Supreme Court of Canada: 1992 Zündel Judgement
In order to determine whether s. 181 can be justified
under s. 1 of the Charter a careful balancing of a number of
factors must be considered. In doing so we have followed the
test set out in R. v. Oakes, [1986] 1 S.C.R. 103.
(1) Prescribed by Law
(i) The General Rule
There is a separate constitutional question posed which
raises the issue of vagueness under s. 7 of the Charter.
Indeed, if the vagueness of the impugned law is the sole issue
raised, it is dealt with under s. 7. Nonetheless, the proper
place to deal with this vagueness argument is under s. 1. See
R. v. Nova Scotia Pharmaceutical Society, S.C.C., No. 22473,
July 9, 1992, at pp. 24-25.
The concept that a section of an enactment would be
declared void for vagueness is based upon the sound rule that a
person should know with reasonable certainty what the law is
and what actions are in danger of breaking the law. There can
be no doubt that a section of the Criminal Code enacting an
offence must provide sufficient guidance to predict the legal
consequences of a given course of conduct but a statute or
legal enactment can do no more than set boundaries which create
an area of risk.
It is the guidance of conduct and not the absolute
direction of conduct which is the appropriate objective of
legislation. A provision will be too vague if it does not
provide a basis for legal debate and discussion. If it does
not sufficiently delineate an area of risk, it can provide
neither notice to a person of conduct which is potentially
criminal nor an appropriate limitation on the discretion of the
authorities seeking to enforce the provision. Such a provision
offers no basis for the judiciary to define limits of conduct.
See Nova Scotia Pharmaceutical, supra, at pp. 36-38.
Section 181 cannot be said to be vague. It provides clear
guidelines of conduct. The citizen knows that to be at risk
under this section, he or she must wilfully publish a false
statement knowing it to be false. Further, the publication of
those statements must injure or be likely to injure the public
interest.
(ii) How Should the Term "Public Interest" be Defined
The appellant contends that the term, "public interest",
is so vague that the section is invalid. It is submitted that
the term could be used by an unscrupulous government to render
criminal any conduct or opinion opposed by the government of
the day.
The fact that the term is undefined by the legislation is
of little significance. There are many phrases and words
contained in the Criminal Code which have been interpreted by
the courts. It is impossible for legislators to foresee and
provide for every eventuality or to define every term that is
used. Enactments must have some flexibility. Courts have in
the past played a significant role in the definition of words
and phrases used in the Code and other enactments. They should
continue to do so in the future.
For our purposes, it is sufficient to refer to but a few
of the judicial definitions of words and phrases found in the
Criminal Code. In obscenity cases, courts have properly taken
it as their role and duty to define such terms as "indecent",
"immoral" or "scurrilous" found in various sections of the Code
(see, for example, R. v. MacLean and MacLean (No. 2) (1982), 1
C.C.C. (3d) 412 (Ont. C.A.), and R. v. Springer (1975), 24
C.C.C. (2d) 56 (Sask. Dist. Ct.). In R. v. Butler, [1992] 1
S.C.R. 452, Sopinka J. considered the meaning that should be
attached to the words "undue exploitation of sex", which also
were not defined in the statute.
Similarly, courts have considered and interpreted, the
words "deceit, falsehood or other fraudulent means". In R. v.
Olan, [1978] 2 S.C.R. 1175, "other fraudulent means" was found
to include means which were not in the nature of a falsehood or
deceit. Rather the words were held to encompass all means
which can properly be designated as dishonest. That same case
further concluded that although there was no definition of
"defraud" contained in the Criminal Code, dishonesty and
deprivation were essential elements that must be considered as
integral components of the word.
It is clear then that the courts can and should define
terms and words used in the Criminal Code. A review of the
cases that have thus far considered false news provisions
reveals that they have not yet adequately defined the term
"public interest". It is therefore necessary to consider
further how the phrase "public interest" should be defined in
the context of s. 181.
A survey of federal statutes alone reveals that the term
"public interest" is mentioned 224 times in 84 federal
statutes. The term appears in comparable numbers in provincial
statutes. The term does not and cannot have a uniform meaning
in each statute. It must be interpreted in light of the
legislative history of the particular provision in which it
appears and the legislative and social context in which it is
used.
A "public interest" likely to be harmed as a result of
contravention of s. 181 is the public interest in a free and
democratic society that is subject to the rule of law. A free
society is one built upon reasoned debate in which all its
members are entitled to participate. Section 181, including
its reference to "public interest", should, as this Court has
emphasized, be interpreted in light of Charter values. See
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. As a fundamental
document setting out essential features of our vision of
democracy, the Charter provides us with indications as to which
values go to the very core of our political structure. A
democratic society capable of giving effect to the Charter's
guarantees is one which strives toward creating a community
committed to equality, liberty and human dignity. The public
interest is, therefore, in preserving and promoting these
goals.
The term, as it appears in s. 181, should be confined to
those rights recognized in the Charter as being fundamental to
Canadian democracy. It need not be extended beyond that. As
an example, the rights enacted in ss. 7, 15 and 27 of the
Charter should be considered in defining a public interest.
Section 15 of the Charter provides that every individual
is equal before and under the law and is to be free of
discrimination based on race, national or ethnic origin,
colour, religion, sex, age, or mental or physical disability.
If the wilful publication of statements which are known to be
false seriously injures a group identifiable under s. 15, such
an act would tear at the very fabric of Canadian society. It
follows that the wilful publication of such lies would be
contrary to the public interest. If the Crown is able to
establish beyond a reasonable doubt that those fundamental
rights are likely to have been seriously damaged by the wilful
publication of statements known to be false, it will have
fulfilled this part of its obligations under the section.
Thus, the term "public interest" as it appears in s. 181
refers to the protection and preservation of those rights and
freedoms set out in the Charter as fundamental to Canadian
society. It is only if the deliberate false statements are
likely to seriously injure the rights and freedoms contained in
the Charter that s. 181 is infringed. This section, therefore,
provides sufficient guidance as to the legal consequence of a
given course of conduct. It follows that the section cannot be
said to be so vague that it is void.
(2) Objective
(i) A Pressing and Substantial Aim
The aim of s. 181 is to prevent the harm caused by the
wilful publication of injurious lies. This is evident from the
clear wording of the provision itself which prohibits the
publication of a statement that the accused knows is false and
"that causes or is likely to cause injury". This specific
objective in turn promotes the public interest in furthering
racial, religious and social tolerance. There can be no doubt
that there is a pressing and substantial need to protect groups
identifiable under s. 15 of the Charter, and therefore society
as a whole, from the serious harm that can result from such
"expression". The decision of this Court in Keegstra clearly
recognized the invidious and severely harmful effects of hate
propaganda upon target group members and upon society as a
whole (see pp. 746-749). It was found that members of such
groups, not unexpectedly, respond to the humiliation and
degradation of such "expression" by being fearful and
withdrawing from full participation in society. Society as a
whole suffers because such "expression" has the effect of
undermining the core values of freedom and democracy.
Professor Mari Matsuda has described the impact unchecked
racist speech has on target group members in "Public Response
to Racist Speech: Considering the Victim's Story" (1989), 87
Mich. L. Rev. 2320, at pp. 2338 and 2379:
To be hated, despised and alone is the ultimate fear
of all human beings. However irrational racist
speech may be, it hits right at the emotional place
where we feel the most pain. The aloneness comes not
only from the hate message itself, but also from the
government response of tolerance. When ... the
courts refuse redress for racial insult, and when
racist attacks are officially dismissed as pranks,
the victim becomes a stateless person.
...
The government's denial of personhood by denying
legal recourse may be even more painful than the
initial act of hatred. One can dismiss the hate
groups as an organization of marginal people, but the
state is the official embodiment of the society we
live in.
