Supreme Court of Canada: 1992 Zündel Judgement
The section has its origin in the offence of De Scandalis
Magnatum enacted in 1275, 3 Edw. 1, Stat. West. prim. c. 34.
It read:
Forasmuch as there have been oftentimes found in
the Country Devisors of Tales, whereby discord or
occasion of discord, hath many times arisen between
the King and his People, or Great Men of this Realm;
for the Damage that hath and may thereof ensue; It is
commanded, 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; and he that doth so, shall be taken and
kept in Prison, until he hath brought him into the
Court, which was the first Author of the Tale.
The provision of peaceful means of redress for attacks on
reputation seems to have originated with organized society.
Early Germanic laws such as the Lex Salica and the Norman
Costumal sought to prevent blood feuds which, by their
persistent violence, tore societies apart. See Van Vechten
Veeder, "The History and Theory of the Law of Defamation I"
(1903), 3 Colum. L. Rev. 546, at p. 548, and "The History and
Theory of the Law of Defamation II" (1904), 4 Colum. L. Rev.
33.
Professor Veeder places De Scandalis in historical
context. While it was indeed aimed at the protection of the
powerful, it was part of a system of remedies for defamation
available to all subjects. The existence of separate fora was
ascribed, in part, to the fact that attacks on nobility were
viewed as having a political aspect, as a specie of sedition,
while those against ordinary citizens were not. The section was
repealed in the United Kingdom by the Statute Law Revision Act,
1887, 50 & 51 Vict., c. 59, but remains in force in Canada as
enacted in the Criminal Code.
Like most of our laws, the function of prohibitions
against spreading false news has changed dramatically over the
last 700 years. In 2 Ric. 2, st. I c. 5 of 1378, the provision
was re-enacted to expand the class of those whose reputation
interests implicated the integrity of the state. By virtue of
amendments in 12 Ric. 2, c. 11 of 1388, the statute also
provided for the punishment for disseminators as well as
devisers of false news. See: Law Commission of the United
Kingdom's Working Paper No. 84 on Criminal Libel, at p. 10.
In the Working Paper No. 84, the development of an ever
more specialized panoply of remedies for false news is
characterized as revealing a common theme of preventing a loss
of confidence in government. When the Star Chamber took over
prosecutions in 1488 soon after the development of the printing
press and the corresponding capacity for wide publication to
the masses, the Chamber's focus was on protecting the Christian
monarchy. See Working Paper No. 84, supra, at pp. 12-13. The
Star Chamber was also concerned with the protection of private
rights:
...the Star Chamber was anxious to suppress duelling.
To this end it would punish defamatory libels on
private citizens who had suffered insult thereby, in
the hope that this remedy would be more attractive to
the person insulted than the issue of a challenge to
fight. [Emphasis in original.]
(J.R. Spencer, "Criminal Libel -- A Skeleton in the
After the abolition of the Star Chamber in 1641, its
criminal jurisdiction passed to the Court of King's Bench.
Since that time, the courts have alternately used the false
news, criminal libel, and public mischief provisions in seeking
to prohibit the dissemination of false news likely to harm a
public interest. See F.R. Scott, "Publishing False News"
(1952), 30 Can. Bar Rev. 37, at p. 40.
In 1732, a criminal charge was brought against one Osborne
for printing a libel that members of the Portuguese Jewish
community living in London had murdered a Jewish woman and her
illegitimate child by a Christian lover. The court held that a
libel conviction was not made out because the allegations were
not aimed at an identifiable person, yet went on to convict the
accused:
Admitting an information for a libel may be improper,
yet the publication of this paper is deservedly
punishable in an information for a misdemeanour, and
that of the highest kind; such sort of advertisements
necessarily tending to raise tumults and disorders
among the people, and inflame them with an universal
spirit of barbarity against a whole body of men, as
if guilty of crimes scarce practicable, and totally
incredible.
(R. v. Osborne (1732), 2 Swans. 532, 36 E.R. 717; and
In Gathercole's Case (1838), 2 Lewin 237, 168 E.R. 1140,
at p. 1145, a charge of defamatory libel was made out against
an Anglican cleric who had disseminated false, scandalous and
malicious anti-Catholic slurs.
