Supreme Court of Canada: 1992 Zündel Judgement
The judgment of McLachlin, La Forest, L'Heureux-Dube and
Sopinka JJ. was delivered by
McLACHLIN J.:-- Four constitutional questions were stated
by the Chief Justice on this appeal; the questions ask whether
s. 181 (formerly s. 177), the "false news" provision of the
Criminal Code, R.S.C., 1985, c. C-46, violates s. 2(b) or s. 7
of the Canadian Charter of Rights and Freedoms, and if it does,
whether such violation is a reasonable limit upon these Charter
rights within the meaning of s. 1. Section 181 reads:
181. Every one who wilfully publishes a statement,
Neither the admittedly offensive beliefs of the appellant,
Mr. Zundel, nor the specific publication with regard to which
he was charged under s. 181 are directly engaged by these
constitutional questions. This appeal is not about the
dissemination of hate, which was the focus of this Court's
decision in R. v. Keegstra, [1990] 3 S.C.R. 697, and the
reasons of my colleagues Cory and Iacobucci JJ. here. In
Keegstra, this Court ruled that the provisions of the Criminal
Code which prohibit the dissemination of hate violated the
guarantee of freedom of expression but were saved under s. 1 of
the Charter. This case presents the Court with the question of
whether a much broader and vaguer class of speech -- false
statements deemed likely to injure or cause mischief to any
public interest -- can be saved under s. 1 of the Charter. In
my view, the answer to this question must be in the negative.
To permit the imprisonment of people, or even the threat of
imprisonment, on the ground that they have made a statement
which twelve of their co-citizens deem to be false and
mischievous to some undefined public interest, is to stifle a
whole range of speech, some of which has long been regarded as
legitimate and even beneficial to our society. I do not assert
that Parliament cannot criminalize the dissemination of racial
slurs and hate propaganda. I do assert, however, that such
provisions must be drafted with sufficient particularity to
offer assurance that they cannot be abused so as to stifle a
broad range of legitimate and valuable speech.
THE BACKGROUND
The charge arises out of the publication by the appellant
of a 32-page booklet seemingly entitled Did Six Million Really
Die? which had previously been published by others in the
United States and England. The bulk of the booklet, excepting
the foreword and postscript authored by the appellant, purports
to review certain publications in a critical fashion. On the
basis of this review, it suggests, inter alia, that it has not
been established that six million Jewish people were killed
before and during World War II and that the Holocaust is a myth
perpetrated by a worldwide Jewish conspiracy.
The case comes to this Court after two trials, each of
which resulted in a conviction. Although the first conviction
was overturned, the Ontario Court of Appeal rejected the
appellant's submission that s. 181 violated the Charter and
sent the matter back for a new trial. This appeal is brought
from the conviction on the second trial. Leave to appeal to
this Court was granted on the general Charter issue only -- the
constitutionality of s. 181 of the Criminal Code.
THE ISSUES
As stated, the issue is whether s. 181 of the Criminal
Code violates the Charter. It is argued that it violates ss.
2(b) and 7, and that these infringements are not justifiable
under s. 1 of the Charter.
In the event the conviction is upheld, a subsidiary issue
arises of whether the terms of the appellant's bail are too
broad.
ANALYSIS
1. Section 181: Its History, Purpose and Ambit
Section 181 dates from the Statute of Westminster in 1275,
which introduced the offence De Scandalis Magnatum or Scandalum
Magnatum. It provided "that from henceforth none be so hardy
to tell or publish any false News or Tales, whereby discord, or
occasion of discord or slander may grow between the King and
his People, or the Great Men of the Realm". The criminal
offence was enforced by the King's Council, and later by the
Court of Star Chamber, until the 17th century when its
enforcement was taken over by the common law courts. It had as
its primary aim the prevention of "false statements which, in a
society dominated by extremely powerful landowners, could
threaten the security of the state": see R. v. Keegstra, supra,
at p. 722, per Dickson C.J.; and F.R. Scott, "Publishing False
News" (1952), 30 Can. Bar Rev. 37, at pp. 38-39. As Holdsworth
recounts, "[t]his was no vain fear at a time when the offended
great one was only too ready to resort to arms to redress a
fancied injury": A History of English Law (5th ed. 1942), vol.
III, at p. 409. Nonetheless, De Scandalis Magnatum is not
thought to have been a very effective instrument. Holdsworth
refers to a "thin stream of...cases" from the 16th century
onwards; by the time of its repeal in 1887 (Statute Law
Revision Act, 1887 (U.K.), 50 & 51, Vict., c. 59) it had long
been obsolete.
Although the offence of spreading false news was abolished
in England in 1887, and does not survive in the United States,
it was enacted in Canada as part of the 1892 Criminal Code.
The reason for the offence's retention in Canada is unknown.
Scott suggests that it may have been no more than oversight,
with no one in Canada being aware that the English provision
had been repealed four years previously: see Scott, supra, at
p. 40. Certainly Burbridge, the drafter of the 1892 Code, was
no enthusiast of the offence, commenting in his 1890 Digest of
the Criminal Law in Canada that its "definition is very vague
and the doctrine exceedingly doubtful": see Scott, supra, at p.
39. Be that as it may, the offence was retained, originally
under the rubric of "Seditious Offences" (The Criminal Code,
1892, S.C. 1892, c. 29, s. 126; R.S.C. 1927, c. 36, s. 136) and
more latterly as a species of "Nuisance" (S.C. 1953-54, c. 51,
s. 166). Until its revision in 1955, the Criminal Code
provision read:
136. Every one is guilty of an indictable
The substantive elements of the offence remained the same after
Parliament's 1955 transfer of the provision to the 'nuisance'
section of the Code, but the potential sentence was increased
to two years. Neither documentary nor viva voce evidence has
been proffered to explain why the section was retained in
Canada when it had been dropped elsewhere or why it was moved
from the offences dealing with "Sedition" to those dealing with
"Nuisance". What is now s. 181 has been judicially considered
only three times in Canada, excluding this case; the
jurisprudence on it is virtually non-existent.
After considering the rather sparse history of the
provision, Cory and Iacobucci JJ. conclude at p. 31 of their
reasons that:
... a review of the historical development of the law's
With the greatest respect, I find no support in the history of
the provision for such a conclusion. The only lesson to be
gleaned from the history of s. 181 is that the offence was
aimed at protecting the rule of law and the security of the
state, in the guise of the head of power whether that be the
monarchy or later the government: see Drouin J. in R. v.
Carrier (1951), 16 C.R. 18, 104 C.C.C. 75 (Que. K.B.). The
fact that provocative racial statements have been, on the odd
occasion in the past two hundred years, prosecuted as other
criminal offences such as "public mischief" and "criminal
libel" sheds no light on the objective behind the enactment of
the "false news" provision. Moreover, as discussed below, the
very cases referred to by Cory and Iacobucci JJ. to support
their conclusions actually reveal the overinclusiveness of the
provision.
I turn from history to the wording of s. 181 and the ambit
of the section upon whose constitutionality this Court is asked
to pronounce. The construction of s. 181 is not at issue in
these proceedings, leave to appeal on those issues having been
denied. The analysis of the constitutionality of s. 181 must
therefore be based on the section as it was interpreted by the
courts below.
