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Last-Modified: 1994/11/07

From: "Brian Illion" 
Subject: Zundel Judgement- Supreme Court of Canada

                     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.


                    ** 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.


 Cases Cited


 By McLachlin J.


      Distinguished:  R. v. Keegstra, [1990] 3 S.C.R. 697;
 applied:  Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1
 S.C.R. 927;  R. v. Oakes, [1986] 1 S.C.R. 103; referred to:  R.
 v. Butler, [1992] 1 S.C.R. 452; Ford v. Quebec (Attorney
 General), [1988] 2 S.C.R. 712; Manitoba (Attorney General) v.
 Metropolitan Stores Ltd., [1987] 1 S.C.R. 110; R. v. Big M Drug
 Mart Ltd., [1985] 1 S.C.R. 295; Reference re Alberta Statutes,
 [1938] S.C.R. 100; Switzman v. Elbling, [1957] S.C.R. 285;
 Edmonton Journal v. Alberta (Attorney General), [1989] 2 S.C.R.
 1326; Hills v. Canada (Attorney General), [1988] 1 S.C.R. 513;
 Slaight Communications Inc. v. Davidson, [1989] 1 S.C.R. 1038;
 R. v. Salituro, [1991] 3 S.C.R. 654; R. v. Wholesale Travel
 Group Inc., [1991] 3 S.C.R. 154; United States v. Schwimmer,
 279 U.S. 644 (1929); R. v. Hoaglin (1907), 12 C.C.C. 226;
 Reference re ss. 193 and 195.1(1)(c) of the Criminal Code
 (Man.), [1990] 1 S.C.R. 1123; R. v. Carrier (1951), 16 C.R. 18,
 104 C.C.C. 75.


 By Cory and Iacobucci JJ. (dissenting)


       R. v. Keegstra, [1990] 3 S.C.R. 697; R. v. Oakes, [1986]
 1 S.C.R. 103; Pappajohn v. The Queen, [1980] 2 S.C.R. 120; R.
 v. Osborne (1732), 2 Swans. 532, 36 E.R. 717; R. v. De Berenger
 (1814), 3 M. & S. 67, 105 E.R. 536; Gathercole's Case (1838), 2
 Lewin 237, 168 E.R. 1140; Scott's Case (1778), 5 New Newgate
 Calendar 284; R. v. Hoaglin (1907), 12 C.C.C. 226; R. v.
 Carrier (1951), 16 C.R. 18, 104 C.C.C. 75; R. v. Kirby (1970),
 1 C.C.C. (2d) 286; R. v. Nova Scotia Pharmaceutical Society,
 S.C.C., No. 22473, July 9, 1992; R. v. MacLean and MacLean
 (No. 2) (1982), 1 C.C.C. (3d) 412; R. v. Springer (1975), 24
 C.C.C. (2d) 56; R. v. Butler, [1992] 1 S.C.R. 452; R. v. Olan,
 [1978] 2 S.C.R. 1175; Hills v. Canada (Attorney General),
 [1988] 1 S.C.R. 513; Slaight Communications Inc. v. Davidson,
 [1989] 1 S.C.R. 1038; R. v. Salituro, [1991] 3 S.C.R. 654; R.
 v. Wholesale Travel Group Inc., [1991] 3 S.C.R. 154; Reference
 re Public Service Employee Relations Act (Alta.), [1987] 1
 S.C.R. 313; R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295; R.
 v. Edwards Books and Art Ltd., [1986] 2 S.C.R. 713; Andrews v.
 Law Society of British Columbia, [1989] 1 S.C.R. 143; R. v.
 Fringe Product Inc. (1990), 53 C.C.C. (3d) 422; Garrison v.
 Louisiana, 376 U.S. 254 (1964); Ollman v. Evans, 750 F.2d 970
 (1984), certiorari denied, 471 U.S. 1127 (1985); Johnson v. The
 Queen, [1975] 2 S.C.R. 160; Kane v. Church of Jesus Christ
 Christian -- Aryan Nations, [1992] A.W.L.D. No. 302; R. v.
 Zundel, Ont. Prov. Ct., September 18, 1987; R. v. Leese, London
 Times, September 22, 1936, p. 11.

 Statutes and Regulations Cited

 Canadian Charter of Rights and Freedoms, ss. 1, 2(b), 7, 15,
      27.

 Criminal Code (Danemark), ss. 140, 266b.

 Criminal Code (Italy), art. 656.

 Criminal Code (West Germany), art. 130, 131, 185, 194(1).

 Criminal Code, R.S.C. 1927, c. 36, s. 136.

 Criminal Code, R.S.C. 1970, c. C-34, s. 171.

 Criminal Code, R.S.C., 1985, c. C-46, ss. 140, 181, 361 to 363,
      400.

 Criminal Code, S.C. 1953-54, c. 51, s. 166.

 Criminal Code, 1892, S.C. 1892, c. 29, s. 126.

 International Covenant on Civil and Political Rights, 999
      U.N.T.S. 172, Arts. 20(2), 27.

 International Convention on the Elimination of All Forms of
      Racial Discrimination, 660 U.N.T.S. 212, preamble, Art. 4.

 Public Order Act, 1936 (U.K.), 1 Edw. 8 & 1 Geo. 6, c. 6.

 Statute Law Revision Act, 1887 (U.K.), 50 & 51 Vict., c. 59.

 Authors Cited

 Brown, Raymond E.  The Law of Defamation in Canada, vol. I.
      Toronto:  Carswell, 1987.

 Burbridge, George Wheelock.  A Digest of the Criminal Law of
      Canada.  Toronto:  Carswell, 1890.

 Canada.  House of Commons.  Special Committee on the
      Participation of Visible Minorities in Canadian Society.
      Equality Now!  Ottawa:  Supplies and Services, 1984.

 Canada.  Law Reform Commission.  Working Paper 50.  Hate
      Propaganda. Ottawa:  The Commission, 1986.

 Canada.  Report of the Royal Commission on Bilingualism and
      Biculturalism, The Cultural Contribution of the Other
      Ethnic Groups, Book IV. Ottawa, 1969.

 Canada.  Special Committee on Hate Propaganda in Canada.
      Report of the Special Committee on Hate Propaganda in
      Canada.  Ottawa:  Queen's Printer, 1966.

 Canadian Bar Association.  Report of the Special Committee on
      Racial and Religious Hatred.  By Ken Norman, John D.
      McAlpine and Hymie Weinstein, 1984.

 Carr, Edward Hallett.  What is History?  London:  MacMillan &
      Co., 1961.

 Dawidowicz, Lucy S.  "Lies About the Holocaust" (1980), 70:6
      Commentary 31.

 Holdsworth, William, Sir.  A History of English Law, vol. III,
      5th ed. London:  Methuen & Co., 1942.

 Kallen, Evelyn.  "Multiculturalism, Minorities, and Motherhood:
      A Social Scientific Critique of Section 27", in
      Multiculturalism and The Charter:  A Legal Perspective.
      Toronto:  Carswell, 1987, 123.

 Lasson, Kenneth.  "Racial Defamation As Free Speech:  Abusing
      the First Amendment" (1985), 17 Colum. Hum. Rts. L. Rev.
      11.

 Matsuda, Mari J.  "Public Response to Racist Speech:
      Considering the Victim's Story" (1989), 87 Mich. L. Rev.
      2320.

 Pace, Alessandro.  "Constitutional Protection of Freedom of
      Expression in Italy" (1990), 2 European Review of Public
      Law 71.

 Partlett, David.  "From Red Lion Square to Skokie to the Fatal
      Shore:  Racial Defamation and Freedom of Speech" (1989),
      22 Vand. J. Transnat'l L. 431.

 Scott, F. R.  "Publishing False News" (1952), 30 Can. Bar Rev.
      37.

 Seidel, Gill.  The Holocaust Denial:  Antisemitism, Racism and
      the New Right. Leeds, England:  Beyond the Pale
      Collective, 1986.

 Spencer, J. R. "Criminal Libel -- A Skeleton in the Cupboard",
      [1977] Crim. L. R. 383.

 Starkie's Treatise on the Law of Slander and Libel, 3rd ed. By
      Henry Coleman Folkard. London: Butterworths, 1869.

 Stein, Eric.  "History Against Free Speech:  The New German Law
      Against the "Auschwitz" -- and other -- "Lies"" (1986), 85
      Mich. L. Rev. 277.

 Stephen, James Fitzjames, Sir.  Digest of the Criminal Law.
      St. Louis:  Thomas, 1878.

 United Kingdom.  Law Commission.  Working Paper No. 84.
      Criminal Libel.  London:  H.M.S.O., 1982.

 Veeder, Van Vechten.  "The History and Theory of the Law of
      Defamation I" (1903), 3 Colum. L. Rev. 546.

 Veeder, Van Vechten.  "The History and Theory of the Law of
      Defamation II" (1904), 4 Colum. L. Rev. 33.

      APPEAL from a judgment of the Ontario Court of Appeal
 (1990), 53 C.C.C. (3d) 160, 37 O.A.C. 354, dismissing the
 accused's appeal from his conviction on a charge of wilfully
 and knowingly publishing a false statement contrary to s. 181
 of the Criminal Code.  Appeal allowed, Gonthier, Cory and
 Iacobucci JJ. dissenting.

      Douglas H. Christie, for the appellant.

      W. J. Blacklock and Jamie C. Klukach, for the respondent.

      Graham R. Garton and James Hendry, for the intervener the
 Attorney General of Canada.

      Aaron L. Berg, for the intervener the Attorney General of
 Manitoba.

      Marc Rosenberg and Shayne Kert, for the intervener the
 Canadian Civil Liberties Association.

      Mark J. Sandler and Marvin Kurz, for the intervener the
 League for Human Rights of B'Nai Brith Canada.

      Neil Finkelstein, for the intervener the Canadian Jewish
 Congress.

      Solicitor for the appellant:  W. J. Blacklock, Toronto.

      Solicitor for the respondent:  The Ministry of the
 Attorney General for Ontario, Toronto.

      Solicitor for the intervener the Attorney General of
 Canada:  John C. Tait, Ottawa.

      Solicitor for the intervener the Attorney General of
 Manitoba:  The Department of Justice, Winnipeg.

      Solicitors for the intervener the Canadian Civil Liberties
 Association:  Greenspan, Rosenberg & Buhr, Toronto.

      Solicitors for the intervener the League for Human Rights
 of B'Nai Brith Canada:  Cooper, Sandler, West & Skurka,
 Toronto; Dale, Streiman & Kurz, Brampton.

      Solicitors for the intervener the Canadian Jewish
 Congress:  Blake, Cassels & Graydon, Toronto.

      The judgment of McLachlin, La Forest, L'Heureux-Dube and
 Sopinka JJ. was delivered by

      McLACHLIN J.:-- Four constitutional questions were stated
 by the Chief Justice on this appeal; the questions ask whether
 s. 181 (formerly s. 177), the "false news" provision of the
 Criminal Code, R.S.C., 1985, c. C-46, violates s. 2(b) or s. 7
 of the Canadian Charter of Rights and Freedoms, and if it does,
 whether such violation is a reasonable limit upon these Charter
 rights within the meaning of s. 1.  Section 181 reads:

           181.  Every one who wilfully publishes a statement,
      tale or news that he knows is false and that causes or is
      likely to cause injury or mischief to a public interest is
      guilty of an indictable offence and liable to imprisonment
      for a term not exceeding two years.

      Neither the admittedly offensive beliefs of the appellant,
 Mr. Zundel, nor the specific publication with regard to which
 he was charged under s. 181 are directly engaged by these
 constitutional questions.  This appeal is not about the
 dissemination of hate, which was the focus of this Court's
 decision in R. v. Keegstra, [1990] 3 S.C.R. 697, and the
 reasons of my colleagues Cory and Iacobucci JJ. here.  In
 Keegstra, this Court ruled that the provisions of the Criminal
 Code which prohibit the dissemination of hate violated the
 guarantee of freedom of expression but were saved under s. 1 of
 the Charter.  This case presents the Court with the question of
 whether a much broader and vaguer class of speech -- false
 statements deemed likely to injure or cause mischief to any
 public interest -- can be saved under s. 1 of the Charter.  In
 my view, the answer to this question must be in the negative.
 To permit the imprisonment of people, or even the threat of
 imprisonment, on the ground that they have made a statement
 which twelve of their co-citizens deem to be false and
 mischievous to some undefined public interest, is to stifle a
 whole range of speech, some of which has long been regarded as
 legitimate and even beneficial to our society.  I do not assert
 that Parliament cannot criminalize the dissemination of racial
 slurs and hate propaganda. I do assert, however, that such
 provisions must be drafted with sufficient particularity to
 offer assurance that they cannot be abused so as to stifle a
 broad range of legitimate and valuable speech.

 THE BACKGROUND

      The charge arises out of the publication by the appellant
 of a 32-page booklet seemingly entitled Did Six Million Really
 Die? which had previously been published by others in the
 United States and England.  The bulk of the booklet, excepting
 the foreword and postscript authored by the appellant, purports
 to review certain publications in a critical fashion.  On the
 basis of this review, it suggests, inter alia, that it has not
 been established that six million Jewish people were killed
 before and during World War II and that the Holocaust is a myth
 perpetrated by a worldwide Jewish conspiracy.

      The case comes to this Court after two trials, each of
 which resulted in a conviction. Although the first conviction
 was overturned, the Ontario Court of Appeal rejected the
 appellant's submission that s. 181 violated the Charter and
 sent the matter back for a new trial.  This appeal is brought
 from the conviction on the second trial.  Leave to appeal to
 this Court was granted on the general Charter issue only -- the
 constitutionality of s. 181 of the Criminal Code.

 THE ISSUES

      As stated, the issue is whether s. 181 of the Criminal
 Code violates the Charter.  It is argued that it violates ss.
 2(b) and 7, and that these infringements are not justifiable
 under s. 1 of the Charter.

      In the event the conviction is upheld, a subsidiary issue
 arises of whether the terms of the appellant's bail are too
 broad.