Similarly, it would be impossible to deny the harm caused
by the wilful publication of deliberate lies which are likely
to injure the public interest. The evil is apparent in the
deceptive nature of publications caught by s. 181. The focus
of s. 181 is on manipulative and injurious false statements of
fact disguised as authentic research. The publication of such
lies makes the concept of multiculturalism in a true democracy
impossible to attain. These materials do not merely operate to
foment discord and hatred, but they do so in an extraordinarily
duplicitous manner. By couching their propaganda as the banal
product of disinterested research, the purveyors of these works
seek to circumvent rather than appeal to the critical faculties
of their audience. The harm wreaked by this genre of material
can best be illustrated with reference to the sort of Holocaust
denial literature at issue in this appeal.
Holocaust denial has pernicious effects upon Canadians who
suffered, fought and died as a result of the Nazi's campaign of
racial bigotry and upon Canadian society as a whole. For
Holocaust survivors, it is a deep and grievous denial of the
significance of the harm done to them and thus belittles their
enormous pain and loss. It deprives others of the opportunity
to learn from the lessons of history. To deliberately lie about
the indescribable suffering and death inflicted upon the Jews
by Hitler is the foulest of falsehoods and the essence of
cruelty. Throughout their tragic history, the circulation of
malicious false reports about the Jewish people has resulted in
attacks, killings, pogroms and expulsions. They have indeed
suffered cruelly from the publication of falsehoods concerning
their culture.
The Cohen committee demonstrated that racial intolerance
was alive and functioning in Canada in the 1960's. In 1984,
both the Special Committee Report on Participation of Visible
Minorities in Canadian Society, Equality Now!, and the Canadian
Bar Association's Report of the Special Committee on Racial and
Religious Hatred found that racism and words inciting hatred
were growing problems in Canada and urged that prohibitions
against them be maintained and strengthened. The facts in the
recent case of Kane v. Church of Jesus Christ Christian--Aryan
Nations, Alta. Bd. Inq., February 28, 1992, [1992] A.W.L.D. No.
302, reveal with dreadful clarity that racism is a current and
present evil in our country. It is a cancerous growth that is
still alive, growing and thriving on ignorance, suspicion, fear
and jealousy.
Section 181 provides protection, by criminal sanction, not
only to Jewish Canadians but to all vulnerable minority groups
and individuals. The salutary nature of this section should be
emphasized. It can play a useful and important role in
encouraging racial and social tolerance which is so essential
to the successful functioning of a democratic and multicultural
society. It achieves this goal by expressing the repugnance of
Canadian society for the wilful publication of statements known
to be false that are likely to cause serious injury or mischief
to the public interest which is defined in terms of Charter
values. Indeed, it would be unfortunate if the Charter was
used to strike down a provision that protects vulnerable groups
and individuals.
In R. v. Wholesale Travel Group Inc., [1991] 3 S.C.R. 154,
it was said of this important principle (at p. 233):
This Court has on several occasions observed that the
Charter is not an instrument to be used by the well
positioned to roll back legislative protections enacted on
behalf of the vulnerable.
...
The same principle has been repeated and emphasized
in Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1
S.C.R. 927, at p. 993, and in Slaight Communications Inc.
v. Davidson, [1989] 1 S.C.R. 1038, at p. 1051. This
principle recognizes that much government regulation is
designed to protect the vulnerable. It would be
unfortunate indeed if the Charter were used as a weapon to
attack measures intended to protect the disadvantaged and
comparatively powerless members of society.
The aim of s. 181 has the effect of protecting the
vulnerable in society and, as such, is a pressing and
substantial concern. It is of particular importance since,
under our constitution, multiculturalism and equality are to be
enhanced.
(ii) International Instruments
In seeking to deny the Holocaust in order to facilitate
the promotion of racism, the appellant has aimed with deadly
accuracy. The Nazi attempt to commit genocide against the Jews
and other "non-aryan" subjects within their control is part of
an all too long and frequently repeated history of persecutory
atrocities committed by majorities against minorities. The
Holocaust is undeniably a watershed marking the apogee of the
brutal consequences which flow from unchecked racism. It was in
response to the horrors of the Holocaust that Western nations
undertook to seek to abolish racism. Dickson C.J. noted this
trend in his dissenting reasons in Reference re Public Service
Employee Relations Act (Alta.), [1987] 1 S.C.R. 313, at p. 348:
Since the close of the Second World War, the
protection of the fundamental rights and freedoms for
groups and individuals has become a matter of
international concern. A body of treaties (or
conventions) and customary norms now constitutes an
international law of human rights under which the
nations of the world have undertaken to adhere to the
standards and principles necessary for ensuring
freedom, dignity and social justice for their
citizens. The Charter conforms to the spirit of this
contemporary international human rights movement, and
it incorporates many of the policies and
prescriptions of the various international documents
pertaining to human rights. The various sources of
international human rights law -- declarations,
covenants, judicial and quasi-judicial decisions of
international tribunals, customary norms -- must, in
my opinion, be relevant and persuasive sources for
interpretation of the Charter's provisions.
Canada is a signatory to two relevant international
instruments. The United Nations International Covenant on
Civil and Political Rights (in force for Canada August 19,
1976), 999 U.N.T.S. 172, Article 20(2), and the International
Convention on the Elimination of All Forms of Racial
Discrimination (in force for Canada November 13, 1970), 660
U.N.T.S. 212, preamble and Article 4. Both documents provide
that advocacy of national, racial or religious hatred that
constitutes incitement to discrimination, hostility or violence
shall be prohibited by law (see Keegstra, supra, at pp. 749 to
755). These instruments serve to emphasize the important
objective of s. 181 in preventing the harm caused by calculated
falsehoods which are likely to injure the public interest in
racial and social tolerance.
In this case the published statements which were known to
be false referred to the Holocaust. As a result it has been
necessary to refer to that most evil episode in history and to
the Jewish people who were its victims. However the reasoning
equally applies to any identifiable minority group which has
been seriously injured by the wilful publication of a statement
known to be false.
(iii) Legislative Responses in Other Jurisdictions
Like Canada, many free and democratic societies have
responded to their international obligations by enacting
specific hate propaganda provisions equivalent to our s. 319
while retaining or adding sections addressed to specific
related forms of malice. Some use spreading false news
provisions. Article 656 of the Italian Criminal Code makes it
an offence to publish and disseminate false, exaggerated or
misleading news liable to disrupt the public order. The
provision was upheld in the Constitutional Court in Decision
No. 191/1962 on the basis that public order means "legal order
on which social co-existence is based", i.e., that set of norms
which ensures the effectiveness of the legal order. See
Alessandro Pace, "Constitutional Protection of Freedom of
Expression in Italy" (1990), 2 European Review of Public Law
71, at p. 84.
The Danish Criminal Code deals with attacks based on
religion under s. 140, while prohibiting false speech against a
variety of vulnerable social groups under s. 266(b). Section
140 of the Danish Criminal Code reads:
140. Any person who exposes to ridicule or insults
the dogmas or worship of any lawfully existing
religious community in this country shall be liable
to simple detention, or in extenuating circumstances,
to a fine.
Section 266(b) of the Danish Criminal Code makes it an
offence for:
...any person who, by circulating false rumors or
accusations persecutes or incites hatred against any
group of the Danish population because of its creed,
race, or nationality shall be liable to simple
detention, or in aggravating circumstance, to
imprisonment for any term not exceeding one year.