In Starkie's Treatise on the Law of Libel and Slander (3rd
ed. 1869), the author suggests at p. 578 that criminal libel
operated to punish not merely the blasphemous and seditious
but:
...also, for those reflecting upon sects, classes,
companies, or bodies of men, though not mentioning
any person in particular; if such libels tend to
excite the hatred of the king's subjects against the
members thereof generally, or to provoke them to a
breach of the peace.
In Scott's Case (1778), 5 New Newgate Calendar 284, the
accused was convicted of spreading false news for making and
displaying posters which made the following declarations:
'In pursuance of His Majesty's order in council to
me directed, these are to give public notice that war
with France will be proclaimed on Friday next, the
24th instant, at the palace royal, St. James', at one
of the clock, of which all heralds and pursuivants at
arms are to take notice, and give their attendance
accordingly.
In R. v. De Berenger (1814), 3 M. & S. 67, 105 E.R. 536
(K.B.), the accused was found guilty of public mischief for
spreading false rumours that the war with France was soon to
end in order to drive up the value of government bonds and
thereby profit from the public's misapprehension. Such conduct
now gives rise to prosecutions under the false pretences
sections at ss. 361 -363 of the Code and the false prospectus
section at s. 400, while the offence of public mischief in s.
140 only applies to false allegations of criminal conduct which
impairs police efficacy.
Prosecution of false news as a subset of public mischief
continued in the U.K. until the passage of the Public Order
Act, 1936 (U.K.), 1 Edw. 8 & 1 Geo. 6, c. 6. In 1936, Arnold
Leese was convicted for publishing in his magazine, The
Fascist, an article alleging that Jews were responsible for
unsolved child murders. He was convicted of "[p]ublishing and
printing divers scandalous and libellous statements regarding
his Majesty's Jewish subjects with intent to create ill-will
between his Majesty's subjects of the Jewish faith and those
not of the Jewish faith so as to create a public mischief". In
convicting the accused, the trial judge stated:
I am not in the least concerned with any controversy
that might have arisen with regard to these
matters...I am satisfied that nothing can be more
mischievous to the public weal than the circulation
of statements of his [sic] kind. I can appreciate
that behind what you have done there is possibly a
belief amounting in its intensity almost to
fanaticism with regard to the truth or otherwise of
these statements. That the public well-being can be
served by the publication of stuff of this kind --
and I call it "stuff" advisably [sic]-- I cannot
imagine. Nothing can be more harmful to the public
weal than that.
(London Times, September 22, 1936, at p. 11, col. 4.)
More generally, the close of the 19th century saw a
specialization of function among the various sections. The
spreading false news provision appears in art. 95 of Stephen's
Digest of the Criminal Law (1878), at p. 62, as:
Spreading False News
Every one commits a misdemeanor who cites or
publishes any false news or tales whereby discord or
occasion of discord or slander may grow between the
Queen and her people, or the great men of the realm
(or which may produce other mischiefs). [Emphasis
added.]
Scott, supra, notes at p. 39 that it was upon this
formulation of the offence that the Canadian Criminal Code
provision was based. Enacted in 1892, s. 126 of the Criminal
Code, S.C. 1892, c. 29, declared:
126. Every one is guilty of an indictable 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. [Emphasis added.]
While R. v. Keegstra, [1990] 3 S.C.R. 697, dealt with s.
319, Dickson C.J. had occasion to comment in passing on the
broad history of criminal libel offences (at p. 724):
While the history of attempts to
prosecute criminally the libel of groups is
lengthy, the Criminal Code provisions
discussed so far do not focus specifically
upon expression propagated with the intent
of causing hatred against racial, ethnic or
religious groups.
However, a more thorough review of the history of the
related provisions reveals a clear pattern of attention to
attacks on vulnerable groups. Scott, supra, examined the
relationship of s. 136 (now s. 181) to its historical
antecedents (at pp. 40 and 42):
The king's reputation and title were amply protected from
attack by various statutes, and the peers and other
"magnates" gradually abandoned their remedies under the
ancient doctrine of scandalum magnatum because the
developed law of libel and slander, and of contempt of
court for justices, took care of all their needs. Hence
the penalties for spreading "false news and tales" might
have been absorbed into various specialised branches of
the law, and there might be today no trace of a general
crime of spreading false news in our law, had it not had
an independent root in the idea of public mischief.
...
