The Nizkor Project: Remembering the Holocaust (Shoah)

Supreme Court of Canada: 1992 Zündel Judgement

C. Section 1 Analysis

In order to determine whether s. 181 can be justified under s. 1 of the Charter a careful balancing of a number of factors must be considered. In doing so we have followed the test set out in R. v. Oakes, [1986] 1 S.C.R. 103.

(1) Prescribed by Law

(i) The General Rule

There is a separate constitutional question posed which raises the issue of vagueness under s. 7 of the Charter. Indeed, if the vagueness of the impugned law is the sole issue raised, it is dealt with under s. 7. Nonetheless, the proper place to deal with this vagueness argument is under s. 1. See R. v. Nova Scotia Pharmaceutical Society, S.C.C., No. 22473, July 9, 1992, at pp. 24-25.

The concept that a section of an enactment would be declared void for vagueness is based upon the sound rule that a person should know with reasonable certainty what the law is and what actions are in danger of breaking the law. There can be no doubt that a section of the Criminal Code enacting an offence must provide sufficient guidance to predict the legal consequences of a given course of conduct but a statute or legal enactment can do no more than set boundaries which create an area of risk.

It is the guidance of conduct and not the absolute direction of conduct which is the appropriate objective of legislation. A provision will be too vague if it does not provide a basis for legal debate and discussion. If it does not sufficiently delineate an area of risk, it can provide neither notice to a person of conduct which is potentially criminal nor an appropriate limitation on the discretion of the authorities seeking to enforce the provision. Such a provision offers no basis for the judiciary to define limits of conduct. See Nova Scotia Pharmaceutical, supra, at pp. 36-38.

Section 181 cannot be said to be vague. It provides clear guidelines of conduct. The citizen knows that to be at risk under this section, he or she must wilfully publish a false statement knowing it to be false. Further, the publication of those statements must injure or be likely to injure the public interest.

(ii) How Should the Term "Public Interest" be Defined
as it is Used in Section 181

The appellant contends that the term, "public interest", is so vague that the section is invalid. It is submitted that the term could be used by an unscrupulous government to render criminal any conduct or opinion opposed by the government of the day.

The fact that the term is undefined by the legislation is of little significance. There are many phrases and words contained in the Criminal Code which have been interpreted by the courts. It is impossible for legislators to foresee and provide for every eventuality or to define every term that is used. Enactments must have some flexibility. Courts have in the past played a significant role in the definition of words and phrases used in the Code and other enactments. They should continue to do so in the future.

For our purposes, it is sufficient to refer to but a few of the judicial definitions of words and phrases found in the Criminal Code. In obscenity cases, courts have properly taken it as their role and duty to define such terms as "indecent", "immoral" or "scurrilous" found in various sections of the Code (see, for example, R. v. MacLean and MacLean (No. 2) (1982), 1 C.C.C. (3d) 412 (Ont. C.A.), and R. v. Springer (1975), 24 C.C.C. (2d) 56 (Sask. Dist. Ct.). In R. v. Butler, [1992] 1 S.C.R. 452, Sopinka J. considered the meaning that should be attached to the words "undue exploitation of sex", which also were not defined in the statute.

Similarly, courts have considered and interpreted, the words "deceit, falsehood or other fraudulent means". In R. v. Olan, [1978] 2 S.C.R. 1175, "other fraudulent means" was found to include means which were not in the nature of a falsehood or deceit. Rather the words were held to encompass all means which can properly be designated as dishonest. That same case further concluded that although there was no definition of "defraud" contained in the Criminal Code, dishonesty and deprivation were essential elements that must be considered as integral components of the word.

It is clear then that the courts can and should define terms and words used in the Criminal Code. A review of the cases that have thus far considered false news provisions reveals that they have not yet adequately defined the term "public interest". It is therefore necessary to consider further how the phrase "public interest" should be defined in the context of s. 181.