(See, K. Lasson, "Racial Defamation As Free Speech:
As a result of the German Republic's direct experience
with the horrors of unchecked racist speech, it has regulated
it under three penal offences. Two of these cast a broad net
which embraces all forms of hate speech while the third is
specifically aimed at dealing with holocaust denial as a specie
of insult. Article 130 of the West German Criminal Code
prohibits attacks on human dignity by incitement to hate.
Article 131 prohibits race-hatred writings. Article 185
creates the offence of insult. Article 194(1) provides for
initiation of prosecutions by victims of persecution during
World War II. See Professor Eric Stein, "History Against Free
Speech: The New German Law Against the "Auschwitz" -- and
other -- "Lies" (1986), 85 Mich. L. Rev. 277. In the judgment
at 75 BGHZ 160, 33 NJW 45 (1980), the court made it clear that
the punishment of false allegations about the Holocaust was not
about different interpretations of history but about
disrespect:
The very historical fact that humans were segregated
according to their origin under the so-called
Nuremberg laws, and were robbed of their
individuality with a view to their extermination,
gives the Jews living in the Federal Republic a
special personal relationship with their fellow
citizens; in this relationship the past is present
even today. They are entitled, as a component of
their personal self-image, to be viewed as a part of
a group, singled out by fate, to which all others owe
a particular moral responsibility, and that is an
aspect of their honor. The respect of this
self-image constitutes for every one of them one of the
guarantees against a repetition of discrimination and a
basis for their life in the Federal Republic. Whoever
attempts to deny these events deprives each and every one
of them of the personal worth to which they are entitled.
(Cited and translated in Stein, supra, at p. 303.)
While the presence of overlapping provisions in other
jurisdictions is by no means conclusive of the constitutional
validity of the provision at issue in this appeal, the fact
that legislation of this type is found in other free and
democratic countries is relevant in considering whether the
objective is of sufficient importance to justify this very
limited infringement on freedom of expression.
(iv) Other Charter Provisions
(a) General: Section 15 of the Charter
It must be remembered that the s. 1 analysis takes place
in the context of whether the limit is justifiable in a "free
and democratic society" and therefore, the analysis of the
limited s. 2(b) infringement must be conducted in light of
Canada's commitment to the values set out in other sections of
the Charter. The wording of s. 181 itself, through its
reference to the "public interest", invokes the values of the
Charter. Thus, the legislature has signalled the importance of
the objective because it has defined the harm against which the
provision protects in terms of the values that are closest to
the foundations of our multicultural and democratic society.
False statements aimed at perpetuating the unequal
participation and treatment of groups already disadvantaged
along s. 15 enumerated or analogous grounds do not foster full
participation in society but prevent it. Democratic pluralism
assumes that members of society will not simply organize around
single interests of race, class or gender but will explore and
discern their commonalities, coming together around certain
issues and diverging on others in constantly changing
configurations. Deliberate lies which deny these commonalities
divide groups which might otherwise organize around mutual
interests, and instead forge loyalties based on artificial and
reified racial identifications that do not permit society to
perceive and pursue its various goals. Those in the target
group lose the capacity to participate with others and are
reduced to some single aspect of their identities. Those in
the majority lose the opportunity for meaningful participation
in a fully open society when access to the perspectives of
minorities is lost. This will occur whenever the majority so
demeans a minority that these perspectives can no longer be
accorded the dignity and authority which their cogency might
merit. Speech which, through the deliberate dissemination of
falsehoods, has the effect of promoting or perpetuating
discrimination and exclusion of a group subjected to historical
disadvantage will be prohibited. By prohibiting calculated
falsehoods which undermine the equality of target group
members, s. 181 enhances the goals of s. 15 of the Charter.
In this connection, it is also important to recognize the
significance of s. 27 of the Charter in assessing the
importance of s. 181's objective.
(b) Section 27 of the Charter
Section 27 provides:
27. This Charter shall be interpreted in a manner
consistent with the preservation and enhancement of
the multicultural heritage of Canadians.
The importance of multiculturalism has also been
recognized internationally. The model for s. 27 of the Charter
was Article 27 of the 1966 International Covenant on Civil and
Political Rights, ratified by Canada in 1976. That section
provided:
Article 27. In those states in which ethnic,
religious or linguistic minorities exist, persons
belonging to such minorities shall not be denied the
right, in community with the other members of their
group, to enjoy their own culture, to profess and
practice their own religion, or to use their own
language.
This Article, like s. 27 of the Charter, stresses the
importance of tolerance and respect for the dignity of human
beings. Recent events in Canada and throughout the world have
demonstrated how quickly these ideals can be forgotten and how
important it is to cherish them.
It is perhaps an indication of the genius of Canada and
Canadians that the supreme law of the land would recognize the
existence of multiculturalism in our country and encourage its
enhancement. Our country has benefited from and has been
enriched by the efforts and accomplishments of Canadians of
many different races, religions and nationalities. The
recognition of multiculturalism in the Charter is an attempt to
achieve the epitome of democratic societies.
The recognition of this principle in the Charter was not
something new. Multiculturalism in our country has been
acknowledged for many years by way of government policy and
parliamentary enactment. For example, it was specifically
recognized and cited by the members of the Royal Commission on
Bicultural and Bilingualism, some of whose policies were later
implemented by the government. See Canada, Report of the Royal
Commission on Bilingualism and Biculturalism, The Cultural
Contribution of the Other Ethnic Groups, Book IV (Ottawa,
1969).
This Court has applied s. 27 in several cases beginning
with R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295. In R. v.
Edwards Books and Art Ltd., [1986] 2 S.C.R. 713, Dickson C.J.
again referred to s. 27 in connection with the definition of
freedom of religion. There he wrote (at p. 758):
...indirect coercion by the state is comprehended
within the evils from which s. 2(a) may afford
protection ... [a]ny more restrictive interpretation
would, in my opinion, be inconsistent with the
Court's obligation under s. 27 to preserve and
enhance the multicultural heritage of Canadians.
In the same case, Wilson and La Forest JJ. used s. 27 to
support their analysis under s. 1 of the Charter (see pp.
804-9).
In Andrews v. Law Society of British Columbia, [1989] 1
S.C.R. 143, at p. 171, McIntyre J. applied s. 27 in the course
of defining s. 15 equality rights. He referred to s. 27 to
demonstrate that the goal of promoting equality is much greater
than simply that of eliminating distinctions.
In Keegstra, supra, s. 27 was cited to support the
reasonableness of the limits on freedom of expression provided
by the hate literature sections of the Code. Dickson C.J. dealt
with the meaning of s. 27 and wrote (at p. 757):
...I expressly adopt the principle of
non-discrimination and the need to prevent attacks on the
individual's connection with his or her culture, and hence
upon the process of self-development (see Magnet
"Multiculturalism and Collective Rights: Approaches to
Section 27", in Beaudoin and Ratushny, eds., op. cit., at
p. 739).
The section provides constitutional reinforcement of
Canada's long standing policy of recognizing multiculturalism.
It recognizes that all ethnic groups are entitled to
recognition and to equal protection. It supports the
protection of the collective rights, the cultural integrity and
the dignity of Canada's ethnic groups. In doing so it enhances
the dignity and sense of self worth of every individual member
of those groups and thereby enhances society as a whole.
Section 27 of the Charter is not merely the reflection of
a fleetingly popular concept. Rather it is a magnificent
recognition of the history of Canada and of an essential
precept for the achievement of those elusive goals of justice
and true equality. People must be able to take pride in their
roots, their religion and their culture. It is only then that
people of every race, colour, religion and nationality can feel
secure in the knowledge that they are truly equal to all other
Canadians. Thus secure in the recognition of their innate
dignity, Canadians of every ethnic background can take pride in
their original culture and a still greater pride in being
Canadian. Section 27 strives to ensure that in this land there
will be tolerance for all based on a realization of the need to
respect the dignity of all.
