** Preliminary Version **

Indexed as:
R. v.*Zundel*

Ernst*Zundel,*Appellant;
v.
Her Majesty The Queen, Respondent, and
The Attorney General of Canada, the Attorney General of
Manitoba, the Canadian Civil Liberties Association, the League
for Human Rights of B'Nai Brith Canada and the Canadian Jewish
Congress, Interveners.

Reported at: [1992] 2 S.C.R. 731

[1992] S.C.J. No. 70

Supreme Court of Canada
File No.: 21811.
1991: December 10: 1992: August 27.
Present: La Forest, L'Heureux-Dube, Sopinka, Gonthier, Cory,
McLachlin and Iacobucci JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO

Constitutional law -- Charter of Rights -- Freedom of expression -- Spreading false news -- Criminal Code prohibiting wilful publication of false statement or news that person knows is false and that is likely to cause injury or mischief to a public interest (s. 181) -- Whether s. 181 of Code infringes s. 2(b) of Canadian Charter of Rights and Freedoms -- If so, whether s. 181 justifiable under s. 1 of Charter -- Vagueness -- Canadian Charter of Rights and Freedoms, ss. 1, 2(b) -- Criminal Code, R.S.C., 1985, c. C-46, s. 181.

Criminal law -- Spreading false news -- Criminal Code prohibiting wilful publication of false statement or news that person knows is false and that is likely to cause injury or mischief to a public interest (s. 181) -- Whether s. 181 of Code infringes the guarantee of freedom of expression in s. 2(b) of Canadian Charter of Rights and Freedoms -- If so, whether limit imposed by s. 181 upon s. 2(b) justifiable under s. 1 of Charter -- Canadian Charter of Rights and Freedoms, ss. 1, 2(b) -- Criminal Code, R.S.C., 1985, c. C-46, s. 181.

The accused was charged with spreading false news contrary to s. 181 of the Criminal Code, which provides that "[e]very one who wilfully publishes a statement, tale or news that he knows is false and causes or is likely to cause injury or mischief to a public interest is guilty of an indictable offence and liable to imprisonment . . .". The charge arose out of the accused's publication of a pamphlet entitled Did Six Million Really Die? The accused had added a preface and afterword to an original document, which had previously been published by others in the United States and England. The pamphlet, part of a genre of literature known as "revisionist history", suggests, inter alia, that the killing of six million Jews before and during World War II and the Holocaust was a myth perpetrated by a worldwide Jewish conspiracy. The accused was convicted after a lengthy trial. On appeal, his conviction was upheld on constitutional grounds but struck down for errors in admitting evidence and in the charge to the jury. The matter was sent back for a new trial. The accused was again convicted and his conviction was affirmed by the Court of Appeal. This appeal is to determine whether s. 181 of the Code infringes the guarantee of freedom of expression in s. 2(b) of the Canadian Charter of Rights and Freedoms and, if so, whether s. 181 is justifiable under s. 1 of the Charter.

Held (Gonthier, Cory and Iacobucci JJ. dissenting): The appeal should be allowed. Section 181 of the Criminal Code is unconstitutional.

Per La Forest, L'Heureux-Dube, Sopinka and McLachlin JJ.: Section 181 of the Code infringes the guarantee of freedom of expression. Section 2(b) of the Charter protects the right of a minority to express its view, however unpopular it may be. 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, a violent act) excludes protection. The content of the communication is irrelevant. 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 regards as wrong or false. Section 181, which may subject a person to criminal conviction and potential imprisonment because of words he published, has undeniably the effect of restricting freedom of expression and, therefore, imposes a limit on s. 2(b).

Given the broad, purposive interpretation of the freedom of expression guaranteed by s. 2(b), those who deliberately publish falsehoods are not, for that reason alone, precluded from claiming the benefit of the constitutional guarantees of free speech. Before a person is denied the protection of s. 2(b), it must be 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.