 ANALYSIS

 1.   Section 181: Its History, Purpose and Ambit

      Section 181 dates from the Statute of Westminster in 1275,
 which introduced the offence De Scandalis Magnatum or Scandalum
 Magnatum.  It provided "that from henceforth none be so hardy
 to tell or publish any false News or Tales, whereby discord, or
 occasion of discord or slander may grow between the King and
 his People, or the Great Men of the Realm".  The criminal
 offence was enforced by the King's Council, and later by the
 Court of Star Chamber, until the 17th century when its
 enforcement was taken over by the common law courts.  It had as
 its primary aim the prevention of "false statements which, in a
 society dominated by extremely powerful landowners, could
 threaten the security of the state": see R. v. Keegstra, supra,
 at p. 722, per Dickson C.J.; and F.R. Scott, "Publishing False
 News" (1952), 30 Can. Bar Rev. 37, at pp. 38-39.  As Holdsworth
 recounts, "[t]his was no vain fear at a time when the offended
 great one was only too ready to resort to arms to redress a
 fancied injury": A History of English Law (5th ed. 1942), vol.
 III, at p. 409.  Nonetheless, De Scandalis Magnatum is not
 thought to have been a very effective instrument.  Holdsworth
 refers to a "thin stream of...cases" from the 16th century
 onwards; by the time of its repeal in 1887 (Statute Law
 Revision Act, 1887 (U.K.), 50 & 51, Vict., c. 59) it had long
 been obsolete.

      Although the offence of spreading false news was abolished
 in England in 1887, and does not survive in the United States,
 it was enacted in Canada as part of the 1892 Criminal Code.
 The reason for the offence's retention in Canada is unknown.
 Scott suggests that it may have been no more than oversight,
 with no one in Canada being aware that the English provision
 had been repealed four years previously: see Scott, supra, at
 p. 40.  Certainly Burbridge, the drafter of the 1892 Code, was
 no enthusiast of the offence, commenting in his 1890 Digest of
 the Criminal Law in Canada that its "definition is very vague
 and the doctrine exceedingly doubtful": see Scott, supra, at p.
 39.  Be that as it may, the offence was retained, originally
 under the rubric of "Seditious Offences" (The Criminal Code,
 1892, S.C. 1892, c. 29, s. 126; R.S.C. 1927, c. 36, s. 136) and
 more latterly as a species of "Nuisance" (S.C. 1953-54, c. 51,
 s. 166).  Until its revision in 1955, the Criminal Code
 provision read:

           136.  Every one is guilty of an indictable
      offence and liable to one year's imprisonment who
      wilfully and knowingly publishes any false news or
      tale whereby injury or mischief is or is likely to be
      occasioned to any public interest.

 The substantive elements of the offence remained the same after
 Parliament's 1955 transfer of the provision to the 'nuisance'
 section of the Code, but the potential sentence was increased
 to two years.  Neither documentary nor viva voce evidence has
 been proffered to explain why the section was retained in
 Canada when it had been dropped elsewhere or why it was moved
 from the offences dealing with "Sedition" to those dealing with
 "Nuisance".  What is now s. 181 has been judicially considered
 only three times in Canada, excluding this case; the
 jurisprudence on it is virtually non-existent.

      After considering the rather sparse history of the
 provision, Cory and Iacobucci JJ. conclude at p. 31 of their
 reasons that:

      ... a review of the historical development of the law's
      response to false news reflects its role in prohibiting
      the dissemination of false information which strikes at
      important interests of society as a whole.  Section 181
      perpetuates one of the central functions of De Scandalis
      in prohibiting public alarm and internecine hostilities
      between and among social groups.

 With the greatest respect, I find no support in the history of
 the provision for such a conclusion.  The only lesson to be
 gleaned from the history of s. 181 is that the offence was
 aimed at protecting the rule of law and the security of the
 state, in the guise of the head of power whether that be the
 monarchy or later the government: see Drouin J. in R. v.
 Carrier (1951), 16 C.R. 18, 104 C.C.C. 75 (Que. K.B.).  The
 fact that provocative racial statements have been, on the odd
 occasion in the past two hundred years, prosecuted as other
 criminal offences such as "public mischief" and "criminal
 libel" sheds no light on the objective behind the enactment of
 the "false news" provision.  Moreover, as discussed below, the
 very cases referred to by Cory and Iacobucci JJ. to support
 their conclusions actually reveal the overinclusiveness of the
 provision.

      I turn from history to the wording of s. 181 and the ambit
 of the section upon whose constitutionality this Court is asked
 to pronounce.  The construction of s. 181 is not at issue in
 these proceedings, leave to appeal on those issues having been
 denied.  The analysis of the constitutionality of s. 181 must
 therefore be based on the section as it was interpreted by the
 courts below.

      As interpreted by the trial judge and the Court of Appeal
 below, the actus reus of the offence is the publication of "a
 statement, tale or news" that is false and that "causes or is
 likely to cause injury or mischief to a public interest...".
 The mens rea lies in the knowledge that the statement is false.
 Thus the Crown, to succeed, must establish beyond a reasonable
 doubt the following propositions:

      1. That the accused published a false statement, tale or
      news;
      2. That the accused knew the statement was false; and
      3. That the statement causes or is likely to cause injury
      or mischief to a public interest.

      Each of the three elements of the offence created by s.
 181 is capable of giving rise to considerable difficulty of
 application in the context of a trial.  The question of falsity
 of a statement is often a matter of debate, particularly where
 historical facts are at issue. (Historians have written
 extensively on the difficulty of ascertaining what actually
 occurred in the past, given the difficulty of verification and
 the selective and sometimes revisionist versions different
 witnesses and historians may accord to the same events; see,
 for example, the now famous treatise of E.H. Carr, What is
 History? (1961)).  The element of the accused's knowledge of
 falsity compounds the problem, adding the need to draw a
 conclusion about the accused's subjective belief as to the
 truth or falsity of the statements.  Finally, the issue of
 whether a statement causes or is likely to cause injury or
 mischief to the public interest requires the identification of
 a public interest and a determination of whether it has been or
 is likely to be injured.  In the case of each of the three
 elements of the offence, the not inconsiderable epistemological
 and factual problems are left for resolution by the jury under
 the rubric of "fact".  Thus, both in its breadth and in the
 nature of the criteria it posits, s. 181 poses difficulties not
 usually associated with criminal prohibitions, which
 traditionally demand no more of a jury than common sense
 inferences from concrete findings on matters patent to the
 senses.

      At pages 6-16 of their reasons, Cory and Iacobucci JJ.
 summarize and interpret in detail the s. 181 trial process in
 the case at bar, the goal being to show that s. 181 did not
 theoretically or practically preclude the accused Zundel from
 raising a reasonable doubt on each element of the offence -- a
 basic requirement of fundamental justice.  The argument, as I
 understand it, would appear to be that if s. 181 occasioned no
 unfairness in this case, it never will.  One doubts the
 validity of such an inference, given the acknowledgement that
 this was a clear, simple case on the facts.  But that aside, I
 do not share my colleagues' view that as a practical matter the
 Court can be certain, even in this instance, that the defendant
 was accorded procedural justice.  On the contrary, it is my
 view that the difficulties encountered in this case underline
 the inherent vices of s. 181.

      Difficulties were encountered at trial with respect to all
 three elements of the offence -- with respect to what
 constitutes a "statement, tale or news", interpreted as
 constituting an assertion of fact as opposed to opinion; what
 constitutes injury or mischief to a public interest; and what
 constitutes proof of knowledge of falsity of the statement.
 The courts below resolved the difficult issue of the
 distinction between a statement and an opinion by treating it
 as a question of fact for the jury to resolve.  While this is
 true in a technical legal sense, in a practical sense the jury
 was told that the publication at issue was a false statement.
 By applying the doctrine of judicial notice and telling the
 jury that the "mass murder and extermination of Jews in Europe
 by the Nazi regime" was an (historical) fact no "reasonable
 person" could dispute, the judge effectively settled the issue
 for them.  Moreover, I am unable to agree with my collegues
 (see p. 8 of their reasons) that the trial judge instructed the
 jury that the "onus of differentiating fact from opinion" lay
 with the Crown.  Judge Thomas's direction that the Crown must
 prove "that the pamphlet, in essence, is a false statement of
 fact" does not impose upon the Crown the more difficult burden
 of first explaining to and then convincing a jury of the
 distinction between historical fact and historical opinion
 regarding events almost fifty years old.  This might be
 forgiven, given the elusiveness of distinguishing historical
 fact from historical opinion.  But it shows the danger in
 criminalizing "false statements".  The contention is that
 expressions of opinion are not caught by s. 181.  The reality
 is that when the matter is one on which the majority of the
 public has settled views, opinions may, for all practical
 purposes, be treated as an expression of a "false fact".

      The question of knowledge of falsity was similarly left as
 a question of fact for the jury to decide.  But this too was
 not a question of fact in the usual sense.  The jury was
 instructed that it was entitled to infer from the judge's
 instruction that because the Holocaust must be regarded as
 proven, the accused must have known it to be proven and must be
 taken to have published his pamphlet deliberately for personal
 motives, knowing the falsity of his assertion to the contrary.
 Judge Thomas added, albeit as only one factor in this
 assessment, the principle that the "more unreasonable the
 belief, the easier it is to draw the inference that the belief
 is not honestly held".  In the context of a sexual assault
 trial such an instruction would be unlikely to mislead the
 jury, both because questions of consent and perceptions of
 consent are far more common place than questions of the
 sincerity of an accused's belief in esoteric or outlandish
 historical "facts", and because the jury is likely to have the
 assistance of the viva voce evidence of both the complainant
 and accused in determining whether the inference that the
 accused's unreasonable belief in the complainant's consent was
 not an honest one ought to be drawn. But in the context of a
 prosecution under s. 181 a jury is, in the face of such
 instructions, unlikely to be able to evaluate or accept the
 accused's assertion that he believed the truth of his
 publications.  The logic is ineluctable: everyone knows this is
 false; therefore the defendant must have known it was false.

      On the final question of injury or mischief to a public
 interest, the trial judge told the jury that it was sufficient
 if there is a likelihood of injury or mischief to a particular
 public interest and directed the jury on the "cancerous effect
 of racial and religious defamation upon society's interest in
 the maintenance of racial and religious harmony in Canada."
 Judge Thomas further instructed the jury that "[t]here can be
 no doubt ... that the maintenance of racial and religious
 tolerance is certainly a matter of public interest in Canada".
 Once again, the jury's conclusion may have flowed inevitably
 from the trial judge's instruction.

      One is thus driven to conclude that this was not a
 criminal trial in the usual sense. The verdict flowed
 inevitably from the indisputable fact of the publication of the
 pamphlet, its contents' divergence from the accepted history of
 the Holocaust, and the public interest in maintaining racial
 and religious tolerance.  There was little practical
 possibility of showing that the publication was an expression
 of opinion, nor of showing that the accused did not know it to
 be false, nor of showing that it would not cause injury or
 mischief to a public interest.  The fault lies not with the
 trial judge or the jury, who doubtless did their best
 responsibly to inform the vague words of s. 181 with meaningful
 content.  The fault lies rather in concepts as vague as fact
 versus opinion or truth versus falsity in the context of
 history, and the likelihood of "mischief" to the "public
 interest".

      Against this background, I turn to the question of whether
 the conviction and imprisonment of persons such as the
 appellant under s. 181 violate the rights which the Charter
 guarantees.  The first question is whether the Charter's
 guarantee of free speech protects the impugned publication.  If
 the answer to this question is in the affirmative, the second
 question arises of whether prohibition of the publication by
 criminal sanction can nevertheless be maintained as a measure
 "demonstrably justified in a free and democratic society".

 2.   Does the Charter's guarantee of freedom of expression
      protect Mr. Zundel's right to publish the booklet Did Six
      Million Really Die?

      Section 2(b) of the Charter provides:

      2. Everyone has the following fundamental freedoms:

                              . . .

      (b) freedom of thought, belief, opinion and expression,
      including freedom of the press and other media of
      communication;

      The Court must first ask whether a publication such as
 that at issue is expression protected by s. 2(b) of the
 Charter.  If so, the Court must ask the further question of
 whether the purpose or effect of s. 181 is to restrict such
 expression.  If so, it will be found to violate s. 2(b) of the
 Charter:  see Irwin Toy Ltd. v. Quebec (Attorney General),
 [1989] 1 S.C.R. 927.

      This Court has held that s. 2(b) is to be given a broad,
 purposive interpretation: Irwin Toy, supra.  Even prior to the
 Charter, this Court recognized the fundamental importance of
 freedom of expression to the Canadian democracy; see Reference
 re Alberta Statutes, [1938] S.C.R. 100; Switzman v. Elbling,
 [1957] S.C.R. 285.  I can do no better than to quote the words
 of my colleague Cory J., writing in Edmonton Journal v. Alberta
 (Attorney General), [1989] 2 S.C.R. 1326, at p. 1336:

           It is difficult to imagine a guaranteed right more
      important to a democratic society than freedom of
      expression.  Indeed a democracy cannot exist without that
      freedom to express new ideas and to put forward opinions
      about the functioning of public institutions.  The concept
      of free and uninhibited speech permeates all truly
      democratic societies and institutions.  The vital
      importance of the concept cannot be over-emphasized.  No
      doubt that was the reason why the framers of the Charter
      set forth s. 2(b) in absolute terms which distinguishes
      it, for example, from s. 8 of the Charter which guarantees
      the qualified right to be secure from unreasonable search.

      It seems that the rights enshrined in s. 2(b) should
      therefore only be restricted in the clearest of
      circumstances.

