Canada Defamation Laws: Civil, Criminal & Defences

Defamation in Canada is mainly a civil matter, governed by common law in the nine common law provinces and territories and by the Civil Code in Quebec. A rarely used criminal offence of defamatory libel also exists under sections 298 to 301 of the Criminal Code.

Is defamation a crime in Canada?

Defamation in Canada is primarily civil, but a criminal offence does exist and is rarely used. Sections 298 to 301 of the Criminal Code create the offence of defamatory libel. Section 298 defines a defamatory libel as matter published, without lawful justification or excuse, that is likely to injure the reputation of a person by exposing them to hatred, contempt or ridicule. Section 300 makes publishing a defamatory libel known to be false an indictable offence punishable by imprisonment for up to five years, while section 301 created a broader offence not requiring knowledge of falsity. In R v Lucas (1998), the Supreme Court of Canada upheld section 300. Section 301 has been held unconstitutional in at least one province (a Saskatchewan trial decision that went unappealed), and its constitutionality is widely questioned elsewhere, though a uniform national ruling does not exist. In practice, almost all defamation matters are pursued as civil lawsuits.

What counts as defamation in the common law provinces?

In the common law provinces and territories, defamation is a tort covering both libel (in permanent form such as writing) and slander (spoken). A plaintiff must show three things: that the words were defamatory, meaning they tend to lower the plaintiff's reputation in the eyes of a reasonable person; that the words referred to the plaintiff; and that the words were published to at least one other person. Once those elements are shown, the law presumes the statement is false and presumes that damage occurred, so the plaintiff does not have to prove falsity or actual loss to establish the claim. The burden then shifts to the defendant to raise a defence. Statements can be defamatory by direct meaning or by innuendo, and corporations as well as individuals can sue to protect reputation.

How is defamation treated in Quebec?

Watch out: Quebec follows civil law, not common law, so there is no separate tort of defamation. Instead, defamation is treated as a form of civil liability under article 1457 of the Civil Code of Quebec. Article 3 of the Civil Code recognises every person's right to the respect of their reputation. To succeed, a plaintiff must prove the three classic elements of civil liability: a fault, an injury (harm to reputation), and a causal connection between the two. Because the focus is on fault rather than falsity, Quebec courts have held that even communicating true information can be a fault if done maliciously or in a way that a reasonable person would not, and that publishing false information is not automatically a fault. This makes the Quebec analysis distinct from the common law model used elsewhere in Canada.

What defences are available?

In the common law provinces, defendants can rely on several established defences.

In Grant v Torstar Corp (2009 SCC 61), the Supreme Court of Canada recognised the defence of responsible communication on matters of public interest. A court assesses factors such as the seriousness of the allegation, its public importance, the urgency, the reliability of sources, and whether the plaintiff's side was sought and fairly reported. In Quebec, the equivalent question is whether the defendant committed a fault, so good faith and reasonable conduct are central.

What damages and remedies apply?

A successful civil plaintiff can recover general damages for harm to reputation, and the law presumes some damage in libel and serious slander cases. Courts may also award special damages for proven financial loss, aggravated damages where the defendant's conduct increased the harm, and punitive damages where conduct was malicious or high handed. Injunctions to stop continued or repeated publication may be granted, though courts are cautious about restraining speech before trial. Damages are assessed by the court, and in Canada there is no general statutory cap on defamation damages of the kind used for some other torts, although awards are shaped by case law. In Quebec, compensation flows from the general rules of civil liability for the injury caused, including moral injury to reputation.

What are the limitation periods and how are claims brought online?

Limitation periods are set by each province rather than federally, and most common-law provinces apply a general limitation period of around two years running from when the plaintiff discovered or ought to have discovered the claim, with a minority (including Prince Edward Island and Newfoundland and Labrador) running from publication. Provincial Libel and Slander Acts impose shorter requirements for libel in newspapers or broadcasts, including notice periods that range from six weeks in Ontario to three months in most other notice-requiring provinces, and tight time limits for starting an action, so deadlines can be very short for media claims. For online defamation, ordinary defamation principles apply to social media posts, reviews and websites. In Crookes v Newton (2011 SCC 47), the Supreme Court held that posting a hyperlink to defamatory material is not, by itself, publication of that material, though repeating the defamatory words is. Intermediaries may rely on an innocent dissemination defence where they had no knowledge of the libel and were not negligent.

How do you sue for defamation in Canada?

A civil defamation claim is started in the superior court (or in some cases a provincial court) of the relevant province or territory, where the plaintiff sets out the words, their defamatory meaning, and where they were published. The defendant then files a defence and may plead truth, fair comment, privilege or responsible communication. In media cases under provincial Libel and Slander Acts, the plaintiff usually must serve a notice of the complaint on the publisher within a short statutory window before suing. In Quebec, the action is brought under the Civil Code rules on civil liability. Because rules on notice, limitation and procedure differ by province, the exact steps depend on where the statement was published and where the plaintiff lives.

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