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Frustrated, MacKinnon took to Facebook and criticized the town councillors. Days later, the RCMP knocked on her door

A few days later, the RCMP knocked on her door. She was questioned and charged with the crime of publishing a “defamatory libel.” MacKinnon offered to apologize, but was told the price of staying the charges would be a court order, under which she would agree to keep all social media postings about the two individuals “civil and temperate.” Facing jail time and a criminal record and lacking the resources to fight back, she reluctantly consented.

Almost two years later, MacKinnon’s outrage got the better of her again. She posted a second Facebook message, calling the first town official “lying thieving utterly corrupt,” and referring to the other as “his pet kangaroo.” The government charged her again under Section 301, and with violating the terms of the earlier court order.

This time, MacKinnon was prepared. She’d done the work the prosecutor should have done back in 2011 and learned that an Alberta court had declared Section 301 unconstitutional back in 1992. Corrected, and one hopes chagrined, the Crown dropped the new charge, but proceeded to charge her with violating the earlier court order – which had been based on the same impugned law. She was fined $3,900.

Facing jail time and a criminal record, MacKinnon reluctantly agreed to keep all social media postings civil

Since Alberta first declared Section 301 unconstitutional, courts in Saskatchewan, Ontario, and Newfoundland have followed suit. They have held that defendants charged with defamation under the Criminal Code face a higher bar than individuals facing civil defamation claims, where truth is a complete defence. To be acquitted of a defamatory libel charge, a person must prove both that offending statement was true and that it relates to “a subject of public interest … for the public benefit.” This content-based test places an extra burden on freedom of expression and reverses the usual presumption of innocence in criminal cases.