radar of most experts, criminal libel is enjoying a troubling resurgence in Canada. Our research, which will be published in Communication Law and Policy, a scholarly journal, resulted in several interesting findings. The first is that criminal libel is far more common than anyone has realized: There were more than 400 completed prosecutions in the first 16 years of this century.

Another interesting finding is that criminal-libel cases fall into two distinct categories. First, there is cyber-smearing, in which almost all victims are women defamed by men whose romantic interests they have rejected. Victims are often portrayed as being sexually indiscriminate, eager to engage in group sex or interested in bestiality. This is slut-shaming, a centuries-old misogynistic practice made exponentially more powerful by social media.

While the slut-shaming cases are personal, the second category of cases is political in the sense that the allegedly defamatory comments criticize official actions of government employees, mostly police officers or judges, accusing them of misconduct. Police and prosecutors throughout Canada have used criminal libel to punish people whose only sin has been to employ harsh language and/or personal invective in commenting on matters of public importance.

In 1994, for example, two activists made six “Wanted” posters, one for each of the prison guards who had been charged with manslaughter in connection with the death of an Ontario prison inmate. The posters said the guards were “wanted in connection with the kidnap, torture and killing” of the inmate. And in 2009, a man from a Quebec village whose house had been entered illegally by a police officer spray-painted the officer’s name and the words “fat cow” and “bitch” on a large boulder. (The officer was suspended without pay for five days because of the illegal entry.)

In theory, Canadians enjoy the constitutional right to criticize government and public officials, but in reality, there is considerable evidence that police use criminal libel to punish critics for disrespect and dissent. Our review of threatened and actual prosecutions in Canada shows that allegations of criminal libel are used to justify harassment of various kinds at the hands of law enforcement. Intrusive searches and seizures of computers, cellphones and other personal technology by police, for example, not only compromise privacy but also limit citizens’ ability to communicate. In short, the process of being investigated for criminal libel is significant punishment, even if no charges are filed or if charges are filed but later withdrawn.

In R v Lucas, the case in which the Supreme Court upheld the constitutionality of criminal libel, a police officer failed to take action to prevent a boy who was taken into in foster care at age eight from sexually assaulting his younger sisters, who were also in care. During repeated interviews with the children, Sergeant Brian Dueck and a social worker described the boy’s actions as a “touching problem.” Complaints about the officer’s inaction were made to all levels of government, but to no avail. Frustrated by the failure of the complaints, the Lucases were charged after picketing the Saskatoon police headquarters, carrying signs reading, “Did Dueck just allow or help with the rape/sodomy of an 8 year old?” and “If you admit it Dueck you might get help with your touching problem.” While the Lucases’ words were harsh, the essence of their criticism was true – in a related 2003 malicious prosecution lawsuit, a judge characterized Dueck’s inaction as “reprehensible.”

Courts in a free and democratic society should not permit legal action to be initiated when its principal goal is to stifle constitutionally protected expression. Specifically, criminal-libel charges should never be brought against critics of the official actions of public employees. Instead, those who hold public positions of power should accept that criticism – including commentary that is crude and hyperbolic – comes with the territory, and simply grow a thick skin.

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