      The purpose of the guarantee is to permit free expression
 to the end of promoting truth, political or social
 participation, and self-fulfilment.  That purpose extends to
 the protection of minority beliefs which the majority regard as
 wrong or false: Irwin Toy, supra, at p. 968.  Tests of free
 expression frequently involve a contest between the
 majoritarian view of what is true or right and an unpopular
 minority view.  As Holmes J. stated over sixty years ago, the
 fact that the particular content of a person's speech might
 "excite popular prejudice" is no reason to deny it protection
 for "if there is any principle of the Constitution that more
 imperatively calls for attachment than any other it is the
 principle of free thought -- not free thought for those who
 agree with us but freedom for the thought that we hate": United
 States v. Schwimmer, 279 U.S. 644 (1929), at p. 654.  Thus the
 guarantee of freedom of expression serves to protect the right
 of the minority to express its view, however unpopular it may
 be; adapted to this context, it serves to preclude the
 majority's perception of 'truth' or 'public interest' from
 smothering the minority's perception.  The view of the majority
 has no need of constitutional protection; it is tolerated in
 any event.  Viewed thus, a law which forbids expression of a
 minority or "false" view on pain of criminal prosecution and
 imprisonment, on its face, offends the purpose of the guarantee
 of free expression.

      The jurisprudence supports this conclusion.  This Court in
 Keegstra held that the hate propaganda there at issue was
 protected by s. 2(b) of the Charter.  There is no ground for
 refusing the same protection to the communications at issue in
 this case.  This Court has repeatedly affirmed that all
 communications which convey or attempt to convey meaning are
 protected by s. 2(b), unless the physical form by which the
 communication is made (for example, by a violent act) excludes
 protection: Irwin Toy, supra, at p. 970, per Dickson C.J. and
 Lamer and Wilson JJ.  In determining whether a communication
 falls under s. 2(b), this Court has consistently refused to
 take into account the content of the communication, adhering to
 the precept that it is often the unpopular statement which is
 most in need of protection under the guarantee of free speech:
 see, e.g., Keegstra, supra, at p. 828, per McLachlin J.; R. v.
 Butler, [1992] 1 S.C.R. 452, at p. 488, per Sopinka J.

      The respondent argues that the falsity of the publication
 at issue takes it outside of the purview of s. 2(b) of the
 Charter.  It is difficult to see how this distinguishes the
 case on appeal from Keegstra, where the statements at issue
 were for the most part statements of fact which almost all
 people would consider false.  That aside, I proceed to the
 arguments advanced under the head of falsity.

      Two arguments are advanced.  The first is that a
 deliberate lie constitutes an illegitimate "form" of
 expression, which, like a violent act, is not protected.  A
 similar argument was advanced and rejected with respect to hate
 literature in Keegstra on the ground that "form" in Irwin Toy
 refers to the physical form in which the message is
 communicated and does not extend to its content.  The same
 point is determinative of the argument in this case.

      The second argument advanced is that the appellant's
 publication is not protected because it serves none of the
 values underlying s. 2(b).  A deliberate lie, it is said, does
 not promote truth, political or social participation, or
 selffulfilment.

  Therefore, it is not deserving of protection.

      Apart from the fact that acceptance of this argument would
 require this Court to depart from its view that the content of
 a statement should not determine whether it falls within s.
 2(b), the submission presents two difficulties which are, in my
 view, insurmountable.  The first stems from the difficulty of
 concluding categorically that all deliberate lies are entirely
 unrelated to the values underlying s. 2(b) of the Charter.  The
 second lies in the difficulty of determining the meaning of a
 statement and whether it is false.

      The first difficulty results from the premise that
 deliberate lies can never have value.  Exaggeration -- even
 clear falsification -- may arguably serve useful social
 purposes linked to the values underlying freedom of expression.
 A person fighting cruelty against animals may knowingly cite
 false statistics in pursuit of his or her beliefs and with the
 purpose of communicating a more fundamental message, e.g.,
 'cruelty to animals is increasing and must be stopped'.  A
 doctor, in order to persuade people to be inoculated against a
 burgeoning epidemic, may exaggerate the number or geographical
 location of persons potentially infected with the virus.  An
 artist, for artistic purposes, may make a statement that a
 particular society considers both an assertion of fact and a
 manifestly deliberate lie; consider the case of Salman
 Rushdie's Satanic Verses, viewed by many Muslim societies as
 perpetrating deliberate lies against the Prophet.

      All of this expression arguably has intrinsic value in
 fostering political participation and individual
 self-fulfilment.  To accept the proposition that deliberate
 lies can never fall under s. 2(b) would be to exclude
 statements such as the examples above from the possibility of
 constitutional protection.  I cannot accept that such was the
 intention of the framers of the Constitution.

      Indeed, the very cases relied upon by Cory and Iacobucci
 JJ. to support their position reveal the potential of s. 181
 for suppressing valuable political criticism or satire.  In R.
 v. Hoaglin (1907), 12 C.C.C. 226, cited at p. 28 of their
 judgement, the "false" publication asserted "Americans not
 wanted in Canada".  The injury to public interest was, in the
 words of Harvey J., that "if [Americans] investigate they will
 find conditions such as to prevent them investing and taking up
 homesteads" (Hoaglin, supra, at p. 228).  Even if one accepts
 the finding that the statement was undoubtedly "false", it
 arguably represented a valuable contribution to political
 debate on Canadian immigration policy.  Yet the accused was
 convicted for publication of such statements contrary to s. 136
 (now s. 181).  Similarly, in R. v. Kirby (1970), 1 C.C.C. (2d)
 286 (Que. C.A.), a case involving prosecution for publication
 of political satire in the Montreal Gazette, (cited at p. 30 of
 their judgement), Hyde J.A. accepted that the publication fell
 within the satirical tradition of Chaucer, Swift and Addison.
 In reversing the trial judge's conviction, he observed that the
 section may capture "pranks" and that the "prank" in question
 was "very close to the border" (p. 290).

      The second difficulty lies in the assumption that we can
 identify the essence of the communication and determine that it
 is false with sufficient accuracy to make falsity a fair
 criterion for denial of constitutional protection.  In
 approaching this question, we must bear in mind that tests
 which involve interpretation and balancing of conflicting
 values and interests,  while useful under s. 1 of the Charter,
 can be unfair if used to deny prima facie protection.

      One problem lies in determining the meaning which is to be
 judged to be true or false.  A given expression may offer many
 meanings, some which seem false, others, of a metaphorical or
 allegorical nature, which may possess some validity.  Moreover,
 meaning is not a datum so much as an interactive process,
 depending on the listener as well as the speaker.  Different
 people may draw from the same statement different meanings at
 different times.  The guarantee of freedom of expression seeks
 to protect not only the meaning intended to be communicated by
 the publisher but also the meaning or meanings understood by
 the reader: Ford v. Quebec (Attorney General), [1988] 2 S.C.R.
 712, at p. 767, and Irwin Toy, supra, at p. 976.  The result is
 that a statement that is true on one level or for one person
 may be false on another level for a different person.

      Even a publication as crude as that at issue in this case
 illustrates the difficulty of determining its meaning.  On the
 respondent's view, the assertion that there was no Nazi Policy
 of the extermination of Jews in World War II communicates only
 one meaning -- that there was no policy, a meaning which, as my
 colleagues rightly point out, may be extremely hurtful to those
 who suffered or lost loved ones under it.  Yet, other meanings
 may be derived from the expressive activity, e.g., that the
 public should not be quick to adopt 'accepted' versions of
 history, truth, etc. or that one should rigorously analyze
 common characterizations of past events.  Even more
 esoterically, what is being communicated by the very fact that
 persons such as the appellant Mr. Zundel are able to publish
 and distribute materials, regardless of their deception, is
 that there is value inherent in the unimpeded communication or
 assertion of "facts" or "opinions".

      A second problem arises in determining whether the
 particular meaning assigned to the statement is true or false.
 This may be easy in many cases; it may even be easy in this
 case.  But in others, particularly where complex social and
 historical facts are involved, it may prove exceedingly
 difficult.

      While there are Criminal Code offences under which a
 person may be prosecuted for libel -- defamatory, blasphemous
 and seditious (all of which appear to be rarely if ever used
 and the constitutionality of which may be open to question) --
 it is the civil action for defamation which constitutes the
 only other significant branch of the law in which a jury is
 asked to determine the truth or falsity of a statement. But the
 difficulties posed by this demand are arguably much less
 daunting in defamation than under s. 181 of the Criminal Code.
 At issue in defamation is a statement made about a specific
 living individual.  Direct evidence is usually available as to
 its truth or falsity.  Complex social and historical facts are
 not at stake.  And most importantly the consequences of failure
 to prove truth are civil damages, not the rigorous sanction of
 criminal conviction and imprisonment.

      Before we put a person beyond the pale of the
 Constitution, before we deny a person the protection which the
 most fundamental law of this land on its face accords to the
 person, we should, in my belief, be entirely certain that there
 can be no justification for offering protection.  The criterion
 of falsity falls short of this certainty, given that false
 statements can sometimes have value and given the difficulty of
 conclusively determining total falsity.  Applying the broad,
 purposive interpretation of the freedom of expression
 guaranteed by s. 2(b) hitherto adhered to by this Court, I
 cannot accede to the argument that those who deliberately
 publish falsehoods are for that reason alone precluded from
 claiming the benefit of the constitutional guarantees of free
 speech.  I would rather hold that such speech is protected by
 s. 2(b), leaving arguments relating to its value in relation to
 its prejudicial effect to be dealt with under s. 1.

      Such an approach is supported by the language of the
 Charter and the relationship it establishes between s. 1 and
 the enumerated rights.  We start from the proposition that
 legislation limiting the enumerated rights may be
 unconstitutional. (There is no presumption of
 constitutionality: Manitoba (Attorney General) v. Metropolitan
 Stores Ltd., [1987] 1 S.C.R. 110, at p. 122, per Beetz J.).  If
 a limitation on rights is established, the onus shifts to the
 Crown to show that the legislation is justified under s. 1,
 where the benefits and prejudice associated with the measure
 are weighed.  The respondent's s. 2(b) arguments would require
 evaluation of the worth of the expression which is limited at
 the first stage.  This is an approach which this Court has
 hitherto rejected and one which I would not embrace.

      In concluding that the publication here in issue is
 protected by s. 2(b) of the Charter, I rely in the final
 analysis upon the words of Dickson C.J. in Keegstra, supra, at
 pp. 765-66:

      ...it must be emphasized that the protection of extreme
      statements, even where they attack those principles
      underlying the freedom of expression, is not completely
      divorced from the aims of s. 2(b) of the Charter.... [I]t
      is partly through clash with extreme and erroneous views
      that truth and democratic vision remain vigorous and
      alive.... [C]ondoning a democracy's collective decision to
      protect itself from certain types of expression may lead
      to a slippery slope on which encroachments on expression
      central to s. 2(b) values are permitted.  To guard against
      such a result, the protection of communications virulently
      unsupportive of free expression values may be necessary in
      order to ensure that expression more compatible with these
      values is never unjustifiably limited.

      Having concluded that the publication here at issue is
 protected by s. 2(b) of the Charter, I come to the question of
 whether the purpose or effect of s. 181 of the Criminal Code is
 to restrict this sort of expression.

      The respondent correctly concedes that the Government's
 purpose in and the effect of s. 181 is to restrict expressive
 activity.  The argument of the intervener, the Canadian Jewish
 Congress, that the purpose and effect of s. 181 are not to
 restrict expression but rather to prevent the harmful
 consequences of publications such as the one at issue, misses
 the point.  First, this Court has never focused upon a
 particular consequence of a proscribed act in assessing the
 legislation's purpose; the Court examines what might be called
 the 'facial' purpose of the legislative technique adopted by
 Parliament to achieve its ends:  see, for example, Irwin Toy,
 supra at pp. 973-76.  Second, a legislative provision may have
 many effects. One demonstrated effect of s. 181 in the case at
 bar is to subject Mr. Zundel to criminal conviction and
 potential imprisonment because of words he published.  In the
 face of this reality, it is undeniable that s. 181, whatever
 its purpose, has the effect of restricting freedom of
 expression.

      I conclude that s. 181 violates s. 2(b) of the Charter.

 3.   Is the Limitation which Section 181 of the Criminal Code
      Imposes on the Right of Free Expression Justified under
      Section 1 of the Charter?

      Section 1 of the Charter provides:

      1. The Canadian Charter of Rights and Freedoms guarantees
      the rights and freedoms set out in it subject only to such
      reasonable limits prescribed by law as can be demonstrably
      justified in a free and democratic society.

      The first question is whether s. 181 represents a "limit
 prescribed by law".  It was argued that the difficulty of
 ascertaining what constitutes a "statement, tale or news" as
 opposed to an opinion, as well as the vagueness of the term
 "injury or mischief to a public interest", render s. 181 so
 vague that it cannot be considered a definable legal limit.
 Preferring as I do to deal with the matter on its merits, I
 assume without deciding that s. 181 passes this threshold test.

      Section 1 requires us to weigh the intrusion of rights
 represented by the impugned legislation against the state's
 interest in maintaining the legislation.  In this case that
 translates to weighing the state's interest in proscribing
 expression which it deems 'likely to cause injury or mischief
 to a [matter of] public interest' on pain of criminal sanction
 against the individual's constitutional right to express his or
 her views.  Where a law restricts an express constitutional
 right, as in this case, the Charter permits the limitation to
 be maintained only if the Crown shows that the restriction is
 "demonstrably justified" in a "free and democratic society"  --
 that is, a society based on the recognition of fundamental
 rights, including tolerance of expression which does not
 conform to the views of the majority.