As interpreted by the trial judge and the Court of Appeal
below, the actus reus of the offence is the publication of "a
statement, tale or news" that is false and that "causes or is
likely to cause injury or mischief to a public interest...".
The mens rea lies in the knowledge that the statement is false.
Thus the Crown, to succeed, must establish beyond a reasonable
doubt the following propositions:
1. That the accused published a false statement, tale or
Each of the three elements of the offence created by s.
181 is capable of giving rise to considerable difficulty of
application in the context of a trial. The question of falsity
of a statement is often a matter of debate, particularly where
historical facts are at issue. (Historians have written
extensively on the difficulty of ascertaining what actually
occurred in the past, given the difficulty of verification and
the selective and sometimes revisionist versions different
witnesses and historians may accord to the same events; see,
for example, the now famous treatise of E.H. Carr, What is
History? (1961)). The element of the accused's knowledge of
falsity compounds the problem, adding the need to draw a
conclusion about the accused's subjective belief as to the
truth or falsity of the statements. Finally, the issue of
whether a statement causes or is likely to cause injury or
mischief to the public interest requires the identification of
a public interest and a determination of whether it has been or
is likely to be injured. In the case of each of the three
elements of the offence, the not inconsiderable epistemological
and factual problems are left for resolution by the jury under
the rubric of "fact". Thus, both in its breadth and in the
nature of the criteria it posits, s. 181 poses difficulties not
usually associated with criminal prohibitions, which
traditionally demand no more of a jury than common sense
inferences from concrete findings on matters patent to the
senses.
At pages 6-16 of their reasons, Cory and Iacobucci JJ.
summarize and interpret in detail the s. 181 trial process in
the case at bar, the goal being to show that s. 181 did not
theoretically or practically preclude the accused Zundel from
raising a reasonable doubt on each element of the offence -- a
basic requirement of fundamental justice. The argument, as I
understand it, would appear to be that if s. 181 occasioned no
unfairness in this case, it never will. One doubts the
validity of such an inference, given the acknowledgement that
this was a clear, simple case on the facts. But that aside, I
do not share my colleagues' view that as a practical matter the
Court can be certain, even in this instance, that the defendant
was accorded procedural justice. On the contrary, it is my
view that the difficulties encountered in this case underline
the inherent vices of s. 181.
Difficulties were encountered at trial with respect to all
three elements of the offence -- with respect to what
constitutes a "statement, tale or news", interpreted as
constituting an assertion of fact as opposed to opinion; what
constitutes injury or mischief to a public interest; and what
constitutes proof of knowledge of falsity of the statement.
The courts below resolved the difficult issue of the
distinction between a statement and an opinion by treating it
as a question of fact for the jury to resolve. While this is
true in a technical legal sense, in a practical sense the jury
was told that the publication at issue was a false statement.
By applying the doctrine of judicial notice and telling the
jury that the "mass murder and extermination of Jews in Europe
by the Nazi regime" was an (historical) fact no "reasonable
person" could dispute, the judge effectively settled the issue
for them. Moreover, I am unable to agree with my collegues
(see p. 8 of their reasons) that the trial judge instructed the
jury that the "onus of differentiating fact from opinion" lay
with the Crown. Judge Thomas's direction that the Crown must
prove "that the pamphlet, in essence, is a false statement of
fact" does not impose upon the Crown the more difficult burden
of first explaining to and then convincing a jury of the
distinction between historical fact and historical opinion
regarding events almost fifty years old. This might be
forgiven, given the elusiveness of distinguishing historical
fact from historical opinion. But it shows the danger in
criminalizing "false statements". The contention is that
expressions of opinion are not caught by s. 181. The reality
is that when the matter is one on which the majority of the
public has settled views, opinions may, for all practical
purposes, be treated as an expression of a "false fact".
The question of knowledge of falsity was similarly left as
a question of fact for the jury to decide. But this too was
not a question of fact in the usual sense. The jury was
instructed that it was entitled to infer from the judge's
instruction that because the Holocaust must be regarded as
proven, the accused must have known it to be proven and must be
taken to have published his pamphlet deliberately for personal
motives, knowing the falsity of his assertion to the contrary.
Judge Thomas added, albeit as only one factor in this
assessment, the principle that the "more unreasonable the
belief, the easier it is to draw the inference that the belief
is not honestly held". In the context of a sexual assault
trial such an instruction would be unlikely to mislead the
jury, both because questions of consent and perceptions of
consent are far more common place than questions of the
sincerity of an accused's belief in esoteric or outlandish
historical "facts", and because the jury is likely to have the
assistance of the viva voce evidence of both the complainant
and accused in determining whether the inference that the
accused's unreasonable belief in the complainant's consent was
not an honest one ought to be drawn. But in the context of a
prosecution under s. 181 a jury is, in the face of such
instructions, unlikely to be able to evaluate or accept the
accused's assertion that he believed the truth of his
publications. The logic is ineluctable: everyone knows this is
false; therefore the defendant must have known it was false.
On the final question of injury or mischief to a public
interest, the trial judge told the jury that it was sufficient
if there is a likelihood of injury or mischief to a particular
public interest and directed the jury on the "cancerous effect
of racial and religious defamation upon society's interest in
the maintenance of racial and religious harmony in Canada."
Judge Thomas further instructed the jury that "[t]here can be
no doubt ... that the maintenance of racial and religious
tolerance is certainly a matter of public interest in Canada".
Once again, the jury's conclusion may have flowed inevitably
from the trial judge's instruction.
One is thus driven to conclude that this was not a
criminal trial in the usual sense. The verdict flowed
inevitably from the indisputable fact of the publication of the
pamphlet, its contents' divergence from the accepted history of
the Holocaust, and the public interest in maintaining racial
and religious tolerance. There was little practical
possibility of showing that the publication was an expression
of opinion, nor of showing that the accused did not know it to
be false, nor of showing that it would not cause injury or
mischief to a public interest. The fault lies not with the
trial judge or the jury, who doubtless did their best
responsibly to inform the vague words of s. 181 with meaningful
content. The fault lies rather in concepts as vague as fact
versus opinion or truth versus falsity in the context of
history, and the likelihood of "mischief" to the "public
interest".
Against this background, I turn to the question of whether
the conviction and imprisonment of persons such as the
appellant under s. 181 violate the rights which the Charter
guarantees. The first question is whether the Charter's
guarantee of free speech protects the impugned publication. If
the answer to this question is in the affirmative, the second
question arises of whether prohibition of the publication by
criminal sanction can nevertheless be maintained as a measure
"demonstrably justified in a free and democratic society".
2. Does the Charter's guarantee of freedom of expression
protect Mr. Zundel's right to publish the booklet Did Six
Million Really Die?
Section 2(b) of the Charter provides:
2. Everyone has the following fundamental freedoms:
. . .
(b) freedom of thought, belief, opinion and expression,
The Court must first ask whether a publication such as
that at issue is expression protected by s. 2(b) of the
Charter. If so, the Court must ask the further question of
whether the purpose or effect of s. 181 is to restrict such
expression. If so, it will be found to violate s. 2(b) of the
Charter: see Irwin Toy Ltd. v. Quebec (Attorney General),
[1989] 1 S.C.R. 927.