A survey of federal statutes alone reveals that the term "public interest" is mentioned 224 times in 84 federal statutes. The term appears in comparable numbers in provincial statutes. The term does not and cannot have a uniform meaning in each statute. It must be interpreted in light of the legislative history of the particular provision in which it appears and the legislative and social context in which it is used.

A "public interest" likely to be harmed as a result of contravention of s. 181 is the public interest in a free and democratic society that is subject to the rule of law. A free society is one built upon reasoned debate in which all its members are entitled to participate. Section 181, including its reference to "public interest", should, as this Court has emphasized, be interpreted in light of Charter values. See Hills v. Canada (Attorney General), [1988] 1 S.C.R. 513, Slaight Communications Inc. v. Davidson, [1989] 1 S.C.R. 1038, and R. v. Salituro, [1991] 3 S.C.R. 654. As a fundamental document setting out essential features of our vision of democracy, the Charter provides us with indications as to which values go to the very core of our political structure. A democratic society capable of giving effect to the Charter's guarantees is one which strives toward creating a community committed to equality, liberty and human dignity. The public interest is, therefore, in preserving and promoting these goals.

The term, as it appears in s. 181, should be confined to those rights recognized in the Charter as being fundamental to Canadian democracy. It need not be extended beyond that. As an example, the rights enacted in ss. 7, 15 and 27 of the Charter should be considered in defining a public interest.

Section 15 of the Charter provides that every individual is equal before and under the law and is to be free of discrimination based on race, national or ethnic origin, colour, religion, sex, age, or mental or physical disability. If the wilful publication of statements which are known to be false seriously injures a group identifiable under s. 15, such an act would tear at the very fabric of Canadian society. It follows that the wilful publication of such lies would be contrary to the public interest. If the Crown is able to establish beyond a reasonable doubt that those fundamental rights are likely to have been seriously damaged by the wilful publication of statements known to be false, it will have fulfilled this part of its obligations under the section.

Thus, the term "public interest" as it appears in s. 181 refers to the protection and preservation of those rights and freedoms set out in the Charter as fundamental to Canadian society. It is only if the deliberate false statements are likely to seriously injure the rights and freedoms contained in the Charter that s. 181 is infringed. This section, therefore, provides sufficient guidance as to the legal consequence of a given course of conduct. It follows that the section cannot be said to be so vague that it is void.

(2) Objective

(i) A Pressing and Substantial Aim

The aim of s. 181 is to prevent the harm caused by the wilful publication of injurious lies. This is evident from the clear wording of the provision itself which prohibits the publication of a statement that the accused knows is false and "that causes or is likely to cause injury". This specific objective in turn promotes the public interest in furthering racial, religious and social tolerance. There can be no doubt that there is a pressing and substantial need to protect groups identifiable under s. 15 of the Charter, and therefore society as a whole, from the serious harm that can result from such "expression". The decision of this Court in Keegstra clearly recognized the invidious and severely harmful effects of hate propaganda upon target group members and upon society as a whole (see pp. 746-749). It was found that members of such groups, not unexpectedly, respond to the humiliation and degradation of such "expression" by being fearful and withdrawing from full participation in society. Society as a whole suffers because such "expression" has the effect of undermining the core values of freedom and democracy.

Professor Mari Matsuda has described the impact unchecked racist speech has on target group members in "Public Response to Racist Speech: Considering the Victim's Story" (1989), 87 Mich. L. Rev. 2320, at pp. 2338 and 2379:

To be hated, despised and alone is the ultimate fear of all human beings. However irrational racist speech may be, it hits right at the emotional place where we feel the most pain. The aloneness comes not only from the hate message itself, but also from the government response of tolerance. When ... the courts refuse redress for racial insult, and when racist attacks are officially dismissed as pranks, the victim becomes a stateless person.

... The government's denial of personhood by denying legal recourse may be even more painful than the initial act of hatred. One can dismiss the hate groups as an organization of marginal people, but the state is the official embodiment of the society we live in.

