section 317

INTRODUCTION AND BRIEF DESCRIPTION

Section 317 of the Criminal Code of Canada outlines the guidelines for the trial of an indictment for publishing a defamatory libel, emphasizing that the jury cannot be directed to find the defendant guilty based solely on the publication of the alleged defamatory libel.

SECTION WORDING

317 Where, on the trial of an indictment for publishing a defamatory libel, a plea of not guilty is pleaded, the jury that is sworn to try the issue may give a general verdict of guilty or not guilty on the whole matter put in issue on the indictment, and shall not be required or directed by the judge to find the defendant guilty merely on proof of publication by the defendant of the alleged defamatory libel, and of the sense ascribed thereto in the indictment, but the judge may, in his discretion, give a direction or opinion to the jury on the matter in issue as in other criminal proceedings, and the jury may, on the issue, find a special verdict.

EXPLANATION

Section 317 of the Criminal Code of Canada deals with cases involving the publication of a defamatory libel. If a plea of not guilty is entered by the defendant, the jury that is sworn to try the issue may give a general verdict of guilty or not guilty on the whole matter put in issue on the indictment. This means that the verdict is based on the evidence presented in court regarding the alleged defamatory libel and not solely on proof of publication by the defendant. The judge is not allowed to direct or require the jury to find the defendant guilty merely on proof of publication of the alleged defamatory libel. However, the judge may give a direction or opinion to the jury on the matter in issue as in other criminal proceedings. This means that the judge may provide additional guidance to the jury on legal issues or technicalities that may arise during the trial. The jury may also choose to find a special verdict on the issue. This means that the jury may provide a verdict that does not directly determine guilt or innocence, but rather indicates that certain facts are either accepted or denied. Overall, section 317 of the Criminal Code of Canada ensures that a defendant is given a fair trial and is not found guilty based solely on the publication of the alleged defamatory libel. The section ensures that the evidence presented in court is given proper consideration and that the judge can provide guidance to the jury as needed.

COMMENTARY

Section 317 of the Criminal Code of Canada deals with the offence of publishing a defamatory libel and the trial process for such an offence. The section outlines the role of the jury in determining whether the defendant is guilty or not guilty of the offence, and provides guidelines for judges in giving directions or opinions to the jury in regards to the matter in issue. The offence of publishing a defamatory libel is a serious one, as it involves the publication of false and damaging information about an individual that can harm their reputation and livelihood. The offence is considered a criminal offence because it can have serious consequences for the individual being defamed, including injury to their reputation and financial loss. Section 317 acknowledges the importance of a fair trial in this regard. It stipulates that a plea of not guilty can be made by the defendant, and that the jury should be sworn in to try the issue. This means that the jury has the responsibility of determining whether the defendant is guilty or not guilty of the offence. The section also allows the jury to give a general verdict on the whole matter put in issue on the indictment, and they are not required or directed by the judge to find the defendant guilty merely on proof of publication of the alleged defamatory libel. The section further provides the judge with discretion to give directions or opinions to the jury on the matter in issue, as in any other criminal proceeding. This means that the judge can clarify any legal issues surrounding the offence, provide guidance to the jury on the law and the evidence, and make sure that the trial is conducted in a fair and just manner. In addition, the section provides for the option of a special verdict, which means that the jury can find the defendant guilty of a lesser charge than that indicted, or they can find the defendant guilty of a lesser degree of the offence. This option allows for a more nuanced approach to the matter in issue, and can result in a fairer outcome for both the defendant and the victim of the defamatory libel. Overall, Section 317 of the Criminal Code of Canada is an important provision in protecting individuals from defamation and ensuring that they receive a fair trial. The section acknowledges the seriousness of the offence of publishing a defamatory libel, and provides guidelines for the jury and the judge to ensure that justice is served. It is an important provision in upholding the integrity of the Canadian criminal justice system.

STRATEGY

Section 317 of the Criminal Code of Canada is a key statute when it comes to the prosecution of defamation cases in Canada. The section sets out the rules that govern the trial of an indictment for publishing a defamatory libel. In essence, it provides that the jury that is sworn to try the issue may give a general verdict of guilty or not guilty on the whole matter put in issue on the indictment. One of the strategic considerations that must be taken into account when dealing with this section is the fact that it places a high burden of proof on the prosecution. In particular, the section makes it clear that a defendant cannot be found guilty merely on proof of publication of the alleged defamatory libel and of the sense ascribed to it in the indictment. Rather, the jury must be satisfied beyond a reasonable doubt that the defendant is guilty of the offense as charged. As a result of this high burden of proof, some defendants may attempt to argue that the section violates the Charter of Rights and Freedoms, particularly the right to freedom of expression. For example, a defendant may argue that the section effectively creates a presumption of guilt based on the mere fact of publication, which violates the presumption of innocence. Alternatively, a defendant may argue that the section is overly broad and vague, and fails to provide adequate guidance to juries as to what constitutes a defamatory libel. To counter these potential arguments, the prosecution may need to be prepared to mount a vigorous defense of the section in court. This could involve presenting expert evidence on the historical development of defamation law, as well as its role in protecting individual reputations and fostering a healthy democratic discourse. It may also involve presenting evidence on the social harms that can result from defamatory speech, and the need for robust legal protections to prevent such harms. Another strategic consideration when dealing with this section is the fact that it allows the jury to give a general verdict on the whole matter put in issue on the indictment. This means that the jury is not required to make findings on each element of the offense separately, but can instead consider the case as a whole. This can be both advantageous and disadvantageous for the prosecution. On the one hand, it can simplify the trial process and allow the prosecution to focus on presenting a compelling narrative that convinces the jury of the defendant's guilt. On the other hand, it can also make it more difficult to persuade the jury to find the defendant guilty, particularly if there are weak points in the prosecution's case that are not fully addressed. To address this challenge, the prosecution may need to carefully craft its case to ensure that all elements of the offense are adequately proven. This could involve presenting multiple pieces of evidence to corroborate key assertions, developing a detailed timeline of events, and presenting expert evidence on the meaning and implications of the alleged defamatory statements. It may also involve engaging in pre-trial negotiations with the defendant to seek a plea deal that avoids the need for a full trial and reduces the risk of an unfavorable verdict. Overall, Section 317 of the Criminal Code of Canada presents both challenges and opportunities for prosecution in defamation cases. By carefully considering the strategic implications of the section and developing sound legal arguments and evidence-based strategies, prosecutors can increase their chances of securing a conviction and protecting the reputations and rights of individuals and communities.