This notion of mischief in the common law has
relevance to section 136 of the Canadian Code because
the word "mischief" appears in the section. The
recent English cases show the doctrine is not
obsolete. Canadian law, based on statute, is more
clearly formulated and goes farther than the actual
holding in any English decision. Its roots are
nevertheless to be found in what is an operative
principle of the common law. It is wrong for anyone
knowingly to cause a public mischief by publishing or
telling lies. Lying itself does not constitute the
crime. Injuring the public interest does.
Allied in principle to these instances of public
mischief are the case where by spreading false news a
libel was occasioned to a group of persons. The rule
here is close to the notion both of libel and of
public mischief; or perhaps one might say it is
another example of public mischief, of which libel
upon individuals whether "magnates" or simple
citizens, is one type.
The section has rarely been used in modern times. In R.
v. Hoaglin (1907), 12 C.C.C. 226 (N.W.T. S.C.), the accused was
an American immigrant who apparently had not fared well here.
He placed a sign in his shop window to the effect that he was
having a closing out sale and advising Americans to think twice
before settling in Alberta because Americans were not welcome
there. The trial judge convicted him on the basis that the
Alberta government sought to foster American immigration.
Harvey J. was careful to stress that the provision was aimed at
false assertions of fact, not disagreeable expressions of
opinion. He stated (at p. 228):
The words themselves under certain circumstances,
would not amount to an offence. If a newspaper in
discussing the public policy of the country stated
that it did not think it was in the interest of
Canada that citizens of the United States should come
in here, I do not think that would be a matter which
would be properly dealt with under this section of
the Code.
In R. v. Carrier (1951), 16 C.R. 18, 104 C.C.C. 75 (Que.
K.B. (criminal side)), the accused was acquitted on a charge
arising out of the dissemination of a pamphlet protesting the
treatment of Jehovah's Witnesses entitled "The Burning Hate of
Quebec for God, Christ and the Liberty is a subject of shame
for all Canada" on the grounds of autrefois acquit on a charge
of seditious libel. In interpreting the "public interest"
harmed by false news, Drouin J. looked to the history of the
provision and found that it was aimed at controlling seditious
speech which threatened to undermine lawful authority. He
equated the public interest with sedition and concluded that
speech which fomented discord among citizens but did not issue
in other violent conduct was not contrary to the public
interest.
In 1955 (S.C. 1953-54, c. 51), the provision was removed
from the "Sedition" section of the Code and re-enacted under
the category of "Nuisance". In doing this, Parliament made it
clear that while the import of s. 181 was not to punish
sedition, it continued to have a role to play. Section 166
stated:
166. Every one who wilfully publishes a statement,
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 is
liable to imprisonment for two years. [Emphasis
added.]
The re-enacted section was dealt with in R. v. Kirby
(1970), 1 C.C.C. (2d) 286 (Que. C.A.). The appellant was the
publisher of an underground newspaper that had printed a
facsimile of the front page from the Montreal Gazette on the
back cover of an issue of his paper, carrying the headline
"Mayor Shot By Dope-Crazed Hippie". The accompanying story
stated that Mayor Drapeau had been attacked by a
needle-wielding drug fiend but was recovering nicely. The
papers had been distributed with the page folded inside, but
someone had played a prank on the pranksters and folded them so
that the "Gazette" page was outermost. Several calls were made
by concerned citizens to Drapeau's office and some 50 calls to
the Gazette's night editor. In overturning the conviction, the
court found that there had been no intention to pass the satire
off as news, let alone as false news, and thus no intent to
commit the offence. The court concluded (at p. 289):
I find it difficult to imagine that anyone could
have been misled into believing that the story was
genuine.
...
While I consider the page was stupid, pointless
and in bad taste, I cannot agree that, per se it was
reasonably sure to cause trouble and insecurity. The
inconvenience to which the night city editor of the
Gazette was put does not in my view constitute
"injury or mischief to a public interest" and the
Mayor himself gave no indication of concern over the
event....
Thus, a review of the historical development of the law's
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. The courts have quite properly determined that
expressions aimed at dissenting political opinion are not
caught by the section.
It remains to be determined whether s. 181 is invalid as a
result of a contravention of s. 2(b) of the Charter which
cannot be justified under s. 1 of the Charter.
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A. History of Section 181
Cupboard", [1977] Crim. L. Rev. 383).
2 Barn. K.B. 138 and 166, 94 E.R. 406 and 425; W.
Kel. 230, 25 E.R. 584.)