Many authors have written of the importance of
multiculturalism. Evelyn Kallen suggests that the cultural
integrity and the collective dignity of ethnic communities are
inextricably linked. Every ethnic group must be equally
respected and afforded equal opportunity to freely practise and
transmit over the generations its peoples' distinctive
language, religion, and cultural design for living (see
"Multiculturalism, Minorities, and Motherhood: A Social
Scientific Critique of Section 27", in Multiculturalism and the
Charter: A Legal Perspective (1987), 123, at p. 125).
Kallen argues compellingly that s. 27 should be
interpreted in its broadest sense in order to protect the
collective rights, cultural integrity and group dignity of
Canada's many ethnic groups. She writes (at p. 136):
Section 27 recognizes and protects the
"multicultural heritage" of Canadians. What is
important to consider here is that the cultural
heritage of minority Canadians almost invariably
includes a history of human rights violations through
collective discrimination. And, not infrequently,
collective ethnic discrimination takes the form of
group defamation. Violations of minority rights
through racial and cultural persecution, sometimes to
the point of policies of genocide, become a critical
feature of an ethnic group's history and cultural
heritage. Collective experiences of defamation,
persecution, incarceration, and the like become part
and parcel of an ethnic group's distinctiveness as a
people and as a culture. Ceremonies are developed to
commemorate collectively such tragic and traumatic
events. These become sacred traditions, hallowed by
time, which serve as indelible reminders to ethnic
group members of the collective price they have paid
for their commitment to the ethnic group and to its
distinctive cultural design for living. [Emphasis in
original.]
Viewed in light of Canada's history and the
interrelationship of ss. 27 and 15 of the Charter, it can be
seen that s. 181 has a very useful and important role to play
in Canadian society. Section 181 encourages the goals of
tolerance and equality for all, as set out in the Charter, by
expressing the repugnance of Canadian society for the wilful
publications of false statements which seriously injure the
public interest.
(v) A Permissible Shift in Emphasis
It has been argued that s. 181 is anachronistic and that
to attribute to it the purpose of protecting racial and social
tolerance is to trigger the invalid shifting purpose doctrine.
Those concerns should now be addressed.
It is true the false news provision dates back to 1275.
It was submitted that there is really no need at this stage in
our history to protect the "great persons of the realm", which
was the basis for the section when it was first enacted in the
13th century, and that the provision serves no other purpose.
That position cannot be accepted. This section was
specifically retained by Parliament in 1955. It has today a
very real and pertinent role to play in Canada's multicultural
and democratic society.
Over the years the purpose of the predecessors to s. 181
has evolved to extend the protections from harm caused by false
speech to vulnerable social groups and therefore to safeguard
the public interest against social intolerance and public
alarm. It is true that De Scandalis Magnatum was enacted in a
feudal society. That society depended for its existence upon
the obedience and allegiance of the peasant class to the
Sovereign and nobility. The protection of the public interest
from harm focused, therefore, on the prevention of deliberate
slanderous statements against the great nobles of the realm.
Such statements, it was thought, could lead to feuds among the
nobility which would seriously threaten the security of the
state and therefore harm the public interest. As the nature of
the state changed, it was attacks on religious, racial or
ethnic minorities that were seen to threaten the integrity of
the social fabric. The centuries have passed and forms of
government have changed but the enactment continues to have a
salutary aim and effect.
The tragedy of the Holocaust and the enactment of the
Charter have served to emphasize the laudable s. 181 aim of
preventing the harmful effects of false speech and thereby
promoting racial and social tolerance. In fact, it was in part
the publication of the evil and invidious statements that were
known to be false by those that made them regarding the Jewish
people that lead the way to the inferno of the Holocaust. The
realities of Canada's multicultural society emphasize the vital
need to protect minorities and preserve Canada's mosaic of
cultures.
Accordingly, there is a strong public interest in
preventing the wilful publication of statements known to be
false which seriously injure the basic dignity, and thus the
security, and equality of others which ss. 7 and 15 of the
Charter strive to provide. This interest is now subsumed
within one of the original and continuing aims of s. 181 which
is to prevent the harm caused by deliberate lies and to thereby
promote racial and social tolerance. At the same time, there
remains a public interest in the prevention of false statements
of facts which are likely to jeopardize the security of the
nation. Although it is not essential to these reasons, we
should observe that s. 181 may, as well, apply to an individual
who wilfully publishes statements known to be false which are
not directed at a group, but do serious harm to the public
interest with regard to society as a whole. For example, to
broadcast news that intercontinental missiles with nuclear
warheads will be launched on Canada within the hour when that
is known to be false would come within the purview of s. 181.
It is now clear that, in a multicultural society, the
sowing of dissension through the publication of known
falsehoods which attack basic human dignity and thus the
security of its individuals cannot be tolerated. These lies
poison and destroy the fundamental foundations of a free and
democratic society.
The characterization of the purpose in s. 181 is readily
distinguishable from the shifting purpose analysis which was
criticised in R. v. Big M Drug Mart Ltd., supra. First, the
original purpose of the impugned legislation in Big M was
undoubtedly religious and, therefore, in violation of s. 2(a)
of the Charter. This Court observed that the aim of the
impugned Lord's Day Act, in compelling sabbatical observance,
had been long-established and consistently maintained by the
courts of this country (at p. 331). By contrast, the original
purpose of the predecessors of s. 181 clearly could not be
considered unconstitutional. The provision was always aimed at
preventing the harm caused by false speech and thereby
protecting the safety and security of the community.
Second, the unsuccessful argument in Big M advocated a
complete shift in purpose. Instead of the original aim of
enforcing religious observance, it was argued that the new
purpose was to implement a purely secular and universal day of
rest from work. By comparison, the purpose in the present case
has not shifted. Rather than creating a new and different
purpose as in Big M, the aim of the section has been
maintained. The Canadian commitment to stemming intolerance
and the dedication to multiculturalism and equality underline
the importance and extent of the public interest in protecting
against the harms of false speech and thereby maintaining
racial and social tolerance.
Support for the proposition that a shift in emphasis is
permissible also stems from the decision in Butler, supra.
Centuries ago, obscenity laws were enacted to prevent the
corruption of the morals of the King's subjects, and therefore
to protect the peace of the King and government (see p. 473 of
Butler). In Butler, however, Sopinka J. found that the
objective of the obscenity laws is no longer moral
disapprobation but rather the avoidance of harm to society.
Sopinka J., at p. 495, quoted the words of Charron Dist. Ct. J.
in R. v. Fringe Products Inc. (1990), 53 C.C.C. (3d) 422, at
pp. 443-44:
Even though one can still find an emphasis on
the enforcement of moral standards of decency in
relation to expression in sexual matters in the
jurisprudence subsequent to the enactment of s-s.
(8), it is clear that, by the very words it has
chosen, Parliament in 1959 moved beyond such narrow
concern and expanded the scope of the legislation to
include further concerns with respect to sex combined
with crime, horror, cruelty and violence.
It is the harm to society resulting from the
undue exploitation of such matters which is aimed by
the section. The "harm" conceived by Parliament in
1959 may not have been expressed in the same words as
one would today. The court is not limited to a 1959
perspective in the determination of this matter. As
noted in Irwin Toy Ltd. v. Quebec (Attorney General),
([1989] 1 S.C.R. 927, at p. 984):
In showing that the legislation pursues a pressing
and substantial objective, it is not open to the
government to assert post facto a purpose which did
not animate the legislation in the first place...
However, in proving that the original objective
remains pressing and substantial, the government
surely can and should draw upon the best evidence
currently available. The same is true as regards
proof that the measure is proportional to its
objective... It is equally possible that a purpose
which was not demonstrably pressing and substantial
at the time of the legislative enactment becomes
demonstrably pressing and substantial with the
passing of time and the changing of circumstances.