This Court has held that s. 2(b) is to be given a broad,
purposive interpretation: Irwin Toy, supra. Even prior to the
Charter, this Court recognized the fundamental importance of
freedom of expression to the Canadian democracy; see Reference
re Alberta Statutes, [1938] S.C.R. 100; Switzman v. Elbling,
[1957] S.C.R. 285. I can do no better than to quote the words
of my colleague Cory J., writing in Edmonton Journal v. Alberta
(Attorney General), [1989] 2 S.C.R. 1326, at p. 1336:
It is difficult to imagine a guaranteed right more
It seems that the rights enshrined in s. 2(b) should
The purpose of the guarantee is to permit free expression
to the end of promoting truth, political or social
participation, and self-fulfilment. That purpose extends to
the protection of minority beliefs which the majority regard as
wrong or false: Irwin Toy, supra, at p. 968. Tests of free
expression frequently involve a contest between the
majoritarian view of what is true or right and an unpopular
minority view. As Holmes J. stated over sixty years ago, the
fact that the particular content of a person's speech might
"excite popular prejudice" is no reason to deny it protection
for "if there is any principle of the Constitution that more
imperatively calls for attachment than any other it is the
principle of free thought -- not free thought for those who
agree with us but freedom for the thought that we hate": United
States v. Schwimmer, 279 U.S. 644 (1929), at p. 654. Thus the
guarantee of freedom of expression serves to protect the right
of the minority to express its view, however unpopular it may
be; adapted to this context, it serves to preclude the
majority's perception of 'truth' or 'public interest' from
smothering the minority's perception. The view of the majority
has no need of constitutional protection; it is tolerated in
any event. Viewed thus, a law which forbids expression of a
minority or "false" view on pain of criminal prosecution and
imprisonment, on its face, offends the purpose of the guarantee
of free expression.
The jurisprudence supports this conclusion. This Court in
Keegstra held that the hate propaganda there at issue was
protected by s. 2(b) of the Charter. There is no ground for
refusing the same protection to the communications at issue in
this case. This Court has repeatedly affirmed that all
communications which convey or attempt to convey meaning are
protected by s. 2(b), unless the physical form by which the
communication is made (for example, by a violent act) excludes
protection: Irwin Toy, supra, at p. 970, per Dickson C.J. and
Lamer and Wilson JJ. In determining whether a communication
falls under s. 2(b), this Court has consistently refused to
take into account the content of the communication, adhering to
the precept that it is often the unpopular statement which is
most in need of protection under the guarantee of free speech:
see, e.g., Keegstra, supra, at p. 828, per McLachlin J.; R. v.
Butler, [1992] 1 S.C.R. 452, at p. 488, per Sopinka J.
The respondent argues that the falsity of the publication
at issue takes it outside of the purview of s. 2(b) of the
Charter. It is difficult to see how this distinguishes the
case on appeal from Keegstra, where the statements at issue
were for the most part statements of fact which almost all
people would consider false. That aside, I proceed to the
arguments advanced under the head of falsity.
Two arguments are advanced. The first is that a
deliberate lie constitutes an illegitimate "form" of
expression, which, like a violent act, is not protected. A
similar argument was advanced and rejected with respect to hate
literature in Keegstra on the ground that "form" in Irwin Toy
refers to the physical form in which the message is
communicated and does not extend to its content. The same
point is determinative of the argument in this case.
The second argument advanced is that the appellant's
publication is not protected because it serves none of the
values underlying s. 2(b). A deliberate lie, it is said, does
not promote truth, political or social participation, or
selffulfilment.
Therefore, it is not deserving of protection.
Apart from the fact that acceptance of this argument would
require this Court to depart from its view that the content of
a statement should not determine whether it falls within s.
2(b), the submission presents two difficulties which are, in my
view, insurmountable. The first stems from the difficulty of
concluding categorically that all deliberate lies are entirely
unrelated to the values underlying s. 2(b) of the Charter. The
second lies in the difficulty of determining the meaning of a
statement and whether it is false.
The first difficulty results from the premise that
deliberate lies can never have value. Exaggeration -- even
clear falsification -- may arguably serve useful social
purposes linked to the values underlying freedom of expression.
A person fighting cruelty against animals may knowingly cite
false statistics in pursuit of his or her beliefs and with the
purpose of communicating a more fundamental message, e.g.,
'cruelty to animals is increasing and must be stopped'. A
doctor, in order to persuade people to be inoculated against a
burgeoning epidemic, may exaggerate the number or geographical
location of persons potentially infected with the virus. An
artist, for artistic purposes, may make a statement that a
particular society considers both an assertion of fact and a
manifestly deliberate lie; consider the case of Salman
Rushdie's Satanic Verses, viewed by many Muslim societies as
perpetrating deliberate lies against the Prophet.
All of this expression arguably has intrinsic value in
fostering political participation and individual
self-fulfilment. To accept the proposition that deliberate
lies can never fall under s. 2(b) would be to exclude
statements such as the examples above from the possibility of
constitutional protection. I cannot accept that such was the
intention of the framers of the Constitution.
Indeed, the very cases relied upon by Cory and Iacobucci
JJ. to support their position reveal the potential of s. 181
for suppressing valuable political criticism or satire. In R.
v. Hoaglin (1907), 12 C.C.C. 226, cited at p. 28 of their
judgement, the "false" publication asserted "Americans not
wanted in Canada". The injury to public interest was, in the
words of Harvey J., that "if [Americans] investigate they will
find conditions such as to prevent them investing and taking up
homesteads" (Hoaglin, supra, at p. 228). Even if one accepts
the finding that the statement was undoubtedly "false", it
arguably represented a valuable contribution to political
debate on Canadian immigration policy. Yet the accused was
convicted for publication of such statements contrary to s. 136
(now s. 181). Similarly, in R. v. Kirby (1970), 1 C.C.C. (2d)
286 (Que. C.A.), a case involving prosecution for publication
of political satire in the Montreal Gazette, (cited at p. 30 of
their judgement), Hyde J.A. accepted that the publication fell
within the satirical tradition of Chaucer, Swift and Addison.
In reversing the trial judge's conviction, he observed that the
section may capture "pranks" and that the "prank" in question
was "very close to the border" (p. 290).
The second difficulty lies in the assumption that we can
identify the essence of the communication and determine that it
is false with sufficient accuracy to make falsity a fair
criterion for denial of constitutional protection. In
approaching this question, we must bear in mind that tests
which involve interpretation and balancing of conflicting
values and interests, while useful under s. 1 of the Charter,
can be unfair if used to deny prima facie protection.
One problem lies in determining the meaning which is to be
judged to be true or false. A given expression may offer many
meanings, some which seem false, others, of a metaphorical or
allegorical nature, which may possess some validity. Moreover,
meaning is not a datum so much as an interactive process,
depending on the listener as well as the speaker. Different
people may draw from the same statement different meanings at
different times. The guarantee of freedom of expression seeks
to protect not only the meaning intended to be communicated by
the publisher but also the meaning or meanings understood by
the reader: Ford v. Quebec (Attorney General), [1988] 2 S.C.R.
712, at p. 767, and Irwin Toy, supra, at p. 976. The result is
that a statement that is true on one level or for one person
may be false on another level for a different person.