      I turn first to the state's interest in prohibiting the
 expression here at issue -- the question of whether the Crown
 has established an overriding public objective, to use the
 language of R. v. Oakes, [1986] 1 S.C.R. 103.  In determining
 the objective of a legislative measure for the purposes of s.
 1, the Court must look at the intention of Parliament when the
 section was enacted or amended.  It cannot assign objectives,
 nor invent new ones according to the perceived current utility
 of the impugned provision: see R. v. Big M Drug Mart Ltd.,
 [1985] 1 S.C.R. 295, at p. 334, in which this Court rejected
 the U.S. doctrine of shifting purposes.  Although the
 application and interpretation of objectives may vary over time
 (see, e.g., Butler, supra, per Sopinka J., at pp. 494-96), new
 and altogether different purposes should not be invented.  The
 case is quite different from the anti-obscenity legislation in
 Butler where the goal historically and to the present day is
 the same -- combatting the "detrimental impact" of obscene
 materials on individuals and society -- even though our
 understanding or conception of that detrimental impact (a
 "permissible shift in emphasis") may have evolved, as Sopinka
 J. noted.  My colleagues say that it is a permissible shift in
 emphasis that the false news provision was originally focused
 on the "prevention of deliberate slanderous statements against
 the great nobles of the realm" and is now said to be concerned
 with "attacks on religious, racial or ethnic minorities": (see
 p. 56 of their reasons). But this is no shift in emphasis with
 regard to the purpose of the legislation -- this is an outright
 redefinition not only of the purpose of the prohibition but
 also of the nature of the activity prohibited. To convert s.
 181 into a provision directed at encouraging racial harmony is
 to go beyond any permissible shift in emphasis and effectively

      It is argued that this interpretation represents a mere
 shift in emphasis because the thrust of s. 181 and its
 predecessors, like the obscenity provisions in Butler,
 disclosed a single goal: "the protection of the public interest
 from harm" or from that which would "threaten the integrity of
 the social fabric" (at p. 56 of the reasons of Cory and
 Iacobucci JJ.). Yet, all Criminal Code provisions -- as well as
 much statutory regulation in the public and private law spheres
 -- have as their basic purpose the protection of the public
 from harm and the maintenance of the integrity of the social
 fabric.  Indeed, one might argue that such was the goal of the
 obscenity provisions under review in Butler, yet the Court did
 not adopt that as the legislation's objective.  Instead, it
 relied upon a specific objective concerning the effect of
 pornographic materials on individuals and the resultant impact
 on society.  If the simple identification of the (content-free)
 goal of protecting the public from harm constitutes a "pressing
 and substantial" objective, virtually any law will meet the
 first part of the onus imposed upon the Crown under s. 1.  I
 cannot believe that the framers of the Charter intended s. 1 to
 be applied in such a manner.  Justification under s. 1 requires
 more than the general goal of protection from harm common to
 all criminal legislation; it requires a specific purpose so
 pressing and substantial as to be capable of overriding the
 Charter's guarantees.  To apply the language used by Sopinka J.
 in Butler (at p. 496); s. 181 cannot be said to be directed to
 avoidance of publications which "seriously offend the values
 fundamental to our society", nor is it directed to a
 "substantial concern which justifies restricting the otherwise
 full exercise of the freedom of expression".

      It is impossible to say with any assurance what Parliament
 had in mind when it decided, contrary to what had happened in
 other democracies, to leave s. 181 as part of our criminal law.
 Five parties made written submissions on this issue; five
 different objectives were posited by them.  Those supporting
 the legislation offer the following three theories as to the
 purpose of s. 181:

      1. to protect matters that rise to a level of public
      interest from being jeopardized by false speech
      (respondent);
      2. to further racial and social tolerance (Canadian Jewish
      Congress); and
      3. to ensure that meaningful public discussion is not
      tainted by the deleterious effects of the wilful
      publication of falsehoods which cause, or are likely to
      cause, damage to public interests, to the detriment of
      public order (Attorney General for Canada).

      The difficulty in assigning an objective to s. 181 lies in
 two factors: the absence of any documentation explaining why s.
 181 was enacted and retained and the absence of any specific
 purpose disclosed on the face of the provision.  We know that
 its original purpose in the 13th century was to preserve
 political harmony in the state by preventing people from making
 false allegations against the monarch and others in power.
 This ostensibly remained the purpose through to the 19th
 century.  However, in the 20th century, Parliament removed the
 offence from the political "Sedition" section of the Code and
 placed it in the "Nuisance" section, suggesting that Parliament
 no longer saw it as serving a political purpose. It is to be
 further noted that it does not appear in that part of the
 Criminal Code dedicated to "Offences Against the Person and
 Reputation", in which both the hate propaganda and defamatory
 libel provisions appear.  Beyond this all is speculation. No
 Parliamentary committees commented on the matter; no debates
 considered it.  Nor do the vague, general words employed in the
 text of s. 181 offer insight into what purpose Parliament might
 have had in mind in enacting and retaining it.

      All this stands in sharp contrast to the hate propaganda
 provision of the Criminal Code at issue in Keegstra -- s.
 319(2).  Both the text of that provision and its long and
 detailed Parliamentary history, involving Canada's
 international human rights obligations, the Cohen Committee
 Report (Report of the Special Committee on Hate Propaganda in
 Canada (1966)) and the Report of the Special Committee on the
 Participation of Visible Minorities in Canadian Society
 (Equality Now! (1984)), permitted ready identification of the
 objective Parliament had in mind.  Section 319(2), under
 challenge in Keegstra, was part of the amendments to the
 Criminal Code "essentially along the lines suggested by the
 [Cohen] Committee ..." (per Dickson C.J. in  Keegstra, supra,
 at p. 725).  The evil addressed was hate-mongering,
 particularly in the racial context.  The provision at issue on
 this appeal is quite different.  Parliament has identified no
 social problem, much less one of pressing concern, justifying
 s. 181 of the Criminal Code.  To suggest that the objective of
 s. 181 is to combat hate propaganda or racism is to go beyond
 its history and its wording and to adopt the "shifting purpose"
 analysis this Court has rejected.  Such an objective, moreover,
 hardly seems capable of being described as a "nuisance", the
 rubric under which Parliament has placed s. 181, nor as the
 offence's target of mere "mischief" to a public interest.

      The lack of any ostensible purpose for s. 181 led the Law
 Reform Commission in 1986 (Working Paper 50: Hate Propaganda)
 to recommend repeal of the section, labelling it as
 "anachronistic", a conclusion which flies in the face of the
 suggestion that s. 181 is directed to a pressing and
 substantial social concern.  It is noteworthy that no
 suggestion has been made before this Court that Canada's
 obligations under the international human rights conventions to
 which it is a signatory require the enactment of any
 provision(s) other than that section which was under review in
 Keegstra: s. 319.  The retention of s. 181 is not therefore
 necessary to fulfil any international obligation undertaken by
 Parliament.

      Can it be said in these circumstances that the Crown has
 discharged the burden upon it of establishing that the
 objective of the legislation is pressing and substantial, in
 short, of sufficient importance to justify overriding the
 constitutional guarantee of freedom of expression?  I think
 not.  It may be that s. 181 is capable of serving legitimate
 purposes.  But no objective of pressing and substantial concern
 has been identified in support of its retention in our Criminal
 Code.  Other provisions, such as s. 319(2) of the Criminal
 Code, deal with hate propaganda more fairly and more
 effectively.  Still other provisions seem to deal adequately
 with matters of sedition and state security.

      Parliament's enactment of s. 319 of the Criminal Code, a
 provision carefully tailored to combat the propagation of
 hate -- the evil at which my colleagues believe s. 181 now also
 to be directed, should not be overlooked.  The "further[ance
 of] racial, religious and social tolerance" and the
 "safeguard[ing of] the public interest against social
 intolerance and public alarm", the goals ascribed to s. 181 by
 my colleagues, are the focus of the Code's proscription of hate
 propaganda.  Racial minorities, as "identifiable groups" within
 the meaning of s. 319, are not "stateless" persons like those
 referred to in the powerful remarks of Professor Mari Matsuda
 quoted in the reasons of Cory and Iacobucci JJ.  Like my
 colleagues, I readily acknowledge the pernicious effects of the
 propagation of hate; such effects are indeed of relevance to a
 s. 1 analysis of s. 319, as was evident in this Court's
 decision in Keegstra, supra.  I concur, as well, with the dicta
 in R. v. Wholesale Travel Group Inc., [1991] 3 S.C.R. 154, that
 the Charter should not be used "as a weapon to attack measures
 intended to protect the disadvantaged", but I find the
 principle's application in this context ironic.  Section 2(b)
 of the Charter has as one of its fundamental purposes the
 protection of the freedom of expression of the minority or
 disadvantaged, a freedom essential to their full participation
 in a democracy and to the assurance that their basic rights are
 respected. The proscription of false news was originally
 intended to protect the mighty and the powerful from discord or
 slander; there is nothing to suggest any legislative intention
 to transform s. 181 from a mechanism for the maintenance of the
 status quo into a device for the protection of "vulnerable
 social groups".

      In the rational connection portion of their analysis (pp.
 67-69), Cory and Iacobucci JJ. rely upon the Report of the
 Special Committee on Hate Propaganda in Canada, which impugned
 the "19th century belief" that man was a "rational creature"
 who could distinguish between truth and falsity.  We are told
 that "we cannot share this faith today in such a simple form" -
 - thus, a limitation of this type of speech is rationally
 connected to the goal of furthering racial tolerance.  This
 lesson of history is paid heed to, but no credence appears to
 be given to the similar lesson (or warning) of history
 regarding the potential use by the state (or the powerful) of
 provisions, such as s. 181, to crush speech which it considers
 detrimental to its interests, interests frequently identified
 as equivalent to the "public interest".  History has taught us
 that much of the speech potentially smothered, or at least
 'chilled', by state prosecution of the proscribed expression is
 likely to be the speech of minority or traditionally
 disadvantaged groups.

      The fact that s. 181 has been so rarely used despite its
 long history supports the view that it is hardly essential to
 the maintenance of a free and democratic society.  Moreover, it
 is significant that the Crown could point to no other free and
 democratic country which finds it necessary to have a law such
 as s. 181 on its criminal books.  I would be remiss not to
 acknowledge here the provisions which my colleagues' research
 has discovered, under the heading "Legislative Responses in
 Other Jurisdictions" (pp. 45-48 of their reasons).  A review of
 these examples reveals their minimal relevance to this appeal.
 The Italian provision, although not reproduced for our
 inspection, has clearly been limited in its scope to the
 preservation of the rule of law or the legal order by the
 Italian constitutional court referred to by my colleagues;
 there is no indication that the provision extends to the
 promotion of racial harmony.  Even less relevant are the Danish
 Criminal Code provisions to which Cory and Iacobucci JJ. refer.
 On a plain reading, s. 140 of the Danish Code is directed not
 to false statements of fact, but to insulting remarks about the
 religious practices of others; s. 266(b), on the other hand, is
 equally clearly a proscription of hate propaganda similar to s.
 319 of our Criminal Code, upheld in Keegstra.  Of the German
 offences mentioned, only that dealing specifically with
 Holocaust denial would appear to be directed to false
 statements of fact, a much more finely tailored provision to
 which different considerations might well apply. As indicated
 above, the forerunner of our s. 181 was repealed in England
 over a century ago, leaving no apparent lacunae in the criminal
 law of a country that has seen its share of social and
 political upheavals over the ensuing period.  It is apparently
 not to be found in the United States.  How can it be said in
 the face of facts such as these and in the absence of any
 defined evil at which the section is directed that the
 retention of the false news offence in this country is a matter
 of pressing and substantial concern justifying the overriding
 of freedom of expression?  In Butler, this Court, per Sopinka
 J., at p. 497, relied on the fact that legislation of the type
 there at issue, pornography legislation, may be found in most
 free and democratic societies in justifying the restrictions it
 imposes on freedom of expression.  The opposite is the case
 with s. 181 of the Criminal Code.

      In the absence of an objective of sufficient importance to
 justify overriding the right of free expression, the state's
 interest in suppressing expression which may potentially affect
 a public interest cannot outweigh the individual's
 constitutional right of freedom of expression and s. 181 cannot
 be upheld under s. 1 of the Charter.  But even if one were to
 attribute to s. 181 an objective of promoting social and racial
 tolerance in society and manage the further leap of concluding
 that objective was so pressing and substantial as to be capable
 of overriding entrenched rights, the Crown's case under s. 1 of
 the Charter would fail for want of proportionality between the
 potential reach of s. 181 on the one hand, and the "evil" to
 which it is said to be directed on the other.

      Assuming a rational link between the objective of social
 harmony and s. 181 of the Criminal Code, the breadth of the
 section is such that it goes much further than necessary to
 achieve that aim.  Accepting that the legislative solution need
 not be "perfect", it nevertheless must be "appropriately and
 carefully tailored in the context of the infringed right":
 Reference re ss. 193 and 195.1(1)(c) of the Criminal Code
 (Man.), [1990] 1 S.C.R. 1123, at p. 1138.  The effect of s. 181
 is to inhibit the expression or publication of any statements
 which may be found by a jury to be factual, false and likely to
 cause injury or mischief to a public interest.  The territory
 covered by this prohibition can only be described as vast, as
 revealed by a brief look at the key phrases on which guilt or
 innocence turns.

       The phrase "statement, tale or news", while it may not
 extend to the realm of true opinion (wherever the line is to be
 drawn, itself a question of great difficulty), obviously
 encompasses a broad range of historical and social speech,
 going well beyond what is patent or provable to the senses as a
 matter of "pure fact". Indeed, one of the cases relied upon in
 support of the proposition that the section deals only with
 statements of fact and not with expressions of opinion, R. v.
 Hoaglin, supra, demonstrates just how slippery the distinction
 may be. If the expression in issue in that case, in which a
 disaffected American settler in Alberta had printed posters
 which stated "Americans not wanted in Canada. Investigate
 before buying lands and taking homesteads in this country" is
 an example of a "false statement of fact" falling within the
 prohibition, one shudders to consider what other comments might
 be so construed. Nor are the difficulties confined to
 determining what is a factual assertion as opposed to an
 expression of opinion.  What is false may, as the case on
 appeal illustrates, be determined by reference to what is
 generally (or, as in Hoaglin, officially) accepted as true,
 with the result that the knowledge of falsity required for
 guilt may be inferred from the impugned expression's divergence
 from prevailing or officially accepted beliefs.  This makes
 possible conviction for virtually any statement which does not
 accord with currently accepted "truths", and lends force to the
 argument that the section could be used (or abused) in a
 circular fashion essentially to permit the prosecution of
 unpopular ideas.  Particularly with regard to the historical
 fact -- historical opinion dichotomy, we cannot be mindful
 enough both of the evolving concept of history and of its
 manipulation in the past to promote and perpetuate certain
 messages.  The danger is not confined to totalitarian states
 like the Nazi regime in Germany or certain communist regimes of
 the past which blatantly rewrote history.  We in Canada need
 look no further than the 'not so noble savage' portrayal of
 Native Canadians in our children's history text books in the
 early part of this century.  Similarly, in the United States,
 one finds the ongoing revision of the historical representation
 of African Americans, whose contribution to aspects of the
 history of the United States, such as their contribution to the
 North's victory in the Civil War, is only now being recognized.