Similarly, it would be impossible to deny the harm caused by the wilful publication of deliberate lies which are likely to injure the public interest. The evil is apparent in the deceptive nature of publications caught by s. 181. The focus of s. 181 is on manipulative and injurious false statements of fact disguised as authentic research. The publication of such lies makes the concept of multiculturalism in a true democracy impossible to attain. These materials do not merely operate to foment discord and hatred, but they do so in an extraordinarily duplicitous manner. By couching their propaganda as the banal product of disinterested research, the purveyors of these works seek to circumvent rather than appeal to the critical faculties of their audience. The harm wreaked by this genre of material can best be illustrated with reference to the sort of Holocaust denial literature at issue in this appeal.

Holocaust denial has pernicious effects upon Canadians who suffered, fought and died as a result of the Nazi's campaign of racial bigotry and upon Canadian society as a whole. For Holocaust survivors, it is a deep and grievous denial of the significance of the harm done to them and thus belittles their enormous pain and loss. It deprives others of the opportunity to learn from the lessons of history. To deliberately lie about the indescribable suffering and death inflicted upon the Jews by Hitler is the foulest of falsehoods and the essence of cruelty. Throughout their tragic history, the circulation of malicious false reports about the Jewish people has resulted in attacks, killings, pogroms and expulsions. They have indeed suffered cruelly from the publication of falsehoods concerning their culture.

The Cohen committee demonstrated that racial intolerance was alive and functioning in Canada in the 1960's. In 1984, both the Special Committee Report on Participation of Visible Minorities in Canadian Society, Equality Now!, and the Canadian Bar Association's Report of the Special Committee on Racial and Religious Hatred found that racism and words inciting hatred were growing problems in Canada and urged that prohibitions against them be maintained and strengthened. The facts in the recent case of Kane v. Church of Jesus Christ Christian--Aryan Nations, Alta. Bd. Inq., February 28, 1992, [1992] A.W.L.D. No. 302, reveal with dreadful clarity that racism is a current and present evil in our country. It is a cancerous growth that is still alive, growing and thriving on ignorance, suspicion, fear and jealousy.

Section 181 provides protection, by criminal sanction, not only to Jewish Canadians but to all vulnerable minority groups and individuals. The salutary nature of this section should be emphasized. It can play a useful and important role in encouraging racial and social tolerance which is so essential to the successful functioning of a democratic and multicultural society. It achieves this goal by expressing the repugnance of Canadian society for the wilful publication of statements known to be false that are likely to cause serious injury or mischief to the public interest which is defined in terms of Charter values. Indeed, it would be unfortunate if the Charter was used to strike down a provision that protects vulnerable groups and individuals.

In R. v. Wholesale Travel Group Inc., [1991] 3 S.C.R. 154, it was said of this important principle (at p. 233):

This Court has on several occasions observed that the Charter is not an instrument to be used by the well positioned to roll back legislative protections enacted on behalf of the vulnerable. ...

The same principle has been repeated and emphasized in Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927, at p. 993, and in Slaight Communications Inc. v. Davidson, [1989] 1 S.C.R. 1038, at p. 1051. This principle recognizes that much government regulation is designed to protect the vulnerable. It would be unfortunate indeed if the Charter were used as a weapon to attack measures intended to protect the disadvantaged and comparatively powerless members of society.

The aim of s. 181 has the effect of protecting the vulnerable in society and, as such, is a pressing and substantial concern. It is of particular importance since, under our constitution, multiculturalism and equality are to be enhanced.