Even a publication as crude as that at issue in this case
illustrates the difficulty of determining its meaning. On the
respondent's view, the assertion that there was no Nazi Policy
of the extermination of Jews in World War II communicates only
one meaning -- that there was no policy, a meaning which, as my
colleagues rightly point out, may be extremely hurtful to those
who suffered or lost loved ones under it. Yet, other meanings
may be derived from the expressive activity, e.g., that the
public should not be quick to adopt 'accepted' versions of
history, truth, etc. or that one should rigorously analyze
common characterizations of past events. Even more
esoterically, what is being communicated by the very fact that
persons such as the appellant Mr. Zundel are able to publish
and distribute materials, regardless of their deception, is
that there is value inherent in the unimpeded communication or
assertion of "facts" or "opinions".
A second problem arises in determining whether the
particular meaning assigned to the statement is true or false.
This may be easy in many cases; it may even be easy in this
case. But in others, particularly where complex social and
historical facts are involved, it may prove exceedingly
difficult.
While there are Criminal Code offences under which a
person may be prosecuted for libel -- defamatory, blasphemous
and seditious (all of which appear to be rarely if ever used
and the constitutionality of which may be open to question) --
it is the civil action for defamation which constitutes the
only other significant branch of the law in which a jury is
asked to determine the truth or falsity of a statement. But the
difficulties posed by this demand are arguably much less
daunting in defamation than under s. 181 of the Criminal Code.
At issue in defamation is a statement made about a specific
living individual. Direct evidence is usually available as to
its truth or falsity. Complex social and historical facts are
not at stake. And most importantly the consequences of failure
to prove truth are civil damages, not the rigorous sanction of
criminal conviction and imprisonment.
Before we put a person beyond the pale of the
Constitution, before we deny a person the protection which the
most fundamental law of this land on its face accords to the
person, we should, in my belief, be entirely certain that there
can be no justification for offering protection. The criterion
of falsity falls short of this certainty, given that false
statements can sometimes have value and given the difficulty of
conclusively determining total falsity. Applying the broad,
purposive interpretation of the freedom of expression
guaranteed by s. 2(b) hitherto adhered to by this Court, I
cannot accede to the argument that those who deliberately
publish falsehoods are for that reason alone precluded from
claiming the benefit of the constitutional guarantees of free
speech. I would rather hold that such speech is protected by
s. 2(b), leaving arguments relating to its value in relation to
its prejudicial effect to be dealt with under s. 1.
Such an approach is supported by the language of the
Charter and the relationship it establishes between s. 1 and
the enumerated rights. We start from the proposition that
legislation limiting the enumerated rights may be
unconstitutional. (There is no presumption of
constitutionality: Manitoba (Attorney General) v. Metropolitan
Stores Ltd., [1987] 1 S.C.R. 110, at p. 122, per Beetz J.). If
a limitation on rights is established, the onus shifts to the
Crown to show that the legislation is justified under s. 1,
where the benefits and prejudice associated with the measure
are weighed. The respondent's s. 2(b) arguments would require
evaluation of the worth of the expression which is limited at
the first stage. This is an approach which this Court has
hitherto rejected and one which I would not embrace.
In concluding that the publication here in issue is
protected by s. 2(b) of the Charter, I rely in the final
analysis upon the words of Dickson C.J. in Keegstra, supra, at
pp. 765-66:
...it must be emphasized that the protection of extreme
Having concluded that the publication here at issue is
protected by s. 2(b) of the Charter, I come to the question of
whether the purpose or effect of s. 181 of the Criminal Code is
to restrict this sort of expression.
The respondent correctly concedes that the Government's
purpose in and the effect of s. 181 is to restrict expressive
activity. The argument of the intervener, the Canadian Jewish
Congress, that the purpose and effect of s. 181 are not to
restrict expression but rather to prevent the harmful
consequences of publications such as the one at issue, misses
the point. First, this Court has never focused upon a
particular consequence of a proscribed act in assessing the
legislation's purpose; the Court examines what might be called
the 'facial' purpose of the legislative technique adopted by
Parliament to achieve its ends: see, for example, Irwin Toy,
supra at pp. 973-76. Second, a legislative provision may have
many effects. One demonstrated effect of s. 181 in the case at
bar is to subject Mr. Zundel to criminal conviction and
potential imprisonment because of words he published. In the
face of this reality, it is undeniable that s. 181, whatever
its purpose, has the effect of restricting freedom of
expression.
I conclude that s. 181 violates s. 2(b) of the Charter.
3. Is the Limitation which Section 181 of the Criminal Code
Imposes on the Right of Free Expression Justified under
Section 1 of the Charter?
Section 1 of the Charter provides:
1. The Canadian Charter of Rights and Freedoms guarantees
The first question is whether s. 181 represents a "limit
prescribed by law". It was argued that the difficulty of
ascertaining what constitutes a "statement, tale or news" as
opposed to an opinion, as well as the vagueness of the term
"injury or mischief to a public interest", render s. 181 so
vague that it cannot be considered a definable legal limit.
Preferring as I do to deal with the matter on its merits, I
assume without deciding that s. 181 passes this threshold test.
Section 1 requires us to weigh the intrusion of rights
represented by the impugned legislation against the state's
interest in maintaining the legislation. In this case that
translates to weighing the state's interest in proscribing
expression which it deems 'likely to cause injury or mischief
to a [matter of] public interest' on pain of criminal sanction
against the individual's constitutional right to express his or
her views. Where a law restricts an express constitutional
right, as in this case, the Charter permits the limitation to
be maintained only if the Crown shows that the restriction is
"demonstrably justified" in a "free and democratic society" --
that is, a society based on the recognition of fundamental
rights, including tolerance of expression which does not
conform to the views of the majority.
I turn first to the state's interest in prohibiting the
expression here at issue -- the question of whether the Crown
has established an overriding public objective, to use the
language of R. v. Oakes, [1986] 1 S.C.R. 103. In determining
the objective of a legislative measure for the purposes of s.
1, the Court must look at the intention of Parliament when the
section was enacted or amended. It cannot assign objectives,
nor invent new ones according to the perceived current utility
of the impugned provision: see R. v. Big M Drug Mart Ltd.,
[1985] 1 S.C.R. 295, at p. 334, in which this Court rejected
the U.S. doctrine of shifting purposes. Although the
application and interpretation of objectives may vary over time
(see, e.g., Butler, supra, per Sopinka J., at pp. 494-96), new
and altogether different purposes should not be invented. The
case is quite different from the anti-obscenity legislation in
Butler where the goal historically and to the present day is
the same -- combatting the "detrimental impact" of obscene
materials on individuals and society -- even though our
understanding or conception of that detrimental impact (a
"permissible shift in emphasis") may have evolved, as Sopinka
J. noted. My colleagues say that it is a permissible shift in
emphasis that the false news provision was originally focused
on the "prevention of deliberate slanderous statements against
the great nobles of the realm" and is now said to be concerned
with "attacks on religious, racial or ethnic minorities": (see
p. 56 of their reasons). But this is no shift in emphasis with
regard to the purpose of the legislation -- this is an outright
redefinition not only of the purpose of the prohibition but
also of the nature of the activity prohibited. To convert s.