      But perhaps the greatest danger of s. 181 lies in the
 undefined and virtually unlimited reach of the phrase "injury
 or mischief to a public interest".  Neither the respondent nor
 its supporting interveners has proffered any case law in which
 this phrase has been applied to a given factual circumstance in
 a clear and consistent manner.  My colleagues refer to the
 "serious harm" and "serious injury" caused by deliberate
 falsehoods, but this begs the question of what sort or degree
 of harm is necessary in order to bring the section into play.
 Indeed, the limited jurisprudence on s. 181 evidences
 conflicting opinions on what constitutes a threatened or
 injured "public interest" justifying criminal sanction.  It is
 difficult to see how a broad, undefined phrase such as "public
 interest" can on its face constitute a restrained,
 appropriately limited measure which impairs the right infringed
 to the minimum degree consistent with securing the
 legislation's objectives.  Any deliberate lie (potentially
 defined as that which does not accord with accepted truth),
 which causes or is likely to cause "injury" or  "mischief" to
 any "public interest" is within the potential reach of the
 section.  The interpretation given to "public interest" in this
 case may not have been objectionable.  But that is not the
 issue in determining whether a legislative restriction of
 rights is overbroad.  The issue is whether the provision
 permits the state to restrict constitutional rights in
 circumstances and ways that may not be justifiable.  The vague
 and broad wording of s. 181 leaves open that possibility.

      Cory and Iacobucci JJ. propose to overcome this difficulty
 by defining the phrase "public interest" in accordance with
 selected Charter values.  Two observations are relied upon --
 that courts regularly define phrases in legislation, and that
 the courts have not, thus far, adequately defined "public
 interest" -- as the justification to define anew "public
 interest" in the context of s. 181's purported application to
 Mr. Zundel.  Although the section's "legislative history" and
 the "legislative and social context in which it is used" is
 said by my colleagues to govern the definitional process, their
 interpretation focuses upon a select range of Charter values,
 values which do not include freedom of expression.  In support
 of this technique, reliance is placed upon the following
 authorities: Hills v. Canada (Attorney General), [1988] 1
 S.C.R. 513; Slaight Communications Inc. v. Davidson, [1989] 1
 S.C.R. 1038; and R. v. Salituro, [1991] 3 S.C.R. 654.  These
 authorities confirm the following basic propositions: that the
 common law should develop in accordance with the values of the
 Charter (Salituro, supra, at p. 675), and that where a
 legislative provision, on a reasonable interpretation of its
 history and on the plain reading of its text, is subject to two
 equally persuasive interpretations, the Court should adopt that
 interpretation which accords with the Charter and the values to
 which it gives expression (Hills and Slaight, supra).  None of
 these decisions stands for the proposition that an age-old
 provision whose aim and scope was created pre-Charter can, as
 of 1982, be redefined by reference to a present-day perception
 of utility.

      The result of my colleagues' redefinition is the equation
 of "public interest" with "the protection and preservation of
 those rights and freedoms set out in the Charter as fundamental
 to Canadian society". Thus, for example, whenever the Crown can
 establish that the publication of a false statement is likely
 seriously to injure the dignity and equality of those whom ss.
 15 and 27 of the Charter are intended to protect, the offence
 is made out. In so doing my colleagues have arguably created a
 new offence, an offence hitherto unknown to the criminal law.
 The promotion of equality and multiculturalism is a laudable
 goal, but, with respect, I can see no basis in the history or
 language of s. 181 to suggest that it is the motivating goal
 behind its enactment or retention. To import it is to engage
 not in a valid process of statutory interpretation, but in
 impermissible reading in of content foreign to the enactment;
 Salituro, Slaight and Hills were never intended to be taken
 this far.

      Section 181 can be used to inhibit statements which
 society considers should be inhibited, like those which
 denigrate vulnerable groups.  Its danger, however, lies in the
 fact that by its broad reach it criminalizes a vast penumbra of
 other statements merely because they might be thought to
 constitute a mischief to some public interest, however
 successive prosecutors and courts may wish to define these
 terms.  The danger is magnified because the prohibition affects
 not only those caught and prosecuted, but those who may refrain
 from saying what they would like to because of the fear that
 they will be caught.  Thus worthy minority groups or
 individuals may be inhibited from saying what they desire to
 say for fear that they might be prosecuted.  Should an activist
 be prevented from saying "the rainforest of British Columbia is
 being destroyed" because she fears criminal prosecution for
 spreading "false news" in the event that scientists conclude
 and a jury accepts that the statement is false and that it is
 likely to cause mischief to the British Columbia forest
 industry?  Should a concerned citizen fear prosecution for
 stating in the course of political debate that a nuclear power
 plant in her neighbourhood "is destroying the health of the
 children living nearby" for fear that scientific studies will
 later show that the injury was minimal?  Should a medical
 professional be precluded from describing an outbreak of
 meningitis as an epidemic for fear that a government or private
 organization will conclude and a jury accept that his statement
 is a deliberate assertion of a false fact?  Should a member of
 an ethnic minority whose brethren are being persecuted abroad
 be prevented from stating that the government has
 systematically ignored his compatriots' plight?  These examples
 suggest there is merit in the submission of the Canadian Civil
 Liberties Association that the overbreadth of s. 181 poses
 greater danger to minority interest groups worthy of popular
 support than it offers protection.

      These examples illustrate s. 181's fatal flaw -- its
 overbreadth.  At pp. 70-73 of their reasons, Cory and Iacobucci
 JJ. attempt to alleviate the fears associated with the problem
 of overbreadth by arguing that the Crown will always bear a
 heavy onus in proving all of the elements under s. 181.  It is
 argued that any danger is limited by the phrase "public
 interest" because even those publishing known falsehoods will
 not be prosecuted where their lies have an "overall beneficial
 or neutral effect".  In this way, Cory and Iacobucci JJ. claim
 that the examples proffered above raise no practical problem
 (see p. 81 of their reasons).

      I, for one, find cold comfort in the assurance that a
 prosecutor's perception of "overall beneficial or neutral
 effect" affords adequate protection against undue impingement
 on the free expression of facts and opinions.  The whole
 purpose of enshrining rights in the Charter is to afford the
 individual protection against even the well-intentioned
 majority.  To justify an invasion of a constitutional right on
 the ground that public authorities can be trusted not to
 violate it unduly is to undermine the very premise upon which
 the Charter is predicated.

      Cory and Iacobucci JJ. make no mention of the reality that
 the decision to prosecute must, by necessity, be made by state
 agents and that the issue must be adjudicated upon by a judge
 and jury in a particular locale with a particular conception of
 a benefit to the public.  All it takes is one judge and twelve
 jurors who believe that certain 'falsehoods' compromise a
 particular "public" interest, and that such falsehoods 'must
 have been' known to the accused, in order to convict.  A jury
 in Port Alberni, B.C., may have a very different view of the
 overall beneficial impact of false statements of fact impugning
 the lumber industry than a jury in Toronto.  Finally, Cory and
 Iacobucci JJ. fail to address the argument that the danger
 raised by these examples, the 'chilling effect' of  s. 181,
 outweighs its minimal benefit given the alternative means of
 prosecution of speech detrimental to racial tolerance under s.
 319 of the Criminal Code.

      Not only is s. 181 broad in contextual reach; it is
 particularly invasive because it chooses the most draconian of
 sanctions to effect its ends -- prosecution for an indictable
 offence under the criminal law.  Our law is premised on the
 view that only serious misconduct deserves criminal sanction.
 Lesser wrongs are left to summary conviction and the civil law.
 Lies, for the most part, have historically been left to the
 civil law of libel and slander; it has been the law of tort or
 delict that has assumed the main task of preserving harmony and
 justice between individuals and groups where words are
 concerned.  This is not to say that words cannot properly be
 constrained by the force of the criminal law.  But the harm
 addressed must be clear and pressing and the crime sufficiently
 circumscribed so as not to inhibit unduly expression which does
 not require that the ultimate sanction of the criminal law be
 brought to bear:  see Dickson C.J. in Keegstra, supra, at p.
 772.  The Criminal Code provisions against hatemongering met
 that criterion, focusing as they did on statements intended to
 cause "hatred against any identifiable group".  The broad,
 undefined term "mischief to a public interest", on the other
 hand, is capable of almost infinite extension.

      It is argued that the expression here at issue is of
 little value and hence is less deserving of protection under s.
 1 than expression which directly engages the "core" values
 associated with freedom of expression as identified in Irwin
 Toy.  The short answer to this contention is that expression
 which a jury might find to be a deliberate lie likely  to
 injure a public interest and which would therefore be inhibited
 by s. 181 may well relate to the "core" values protected by the
 guarantee, as the examples cited earlier in these reasons
 demonstrate.  The provision at issue in Keegstra, s. 319(2) of
 the Criminal Code, was confined to hate propaganda, and hence
 restricted only speech of low or negative value.  That cannot
 be said of s. 181, which may catch a broad spectrum of speech,
 much of which may be argued to have value.  I add that what is
 at issue is the value of all speech potentially limited by the
 provision at issue.  In assessing this, the Court must not be
 diverted by the offensive content of the particular speech
 giving rise to the Charter challenge of the legislative
 provision.

      In summary, the broad range of expression caught by s. 181
 -- extending to virtually all controversial statements of
 apparent fact which might be argued to be false and likely do
 some mischief to some public interest --, combined with the
 serious consequences of criminality and imprisonment, makes it
 impossible to say that s. 181 is appropriately measured and
 restrained having regard to the evil addressed -- that it
 effects a "minimal impairment" to use the language of Oakes.
 Section 181 is materially different, in this regard, from s.
 319(2) -- the provision upheld under s. 1 by the majority of
 this Court in Keegstra.

      The same considerations lead to the conclusion that the
 gravity of the restriction on the right of freedom of
 expression is not proportionate to s. 181's putative objective.
 In Keegstra (at pp. 762-63) the majority of this Court, per
 Dickson C.J., held that given the important and documented
 objectives of s. 319(2) and the minimal contribution to the
 values underlying the freedom made by the narrow range of
 expression caught by that provision,  the restriction was
 proportional to the furtherance of the democratic values upon
 which s. 319(2) is based.  In the case on appeal, the same test
 leads to the contrary result.  Any purpose which can validly be
 attached to s. 181 falls far short of the documented and
 important objective of s. 319(2).  On the other side of the
 scale, the range of expression caught by s. 181 is much broader
 than the more specific proscription of s. 319(2).  In short, s.
 181 fails the proportionality test applied in Keegstra.

      When one balances the importance of the objective of s.
 181 against the potentially invasive reach of its provisions,
 one cannot but conclude that it "overshoots the mark".  It
 fails the tests for minimal impairment and proportionality by
 which this Court upheld the criminalization of hate propaganda
 under s. 319(2) of the Criminal Code.  The value of liberty of
 speech, one of the most fundamental freedoms protected by the
 Charter, needs no elaboration.  By contrast, the objective of
 s. 181, in so far as an objective can be ascribed, falls short
 of constituting a countervailing interest of the most
 compelling nature.  In Oakes, supra, Dickson C.J. made it clear
 that the less important the provision's objective, the less
 tolerable is an adverse effect upon the fundamental freedom.
 Section 181 could support criminalization of expression only on
 the basis that the sanction was closely confined to situations
 of serious concern.  In fact, s. 181 extends the sanction of
 the criminal law to virtually any statement adjudged to be
 falsely made which might be seen as causing mischief or likely
 to cause mischief to virtually any public interest.  I cannot
 conclude that it has been shown to be "demonstrably justified"
 in "a free and democratic society".

      To summarize, the restriction on expression effected by s.
 181 of the Criminal Code, unlike that imposed by the hate
 propaganda provision at issue in Keegstra, cannot be justified
 under s. 1 of the Charter as a "reasonable limit prescribed by
 law as can be demonstrably justified in a free and democratic
 society".  At virtually every step of the Oakes test, one is
 struck with the substantial difference between s. 181 and the
 provision at issue in Keegstra, s. 319(2) of the Code.  In
 contrast to the hate propaganda provision (Keegstra), the false
 news provision cannot be associated with any existing social
 problem or legislative objective, much less one of pressing
 concern.  It is, as the Law Reform Commission concluded,
 "anachronistic".  But even if the Court were to attribute to s.
 181 the objective of promoting racial and social tolerance and
 conclude that such objective was so pressing and substantial as
 to be capable of overriding a fundamental freedom, s. 181 would
 still fail to meet the criteria of proportionality which
 prevailed in Keegstra.  In Keegstra, the majority of this Court
 found the objective of the legislation to be compelling and its
 effect to be appropriately circumscribed.  The opposite is the
 case with s. 181 of the Criminal Code.  Section 181 catches not
 only deliberate falsehoods which promote hatred, but sanctions
 all false assertions which the prosecutor believes 'likely to
 cause injury or mischief to a public interest', regardless of
 whether they promote the values underlying s. 2(b).  At the
 same time, s. 181's objective, in so far as an objective can be
 ascribed to the section, ranks much lower in importance than
 the legislative goal at stake in Keegstra.  When the objective
 of s. 181 is balanced against its invasive reach, there can in
 my opinion be only one conclusion:  the limitation of freedom
 of expression is disproportionate to the objective envisaged.

