Supreme Court of Canada: 1992 Zündel Judgement
Section 2(b) of the Charter provides:
2. Everyone has the following fundamental freedoms:
...
(b) freedom of thought, belief, opinion and
The fundamental importance of freedom of expression to a free
and democratic society is beyond question. At issue is whether
s. 181 contravenes that right.
The first step in the Charter analysis is to ascertain
whether the activity of the litigant who alleges a s. 2(b)
violation falls within the ambit of protected expression. The
sphere of expression protected by the section has been very
broadly defined to encompass all content of expression
irrespective of the particular meaning sought to be conveyed
unless the expression is communicated in a physically violent
form (R. v. Keegstra, supra). The activity of Zundel involved
the deliberate and wilful publication of lies which were
extremely damaging to members of the Jewish community,
misleading to all who read his words and antithetical to the
core values of a multicultural democracy. The basis for
determining whether this type of activity falls within the
scope of protected expression was set out in Keegstra, supra.
There Dickson C.J. found that hate propaganda satisfied the
first step of the s. 2(b) of the Charter inquiry. He wrote (at
p. 730):
Because Irwin Toy stresses that the type of meaning
conveyed is irrelevant to the question of whether
s. 2(b) is infringed, that the expression covered by
s. 319(2) is invidious and obnoxious is beside the
point. It is enough that those who publicly and
wilfully promote hatred convey or attempt to convey a
meaning ....
Similarly, constitutional protection under s. 2(b) must
therefore be extended to the deliberate publication of
statements known to be false which convey meaning in a
non-violent form. Freedom of expression is so important to
democracy in Canada that even those statements on the extreme
periphery of the protected right must be brought within the
protective ambit of s. 2(b).
The second step of the test is to determine whether the
purpose of the impugned legislation is to restrict freedom of
expression. Here, the purpose of s. 181 is to restrict, not
all lies, but only those that are wilfully published and that
are likely to injure the public interest. Although the
targeted expression is extremely limited, the provision does
have as its purpose the restriction of free expression.
Accordingly, it must be found that s. 181 constitutes an
infringement of the freedom of expression guaranteed under
s. 2(b) of the Charter.
Before turning to s. 1 of the Charter, it is important to
recall what has been written concerning the weight to be
attached to other Charter provisions and the consideration of
contextual factors. In Keegstra, supra, Dickson C.J., wrote at
p. 734:
I believe, however, that s. 1 of the Charter is
especially well suited to the task of balancing, and
consider this Court's previous freedom of expression
decisions to support this belief. It is, in my
opinion, inappropriate to attenuate the s. 2(b)
freedom on the grounds that a particular context
requires such; the large and liberal interpretation
given the freedom of expression in Irwin Toy
indicates that the preferable course is to weigh the
various contextual values and factors in s. 1.
[Emphasis in original.]
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B. Section 2(b) of the Charter
expression, including freedom of the press and other
media of communication;