Section 181 of the Code, unlike s. 319 at issue in Keegstra, is not justifiable under s. 1 of the Charter. 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. Although the application and interpretation of objectives may vary over time, new and altogether different purposes should not be devised. Here, while s. 181 may be capable of serving legitimate purposes, Parliament has identified no social problem, much less one of pressing concern, justifying it. The provision originally focused on the prevention of deliberate slanderous statements against the nobles of the realm to preserve political harmony in the state. To suggest now that its objective 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. Furthermore, if the simple identification of the (content-free) goal of protecting the public from harm could constitute a "pressing and substantial" objective, virtually any law would meet the first part of the onus imposed upon the Crown under s. 1. 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. The lack of any ostensible purpose justifying s. 181 led the Law Reform Commission to recommend repeal of the section, labelling it as "anachronistic". It is also significant that the Crown could point to no other free and democratic country with criminal legislation of this type.

The fact that s. 181 has been rarely used despite its long history supports the view that it is hardly essential to the maintenance of a free and democratic society. The retention of s. 181 is not necessary to fulfil any international obligation undertaken by Parliament. In the absence of an objective of sufficient importance to justify overriding the right of free expression, s. 181 cannot be upheld under s. 1 of the Charter. Other provisions, such as s. 319(2) of the Code, deal with hate propaganda more fairly and more effectively. Still other provisions seem to deal adequately with matters of sedition and state security.

Even if the Court were to attribute to s. 181 the objective of promoting racial and social tolerance and to 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 proportionality test which prevailed in Keegstra. First, assuming a rational link between s. 181 and the objective of social harmony, the section is too broad and more invasive than necessary to achieve that aim. The phrase "statement, tale or news", while it may not extend to the realm of true opinion, 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". What is an assertion of fact, as opposed to an expression of opinion, is a question of great difficulty and the question of falsity of a statement is often a matter of debate. But the greatest danger of s. 181 lies in the undefined phrase "injury or mischief to a public interest", which is capable of almost infinite extension. To equate the words "public interest" with the protection and preservation of certain Charter rights or values, such as those in ss. 15 and 27, is to engage in an impermissible reading in of content foreign to the enactment. The range of expression potentially caught by the vague and broad wording of s. 181 extends to virtually all controversial statements of apparent fact which might be argued to be false and likely to do some mischief to some public interest, regardless of whether they promote the values underlying s. 2(b). 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. There is thus a danger that s. 181 may have a chilling effect on minority groups or individuals, restraining them from saying what they would like for fear that they might be prosecuted. Second, when the objective of s. 181 is balanced against its potential invasive reach, the limitation of freedom of expression is disproportionate to the objective envisaged. 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. Further, s. 181 could support criminalization of expression only on the basis that the sanction was closely confined to situations of serious concern.

Per Gonthier, Cory and Iacobucci JJ. (dissenting): The deliberate publication of statements known to be false, which convey meaning in a non-violent form, falls within the scope of s. 2(b) of the Charter. The sphere of expression protected by the section has been very broadly defined to encompass all content of expression irrespective of the particular meaning sought to be conveyed unless the expression is communicated in a physically violent form. Freedom of expression is so important to democracy in Canada that even those statements on the extreme periphery of the protected right must be brought within the protective ambit of s. 2(b). In enacting s. 181 of the Code, Parliament sought to restrict, not all lies, but only those that are wilfully published and that are likely to injure the public interest. Although the targeted expression is extremely limited, the provision does have as its purpose the restriction of free expression. Section 181, therefore, constitutes an infringement of s. 2(b).

Section 181 of the Code is sufficiently precise to constitute a limit prescribed by law under s. 1 of the Charter. The citizen knows that to be at risk under this section, he 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. The fact that the term "public interest" is not defined by the legislation is of little significance. The courts play a significant role in the definition of words and phrases used in the Code and other enactments and should continue to do so in the future. The term "public interest", which is widely used in federal as well as provincial statutes, 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. In the context of s. 181, the term "public interest" refers to the protection and preservation of those rights and freedoms set out in the Charter as fundamental to Canadian society. 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. 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 term "public interest" in s. 181 should thus be confined to those rights recognized in the Charter as being fundamenal 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. It is only if the deliberate false statements are likely to seriously injure the rights and freedoms set out 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 and cannot be said to be too vague.