      In their laudable effort to send a message condemning the
 'hate-mongering' of persons such as the appellant by upholding
 s. 181 as a reasonable limit, it is my respectful opinion that
 my colleagues Cory and Iacobucci JJ. make three fundamental
 errors.  First, they effectively rewrite s. 181 to supply its
 text with a particularity which finds no support in the
 provision's history or in its rare application in the Canadian
 context.  Second, they under-rate the expansive breadth of s.
 181 and its potential not only for improper prosecution and
 conviction but for 'chilling' the speech of persons who may
 otherwise have exercised their freedom of expression.  Finally,
 they go far beyond accepted principles of statutory and Charter
 interpretation in their application of s. 1 of the Charter.
 While I share the concerns of my colleagues, I fear that such
 techniques, taken to their ultimate extreme, might render
 nugatory the free speech guarantee of the Charter.

 DISPOSITION

      I conclude that s. 181 of the Criminal Code infringes the
 right of free expression guaranteed by s. 2(b) of the Charter
 and that the infringement is not saved by s. 1 of the Charter.

 I do not find it necessary to deal with the arguments under s.
 7 of the Charter.

      I would allow the appeal, enter an acquittal, and answer
 the first constitutional question in the affirmative and the
 second in the negative.  In the result, I need not consider
 whether the terms of the appellant's bail infringed his rights
 under the Charter.

      The following is the judgment of Cory, Iacobucci and
 Gonthier JJ. delivered by

      CORY AND IACOBUCCI JJ. (joint dissenting):-- This appeal
 raises the issue of the constitutionality of s. 181 (formerly
 s. 177) of the Criminal Code, R.S.C., 1985, c. C-46, which
 states:

      181. Every one who wilfully publishes a statement,
      tale or news that he knows is false and that causes
      or is likely to cause injury or mischief to a public
      interest is guilty of an indictable offence and
      liable to imprisonment for a term not exceeding two
      years.

 The appellant, Ernst Zundel, alleges that the provision
 violates s. 7 and s. 2(b) of the Canadian Charter of Rights and
 Freedoms and cannot be justified under s. 1 of the Charter.

      This appeal concerns the wilful publication of deliberate,
 injurious lies and the legislation which seeks to combat the
 serious harm to society as a whole caused by these calculated
 and deceitful falsehoods.  Our colleague, McLachlin J., has
 stated that s. 181 violates s. 2(b) of the Charter and is not
 saved under section 1.  We agree with her conclusion, though
 not with her reasoning, that s. 181 violates s. 2(b) of the
 Charter.  However, with respect, we do not agree that the
 section cannot be justified under s. 1.

 I.  BACKGROUND: THE PAMPHLET IN QUESTION

      In the 1970's and 1980's, the appellant published and
 distributed white supremacist literature, videos and
 paraphernalia through the auspices of his Toronto publishing
 house, Samisdat Publishers Ltd.  He was charged with two counts
 of spreading false news in contravention of what is now s. 181
 of the Code for publishing two pamphlets.  He was acquitted at
 trial on the count relating to the publication of the pamphlet,
 The West, War and Islam!, but was convicted on the count
 relating to a pamphlet entitled, Did Six Million Really Die?
 It is this conviction which he appeals to this Court.

      Because much of the reasoning in this case turns on
 whether the expression in question purports to be a statement
 of fact or of mere opinion, and because it is difficult to
 comprehend fully the significance of harmful speech in the
 abstract, the pamphlet warrants more than a general reference
 in order to make clear the precise nature of the publication at
 issue.

      The pamphlet is part of the genre of anti-Semitic
 literature known euphemistically as "revisionist history".  The
 pamphlet indicates the author is "Richard Harwood... a writer
 and specialist in political and diplomatic aspects of the
 Second World War.  At present he is with the University of
 London".  However, the piece appears to have actually been
 produced in England by Richard Verral, editor of the neo-nazi
 British National Front newspaper in 1977.  The appellant has
 added a preface and afterword to the original document,
 entitled Historical Facts No. 1, Did Six Million Really Die?

 Truth at Last Exposed.

      The basic gist of the piece is that the Holocaust
 perpetrated by the German National Socialists against the Jews
 of Europe during the Second World War never occurred.
 According to the appellant, there was no concerted plan to
 exterminate European Jewry, along with assorted others of
 racial extraction, religious persuasion, national origin or
 sexual orientation of which the Nazis did not approve.  By
 pointing to what he alleges to be new evidence, the appellant
 submits that some Jews died, as people will in war time, but
 that the "Final Solution to the Jewish Question" was never
 anything more than a plan to facilitate emigration to
 Madagascar.  He states that the Holocaust is a myth fabricated
 by an immensely powerful Jewish-Zionist conspiracy to win
 lucrative war reparations from the Germans, to make them feel
 ashamed and a pariah in the eyes of other nations, and to win
 political and economic support for the State of Israel.

      While the appellant argues that his purpose in preparing
 and disseminating the publication was to provide a novel
 analysis of historical documents,  Richard Verral makes clear
 the true import of the "revisionist" project.  In the aftermath
 of the Holocaust, the international community has cast a
 jaundiced eye on all forms of racism and has bonded together to
 reject and obliterate it.  The author alleges that "the
 Anglo-Saxon world" is falling into decline because of the
 presence of non-Aryans and that the lessons of the horrors of
 the Holocaust prevent  "rational" debate about this trend.
 Under the heading "The Race Problem Suppressed", the pamphlet
 states:

      Thus the accusation of the Six Million is not only
      used to undermine the principle of nationhood and
      national pride, but it threatens the survival of the
      Race itself....  Many countries of the Anglo-Saxon
      world, notably Britain and America, are today facing
      the gravest danger in their history, the danger posed
      by the alien races in their midst.  Unless something
      is done in Britain to halt the immigration and
      assimilation of Africans and Asians into our country,
      we are faced in the near future, quite apart from the
      bloodshed of racial conflict, with the biological
      alteration and destruction of the British people as
      they have existed here since the coming of the
      Saxons.  In short, we are threatened with the
      irrecoverable loss of our European culture and racial
      heritage.  But what happens if a man dares to speak
      of the race problem, of its biological and political
      implications? He is branded as that most heinous of
      creatures, a "racialist".  And what is racialism, of
      course, but the very hallmark of the Nazi!  They (so
      everyone is told, anyway) murdered Six Million Jews
      because of racialism, so it must be a very evil thing
      indeed.

      Presumably in order to quell the abhorrence with which
 people of good will respond to racism, the premise of the
 pamphlet was that the brutal realization in the Holocaust must
 be denied.  To this end, the pamphlet makes numerous false
 allegations of fact.  It will suffice to point to only a few.

      The pamphlet alleges that:

      - the Nazi concentration camps were only work camps; that
      gas chambers were built by the Russians after the War;
      that the millions who disappeared through the chimneys of
      the crematoria at Auschwitz, Sobibor, Majdanek and
      elsewhere actually moved to the United States and changed
      their names;

      -  The Diary of Anne Frank is a work of fiction;

      -  the emaciated living and dead found by liberation
      forces died of starvation and typhus;

      -  the films and photographs are clever forgeries;

      -  there are no witnesses to or survivors of the slaughter
      and every perpetrator who later revealed his complicity
      was coerced.

      The appellant was convicted after a lengthy trial of
 spreading false news contrary to s. 181.  On appeal to the
 Ontario Court of Appeal, his conviction was upheld on
 constitutional grounds but struck down for errors in the
 admission of evidence and the charge to the jury.  The matter
 was sent back for a new trial:  (1987), 58 O.R. (2d) 128, 35
 D.L.R. (4th) 338, 56 C.R. (3d) 1, 29 C.R.R. 349, 31 C.C.C.
 (3d) 97.  The appellant was again convicted after a trial
 before Judge Thomas and a jury.  His second appeal to the
 Ontario Court of Appeal was denied unanimously:  (1990), 37
 O.A.C. 354, 53 C.C.C. (3d) 161.  He appeals to this court by
 leave on the constitutional issues alone, [1990] 2 S.C.R. xii.

 II.  JUDGMENTS BELOW

 A. Trial

      (1) Judicial Notice

      At trial, Judge Thomas took judicial notice of the fact
 that Jews were murdered by the Nazis but did not take judicial
 notice of the  facts alleged in the appellant's pamphlet:

      The mass murder and extermination of Jews in Europe
      by the Nazi regime during the Second World War is so
      generally known and accepted that it could not
      reasonably be questioned by reasonable persons.  I
      directed you then and I direct you now that you will
      accept that as a fact.  The Crown was not required to
      prove it.  It was in the light of that direction that
      you should examine the evidence in this case and the
      issues before you.

      Accordingly, it was not open to the appellant to argue
 that no Jews died during the Second World War, and indeed, as
 noted above, this was not his thesis.  In his final address to
 the jury, defence counsel analyzed the relationship between the
 judicial notice and the appellant's work:

      His Honour will tell you what he says is reasonable
      for reasonable men to contest.  But it won't include
      the six million, it won't include the gas chambers
      and it won't include an official plan. That's
      basically what this book is all about.

           That is not to dispute the Jewish tragedy of
      mass murder of some Jews by some Nazis during World
      War II which His Honour will tell you is a fact.  The
      Judicial ruling goes no further than that.  And if
      two Jews were killed by some Nazis, that wouldn't be
      a mass murder.  It would certainly be a tragedy.  It
      would be wrong.  But it wouldn't necessarily be what
      is portrayed as the Holocaust.  [Emphasis added.]

      The appellant was fully able to defend the specific
 allegations out of which he built his argument as to the
 motive, intention, mechanisms, scope, and impact of the
 slaughter.  He was fully able to put forth his argument that
 "the Holocaust", writ large as an historical icon, was a
 fabrication.  The court explicitly did not take away from the
 jury the possibility of accepting evidence in support of
 Zundel's fundamental premise that there was no systematic plan
 of genocide and thus that racism was not as dangerous as
 supposed.  The trial judge also made it clear in his
 instruction to the jury that they were to find that some Jews
 died but must be satisfied beyond a reasonable doubt that these
 deaths amounted to the historical cataclysm known as the
 Holocaust.  In his charge to the jury, Judge Thomas summarized
 the position of the defence:

      The publication considered in its essence puts
      forward the thesis six million Jews were not killed
      during the war, there was no official plan or policy
      by the National Socialist regime of Adolf Hitler to
      exterminate the Jews, and there were no homicidal gas
      chambers.

      (2) Elements of the Offence

      Judge Thomas defined the elements of the offence which the
 Crown had to prove as:

      (a) wilful publication
      (b) of a statement of fact rather than of opinion
      (the onus of differentiating fact from opinion lying
      with the Crown);
      (c) which the accused knew to be false when he
      published it; and
      (d) which falsehood is likely to cause mischief to
      the public interest (in this case, the interest in
      racial and social tolerance).

      (i) Wilful Publication

      While the appellant conceded publication, the Crown
 adduced the evidence of Sergeant Luby of the Metropolitan
 Toronto Police that, in the course of investigating the
 complaint against him, the appellant confirmed that he had
 written the preface and conclusion, had published the amended
 version of Richard Verral's work and had distributed it within
 and beyond Canadian borders.  Indeed, the afterward of the
 pamphlet itself enumerates the appellant's distribution efforts
 in Canada.  The jury was instructed that, if they accepted the
 evidence of the officer and admission by counsel for the
 appellant, they could find that he had wilfully published it.
 Judge Thomas noted that the date of publication was key in
 determining the most important issue of knowledge of falsity at
 publication date.  The Crown had alleged that the publication
 occurred in 1981.  The trial judge summarized the evidence on
 this point as suggesting that it was produced at some point
 between early 1979 and Sgt. Luby's attendance at the
 appellant's home on May 29, 1984.

      (ii) Statement of Fact Rather than of Opinion

      The appellant argued that the pamphlet was only an
 expression of opinion and, in the alternative, that if found to
 be an assertion of fact, it was verifiable as truth.  Judge
 Thomas held that the issue of whether the pamphlet conveyed an
 assertion of fact or mere opinion was to be determined by the
 jury.  He pointed to the defence expert, Dr. Fann, who asserted
 that a factual claim may be distinguished from an expression of
 opinion by virtue of its capacity to be tested and verified,
 while expressions of opinion are merely subjective and thus
 cannot be proved or disproved. The defence expert Dr. Botting
 had testified that the pamphlet was two thirds fact and one
 third opinion but that he would characterize it as an
 expression of opinion.  The trial judge left it to the jury to
 determine whether to accept this submission or to accept the
 Crown's argument, paraphrased as:

      Do you think  his view was influenced by his
      contention that there is no such thing as a fact,
      that everything is opinion? The Crown asks, in the
      real world, don't we have to distinguish between fact
      and opinion on a daily basis?

      The defence expert witness, Mr. Felderer, a publisher of
 Holocaust denial literature, also testified that the pamphlet
 was important because it contained allegations of fact.  Judge
 Thomas instructed the jury:

           Although there are individual items or passages
      in the pamphlet which, considered separately might be
      characterized as opinions, I direct you that it is
      open to you to find that the pamphlet, considered as
      a whole, asserted as a fact that Jews were not
      exterminated as a result of government policy during
      the Nazi regime, that the Holocaust did not occur and
      it is an invention or a hoax to enable Israel and
      Jews to collect huge reparation payments from
      Germany.

      It was left to the jury to consider whether the Crown had
 satisfied them beyond a reasonable doubt of the verifiable
 falsity of the factual assertions contained in the pamphlet and
 whether the cumulative effect of these errors rendered the
 pamphlet as a whole a false statement or tale.

      (iii) Falsity of the Factual Allegations

      The appellant's allegations of fact in the pamphlet were
 divided into 85 extracts and rebutted one by one.  The trial
 judge summarized this material at length for the jury but it
 will suffice here to point only to some of the more egregious
 examples.  The pamphlet alleged that a memorandum from Joseph
 Goebbels revealed that the Final Solution was never more than a
 plan to evacuate Jews to Madagascar.  It was shown that there
 was no such memorandum but that the reference was to Goebbels'
 diary entry of March 7, 1942.  This diary extract was adduced
 and shown to state nothing of the kind.  The Crown went on to
 point out that the entry for March 27, 1942 made clear that the
 Final Solution was, in fact, genocide:

      Not much will remain of the Jews.  On the whole, it
      can be said that about 60 per cent of them will have
      to be liquidated, whereas only about 40 per cent can
      be used for forced labor....