181 into a provision directed at encouraging racial harmony is
to go beyond any permissible shift in emphasis and effectively
It is argued that this interpretation represents a mere
shift in emphasis because the thrust of s. 181 and its
predecessors, like the obscenity provisions in Butler,
disclosed a single goal: "the protection of the public interest
from harm" or from that which would "threaten the integrity of
the social fabric" (at p. 56 of the reasons of Cory and
Iacobucci JJ.). Yet, all Criminal Code provisions -- as well as
much statutory regulation in the public and private law spheres
-- have as their basic purpose the protection of the public
from harm and the maintenance of the integrity of the social
fabric. Indeed, one might argue that such was the goal of the
obscenity provisions under review in Butler, yet the Court did
not adopt that as the legislation's objective. Instead, it
relied upon a specific objective concerning the effect of
pornographic materials on individuals and the resultant impact
on society. If the simple identification of the (content-free)
goal of protecting the public from harm constitutes a "pressing
and substantial" objective, virtually any law will meet the
first part of the onus imposed upon the Crown under s. 1. I
cannot believe that the framers of the Charter intended s. 1 to
be applied in such a manner. Justification under s. 1 requires
more than the general goal of protection from harm common to
all criminal legislation; it requires a specific purpose so
pressing and substantial as to be capable of overriding the
Charter's guarantees. To apply the language used by Sopinka J.
in Butler (at p. 496); s. 181 cannot be said to be directed to
avoidance of publications which "seriously offend the values
fundamental to our society", nor is it directed to a
"substantial concern which justifies restricting the otherwise
full exercise of the freedom of expression".
It is impossible to say with any assurance what Parliament
had in mind when it decided, contrary to what had happened in
other democracies, to leave s. 181 as part of our criminal law.
Five parties made written submissions on this issue; five
different objectives were posited by them. Those supporting
the legislation offer the following three theories as to the
purpose of s. 181:
1. to protect matters that rise to a level of public
The difficulty in assigning an objective to s. 181 lies in
two factors: the absence of any documentation explaining why s.
181 was enacted and retained and the absence of any specific
purpose disclosed on the face of the provision. We know that
its original purpose in the 13th century was to preserve
political harmony in the state by preventing people from making
false allegations against the monarch and others in power.
This ostensibly remained the purpose through to the 19th
century. However, in the 20th century, Parliament removed the
offence from the political "Sedition" section of the Code and
placed it in the "Nuisance" section, suggesting that Parliament
no longer saw it as serving a political purpose. It is to be
further noted that it does not appear in that part of the
Criminal Code dedicated to "Offences Against the Person and
Reputation", in which both the hate propaganda and defamatory
libel provisions appear. Beyond this all is speculation. No
Parliamentary committees commented on the matter; no debates
considered it. Nor do the vague, general words employed in the
text of s. 181 offer insight into what purpose Parliament might
have had in mind in enacting and retaining it.
All this stands in sharp contrast to the hate propaganda
provision of the Criminal Code at issue in Keegstra -- s.
319(2). Both the text of that provision and its long and
detailed Parliamentary history, involving Canada's
international human rights obligations, the Cohen Committee
Report (Report of the Special Committee on Hate Propaganda in
Canada (1966)) and the Report of the Special Committee on the
Participation of Visible Minorities in Canadian Society
(Equality Now! (1984)), permitted ready identification of the
objective Parliament had in mind. Section 319(2), under
challenge in Keegstra, was part of the amendments to the
Criminal Code "essentially along the lines suggested by the
[Cohen] Committee ..." (per Dickson C.J. in Keegstra, supra,
at p. 725). The evil addressed was hate-mongering,
particularly in the racial context. The provision at issue on
this appeal is quite different. Parliament has identified no
social problem, much less one of pressing concern, justifying
s. 181 of the Criminal Code. To suggest that the objective of
s. 181 is to combat hate propaganda or racism is to go beyond
its history and its wording and to adopt the "shifting purpose"
analysis this Court has rejected. Such an objective, moreover,
hardly seems capable of being described as a "nuisance", the
rubric under which Parliament has placed s. 181, nor as the
offence's target of mere "mischief" to a public interest.
The lack of any ostensible purpose for s. 181 led the Law
Reform Commission in 1986 (Working Paper 50: Hate Propaganda)
to recommend repeal of the section, labelling it as
"anachronistic", a conclusion which flies in the face of the
suggestion that s. 181 is directed to a pressing and
substantial social concern. It is noteworthy that no
suggestion has been made before this Court that Canada's
obligations under the international human rights conventions to
which it is a signatory require the enactment of any
provision(s) other than that section which was under review in
Keegstra: s. 319. The retention of s. 181 is not therefore
necessary to fulfil any international obligation undertaken by
Parliament.
Can it be said in these circumstances that the Crown has
discharged the burden upon it of establishing that the
objective of the legislation is pressing and substantial, in
short, of sufficient importance to justify overriding the
constitutional guarantee of freedom of expression? I think
not. It may be that s. 181 is capable of serving legitimate
purposes. But no objective of pressing and substantial concern
has been identified in support of its retention in our Criminal
Code. Other provisions, such as s. 319(2) of the Criminal
Code, deal with hate propaganda more fairly and more
effectively. Still other provisions seem to deal adequately
with matters of sedition and state security.
Parliament's enactment of s. 319 of the Criminal Code, a
provision carefully tailored to combat the propagation of
hate -- the evil at which my colleagues believe s. 181 now also
to be directed, should not be overlooked. The "further[ance
of] racial, religious and social tolerance" and the
"safeguard[ing of] the public interest against social
intolerance and public alarm", the goals ascribed to s. 181 by
my colleagues, are the focus of the Code's proscription of hate
propaganda. Racial minorities, as "identifiable groups" within
the meaning of s. 319, are not "stateless" persons like those
referred to in the powerful remarks of Professor Mari Matsuda
quoted in the reasons of Cory and Iacobucci JJ. Like my
colleagues, I readily acknowledge the pernicious effects of the
propagation of hate; such effects are indeed of relevance to a
s. 1 analysis of s. 319, as was evident in this Court's
decision in Keegstra, supra. I concur, as well, with the dicta
in R. v. Wholesale Travel Group Inc., [1991] 3 S.C.R. 154, that
the Charter should not be used "as a weapon to attack measures
intended to protect the disadvantaged", but I find the
principle's application in this context ironic. Section 2(b)
of the Charter has as one of its fundamental purposes the
protection of the freedom of expression of the minority or
disadvantaged, a freedom essential to their full participation
in a democracy and to the assurance that their basic rights are
respected. The proscription of false news was originally
intended to protect the mighty and the powerful from discord or
slander; there is nothing to suggest any legislative intention
to transform s. 181 from a mechanism for the maintenance of the
status quo into a device for the protection of "vulnerable
social groups".
In the rational connection portion of their analysis (pp.
67-69), Cory and Iacobucci JJ. rely upon the Report of the
Special Committee on Hate Propaganda in Canada, which impugned
the "19th century belief" that man was a "rational creature"
who could distinguish between truth and falsity. We are told
that "we cannot share this faith today in such a simple form" -
- thus, a limitation of this type of speech is rationally
connected to the goal of furthering racial tolerance. This
lesson of history is paid heed to, but no credence appears to
be given to the similar lesson (or warning) of history
regarding the potential use by the state (or the powerful) of
provisions, such as s. 181, to crush speech which it considers
detrimental to its interests, interests frequently identified
as equivalent to the "public interest". History has taught us
that much of the speech potentially smothered, or at least
'chilled', by state prosecution of the proscribed expression is
likely to be the speech of minority or traditionally
disadvantaged groups.