Section 181 of the Code is justifiable under s. 1 of the Charter. Parliament's objective of preventing the harm caused by the wilful publication of injurious lies is sufficiently pressing and substantial to justify a limited restriction on freedom of expression. The objective of s. 181 is evident from the clear wording of the provision 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 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 work of numerous study groups has shown that racism is a current and present evil in our country. It is a cancerous growth that is still alive. Section 181, which provides protection, by criminal sanction, to all vulnerable minority groups and individuals against the harms caused by deliberate and injurious lies, still plays 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. The focus of s. 181 is on manipulative and injurious false statements of fact disguised as authentic research. The international instruments against national, racial or religious hatred signed by Canada, the various provisions similar to s. 181 found in other free and democratic countries, the tragedy of the Holocaust and Canada's commitment to the values of equality and multiculturalism in ss. 15 and 27 of the Charter emphasize the importance of s. 181's aim.

The purpose attributed to s. 181 is not new. The predecessors of s. 181 were always aimed at preventing the harm caused by false speech and thereby protecting the safety and security of the community. While initially the protection of the public interest from harm focused on the prevention of deliberate slanderous statements against the great nobles of the realm to preserve the security of the state, the purpose has evolved over the years 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. Thus, rather than creating a new and different purpose, the aim of the section has been maintained. The wording of s. 181, however, 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 Code, and the last amendment to the section, one can reasonably conclude that there has been a shift in the values that inform the public interest. Since this shift has been incorporated into the language of the section itself, it is therefore permissible. The test of defining "injury to a public interest" takes into account the changing values of Canadian society. Those values encompass multiculturalism and equality, precepts specifically included in the Charter.

Section 181 of the Code is an acceptably proportional response to Parliament's objective. First, there is a rational connection between the suppression of the publication of deliberate and injurious lies and Parliament's objective of protecting society from the harms caused by calculated falsehoods and thereby promoting the security and safety of the community. 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.

Second, s. 181 does not unduly infringe the right of freedom of expression. Under s. 181, the accused is not judged on the unpopularity of his beliefs. It is only where the deliberate publication of false facts is likely to seriously injure a public interest that the impugned section is invoked. Any uncertainty as to the nature of the speech inures to the benefit of the accused. The infrequent use of s. 181 can be attributed to the extremely onerous burden on the Crown to prove each element of the offence. The fact that the section is seldom used, however, should not militate against its usefulness. Further, s. 181 is not overly broad. An application of the appropriate criteria makes it possible to draw a coherent distinction between statements of opinion and assertions of fact. When applied to the pamphlet at issue in this case, these criteria indicate that statements couched as "revisionist history" may be taken to be allegations of fact rather than submissions of opinion. The jury, as instructed by the trial judge, was clearly capable of drawing that distinction. While it is true that no theory of history can be proved or disproved, the accused has not been convicted for misinterpreting factual material but for entirely and deliberately misrepresenting its contents, manipulating and fabricating basic facts in order to support his theories. Courts deal with the question of truth and falsity of statements on a daily basis. With reference to reliable historical documents, "historical facts" can also be shown to be true or false in the context of s. 181 -- a section well suited to respond to the harm caused by vilification campaigns disguised as pseudo-science. Finally, the fact that Parliament has enacted hate propaganda legislation does not invalidate s. 181. The government may legitimately employ a variety of measures in order to achieve its objective. Human rights legislation may, in certain circumstances, be sufficient to deal with a particular problem in this area, but the strength of the criminal law is needed and reserved for the extreme cases, such as the case at hand, to send a clear message and to discourage and punish those who knowingly publish falsehoods that are likely to injure a public interest.

Third, 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. Section 181, at best, limits only that expression which is peripheral to the core values protected by s. 2(b) of the Charter. The falsehoods of the type caught by s. 181 serve only to hinder and detract from democratic debate. The section is narrowly defined in order to minimally impair s. 2(b). It also provides maximum protection for the accused.

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