      The pamphlet alleges that no documentary evidence exists
 of the Nazi plan to exterminate the Jews.  The Crown adduced
 speeches by Heinrich Himmler, head of the SS, made on October
 4, 1943 to his troops in Posen in which he refers to the
 program of extermination of the Jews.  Himmler stated:

           I also want to talk to you, quite frankly, on a
      very grave matter.  Among ourselves it should be
      mentioned quite frankly, and yet we will never speak
      of it publicly....

           I mean the clearing out of the Jews, the
      extermination of the Jewish race....

 The appellant argued that the term "exterminate" used in this
 passage really meant "deport".  It was left to the jury to
 consider whether they accepted that this was a possible
 interpretation.

       The Crown also adduced the December 9, 1942 entry in the
 diary of Hans Frank, SS officer in charge of Poland, describing
 the annihilation of 3.5 million Jews in the general government
 and numerous documents adduced at the Nuremberg trials,
 including the daily reports of the Einsatzgruppen (action
 groups) enumerating the death tolls of Jews in the USSR.  In a
 report to Hitler of December 20, 1942, Himmler indicates that
 the Einsatzgruppen had executed 363, 211 Jews between August
 and November, 1942.

      The pamphlet alleged, purportedly relying on a Red Cross
 report, that all concentration camps were really humane work
 camps.  Mr. Biedermann, a delegate of the International
 Committee of the Red Cross, testified that the Red Cross Report
 pertained exclusively to prisoner of war camps as the Red Cross
 personnel had not been inside any camps in which civilians were
 detained.  The Crown adduced evidence from Professor Hilberg
 that while some camps had labour facilities annexed to them,
 Belzec, Treblinka, Sobibor and Chelmno were exclusively
 "killing factories" and that gas chambers were in operation at
 Auschwitz-Birkenau and Majdanek.  The numbers of Jews
 slaughtered was verifiable from railway records showing the
 payments per person made by the Gestapo for transport to the
 camps.  These numbers were compared with those having left the
 camps or who were found there after liberation.

      On and on, the Crown showed that the appellant
 misrepresented the work of historians, misquoted witnesses,
 fabricated evidence, and cited non-existent authorities.

      (iv) Appellant's Knowledge of Falsity

      The trial judge made it clear that this was the most
 important element of the offence and that the onus lay on the
 Crown to prove beyond a reasonable doubt that the appellant
 knew that these assertions of fact were false when he published
 them.  The Crown alleged publication in 1981.  Evidence was
 heard from defence witnesses that the appellant was extremely
 familiar with the history of the Holocaust and that he was
 aware of the overwhelming evidence produced by orthodox
 Holocaust historians that the Holocaust did occur.

      The Crown adduced evidence that the appellant was
 committed to white supremacist and anti-Semitic causes and was
 a fan of Adolph Hitler and of the Nazi regime.  The Crown
 adduced a radio interview with the CBC and two pamphlets
 allegedly written and distributed by the appellant under his
 pen name, Christof Friedrich (his middle names), entitled The
 Hitler We Loved and Why and UFO's: Nazi Secret Weapon.  It was
 open to the jury to find that evidence of motive drawn from
 these materials was relevant to knowledge of falsity.  Judge
 Thomas stated:

           It is true that the accused man is not on trial
      for his beliefs, and he is not on trial for
      publishing Exhibits 2 and 3.  However, it is open to
      you to find that if the accused believed in National
      Socialism, it is open to you to conclude that he
      knowingly would publish falsehoods to foster and
      protect those beliefs.  In other words, that is the
      limited use that you can make of Exhibits 2, 3 and 5
      combined.

      Sgt. Luby testified that the appellant stated to him that
 he had been writing "those things" for twenty-five years.

 Defence witnesses who shared the appellant's views testified
 that, as far as back as 1969, the appellant had believed the
 Holocaust was a myth.  Mr. Smith, a representative from the
 "revisionist history" group, the Institute for Historical
 Review, and Mr. Faurisson, a "revisionist historian" convicted
 on charges arising out of his Holocaust denial publications in
 France, testified that in 1979, the appellant attended a
 conference of the Institute in which participants undertook to
 launch a campaign against the Holocaust.  Mr. Walendy, another
 participant at the Conference, testified that he discussed the
 pamphlet with the appellant at that time and made him aware of
 objections and criticisms levelled against the publication
 elsewhere.  It was left to the jury to conclude whether the
 appellant had no knowledge of the falsity of the materials or
 whether, despite the fact that he knew they were false, he was
 prepared to publish falsehoods in order to win converts to his
 cause.

      Judge Thomas instructed the jury that while the
 unreasonableness of the appellant's belief was a relevant
 factor in determining whether he truly held such a belief, it
 was by no means conclusive of the matter. Consistent with the
 jurisprudence of this Court on the role of unreasonableness of
 beliefs in, for example, the defence of mistake of fact, in
 Pappajohn v. The Queen, [1980] 2 S.C.R. 120, at p. 156, Judge
 Thomas stated that:

      If you find that the accused honestly believed that
      the pamphlet was true, or you are left with a
      reasonable doubt on this point, you must acquit.
      Now, it is not necessary for that belief, held
      honestly, to be reasonable.  The unreasonable nature
      of the belief is only one factor to be considered.
      In other words, it is only one item of the evidence
      to support an inference that the belief is not
      honestly held.

      (v) Mischief to a Public Interest

      The public interest identified was racial and social
 tolerance.  The Crown argued that an attack on one segment of
 society harmed all of society.  The trial judge told the jury
 that they had to be satisfied beyond a reasonable doubt that
 the publication of Did Six Million Really Die? was a threat to
 this interest.  The Crown submitted that the pamphlet fostered
 hatred and contempt for Jews.  It did so insidiously because it
 disguised itself as an academic work, relying upon appeals to
 authority.  It did so in a particularly vicious manner because
 the objects of the fabrication are themselves characterized as
 diabolical liars such that their attempts to clarify and rebut
 the allegations would not be believed.  Perhaps most
 importantly, the Crown alleged that the pamphlet makes
 tolerance for religious minorities "a dirty word" and the game
 of dupes.

      The appellant submitted that no harm had been proved to
 have resulted from the publication and that public debate of
 provocative views enhanced social and racial tolerance.  He
 submitted that it was an insult to Canadians to suggest that
 they were not capable of discerning truth from falsity.  The
 trial judge instructed the jury that deliberate lies were not
 protected by s. 2(b) of the Charter but left the final issue of
 harm to the jury as well.  They returned with a verdict of
 guilty.

 B.  Ontario Court of Appeal No. 1 (1987), 31 C.C.C. (3d) 97

      Although this is an appeal from the second trial, it is
 useful to note briefly the fate of the appellant on his first
 appearance before the Ontario Court of Appeal.  In a decision
 rendered on behalf of the full court, the Ontario Court of
 Appeal affirmed the essential elements of the offence as they
 were described by the trial judge at the second trial and set
 out earlier.

      The decision was rendered quite early in the development
 of Charter jurisprudence and the court noted that there was
 little precedent to guide them.  They addressed themselves to
 the proper scope of the right under s. 2(b) and concluded that
 deliberate lies likely to produce racial and social intolerance
 did not fall within its embrace.

      In doing this, they placed great reliance on the United
 States approach to defining a limit to freedom of expression
 which excludes obscene, libellous and knowingly false speech.
 After considering the various justifications provided in the
 American jurisprudence for limiting expression, they concluded
 (at pp. 123-24):

      Spreading falsehoods knowingly is the antithesis of
      seeking truth through the free exchange of ideas.  It
      would appear to have no social or moral value which
      would merit constitutional protection.  Nor would it
      aid the working of parliamentary democracy or further
      self-fulfilment.  In our opinion an offence falling
      within the ambit of s. 177 [now s. 181] lies within
      the permissibly regulated area which is not
      constitutionally protected.  It does not come within
      the residue which comprises freedom of expression
      guaranteed by s. 2(b) of the Charter.

      After assuming for the sake of argument that they were
 wrong and the provision was a violation of s. 2(b), the Court
 of Appeal considered the presence in the Criminal Code of
 Canada and those of other commonwealth jurisdictions of the
 offence of defamatory libel in determining that the section was
 important and demonstrably justified in free and democratic
 societies.  They thus found the provision to be justified under
 s. 1.

      The court then considered the appellant's submission that
 the provision was unconstitutional because it violated s. 7 by
 being void for vagueness or overbreadth.  The court considered
 that the only element of the offence in s. 177 (now s. 181)
 open to challenge was the category of "public interests" to
 which injury might accrue.  They considered that criminal law
 is always aimed at preserving some public interest and found
 that the preservation of racial harmony was certainly such an
 interest.  They therefore found no violation of s. 7.

      However, the Court of Appeal went on to find that some of
 the appellant's objections to the conduct of the trial judge
 did have merit.  They found these technical errors too numerous
 to justify the exercise of s. 686(1)(b)(iii) and ordered the
 new trial which was referred to earlier.

 C.  Ontario Court of Appeal No. 2 (1990), 53 C.C.C. (3d) 161

      The appellant appealed this second conviction, raising 47
 grounds of appeal, most of which were found to be utterly
 without merit and were not dealt with.  The Court did consider
 the issues of judicial notice, various elements of the charge
 to the jury, admissibility of evidence read into the record,
 questioning of the appellant about his belief in Nazi policies,
 and production of his other anti-Semitic publications.  The
 Court of Appeal considered at length allegations of actual and
 apparent bias in the trial judge and rejected them.  The only
 finding which has relevance to the constitutional issue in this
 appeal is the court's approval at p. 196 of the trial judge's
 characterization of the promotion of racism as a practice
 contrary to a public interest.

      [I]t is not in the public interest to have one
      segment of the community racially or religiously
      intolerant against another segment of the community.
      An attack on one segment of the community is, in
      reality, an attack on the whole community.  If one
      segment is not protected from criminal defamation and
      libel, accusations of criminal wrongdoing, criminal
      fraud, the whole community is vulnerable because the
      next segment is fair game, and then the next segment
      is fair game, until you have destroyed the entire
      community.

 III.  ISSUES IN THIS APPEAL

      By an order dated January 28, 1991, the Chief Justice
 stated the following constitutional questions:

      1.   Is s. 181 (formerly s. 177) of the Criminal
           Code of Canada contrary to fundamental
           freedom of thought, belief, opinion, and
           expression, including freedom of the press
           and other media of communication, set out
           in s. 2(b) of the Canadian Charter of
           Rights and Freedoms?

      2.   If so, is s. 181 (formerly s. 177) of the
           Criminal Code of Canada a reasonable limit
           prescribed by law  demonstrably justifiable
           in a free and democratic society as
           required by s. 1 of the  Canadian Charter
           of Rights and Freedoms?

 In a subsequent order on June 14, 1991 the Chief Justice added
 two further constitutional questions:

      3.   Is s. 181 (formerly s. 177) of the Criminal
           Code contrary to s. 7 of the Canadian
           Charter of Rights and Freedoms as being a
           vague and uncertain restriction upon the
           fundamental freedom of expression?

      4.   If so, is s. 181 (formerly s. 177) of the
           Criminal Code a reasonable limit prescribed
           by law demonstrably justifiable in a free
           and democratic society, pursuant to s. 1 of
           the Canadian Charter of Rights and
           Freedoms?

 IV.  ANALYSIS

 A.  History of Section 181

      The section has its origin in the offence of De Scandalis
 Magnatum enacted in 1275, 3 Edw. 1, Stat. West. prim. c. 34.
 It read:

           Forasmuch as there have been oftentimes found in
      the Country Devisors of Tales, whereby discord or
      occasion of discord, hath many times arisen between
      the King and his People, or Great Men of this Realm;
      for the Damage that hath and may thereof ensue; It is
      commanded, That, from henceforth, none be so hardy to
      tell or publish any false News or Tales, whereby
      discord, or occasion of discord or slander may grow
      between the King and his People, or the Great Men of
      the Realm; and he that doth so, shall be taken and
      kept in Prison, until he hath brought him into the
      Court, which was the first Author of the Tale.

      The provision of peaceful means of redress for attacks on
 reputation seems to have originated with organized society.
 Early Germanic laws such as the Lex Salica and the Norman
 Costumal sought to prevent blood feuds which, by their
 persistent violence, tore societies apart.  See Van Vechten
 Veeder, "The History and Theory of the Law of Defamation I"
 (1903), 3 Colum. L. Rev. 546, at p. 548, and "The History and
 Theory of the Law of Defamation II" (1904), 4 Colum. L. Rev.
 33.

      Professor Veeder places De Scandalis in historical
 context.  While it was indeed aimed at the protection of the
 powerful, it was part of a system of remedies for defamation
 available to all subjects.  The existence of separate fora was
 ascribed, in part, to the fact that attacks on nobility were
 viewed as having a political aspect, as a specie of sedition,
 while those against ordinary citizens were not. The section was
 repealed in the United Kingdom by the Statute Law Revision Act,
 1887, 50 & 51 Vict., c. 59, but remains in force in Canada as
 enacted in the Criminal Code.

      Like most of our laws, the function of prohibitions
 against spreading false news has changed dramatically over the
 last 700 years.  In 2 Ric. 2, st. I c. 5 of 1378, the provision
 was re-enacted to expand the class of those whose reputation
 interests implicated the integrity of the state.  By virtue of
 amendments in 12 Ric. 2, c. 11 of 1388, the statute also
 provided for the punishment for disseminators as well as
 devisers of false news.  See: Law Commission  of the United
 Kingdom's Working Paper No. 84 on Criminal Libel, at p. 10.