The fact that s. 181 has been so rarely used despite its
long history supports the view that it is hardly essential to
the maintenance of a free and democratic society. Moreover, it
is significant that the Crown could point to no other free and
democratic country which finds it necessary to have a law such
as s. 181 on its criminal books. I would be remiss not to
acknowledge here the provisions which my colleagues' research
has discovered, under the heading "Legislative Responses in
Other Jurisdictions" (pp. 45-48 of their reasons). A review of
these examples reveals their minimal relevance to this appeal.
The Italian provision, although not reproduced for our
inspection, has clearly been limited in its scope to the
preservation of the rule of law or the legal order by the
Italian constitutional court referred to by my colleagues;
there is no indication that the provision extends to the
promotion of racial harmony. Even less relevant are the Danish
Criminal Code provisions to which Cory and Iacobucci JJ. refer.
On a plain reading, s. 140 of the Danish Code is directed not
to false statements of fact, but to insulting remarks about the
religious practices of others; s. 266(b), on the other hand, is
equally clearly a proscription of hate propaganda similar to s.
319 of our Criminal Code, upheld in Keegstra. Of the German
offences mentioned, only that dealing specifically with
Holocaust denial would appear to be directed to false
statements of fact, a much more finely tailored provision to
which different considerations might well apply. As indicated
above, the forerunner of our s. 181 was repealed in England
over a century ago, leaving no apparent lacunae in the criminal
law of a country that has seen its share of social and
political upheavals over the ensuing period. It is apparently
not to be found in the United States. How can it be said in
the face of facts such as these and in the absence of any
defined evil at which the section is directed that the
retention of the false news offence in this country is a matter
of pressing and substantial concern justifying the overriding
of freedom of expression? In Butler, this Court, per Sopinka
J., at p. 497, relied on the fact that legislation of the type
there at issue, pornography legislation, may be found in most
free and democratic societies in justifying the restrictions it
imposes on freedom of expression. The opposite is the case
with s. 181 of the Criminal Code.
In the absence of an objective of sufficient importance to
justify overriding the right of free expression, the state's
interest in suppressing expression which may potentially affect
a public interest cannot outweigh the individual's
constitutional right of freedom of expression and s. 181 cannot
be upheld under s. 1 of the Charter. But even if one were to
attribute to s. 181 an objective of promoting social and racial
tolerance in society and manage the further leap of concluding
that objective was so pressing and substantial as to be capable
of overriding entrenched rights, the Crown's case under s. 1 of
the Charter would fail for want of proportionality between the
potential reach of s. 181 on the one hand, and the "evil" to
which it is said to be directed on the other.
Assuming a rational link between the objective of social
harmony and s. 181 of the Criminal Code, the breadth of the
section is such that it goes much further than necessary to
achieve that aim. Accepting that the legislative solution need
not be "perfect", it nevertheless must be "appropriately and
carefully tailored in the context of the infringed right":
Reference re ss. 193 and 195.1(1)(c) of the Criminal Code
(Man.), [1990] 1 S.C.R. 1123, at p. 1138. The effect of s. 181
is to inhibit the expression or publication of any statements
which may be found by a jury to be factual, false and likely to
cause injury or mischief to a public interest. The territory
covered by this prohibition can only be described as vast, as
revealed by a brief look at the key phrases on which guilt or
innocence turns.
The phrase "statement, tale or news", while it may not
extend to the realm of true opinion (wherever the line is to be
drawn, itself a question of great difficulty), obviously
encompasses a broad range of historical and social speech,
going well beyond what is patent or provable to the senses as a
matter of "pure fact". Indeed, one of the cases relied upon in
support of the proposition that the section deals only with
statements of fact and not with expressions of opinion, R. v.
Hoaglin, supra, demonstrates just how slippery the distinction
may be. If the expression in issue in that case, in which a
disaffected American settler in Alberta had printed posters
which stated "Americans not wanted in Canada. Investigate
before buying lands and taking homesteads in this country" is
an example of a "false statement of fact" falling within the
prohibition, one shudders to consider what other comments might
be so construed. Nor are the difficulties confined to
determining what is a factual assertion as opposed to an
expression of opinion. What is false may, as the case on
appeal illustrates, be determined by reference to what is
generally (or, as in Hoaglin, officially) accepted as true,
with the result that the knowledge of falsity required for
guilt may be inferred from the impugned expression's divergence
from prevailing or officially accepted beliefs. This makes
possible conviction for virtually any statement which does not
accord with currently accepted "truths", and lends force to the
argument that the section could be used (or abused) in a
circular fashion essentially to permit the prosecution of
unpopular ideas. Particularly with regard to the historical
fact -- historical opinion dichotomy, we cannot be mindful
enough both of the evolving concept of history and of its
manipulation in the past to promote and perpetuate certain
messages. The danger is not confined to totalitarian states
like the Nazi regime in Germany or certain communist regimes of
the past which blatantly rewrote history. We in Canada need
look no further than the 'not so noble savage' portrayal of
Native Canadians in our children's history text books in the
early part of this century. Similarly, in the United States,
one finds the ongoing revision of the historical representation
of African Americans, whose contribution to aspects of the
history of the United States, such as their contribution to the
North's victory in the Civil War, is only now being recognized.
But perhaps the greatest danger of s. 181 lies in the
undefined and virtually unlimited reach of the phrase "injury
or mischief to a public interest". Neither the respondent nor
its supporting interveners has proffered any case law in which
this phrase has been applied to a given factual circumstance in
a clear and consistent manner. My colleagues refer to the
"serious harm" and "serious injury" caused by deliberate
falsehoods, but this begs the question of what sort or degree
of harm is necessary in order to bring the section into play.
Indeed, the limited jurisprudence on s. 181 evidences
conflicting opinions on what constitutes a threatened or
injured "public interest" justifying criminal sanction. It is
difficult to see how a broad, undefined phrase such as "public
interest" can on its face constitute a restrained,
appropriately limited measure which impairs the right infringed
to the minimum degree consistent with securing the
legislation's objectives. Any deliberate lie (potentially
defined as that which does not accord with accepted truth),
which causes or is likely to cause "injury" or "mischief" to
any "public interest" is within the potential reach of the
section. The interpretation given to "public interest" in this
case may not have been objectionable. But that is not the
issue in determining whether a legislative restriction of
rights is overbroad. The issue is whether the provision
permits the state to restrict constitutional rights in
circumstances and ways that may not be justifiable. The vague
and broad wording of s. 181 leaves open that possibility.