[Emphasis added.]
Sopinka J. concluded by adding that a "permissible shift
in emphasis was built into the legislation when, as interpreted
by the courts, it adopted the community standards test" (p.
496). Similarly, in the present case, the wording of s. 181
includes a permissible shift in emphasis with its test which is
based on injury to the public interest. Looking back to the
inclusion of the offence in the Criminal Code, and the last
amendment to the section in 1955, one can reasonably conclude
that there has been a shift in the values that inform the
public interest. As in Butler, this shift has been
incorporated into the language of the section itself and is
therefore permissible.
Just as the community standards test as applied to the
obscenity law "must necessarily respond to changing mores"
(Butler, supra, at p. 477), so too should the test to define
"injury to a public interest" take into account the changing
values of Canadian society. Those values encompass
multiculturalism and equality, precepts specifically included
in the provisions of the Charter.
Further support for the permissible shift in emphasis
built into the legislation can be seen in the original wording
of the provision in Burbridge's Digest of Criminal Law of
Canada in 1890. As Professor Scott, as previously noted,
supra, argues, the inclusion of the clause "or which may
produce other mischiefs" in the original formulation is a
"bridge" connecting the historical and prospective uses of the
provision (at p. 40):
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.
Based on the foregoing, we conclude that the objective of
s. 181 is sufficiently pressing and substantial to justify this
limited restriction on freedom of expression. The first test
is therefore met.
(3) Proportionality
The next step in the s. 1 analysis is to determine whether
the means chosen to further the objective are proportional to
the ends.
(i) Relation of the Expression at Stake to Free
It is at this stage that there must be an examination of
the extent to which the expression at stake in a particular
case promotes freedom of expression principles. Dickson C.J.,
in Keegstra, cautioned that (at p. 760):
...it is equally destructive of free expression values, as
well as the other values which underlie a free and
democratic society, to treat all expression as equally
crucial to those principles at the core of s. 2(b).
A careful examination of the philosophical underpinnings
of our commitment to free speech reveals that prohibiting
deliberate lies which foment racism is mandated by a principled
commitment to fostering free speech values. Liberal theory
proposes that the state does not exist to designate and impose
a single vision of the good life but to provide a forum in
which opposing interests can engage in peaceful and reasoned
struggle to articulate social and individual projects. We
enshrine freedom of speech because it is an essential feature
of humanity to reason and to choose and in order to allow our
knowledge and our vision of the good to evolve. The risk of
losing a kernel of truth which might lie buried in even the
most apparently worthless and venal theory is believed to
justify absolute freedom of expression. However, where there
is no possibility that speech may be true because even its
source has knowledge of its falsity, the arguments against
state intervention weaken. When such false speech can be
positively demonstrated to undermine democratic values, these
arguments fade into oblivion.
Our colleague argues that truth may sometimes be in the
eye of the beholder. In so far as she uses this assertion as a
basis for including even pernicious speech within the ambit of
protection afforded by s. 2(b) of the Charter, we agree.
However, when it comes time to balance competing interests
under s. 1, we must keep in mind that the various members of
Canadian society behold deliberately false speech such as that
at issue in this appeal from dramatically different
perspectives.
A disinterested third party may indeed take from the
appellant's work a healthy scepticism towards the production of
bodies of knowledge. She may also take from it support for
feelings of contempt for Jews, Africans, Asians or for anyone
who merely objects to "racialism".
Yet, there is another "beholder" of speech whose
perspective is immensely relevant and yet does not figure in
our colleague's account. We are warned quite properly that
history has many lessons to teach. One is that the marketplace
of ideas is an inadequate model; another is that minorities are
vulnerable to censure as speakers. Indeed, by stressing the
role s. 181 plays in permitting minorities to speak and to be
heard, we recognize that grave caution must always be exercised
to ensure that a provision aimed at alleviating oppression
never becomes one for initiating or perpetuating it.
But history also teaches us that minorities have more
often been the objects of speech than its subjects. To protect
only the abstract right of minorities to speak without
addressing the majoritarian background noise which makes it
impossible for them to be heard is to engage in a partial
analysis. This position ignores inequality among speakers and
the inclination of listeners to believe messages which are
already part of the dominant culture. It reflects the position
put forth by the dissent but rejected by the majority in
Keegstra that the right to freedom of expression entails only
the freedom to "loose one's ideas on the world" and not to be
respected, "listened to or believed".
With respect, we feel bound to follow the majority in
Keegstra which held that it may be appropriate to limit
expression protected by s. 2(b) under s. 1 where such
expression threatens the dignity of members of the target group
and promotes discrimination which excludes them from full
participation in society. Professor David Partlett explores
this delicate balance in "From Red Lion Square to Skokie to the
Fatal Shore: Racial Defamation and Freedom of Speech" (1989),
22 Vand. J. Transnat'l L. 431, at pp. 459 and 468-69:
Furthermore, to view the government as villain
is to ignore the capacity of the government as a
speaker to moral matters. Government actions carry
the imprimatur of authority. Silence and action
carry social messages. This sits at the base of much
anti-discrimination legislation. For government to
speak provides not only a greater power to rectify
wrongs but carries a moral message that
discriminatory behavior does not have a place in that
society.
...
Because government is a powerful, sometimes
overwhelming, voice, great care should be taken to
cabin its exercise.
But it is not sufficient to leave the argument
here. Government -- in the defense of interests of
tolerance, pluralism, and individual autonomy -- has
a duty to speak on moral matters on behalf of those
in the society who are inarticulate. Government is
then acting as a facilitator for the expression of
ideas, and it is difficult to attack the action from
a free speech standpoint.
The type of "expression" targeted by s. 181 is only
tenuously, if at all, connected to the values underlying
freedom of expression. Dickson C.J., in Keegstra, referred to
three rationales for protecting free expression (at p. 728):
(1) seeking and attaining truth is an inherently good
activity;
(2) participation in social and political
decision-making is to be fostered and encouraged; and
(3) diversity in forms of individual self-fulfillment
and human flourishing ought to be cultivated in a
tolerant and welcoming environment for the sake of
both those who convey a meaning and those to whom
meaning is conveyed.
With respect to the search for the truth, the words of
Dickson C.J. support the position that the publication of
deliberate and injurious falsehoods does not contribute to the
attainment of truth (at pp. 762-63):
...the greater the degree of certainty that a
statement is erroneous or mendacious, the less its
value in the quest for truth. Indeed, expression can
be used to the detriment of our search for truth; the
state should not be the sole arbiter of truth, but
neither should we overplay the view that rationality
will overcome all falsehoods in the unregulated
marketplace of ideas. There is very little chance
that statements intended to promote hatred against an
identifiable group are true, or that their vision of
society will lead to a better world. To portray such
statements as crucial to truth and the betterment of
the political and social milieu is therefore
misguided.
The publication of deliberate lies is obviously the antithesis
of the truth. This publication deceives and misleads in a
cruel and calculating manner those that seek the truth.
The values of self-fulfilment and human flourishing are
also key to the principles underlying s. 2(b). Self-fulfilment
and human flourishing can never be achieved by the publication
of statements known to be false. Rather the damaging false
statements that are prohibited under s. 181 serve only to
impede, in a most despicable and demeaning manner, the
enjoyment of these values by members of society who are the
subject of these lies.
The third rationale underlying free speech deals with
participation in social and political decision-making. As
Dickson C.J., in Keegstra, stated (at p. 764):
...expression can work to undermine our commitment to
democracy where employed to propagate ideas anathemic
to democratic values.