      In the Working Paper No. 84, the development of an ever
 more specialized panoply of remedies for false news is
 characterized as revealing a common theme of preventing a loss
 of confidence in government.  When the Star Chamber took over
 prosecutions in 1488 soon after the development of the printing
 press and the corresponding capacity for wide publication to
 the masses, the Chamber's focus was on protecting the Christian
 monarchy. See Working Paper No. 84, supra, at pp. 12-13.  The
 Star Chamber was also concerned with the protection of private
 rights:

      ...the Star Chamber was anxious to suppress duelling.
      To this end it would punish defamatory libels on
      private citizens who had suffered insult thereby, in
      the hope that this remedy would be more attractive to
      the person insulted than the issue of a challenge to
      fight.   [Emphasis in original.]

      (J.R. Spencer, "Criminal Libel -- A Skeleton in the
      Cupboard", [1977] Crim. L. Rev. 383).

      After the abolition of the Star Chamber in 1641, its
 criminal jurisdiction passed to the Court of King's Bench.
 Since that time, the courts have alternately used the false
 news, criminal libel, and public mischief provisions in seeking
 to prohibit the dissemination of false news likely to harm a
 public interest. See F.R. Scott, "Publishing False News"
 (1952), 30 Can. Bar Rev. 37, at p. 40.

      In 1732, a criminal charge was brought against one Osborne
 for printing a libel that members of the Portuguese Jewish
 community living in London had murdered a Jewish woman and her
 illegitimate child by a Christian lover.  The court held that a
 libel conviction was not made out because the allegations were
 not aimed at an identifiable person, yet went on to convict the
 accused:

      Admitting an information for a libel may be improper,
      yet the publication of this paper is deservedly
      punishable in an information for a misdemeanour, and
      that of the highest kind; such sort of advertisements
      necessarily tending to raise tumults and disorders
      among the people, and inflame them with an universal
      spirit of barbarity against a whole body of men, as
      if guilty of crimes scarce practicable, and totally
      incredible.

      (R. v. Osborne (1732), 2 Swans. 532, 36 E.R. 717; and
      2 Barn. K.B. 138 and 166, 94 E.R. 406 and 425; W.
      Kel. 230, 25 E.R. 584.)

      In Gathercole's Case (1838), 2 Lewin 237, 168 E.R. 1140,
 at p. 1145, a charge of defamatory libel was made out against
 an Anglican cleric who had disseminated false, scandalous and
 malicious anti-Catholic slurs.

      In Starkie's Treatise on the Law of Libel and Slander (3rd
 ed. 1869), the author suggests at p. 578 that criminal libel
 operated to punish not merely the blasphemous and seditious
 but:

      ...also, for those reflecting upon sects, classes,
      companies, or bodies of men, though not mentioning
      any person in particular; if such libels tend to
      excite the hatred of the king's subjects against the
      members thereof generally, or to provoke them to a
      breach of the peace.

      In Scott's Case (1778), 5 New Newgate Calendar 284, the
 accused was convicted of spreading false news for making and
 displaying posters which made the following declarations:

      'In pursuance of  His Majesty's order in council to
      me directed, these are to give public notice that war
      with France will be proclaimed on Friday next, the
      24th instant, at the palace royal, St. James', at one
      of the clock, of which all heralds and pursuivants at
      arms are to take notice, and give their attendance
      accordingly.

      In R. v. De Berenger (1814), 3 M. & S. 67, 105 E.R. 536
 (K.B.), the accused was found guilty of public mischief for
 spreading false rumours that the war with France was soon to
 end in order to drive up the value of government bonds and
 thereby profit from the public's misapprehension.  Such conduct
 now gives rise to prosecutions under the false pretences
 sections at ss. 361 -363 of the Code and the false prospectus
 section at s. 400, while the offence of public mischief in s.
 140 only applies to false allegations of criminal conduct which
 impairs police efficacy.

      Prosecution of false news as a subset of public mischief
 continued in the U.K. until the passage of the Public Order
 Act, 1936 (U.K.), 1 Edw. 8 & 1 Geo. 6, c. 6.  In 1936, Arnold
 Leese was convicted for publishing in his magazine, The
 Fascist, an article alleging that Jews were responsible for
 unsolved child murders.  He was convicted of "[p]ublishing and
 printing divers scandalous and libellous statements regarding
 his Majesty's Jewish subjects with intent to create ill-will
 between his Majesty's subjects of the Jewish faith and those
 not of the Jewish faith so as to create a public mischief".  In
 convicting the accused, the trial judge stated:

      I am not in the least concerned with any controversy
      that might have arisen with regard to these
      matters...I am satisfied that nothing can be more
      mischievous to the public weal than the circulation
      of statements of his [sic] kind.  I can appreciate
      that behind what you have done there is possibly a
      belief amounting in its intensity almost to
      fanaticism with regard to the truth or otherwise of
      these statements.  That the public well-being can be
      served by the publication of stuff of this kind --
      and I call it "stuff" advisably [sic]-- I cannot
      imagine.  Nothing can be more harmful to the public
      weal than that.

      (London Times, September 22, 1936, at p. 11, col. 4.)

      More generally, the close of the 19th century saw a
 specialization of function among the various sections.  The
 spreading false news provision appears in art. 95 of Stephen's
 Digest of the Criminal Law (1878), at p. 62, as:

                      Spreading False News

      Every one commits a misdemeanor who cites or
      publishes any false news or tales whereby discord or
      occasion of discord or slander may grow between the
      Queen and her people, or the great men of the realm
      (or which may produce other mischiefs).  [Emphasis
      added.]

      Scott, supra, notes at p. 39 that it was upon this
 formulation of the offence that the Canadian Criminal Code
 provision was based.  Enacted in 1892, s. 126 of the Criminal
 Code, S.C. 1892, c. 29, declared:

      126. Every one is guilty of an indictable offence and
      liable to one year's imprisonment who wilfully and
      knowingly publishes any false news or tale whereby
      injury or mischief is or is likely to be occasioned
      to any public interest.  [Emphasis added.]

      While R. v. Keegstra, [1990] 3 S.C.R. 697, dealt with s.
 319, Dickson C.J. had occasion to comment in passing on the
 broad history of criminal libel offences (at p. 724):

                While the history of attempts to
           prosecute criminally the libel of groups is
           lengthy, the  Criminal Code provisions
           discussed so far do not focus specifically
           upon expression propagated with the intent
           of causing hatred against racial, ethnic or
           religious groups.

      However, a more thorough review of the history of the
 related provisions reveals a clear pattern of attention to
 attacks on vulnerable groups.  Scott, supra, examined the
 relationship of s. 136 (now s. 181) to its historical
 antecedents (at pp. 40 and 42):

      The king's reputation and title were amply protected from
      attack by various statutes, and the peers and other
      "magnates" gradually abandoned their remedies under the
      ancient doctrine of scandalum magnatum because the
      developed law of libel and slander, and of contempt of
      court for justices, took care of all their needs.  Hence
      the penalties for spreading "false news and tales" might
      have been absorbed into various specialised branches of
      the law, and there might be today no trace of a general
      crime of spreading false news in our law, had it not had
      an independent root in the idea of public mischief.
 ...

      This notion of mischief in the common law has
      relevance to section 136 of the Canadian Code because
      the word "mischief" appears in the section.  The
      recent English cases show the doctrine is not
      obsolete.  Canadian law, based on statute, is more
      clearly formulated and goes farther than the actual
      holding in any English decision.  Its roots are
      nevertheless to be found in what is an operative
      principle of the common law.  It is wrong for anyone
      knowingly to cause a public mischief by publishing or
      telling lies.  Lying itself does not constitute the
      crime.  Injuring the public interest does.

           Allied in principle to these instances of public
      mischief are the case where by spreading false news a
      libel was occasioned to a group of persons.  The rule
      here is close to the notion both of libel and of
      public mischief; or perhaps one might say it is
      another example of public mischief, of which libel
      upon individuals whether "magnates" or simple
      citizens, is one type.

      The section has rarely been used in modern times.  In R.
 v. Hoaglin (1907), 12 C.C.C. 226 (N.W.T. S.C.), the accused was
 an American immigrant who apparently had not fared well here.
 He placed a sign in his shop window to the effect that he was
 having a closing out sale and advising Americans to think twice
 before settling in Alberta because Americans were not welcome
 there.  The trial judge convicted him on the basis that the
 Alberta government sought to foster American immigration.
 Harvey J. was careful to stress that the provision was aimed at
 false assertions of fact, not disagreeable expressions of
 opinion.  He stated (at p. 228):

      The words themselves under certain circumstances,
      would not amount to an offence.  If a newspaper in
      discussing the public policy of the country stated
      that it did not think it was in the interest of
      Canada that citizens of the United States should come
      in here, I do not think that would be a matter which
       would be properly dealt with under this section of
      the Code.

      In R. v. Carrier (1951), 16 C.R. 18, 104 C.C.C. 75 (Que.
 K.B. (criminal side)), the accused was acquitted on a charge
 arising out of the dissemination of a pamphlet protesting the
 treatment of Jehovah's Witnesses entitled "The Burning Hate of
 Quebec for God, Christ and the Liberty is a subject of shame
 for all Canada" on the grounds of autrefois acquit on a charge
 of seditious libel.  In interpreting the "public interest"
 harmed by false news, Drouin J. looked to the history of the
 provision and found that it was aimed at controlling seditious
 speech which threatened to undermine lawful authority.  He
 equated the public interest with sedition and concluded that
 speech which fomented discord among citizens but did not issue
 in other violent conduct was not contrary to the public
 interest.

      In 1955 (S.C. 1953-54, c. 51), the provision was removed
 from the "Sedition" section of the Code and re-enacted under
 the category of "Nuisance".  In doing this, Parliament made it
 clear that while the import of s. 181 was not to punish
 sedition, it continued to have a role to play.  Section 166
 stated:

      166. Every one who wilfully publishes a statement,
      tale or news that he knows is false and that causes
      or is likely to cause injury or mischief to a public
      interest is guilty of an indictable offence and is
      liable to imprisonment for two years. [Emphasis
      added.]

      The re-enacted section was dealt with in R. v. Kirby
 (1970), 1 C.C.C. (2d) 286 (Que. C.A.).  The appellant was the
 publisher of an underground newspaper that had printed a
 facsimile of the front page from the Montreal Gazette on the
 back cover of an issue of his paper, carrying the headline
 "Mayor Shot By Dope-Crazed Hippie".  The accompanying story
 stated that Mayor Drapeau had been attacked by a
 needle-wielding drug fiend but was recovering nicely.  The
 papers had been distributed with the page folded inside, but
 someone had played a prank on the pranksters and folded them so
 that the "Gazette" page was outermost.  Several calls were made
 by concerned citizens to Drapeau's office and some 50 calls to
 the Gazette's night editor.  In overturning the conviction, the
 court found that there had been no intention to pass the satire
 off as news, let alone as false news, and thus no intent to
 commit the offence.  The court concluded (at p. 289):

           I find it difficult to imagine that anyone could
      have been misled into believing that the story was
      genuine.
                               ...

           While I consider the page was stupid, pointless
      and in bad taste, I cannot agree that, per se it was
      reasonably sure to cause trouble and insecurity.  The
      inconvenience to which the night city editor of the
      Gazette was put does not in my view constitute
      "injury or mischief to a public interest" and the
      Mayor himself gave no indication of concern over the
      event....

      Thus, a review of the historical development of the law's
 response to false news reflects its role in prohibiting the
 dissemination of false information which strikes at important
 interests of society as a whole.  Section 181 perpetuates one
 of the central functions of De Scandalis in prohibiting public
 alarm and internecine hostilities between and among social
 groups.  The courts have quite properly determined that
 expressions aimed at dissenting political opinion are not
 caught by the section.

      It remains to be determined whether s. 181 is invalid as a
 result of a contravention of s. 2(b) of the Charter which
 cannot be justified under s. 1 of the Charter.

 B.  Section 2(b) of the Charter

      Section 2(b) of the Charter provides:

      2.   Everyone has the following fundamental freedoms:

                               ...

      (b) freedom of thought, belief, opinion and
      expression, including freedom of the press and other
      media of communication;

 The fundamental importance of freedom of expression to a free
 and democratic society is beyond question.  At issue is whether
 s. 181 contravenes that right.

      The first step in the Charter analysis is to ascertain
 whether the activity of the litigant who alleges a s. 2(b)
 violation falls within the ambit of protected expression.  The
 sphere of expression protected by the section has been very
 broadly defined to encompass all content of expression
 irrespective of the particular meaning sought to be conveyed
 unless the expression is communicated in a physically violent
 form (R. v. Keegstra, supra).  The activity of Zundel involved
 the deliberate and wilful publication of lies which were
 extremely damaging to members of the Jewish community,
 misleading to all who read his words and antithetical to the
 core values of a multicultural democracy.  The basis for
 determining whether this type of activity falls within the
 scope of protected expression was set out in Keegstra, supra.
 There Dickson C.J. found that hate propaganda satisfied the
 first step of the s. 2(b) of the Charter inquiry.  He wrote (at
 p. 730):

      Because Irwin Toy stresses that the type of meaning
      conveyed is irrelevant to the question of whether
      s. 2(b) is infringed, that the expression covered by
      s. 319(2) is invidious and obnoxious is beside the
      point.  It is enough that those who publicly and
      wilfully promote hatred convey or attempt to convey a
      meaning ....

 Similarly, constitutional protection under s. 2(b) must
 therefore be extended to the deliberate publication of
 statements known to be false which convey meaning in a
 non-violent form.  Freedom of expression is so important to
 democracy in Canada that even those statements on the extreme
 periphery of the protected right must be brought within the
 protective ambit of s. 2(b).

      The second step of the test is to determine whether the
 purpose of the impugned legislation is to restrict freedom of
 expression.  Here, the purpose of s. 181 is to restrict, not
 all lies, but only those that are wilfully published and that
 are likely to injure the public interest.  Although the
 targeted expression is extremely limited, the provision does
 have as its purpose the restriction of free expression.
 Accordingly, it must be found that s. 181 constitutes an
 infringement of the freedom of expression guaranteed under
 s. 2(b) of the Charter.

      Before turning to s. 1 of the Charter, it is important to
 recall what has been written concerning the weight to be