Cory and Iacobucci JJ. propose to overcome this difficulty
by defining the phrase "public interest" in accordance with
selected Charter values. Two observations are relied upon --
that courts regularly define phrases in legislation, and that
the courts have not, thus far, adequately defined "public
interest" -- as the justification to define anew "public
interest" in the context of s. 181's purported application to
Mr. Zundel. Although the section's "legislative history" and
the "legislative and social context in which it is used" is
said by my colleagues to govern the definitional process, their
interpretation focuses upon a select range of Charter values,
values which do not include freedom of expression. In support
of this technique, reliance is placed upon the following
authorities: Hills v. Canada (Attorney General), [1988] 1
S.C.R. 513; Slaight Communications Inc. v. Davidson, [1989] 1
S.C.R. 1038; and R. v. Salituro, [1991] 3 S.C.R. 654. These
authorities confirm the following basic propositions: that the
common law should develop in accordance with the values of the
Charter (Salituro, supra, at p. 675), and that where a
legislative provision, on a reasonable interpretation of its
history and on the plain reading of its text, is subject to two
equally persuasive interpretations, the Court should adopt that
interpretation which accords with the Charter and the values to
which it gives expression (Hills and Slaight, supra). None of
these decisions stands for the proposition that an age-old
provision whose aim and scope was created pre-Charter can, as
of 1982, be redefined by reference to a present-day perception
of utility.
The result of my colleagues' redefinition is the equation
of "public interest" with "the protection and preservation of
those rights and freedoms set out in the Charter as fundamental
to Canadian society". Thus, for example, whenever the Crown can
establish that the publication of a false statement is likely
seriously to injure the dignity and equality of those whom ss.
15 and 27 of the Charter are intended to protect, the offence
is made out. In so doing my colleagues have arguably created a
new offence, an offence hitherto unknown to the criminal law.
The promotion of equality and multiculturalism is a laudable
goal, but, with respect, I can see no basis in the history or
language of s. 181 to suggest that it is the motivating goal
behind its enactment or retention. To import it is to engage
not in a valid process of statutory interpretation, but in
impermissible reading in of content foreign to the enactment;
Salituro, Slaight and Hills were never intended to be taken
this far.
Section 181 can be used to inhibit statements which
society considers should be inhibited, like those which
denigrate vulnerable groups. Its danger, however, lies in the
fact that by its broad reach it criminalizes a vast penumbra of
other statements merely because they might be thought to
constitute a mischief to some public interest, however
successive prosecutors and courts may wish to define these
terms. The danger is magnified because the prohibition affects
not only those caught and prosecuted, but those who may refrain
from saying what they would like to because of the fear that
they will be caught. Thus worthy minority groups or
individuals may be inhibited from saying what they desire to
say for fear that they might be prosecuted. Should an activist
be prevented from saying "the rainforest of British Columbia is
being destroyed" because she fears criminal prosecution for
spreading "false news" in the event that scientists conclude
and a jury accepts that the statement is false and that it is
likely to cause mischief to the British Columbia forest
industry? Should a concerned citizen fear prosecution for
stating in the course of political debate that a nuclear power
plant in her neighbourhood "is destroying the health of the
children living nearby" for fear that scientific studies will
later show that the injury was minimal? Should a medical
professional be precluded from describing an outbreak of
meningitis as an epidemic for fear that a government or private
organization will conclude and a jury accept that his statement
is a deliberate assertion of a false fact? Should a member of
an ethnic minority whose brethren are being persecuted abroad
be prevented from stating that the government has
systematically ignored his compatriots' plight? These examples
suggest there is merit in the submission of the Canadian Civil
Liberties Association that the overbreadth of s. 181 poses
greater danger to minority interest groups worthy of popular
support than it offers protection.
These examples illustrate s. 181's fatal flaw -- its
overbreadth. At pp. 70-73 of their reasons, Cory and Iacobucci
JJ. attempt to alleviate the fears associated with the problem
of overbreadth by arguing that the Crown will always bear a
heavy onus in proving all of the elements under s. 181. It is
argued that any danger is limited by the phrase "public
interest" because even those publishing known falsehoods will
not be prosecuted where their lies have an "overall beneficial
or neutral effect". In this way, Cory and Iacobucci JJ. claim
that the examples proffered above raise no practical problem
(see p. 81 of their reasons).
I, for one, find cold comfort in the assurance that a
prosecutor's perception of "overall beneficial or neutral
effect" affords adequate protection against undue impingement
on the free expression of facts and opinions. The whole
purpose of enshrining rights in the Charter is to afford the
individual protection against even the well-intentioned
majority. To justify an invasion of a constitutional right on
the ground that public authorities can be trusted not to
violate it unduly is to undermine the very premise upon which
the Charter is predicated.
Cory and Iacobucci JJ. make no mention of the reality that
the decision to prosecute must, by necessity, be made by state
agents and that the issue must be adjudicated upon by a judge
and jury in a particular locale with a particular conception of
a benefit to the public. All it takes is one judge and twelve
jurors who believe that certain 'falsehoods' compromise a
particular "public" interest, and that such falsehoods 'must
have been' known to the accused, in order to convict. A jury
in Port Alberni, B.C., may have a very different view of the
overall beneficial impact of false statements of fact impugning
the lumber industry than a jury in Toronto. Finally, Cory and
Iacobucci JJ. fail to address the argument that the danger
raised by these examples, the 'chilling effect' of s. 181,
outweighs its minimal benefit given the alternative means of
prosecution of speech detrimental to racial tolerance under s.
319 of the Criminal Code.
Not only is s. 181 broad in contextual reach; it is
particularly invasive because it chooses the most draconian of
sanctions to effect its ends -- prosecution for an indictable
offence under the criminal law. Our law is premised on the
view that only serious misconduct deserves criminal sanction.
Lesser wrongs are left to summary conviction and the civil law.
Lies, for the most part, have historically been left to the
civil law of libel and slander; it has been the law of tort or
delict that has assumed the main task of preserving harmony and
justice between individuals and groups where words are
concerned. This is not to say that words cannot properly be
constrained by the force of the criminal law. But the harm
addressed must be clear and pressing and the crime sufficiently
circumscribed so as not to inhibit unduly expression which does
not require that the ultimate sanction of the criminal law be
brought to bear: see Dickson C.J. in Keegstra, supra, at p.
772. The Criminal Code provisions against hatemongering met
that criterion, focusing as they did on statements intended to
cause "hatred against any identifiable group". The broad,
undefined term "mischief to a public interest", on the other
hand, is capable of almost infinite extension.
It is argued that the expression here at issue is of
little value and hence is less deserving of protection under s.
1 than expression which directly engages the "core" values
associated with freedom of expression as identified in Irwin
Toy. The short answer to this contention is that expression
which a jury might find to be a deliberate lie likely to
injure a public interest and which would therefore be inhibited
by s. 181 may well relate to the "core" values protected by the
guarantee, as the examples cited earlier in these reasons
demonstrate. The provision at issue in Keegstra, s. 319(2) of
the Criminal Code, was confined to hate propaganda, and hence
restricted only speech of low or negative value. That cannot
be said of s. 181, which may catch a broad spectrum of speech,
much of which may be argued to have value. I add that what is
at issue is the value of all speech potentially limited by the
provision at issue. In assessing this, the Court must not be
diverted by the offensive content of the particular speech
giving rise to the Charter challenge of the legislative
provision.
In summary, the broad range of expression caught by s. 181
-- extending to virtually all controversial statements of
apparent fact which might be argued to be false and likely do
some mischief to some public interest --, combined with the
serious consequences of criminality and imprisonment, makes it
impossible to say that s. 181 is appropriately measured and
restrained having regard to the evil addressed -- that it
effects a "minimal impairment" to use the language of Oakes.