(ii) International Instruments

In seeking to deny the Holocaust in order to facilitate the promotion of racism, the appellant has aimed with deadly accuracy. The Nazi attempt to commit genocide against the Jews and other "non-aryan" subjects within their control is part of an all too long and frequently repeated history of persecutory atrocities committed by majorities against minorities. The Holocaust is undeniably a watershed marking the apogee of the brutal consequences which flow from unchecked racism. It was in response to the horrors of the Holocaust that Western nations undertook to seek to abolish racism. Dickson C.J. noted this trend in his dissenting reasons in Reference re Public Service Employee Relations Act (Alta.), [1987] 1 S.C.R. 313, at p. 348:

Since the close of the Second World War, the protection of the fundamental rights and freedoms for groups and individuals has become a matter of international concern. A body of treaties (or conventions) and customary norms now constitutes an international law of human rights under which the nations of the world have undertaken to adhere to the standards and principles necessary for ensuring freedom, dignity and social justice for their citizens. The Charter conforms to the spirit of this contemporary international human rights movement, and it incorporates many of the policies and prescriptions of the various international documents pertaining to human rights. The various sources of international human rights law -- declarations, covenants, judicial and quasi-judicial decisions of international tribunals, customary norms -- must, in my opinion, be relevant and persuasive sources for interpretation of the Charter's provisions.

Canada is a signatory to two relevant international instruments. The United Nations International Covenant on Civil and Political Rights (in force for Canada August 19, 1976), 999 U.N.T.S. 172, Article 20(2), and the International Convention on the Elimination of All Forms of Racial Discrimination (in force for Canada November 13, 1970), 660 U.N.T.S. 212, preamble and Article 4. Both documents provide that advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law (see Keegstra, supra, at pp. 749 to 755). These instruments serve to emphasize the important objective of s. 181 in preventing the harm caused by calculated falsehoods which are likely to injure the public interest in racial and social tolerance.

In this case the published statements which were known to be false referred to the Holocaust. As a result it has been necessary to refer to that most evil episode in history and to the Jewish people who were its victims. However the reasoning equally applies to any identifiable minority group which has been seriously injured by the wilful publication of a statement known to be false.

(iii) Legislative Responses in Other Jurisdictions

Like Canada, many free and democratic societies have responded to their international obligations by enacting specific hate propaganda provisions equivalent to our s. 319 while retaining or adding sections addressed to specific related forms of malice. Some use spreading false news provisions. Article 656 of the Italian Criminal Code makes it an offence to publish and disseminate false, exaggerated or misleading news liable to disrupt the public order. The provision was upheld in the Constitutional Court in Decision No. 191/1962 on the basis that public order means "legal order on which social co-existence is based", i.e., that set of norms which ensures the effectiveness of the legal order. See Alessandro Pace, "Constitutional Protection of Freedom of Expression in Italy" (1990), 2 European Review of Public Law 71, at p. 84.

The Danish Criminal Code deals with attacks based on religion under s. 140, while prohibiting false speech against a variety of vulnerable social groups under s. 266(b). Section 140 of the Danish Criminal Code reads:

140. Any person who exposes to ridicule or insults the dogmas or worship of any lawfully existing religious community in this country shall be liable to simple detention, or in extenuating circumstances, to a fine.

Section 266(b) of the Danish Criminal Code makes it an offence for:

...any person who, by circulating false rumors or accusations persecutes or incites hatred against any group of the Danish population because of its creed, race, or nationality shall be liable to simple detention, or in aggravating circumstance, to imprisonment for any term not exceeding one year.

(See, K. Lasson, "Racial Defamation As Free Speech:
Abusing the First Amendment" (1985), 17 Colum. Hum.
Rts. L. Rev. 11, at p. 51.)

