A Newfoundland Supreme Court justice in St. John's has ruled that a libel-related section of the Criminal Code of Canada is unconstitutional, and contravenes the Charter of Rights and Freedoms.

At issue in the decision, rendered Friday and publicly released on Monday by Justice Lois Hoegg, is whether the Crown can prove that a subject knows potentially libelous statements to be false.

Byron Prior had been charged with three counts of publishing a defamatory libel, under Section 301 of the Criminal Code.

Prior claimed a public justice official had raped his sister and made her pregnant in 1966.

However, a decision released Monday by Hoegg says that Prior's sister told police she didn't know the official — who is not named in the decision — and had not been raped.

Prior made his allegations in flyers and on a placard that he wore in public, the decision notes. Subsequent to the court proceedings, he has also posted videos on the internet about his claims.

Prior's lawyers, Derek Hogan and Sean Montague, argued that Section 301 of the Criminal Code contravenes the Charter of Rights.

Hoegg agreed.

"I find that it is not justified, in our free and democratic society, for the Crown to use the heavy hammer of the criminal law against a subject for publishing defamatory libel when the Crown is not able to show that that subject knows that his statements are false," Hoegg wrote.

"As the case law aptly establishes, the expression of truthful, unpopular or even false statements deserve protection unless expressed in a violent manner."

Section 301 states: "Everyone who publishes a defamatory libel is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years."

Hoegg noted that the Crown had not charged Prior under Section 300, which holds that a person "who publishes a defamatory libel that he knows is false is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years."

"Presumably, if the Crown felt it could prove Mr. Prior knowingly published defamatory libel, it would have charged him under Section 300," she wrote in her decision.

An official with the provincial Justice Department said the Crown is now considering an appeal of Hoegg's decision.