Section 181 is materially different, in this regard, from s.
319(2) -- the provision upheld under s. 1 by the majority of
this Court in Keegstra.
The same considerations lead to the conclusion that the
gravity of the restriction on the right of freedom of
expression is not proportionate to s. 181's putative objective.
In Keegstra (at pp. 762-63) the majority of this Court, per
Dickson C.J., held that given the important and documented
objectives of s. 319(2) and the minimal contribution to the
values underlying the freedom made by the narrow range of
expression caught by that provision, the restriction was
proportional to the furtherance of the democratic values upon
which s. 319(2) is based. In the case on appeal, the same test
leads to the contrary result. Any purpose which can validly be
attached to s. 181 falls far short of the documented and
important objective of s. 319(2). On the other side of the
scale, the range of expression caught by s. 181 is much broader
than the more specific proscription of s. 319(2). In short, s.
181 fails the proportionality test applied in Keegstra.
When one balances the importance of the objective of s.
181 against the potentially invasive reach of its provisions,
one cannot but conclude that it "overshoots the mark". It
fails the tests for minimal impairment and proportionality by
which this Court upheld the criminalization of hate propaganda
under s. 319(2) of the Criminal Code. The value of liberty of
speech, one of the most fundamental freedoms protected by the
Charter, needs no elaboration. By contrast, the objective of
s. 181, in so far as an objective can be ascribed, falls short
of constituting a countervailing interest of the most
compelling nature. In Oakes, supra, Dickson C.J. made it clear
that the less important the provision's objective, the less
tolerable is an adverse effect upon the fundamental freedom.
Section 181 could support criminalization of expression only on
the basis that the sanction was closely confined to situations
of serious concern. In fact, s. 181 extends the sanction of
the criminal law to virtually any statement adjudged to be
falsely made which might be seen as causing mischief or likely
to cause mischief to virtually any public interest. I cannot
conclude that it has been shown to be "demonstrably justified"
in "a free and democratic society".
To summarize, the restriction on expression effected by s.
181 of the Criminal Code, unlike that imposed by the hate
propaganda provision at issue in Keegstra, cannot be justified
under s. 1 of the Charter as a "reasonable limit prescribed by
law as can be demonstrably justified in a free and democratic
society". At virtually every step of the Oakes test, one is
struck with the substantial difference between s. 181 and the
provision at issue in Keegstra, s. 319(2) of the Code. In
contrast to the hate propaganda provision (Keegstra), the false
news provision cannot be associated with any existing social
problem or legislative objective, much less one of pressing
concern. It is, as the Law Reform Commission concluded,
"anachronistic". But even if the Court were to attribute to s.
181 the objective of promoting racial and social tolerance and
conclude that such objective was so pressing and substantial as
to be capable of overriding a fundamental freedom, s. 181 would
still fail to meet the criteria of proportionality which
prevailed in Keegstra. In Keegstra, the majority of this Court
found the objective of the legislation to be compelling and its
effect to be appropriately circumscribed. The opposite is the
case with s. 181 of the Criminal Code. Section 181 catches not
only deliberate falsehoods which promote hatred, but sanctions
all false assertions which the prosecutor believes 'likely to
cause injury or mischief to a public interest', regardless of
whether they promote the values underlying s. 2(b). At the
same time, s. 181's objective, in so far as an objective can be
ascribed to the section, ranks much lower in importance than
the legislative goal at stake in Keegstra. When the objective
of s. 181 is balanced against its invasive reach, there can in
my opinion be only one conclusion: the limitation of freedom
of expression is disproportionate to the objective envisaged.
In their laudable effort to send a message condemning the
'hate-mongering' of persons such as the appellant by upholding
s. 181 as a reasonable limit, it is my respectful opinion that
my colleagues Cory and Iacobucci JJ. make three fundamental
errors. First, they effectively rewrite s. 181 to supply its
text with a particularity which finds no support in the
provision's history or in its rare application in the Canadian
context. Second, they under-rate the expansive breadth of s.
181 and its potential not only for improper prosecution and
conviction but for 'chilling' the speech of persons who may
otherwise have exercised their freedom of expression. Finally,
they go far beyond accepted principles of statutory and Charter
interpretation in their application of s. 1 of the Charter.
While I share the concerns of my colleagues, I fear that such
techniques, taken to their ultimate extreme, might render
nugatory the free speech guarantee of the Charter.
DISPOSITION
I conclude that s. 181 of the Criminal Code infringes the
right of free expression guaranteed by s. 2(b) of the Charter
and that the infringement is not saved by s. 1 of the Charter.
I do not find it necessary to deal with the arguments under s.
7 of the Charter.
I would allow the appeal, enter an acquittal, and answer
the first constitutional question in the affirmative and the
second in the negative. In the result, I need not consider
whether the terms of the appellant's bail infringed his rights
under the Charter.
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tale or news that he knows is false and that causes or is
likely to cause injury or mischief to a public interest is
guilty of an indictable offence and liable to imprisonment
for a term not exceeding two years.
offence and liable to one year's imprisonment who
wilfully and knowingly publishes any false news or
tale whereby injury or mischief is or is likely to be
occasioned to any public interest.
response to false news reflects its role in prohibiting
the dissemination of false information which strikes at
important interests of society as a whole. Section 181
perpetuates one of the central functions of De Scandalis
in prohibiting public alarm and internecine hostilities
between and among social groups.
news;
2. That the accused knew the statement was false; and
3. That the statement causes or is likely to cause injury
or mischief to a public interest.
including freedom of the press and other media of
communication;
important to a democratic society than freedom of
expression. Indeed a democracy cannot exist without that
freedom to express new ideas and to put forward opinions
about the functioning of public institutions. The concept
of free and uninhibited speech permeates all truly
democratic societies and institutions. The vital
importance of the concept cannot be over-emphasized. No
doubt that was the reason why the framers of the Charter
set forth s. 2(b) in absolute terms which distinguishes
it, for example, from s. 8 of the Charter which guarantees
the qualified right to be secure from unreasonable search.
therefore only be restricted in the clearest of
circumstances.
statements, even where they attack those principles
underlying the freedom of expression, is not completely
divorced from the aims of s. 2(b) of the Charter.... [I]t
is partly through clash with extreme and erroneous views
that truth and democratic vision remain vigorous and
alive.... [C]ondoning a democracy's collective decision to
protect itself from certain types of expression may lead
to a slippery slope on which encroachments on expression
central to s. 2(b) values are permitted. To guard against
such a result, the protection of communications virulently
unsupportive of free expression values may be necessary in
order to ensure that expression more compatible with these
values is never unjustifiably limited.
the rights and freedoms set out in it subject only to such
reasonable limits prescribed by law as can be demonstrably
justified in a free and democratic society.
interest from being jeopardized by false speech
(respondent);
2. to further racial and social tolerance (Canadian Jewish
Congress); and
3. to ensure that meaningful public discussion is not
tainted by the deleterious effects of the wilful
publication of falsehoods which cause, or are likely to
cause, damage to public interests, to the detriment of
public order (Attorney General for Canada).