The Nizkor Project: Remembering the Holocaust (Shoah)

Supreme Court of Canada: 1992 Zündel Judgement

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 The section was repealed in the United Kingdom by the Statute Law Revision Act, 1887, 50 & 51 Vict., c. 59, but remains in force in Canada as enacted in the Criminal Code.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.

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