In our view, intentional and harmful falsehoods repudiate
democratic values by denying respect and dignity to certain
members of society, and therefore, to the public interest as a
whole.
It is important to recognize that the American
jurisprudence strongly supports the position that the state may
restrict the publishing of deliberate and damaging lies. In
Garrison v. Louisiana, 379 U.S. 64 (1964), Brennan J. stated
(at p. 75):
Calculated falsehood falls into that class of
utterances which "are no essential part of any
exposition of ideas, and are of such slight social
value as a step to truth that any benefit that may be
derived from them is clearly outweighed by the social
interest in order and morality..." Chaplinsky v. New
Hampshire, 315 U.S. 568, 572. Hence the knowingly
false statement and the false statement made with
reckless disregard of the truth, do not enjoy
constitutional protection.
In sum, this analysis suggests that s. 181, at best,
limits only that expression which is peripheral to the core
rights protected by s. 2(b). Accordingly, deliberate and
injurious falsehoods, like hate propaganda, "should not be
accorded the greatest of weight in the s. 1 analysis" (Dickson
C.J. in Keegstra at p. 765). It can therefore be concluded
that restrictions on expression of this kind will be easier to
justify than other infringements of s. 2(b).
(ii) Rational Connection
There can be no doubt that the suppression of the
publication of deliberate and injurious lies is rationally
connected to the aim of s. 181 in protecting society from the
harms caused by calculated falsehoods and thereby promoting the
safety and security of the community. The potentially
destructive effects of speech were recognized in the 1966
Report of the Special Committee on Hate Propaganda in Canada
(and adopted in Keegstra, supra, at p. 747) which reads in the
opening paragraph of its preface and at p. 8:
This Report is a study in the power of words to maim,
and what it is that a civilized society can do about
it. Not every abuse of human communication can or
should be controlled by law or custom. But every
society from time to time draws lines at the point
where the intolerable and the impermissible coincide.
In a free society such as our own, where the
privilege of speech can induce ideas that may change
the very order itself, there is a bias weighted
heavily in favour of the maximum of rhetoric whatever
the cost and consequences. But that bias stops this
side of injury to the community itself and to
individual members or identifiable groups innocently
caught in verbal cross-fire that goes beyond
legitimate debate.
...
In the 18th and 19th centuries, there was a
widespread belief that man was a rational creature,
and that if his mind was trained and liberated from
superstition by education, he would always
distinguish truth from falsehood, good from
evil....We cannot share this faith today in such a
simple form. While holding that over the long run,
the human mind is repelled by blatant falsehood and
seeks the good, it is too often true, in the short
run, that emotion displaces reason and individuals
perversely reject the demonstrations of truth put
before them and forsake the good they know. The
successes of modern advertising, the triumphs of
impudent propaganda such as Hitler's, have qualified
sharply our belief in the rationality of man.
[Emphasis added.]
Racism tears asunder the bonds which hold a democracy
together. Parliament strives to ensure that its commitment to
social equality is not merely a slogan but a manifest reality.
Where any vulnerable group in society is subject to threat
because of their position as a group historically subjected to
oppression we are all the poorer for it. A society is to be
measured and judged by the protections it offers to the
vulnerable in its midst. Where racial and social intolerance
is fomented through the deliberate manipulation of people of
good faith by unscrupulous fabrications, a limitation on the
expression of such speech is rationally connected to its
eradication.
(iii) Minimal Impairment
Even if rationally connected, the means must impair the
freedom as little as possible. The appellant argues that s.
181 is too broad and could potentially capture expression that
does not relate to Parliament's objective. It is argued that
this provision could potentially limit works of fiction based
on fact, "historical novels", some interpretive journalism and
unpopular or unconventional academic writing. These are
concerns with respect to a possible chilling effect on
expression.
(a) Terms of Section 181
The most cursory perusal of s. 181 will reveal that the
Crown will never have an easy task obtaining a conviction under
the section. It must be established that the accused
(1) wilfully published a false statement of fact presented
as truth
(2) that he knew was false, and
(3) that the false statement causes or is likely to cause
injury or mischief to a public interest.
It might be thought that it would be difficult enough for the
Crown to establish that the impugned statement wilfully
published by the accused was false and that the accused knew of
the falsity of that statement. However the section goes on to
require the Crown to establish that the statement is likely to
cause injury to a public interest.
In this case the Crown presented clear, powerful and
overwhelming evidence to establish every element of the
offence. That evidence, set out earlier, certainly provided a
sound basis upon which the jury could very properly conclude
that Zundel was guilty. At this point, it is important to note
that, as was done in this case, the trial judge must instruct
the jury that the accused is not to be judged on the
unpopularity of his or her beliefs.
To be acquitted under s. 181, there need only be a
reasonable doubt with regard to the wilful publication of the
statements presented as truth, or the falsity of the
statements, or to the knowledge of the falsity or with regard
to the likelihood of injury to the public interest. Any
uncertainty as to the nature of the speech must inure to the
benefit of the accused. Indeed, where the speech at issue
lacks a factual base or is so vague that it makes no clear
allegation capable of verification or falsification, it will
not be caught by this section. These factors clearly weigh
heavily in the favour of the accused. The Crown in its factum
accurately summarized the aspects of s. 181 which ensure that
free expression is minimally impaired:
The section does not purport to prohibit the
expression of any idea or simple opinion, although
they may pose a serious threat to a public interest.
It only captures statements of fact which the Crown
can prove to be false beyond a reasonable doubt. In
cases in which the Crown cannot discharge this burden
the public interest is left unprotected. It does not
capture all false statements of fact but only those
false to the knowledge of the accused. It does not
capture all statements of fact false to the knowledge
of the accused but only such statements as the
accused deliberately chooses to make generally
available to the public. It does not capture all
statements of fact false to the knowledge of the
accused which cause injury or pose a threat of
injury. Injury even serious injury to an individual
through falsehood is irrelevant under section 181.
The possibility of some injury to even a public
interest equally falls outside the scope of the
section as the section requires the harm to such an
interest to rise to the level of likelihood or to, in
fact, occur. [Emphasis in original.]
It is clear that the Crown bears a very heavy onus in proving
all the elements of the offence in order to convict an accused
under s. 181.
Basically, the thrust of the appellant's argument is that
s. 181 is an unjustifiable limit on freedom of expression.
Such an argument, in this context, is more accurately
characterized as an argument in support of the appellant's
freedom to lie. Under s. 181, the appellant is free to tell
all the lies that he wants to in private. He is free, under
this section, to publish lies that have an overall beneficial
or neutral effect. It is only where the deliberate publication
of false facts is likely to seriously injure a public interest
that the impugned section is invoked. This minimal intrusion
on the freedom to lie fits into the broad category of Criminal
Code offences which punish lying. These offences include,
inter alia, the provisions dealing with fraud, forgery, false
prospectuses, perjury and defamatory libel.
The possibility of illegal police harassment really has
little or no bearing on the proportionality of legislation
which prohibits deliberate and injurious lies to legitimate
Parliamentary objectives. It follows that the argument based
on hypothetical potential harassment can be rejected, as it was
in Keegstra. Although the appellant and the Canadian Civil
Liberties Association argue that s. 181 is too broad, it is
important to note that there have only been three other
prosecutions under this "broad" offence and only one of these
(Hoaglin, supra) has been successful. The infrequent use of
this section can undoubtedly be attributed to the extremely
onerous burden on the Crown to prove the offence. However, the
fact that it is seldom used should hardly militate against its
usefulness.
