Defamation and Online Harassment Laws in Canada

In Ontario, a plaintiff must show that the words were communicated to at least one other person, that they referred to the plaintiff, and that they would tend to lower the plaintiff's reputation in the eyes of a reasonable person. Once those points are shown, the law presumes the words were false and caused damage, and the defendant must raise a defense. In Quebec, the Civil Code protects every person's right to respect for their reputation, and its general liability rule requires a person who injures another through fault to repair the harm.

Sources1Bent v. Platnick, 2018 ONCA 687, paras. 51-522Guergis v. Novak, 2013 ONCA 449, para. 393Civil Code of Québec, arts. 3, 35 and 1457

The Criminal Code still defines defamatory libel as published matter, without lawful justification or excuse, that is likely to injure someone's reputation by exposing them to hatred, contempt or ridicule, or that is designed to insult them. Publishing a defamatory libel that the person knows is false can be prosecuted as an indictable offense with up to five years in prison, or as a summary offense.

Sources4Criminal Code, R.S.C. 1985, c. C-46, s. 2985Criminal Code, R.S.C. 1985, c. C-46, s. 300

In Ontario, the general deadline to start a lawsuit is two years from the day the claim was discovered. Libel in a newspaper printed and published in Ontario, or in a broadcast from an Ontario station, has much stricter rules: the plaintiff must give the publisher written notice within six weeks of learning of the libel and must sue within three months. In Quebec, a defamation action must be brought within one year of the day the person learned of the defamation.

Sources6Limitations Act, 2002, S.O. 2002, c. 24, Sched. B, ss. 4-57Libel and Slander Act, R.S.O. 1990, c. L.12, ss. 5(1), 6 and 73Civil Code of Québec, art. 2929

In a libel case, damage is presumed once the basic elements are shown, so the plaintiff does not have to prove a financial loss. For spoken words, Ontario's Libel and Slander Act says a plaintiff does not need to allege or prove special damage when the words tend to disparage them in their office, profession, calling, trade or business.

Sources1Bent v. Platnick, 2018 ONCA 687, paras. 51-527Libel and Slander Act, R.S.O. 1990, c. L.12, s. 16

Protection depends on the province. Ontario and British Columbia let a defendant ask the court to dismiss a lawsuit that arises from their expression on a matter of public interest. The case continues only if the plaintiff shows grounds to believe the claim has substantial merit and the defendant has no valid defense, and that the harm is serious enough to outweigh the public interest in protecting the expression. A defendant who wins the motion is generally entitled to full costs unless the judge finds that inappropriate. In Quebec, courts can declare a proceeding abusive, particularly when it restricts another person's freedom of expression in public debate.

Sources8Courts of Justice Act, R.S.O. 1990, c. C.43, s. 137.1(3), (4) and (7)9Protection of Public Participation Act, S.B.C. 2019, c. 3, ss. 4 and 710Code of Civil Procedure (Quebec), C-25.01, art. 51

In Ontario, a plaintiff suing over libel in a newspaper or broadcast can recover only actual damages if it appears at trial that the libel was published in good faith, did not involve a criminal charge, and resulted from a mistake about the facts, and that a full and fair retraction was published just as prominently. For a newspaper, the retraction must appear in the next regular issue or an issue published within three days after the plaintiff's notice; for a broadcast, within a reasonable time or within three days. This rule does not cover a libel about a candidate for public office unless the retraction is made prominently at least five days before the election.

Source7Libel and Slander Act, R.S.O. 1990, c. L.12, s. 5(2)-(3)

Common defenses include justification (the statement is true), fair comment on matters of opinion, qualified privilege, absolute privilege in certain settings, and responsible communication on matters of public interest, a defense the Supreme Court of Canada recognized in Grant v. Torstar. In Ontario, a justification or fair comment defense does not fail just because not every factual allegation is proved, as long as the unproved parts do not materially change the picture.

Sources1Bent v. Platnick, 2018 ONCA 687, paras. 51-52111704604 Ontario Ltd. v. Pointes Protection Association, 2018 ONCA 6852Guergis v. Novak, 2013 ONCA 449, para. 447Libel and Slander Act, R.S.O. 1990, c. L.12, ss. 22-23

Criminal harassment covers conduct done in person, by telecommunication or by any other means, including repeatedly communicating with someone or people they know, monitoring their location, movements, actions or social interactions, and threatening conduct. The conduct must reasonably be expected to make the person believe their safety, or the safety of someone they know, is threatened, and safety expressly includes psychological safety. The maximum penalty is 10 years in prison.

Source12Criminal Code, R.S.C. 1985, c. C-46, s. 264

It is an offense to make an indecent communication by telecommunication with intent to alarm or annoy someone, or to repeatedly communicate with someone by telecommunication, without lawful excuse, intending to harass them. These offenses can lead to up to two years in prison when prosecuted as indictable offenses.

Source13Criminal Code, R.S.C. 1985, c. C-46, s. 372(2)-(4)

It is a crime to knowingly share or make available an intimate image of a person knowing they did not consent, or being reckless about it, and also to threaten to do so. The definition also covers realistic images made by electronic means, including artificial intelligence, that are likely to be mistaken for a real recording of an identifiable person. The maximum penalty is generally 10 years in prison. A court can order the operator of a computer system to delete the image, and where an intimate image offense was committed it must order deletion within 48 hours.

Sources14Criminal Code, R.S.C. 1985, c. C-46, s. 162.115Criminal Code, R.S.C. 1985, c. C-46, s. 164.1