Why some experts say a law created to prevent duelling is a threat to free speech


When a Winnipeg man plastered posters around the University of Manitoba campus in 1991 that claimed his ex was overweight, balding and suicidal, he may not have realized he was breaking a law older than Canada's Criminal Code.

But he was, as a Court of Appeal judge who upheld the man's conviction wrote in his decision. Specifically, the judge said, the Winnipeg man had broken a defamatory-libel law in Canada that had "essentially remained unchanged" since it was first written in 1843, before being enshrined in the country's first Criminal Code in 1892.

Though Canada's criminal law on libel — publishing a defamatory statement about someone — has come to be seen by many in the legal community as something of a relic, its use appears to be on the rise.

And that may present challenges to free expression, some experts warn.

While most libel cases are tackled by lawsuits in civil courts instead of criminal trials, the charge has remained on the books, and was upheld as constitutional in a 1998 Supreme Court decision.

That decision also observed the charge was originally created to prevent duels, and lumped it in with other "rarely invoked" charges like theft from oyster beds and high treason.

But Lisa Taylor, a lawyer-turned-researcher at Ryerson University's School of Journalism and Centre for Free Expression, says the charge is making a mini comeback.