(b) Fact vs. Opinion
It has been argued that it is not possible to draw a
coherent distinction between statements of opinion and
assertions of fact and therefore, that s. 181 is overbroad. A
statement, tale or news is an expression which, taken as a
whole and understood in context, conveys an assertion of fact
or facts and not merely the expression of opinion. As noted
earlier, the trial judge suggested to the jury that the key
element of the distinction is falsifiability. Expression which
makes a statement susceptible to proof and disproof is an
assertion of fact; expression which merely offers an
interpretation of fact which may be embraced or rejected
depending on its cogency or normative appeal, is opinion.
This analysis is supported by the distinctions employed in
the Canadian and United States laws of defamation (see R.E.
Brown, The Law of Defamation in Canada (1987), vol. 1, at p.
678, and Ollman v. Evans, 750 F.2d 970 (D.C. Cir. 1984) (en
banc), certiorari denied, 471 U.S. 1127 (1985)). Four helpful
criteria have been identified in order to distinguish fact from
opinion: specificity of the terms used, verifiability,
linguistic context and social context. All criteria are
unified by the theme of exploring the response of a reasonable
reader.
The statement must have a sufficiently definite meaning to
convey facts. An allegation that X is corrupt is not an
assertion of fact because it makes no specific allegation and
uses language that lacks a definite meaning. However, an
allegation that X is corrupt because he embezzles from his
employer bespeaks sufficiently certain facts to permit its
characterization as a factual claim.
The statement must be verifiable through empirical proof
or disproof. An allegation that X is a KGB agent is
empirically verifiable and therefore factual; an allegation
that her temperament would suit her for such work is not
verifiable and therefore an expression of opinion. A statement
that the hot dogs one makes are 100 percent beef is a
verifiable factual claim; a statement that they are delicious
is an expression of opinion.
The statement must be made in a linguistic context in
which it will be understood as fact rather than opinion.
Allegations appearing in the context of a satirical article are
not likely to be taken to be facts even when expressed in
factual form. Sometimes the context itself, such as the
irreverent underground newspaper in Kirby, supra, will provide
clues to the reader that they are not to accept the contents as
literally true. However, allegations prefaced by cautions that
they are only opinion may also be found to be factual claims if
they are so "factually laden" that the caution is found to be a
colourable attempt only to escape responsibility for
allegations of fact.
Finally, the statement must be considered in its broader
social context. Some forms of expression, such as academic
periodicals, are accorded more authority and have traditions of
authenticity that influence their interpretation, while others,
such as political signs or lampoons, have traditions of
hyperbolic rhetoric. Statements, such as the pamphlet at issue
in this appeal, which are disguised as the reasoned product of
scholarly investigation will be accorded greater seriousness by
the reasonable reader.
It was argued that s. 181 is overbroad because it does not
require the trial judge to instruct the jury on the distinction
between fact and opinion as a matter of law, but leaves it to
be determined as a matter of fact. The appellant submits that
had the rules in Ollman, supra (i.e., the four criteria set out
earlier) been applied to the material in the case at bar, it
would never have gone to the jury. It is difficult to see how
this case helps the appellant. On the contrary, it seems to
make clear that statements couched as "revisionist history" may
be taken to be allegations of fact rather than submissions of
opinion, despite protestations to the contrary. Did Six
Million Really Die? makes specific claims about discrete
historical incidents and the contents of publicly accessible
historical documents. These statements are susceptible of
being verified through examination of these documents. The
pamphlet purports to be a serious scholarly endeavour. The
work of serious historians who allege that they have arrived at
reasoned conclusions after thorough examination of primary
sources is a form of expression accorded great authority. An
application of the Ollman criteria confirms that the jury was
clearly capable of drawing the distinction between fact and
opinion as instructed by the trial judge.
The appellant argues that history is all interpretation.
It is submitted that there is no objective historical truth
because we do not understand facts in any unmeditated fashion,
but through the lens of a theoretical perspective. Thus, the
appellant contends, to assert that we can come to some
conclusions as to what really happened at some point in history
is to make an impossible epistemological claim or to give
unwarranted authority to a single theoretical perspective. It
is indeed true that no theory of history can be proved or
disproved, although it may be shown to be more or less
compelling or comprehensive. However, the appellant seeks to
draw complex epistemological theory to the defence of what is
really only, at best, the shoddiest of "scholarship" and, at
worst pure charlatanism. The appellant has not been convicted
for misinterpreting factual material but for entirely and
deliberately misrepresenting its contents. When he points to
the Goebbels' diaries and says they say X when in fact they say
Y, he is not offering an alternative interpretation of the
material but a fabrication proven to be false by the very
materials to which he has referred.
Courts deal with the question of truth and falsity of
statements on a daily basis. In every case in which the charge
is fraud or the making of a false prospectus the court must
determine whether false statements have been made. So too can
historical "facts" be shown to be true or false in the context
of s. 181. Can it be said that France was not occupied by
German forces in 1940; or that the Dunkirk evacuation never
took place; that the Battle of Britain is nothing but wishful
thinking; that London was never bombed; that German cities were
never attacked by the allied air forces; that the Normandy
landing in June of 1944 is no more than the stuff of dreams.
The falsity of these statements can be proven beyond a
reasonable doubt by reference to reliable historical documents,
such as those in evidence at the appellant's trial. What can
be proven as false statements, such as those published by
Zundel which were known by him to be false, can and should come
within the purview of s. 181.
In The Holocaust Denial: Anti-Semitism, Racism and the New
Right (1986), at p. 105, Professor Gill Seidel points out the
lacuna in the theoretical perspective of those who uncritically
defend the type of "revisionist history" at issue here. She
notes that those who would uncritically defend the free
expression rights of purveyors of this form of speech do not
necessarily act out of bad faith. However, their analysis
misses a crucial point:
[I]n encouraging a thousand versions of history to
bloom, while refusing an acceptable label to any one,
[Thion] replaces a state view of history (which he is
surely right to reject) with a range of
undifferentiated, equally weighted accounts. The
difficulty is that such a range ignores power
relations. It is a kind of free-market version of
history.
...
... [But this orientation] does not allow him to see,
even less accept, that Faurisson and others are bent
on replacing the present anti-Nazi climate with a
Nazi consensus, and that, in order to do so, they are
playing intellectual games using academic,
anti-authoritarian language. [Emphasis added.]
As distinguished from works which seek to retell
traditional stories from the perspective of minorities and
other groups heretofore unheard, the appellant has not adopted
a novel perspective, unearthed non-traditional sources or
re-interpreted traditional materials. He has lied. The
deep-rooted criticism of "revisionism" is not directed,
against its views of history but against its manipulation and
fabrication of basic facts. This criticism was expressed by
34 French historians in a letter to Le Monde (February 21,
1979) dealing with the controversy over the work of the French
historian, Faurisson:
Everyone is free to interpret a phenomenon like the
Hitlerite genocide according to his own philosophy.
Everyone is free to compare it with other enterprises
of murder committed earlier, at the same time, later.
Everyone is free to offer such or such kind of
explanation; everyone is free, to the limit, to
imagine or to dream that these monstrous deeds did
not take place. Unfortunately, they did take place
and no one can deny their existence without
committing an outrage on the truth.
(Cited and translated in Professor Lucy S.
Dawidowicz, "Lies About the Holocaust" (1980), 70:6
Commentary 31, at p. 37.)
The appellant submits that he is a modern-day Galileo
being sacrificed on the altar of received opinion. Indeed, a
Galileo could not be caught under s. 181. Galileo pointed to
the apparent movement of the planets and argued, contrary to
accepted dogma of church and state, that the earth was not the
centre of the heavens but revolved around the sun. His
argument was not a deliberate falsification of the facts.
Rather, he argued that his theory for explaining the
significance of the facts was clearer and more comprehensive.
In contrast, the appellant posits a spurious problem,
which cannot be solved by reconciling conflicting
interpretations of the same evidence precisely because it is
not, in fact, based on the evidence but on misrepresentation or
pure fabrication. The conflict between the assertions made by
the appellant and those made by orthodox Holocaust historians
cannot be resolved through reasoned debate. Orthodox
historians point to sources which support their theories; the
appellant and other "revisionist" historians point to documents
which do not exist or which do not say what they claim they do.
The pamphlet Did Six Million Really Die? does not fit with
received views of reality because it is not part of reality.
In the name of the integrity of knowledge, the appellant
demands the right to throw a monkey-wrench into the mechanisms
of knowledge.
We must re-iterate that the focus of s. 181 is not on the
opinions of the appellant. While they might be caught under s.
319 , the hate propaganda provision, his acquittal on one
charge at trial relating to The West, War and Islam! and the
withdrawal of a subsequent charge against him for expressing
these same opinions (R. v. Zundel, Ont. Prov. Ct., September
18, 1987, Babe Prov. Ct. J., unreported) make it clear that
this section is not and has not been used against those who
express unpopular, counter-intuitive or socially undesirable
points of view. What is being prohibited is an attempt to win
converts to this point of view and to inflict harm against
disadvantaged members of society by the most unscrupulous
manipulation.
The section will not catch an anthropologist proposing
controversial theories which point to arguably true facts but
draw erroneous assumptions with racist implications. However
objectionable the content, inference or motive, this material
would not be caught under s. 181 in the absence of evidence
beyond a reasonable doubt of the falsity, and of the accused's
knowledge of the falsity, of the basic facts upon which such a
theory was based. The theorist who argues, for example, that
objective differences in cranial capacity translate into the
intellectual superiority of men over women would be met on the
field of reasoned debate by rival theorists who point to more
credible interpretations which do not employ unspoken prejudice
as their hidden premise. On the other hand, situations such as
the case at bar in which the accused deliberately fabricates
basic facts in order to support his theories render reasoned
debate impossible.
Nor could s. 181 be invoked in the examples cited by our
colleague. McLachlin J. referred to the doctor who exaggerates
the number of persons infected with a virus in order to
persuade people to be inoculated against a burgeoning epidemic
and to the person who knowingly cites false statistics in order
to prevent cruelty to animals. Both examples of expression not
only fail to raise the possibility of injury to a public
interest but, indeed, they would have an overall beneficial or
neutral effect on society. In contrast, an accused would only
be convicted under s. 181 if there were no reasonable doubt
regarding a very serious injury to the public interest.
The appellant's arguments are not new. Deliberate lies
which foment racism are an unsavoury relic of our collective
history. However, racism with footnotes and chapter headings
is still fundamentally racism and should be treated as such.
Section 181 serves to prevent the harm caused by deliberate and
injurious lies. It is therefore well-suited to respond to the
harm caused by vilification campaigns disguised as
pseudo-science.
(c) Alternative Modes of Furthering Parliament's
Finally, the presence of existing hate propaganda
legislation should not weigh against either the need for or the
validity of s. 181. It was argued that s. 181 was a mere
duplication of the hate provisions of the Criminal Code and
thus was invalid. Such an argument should not be accepted.
There are numerous provisions of the Criminal Code which
overlap to some extent but which are nonetheless valid. For
example, Johnson v. The Queen, [1975] 2 S.C.R. 160, dealt with
a charge under then s. 163(2) of the Code prohibiting the
taking part in an "immoral, indecent or obscene" performance.
This Court found that it was irrelevant that Parliament had
enacted a separate offence of being nude in a public place.
Nudity, it was noted, was not the sole factor in determining
whether the performance was immoral.
Similarly, the fact that Parliament has enacted hate
propaganda legislation does not invalidate s. 181. The section
seeks to discourage the public dissemination of injurious
falsehoods. These statements of fact, it should be remembered,
are known by the accused to be lies. There is a pervasive and
pernicious air of evil that surrounds their conscious aim to
manipulate people. The deceptive nature of the deliberate
publication of false statements of fact may, in certain
circumstances, be even more invidious than the publication of
hateful opinions which at least expresses the beliefs of the
publisher. Thus s. 181 still fulfils an important role in a
multicultural and democratic society. It emphasizes the
repugnance of Canadian society for the wilful publication of
known falsehoods that cause injury to the public interest
through their attacks upon groups identifiable under s. 15 of
the Charter and therefore on society as a whole.
As Dickson C.J. stressed in Keegstra, the government may
legitimately employ a variety of measures in order to achieve
its objective. On a general level, the promotion of racial and
social tolerance and the prevention of harm caused by injurious
and calculated falsehoods is best achieved through information
and education. Human rights legislation may, in certain
circumstances, be sufficient to deal with a particular problem
in this area. Nevertheless, the strength of the criminal law
must be reserved for the extreme cases, such as the case at
hand. In a case such as this, with its potential to cause
serious injury to the public interest, it is necessary to send
a clear message by repudiating the harm caused by the
appellant.
For example, it is true that driver education and the
penalties provided by the Highway Traffic Acts may suffice to
regulate most drivers. Nonetheless, the criminal law is used
to demonstrate society's repugnance for the drunken driver who
is likely to injure others. So too the criminal law has an
important role to play in discouraging and punishing those who
knowingly publish falsehoods that are likely to injure a public
interest.
Overall, it would be hard to imagine a measure that would
constitute a lesser impairment of a type of expression that is
on the extreme periphery of the protected right. We therefore
conclude that s. 181 does not unduly infringe the right to
freedom of expression.
(iv) Proportionality Between Effects and Objective
At this stage in the s. 1 analysis, there must be an
assessment of the importance of the state objective balanced
against the effect of limits imposed upon the freedom. As
previously noted, the "expression" at stake in the present case
is inimical to the values underlying freedom of expression.
The type of falsehoods caught by this section serves only to
hinder and detract from democratic debate. The impugned
provision, s. 181, is narrowly defined in order to minimally
impair s. 2(b). In sum, the prohibition of the wilful
publication of what are known to be deliberate lies is
proportional to the importance of protecting the public
interest in preventing the harms caused by false speech and
thereby promoting racial and social tolerance in a
multicultural democracy.
(4) Summary of the Section 1 Balancing and Conclusion
At the end of this detailed analysis it is worthwhile to
step back and consider what it is that is being placed on the
balance.
On one side is s. 181. It infringes to a minimal extent
the s. 2(b) right to freedom of expression. In reality, it
cannot be said that the prohibition of the wilful publication
of false statements that are known to be false is an
infringement of the core values of s. 2(b). Rather the
infringement is on the extreme periphery of those values. In
addition, the section can play an important role in fostering
multiculturalism and racial and religious tolerance by
demonstrating Canadian society's abhorrence of spreading what
are known to be lies that injure and denigrate vulnerable
minority groups and individuals.
On the other side, s. 181 provides maximum protection of
the accused. It requires the Crown to establish beyond a
reasonable doubt that the accused wilfully published false
statements of fact presented as truth and that their
publication caused or was likely to cause injury to the public
interest. Any uncertainty as to the nature of the speech must
inure to the benefit of the accused. If ever s. 1 balancing is
to be used to demonstrate that a section of the Criminal Code
is justifiable in a free and democratic society, this is such a
case.
Legislation such as this which is aimed at the protection
of society from deceit and aggression, yet provides the widest
protection for the accused, should be fostered. Applying the
Charter to strike s. 181 would be in direct contradiction to
the principles established by this Court. The section is
justifiable in our free and democratic Canadian society.
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C. Section 1 Analysis
as it is Used in Section 181
Abusing the First Amendment" (1985), 17 Colum. Hum.
Rts. L. Rev. 11, at p. 51.)
Expression Values
Objectives