As a result of the German Republic's direct experience with the horrors of unchecked racist speech, it has regulated it under three penal offences. Two of these cast a broad net which embraces all forms of hate speech while the third is specifically aimed at dealing with holocaust denial as a specie of insult. Article 130 of the West German Criminal Code prohibits attacks on human dignity by incitement to hate. Article 131 prohibits race-hatred writings. Article 185 creates the offence of insult. Article 194(1) provides for initiation of prosecutions by victims of persecution during World War II. See Professor Eric Stein, "History Against Free Speech: The New German Law Against the "Auschwitz" -- and other -- "Lies" (1986), 85 Mich. L. Rev. 277. In the judgment at 75 BGHZ 160, 33 NJW 45 (1980), the court made it clear that the punishment of false allegations about the Holocaust was not about different interpretations of history but about disrespect:

The very historical fact that humans were segregated according to their origin under the so-called Nuremberg laws, and were robbed of their individuality with a view to their extermination, gives the Jews living in the Federal Republic a special personal relationship with their fellow citizens; in this relationship the past is present even today. They are entitled, as a component of their personal self-image, to be viewed as a part of a group, singled out by fate, to which all others owe a particular moral responsibility, and that is an aspect of their honor. The respect of this self-image constitutes for every one of them one of the guarantees against a repetition of discrimination and a basis for their life in the Federal Republic. Whoever attempts to deny these events deprives each and every one of them of the personal worth to which they are entitled.

(Cited and translated in Stein, supra, at p. 303.)

While the presence of overlapping provisions in other jurisdictions is by no means conclusive of the constitutional validity of the provision at issue in this appeal, the fact that legislation of this type is found in other free and democratic countries is relevant in considering whether the objective is of sufficient importance to justify this very limited infringement on freedom of expression.

(iv) Other Charter Provisions

(a) General: Section 15 of the Charter

It must be remembered that the s. 1 analysis takes place in the context of whether the limit is justifiable in a "free and democratic society" and therefore, the analysis of the limited s. 2(b) infringement must be conducted in light of Canada's commitment to the values set out in other sections of the Charter. The wording of s. 181 itself, through its reference to the "public interest", invokes the values of the Charter. Thus, the legislature has signalled the importance of the objective because it has defined the harm against which the provision protects in terms of the values that are closest to the foundations of our multicultural and democratic society.

False statements aimed at perpetuating the unequal participation and treatment of groups already disadvantaged along s. 15 enumerated or analogous grounds do not foster full participation in society but prevent it. Democratic pluralism assumes that members of society will not simply organize around single interests of race, class or gender but will explore and discern their commonalities, coming together around certain issues and diverging on others in constantly changing configurations. Deliberate lies which deny these commonalities divide groups which might otherwise organize around mutual interests, and instead forge loyalties based on artificial and reified racial identifications that do not permit society to perceive and pursue its various goals. Those in the target group lose the capacity to participate with others and are reduced to some single aspect of their identities. Those in the majority lose the opportunity for meaningful participation in a fully open society when access to the perspectives of minorities is lost. This will occur whenever the majority so demeans a minority that these perspectives can no longer be accorded the dignity and authority which their cogency might merit. Speech which, through the deliberate dissemination of falsehoods, has the effect of promoting or perpetuating discrimination and exclusion of a group subjected to historical disadvantage will be prohibited. By prohibiting calculated falsehoods which undermine the equality of target group members, s. 181 enhances the goals of s. 15 of the Charter.

In this connection, it is also important to recognize the significance of s. 27 of the Charter in assessing the importance of s. 181's objective.

(b) Section 27 of the Charter

Section 27 provides:

27. This Charter shall be interpreted in a manner consistent with the preservation and enhancement of the multicultural heritage of Canadians.

The importance of multiculturalism has also been recognized internationally. The model for s. 27 of the Charter was Article 27 of the 1966 International Covenant on Civil and Political Rights, ratified by Canada in 1976. That section provided:

Article 27. In those states in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practice their own religion, or to use their own language.

This Article, like s. 27 of the Charter, stresses the importance of tolerance and respect for the dignity of human beings. Recent events in Canada and throughout the world have demonstrated how quickly these ideals can be forgotten and how important it is to cherish them.

It is perhaps an indication of the genius of Canada and Canadians that the supreme law of the land would recognize the existence of multiculturalism in our country and encourage its enhancement. Our country has benefited from and has been enriched by the efforts and accomplishments of Canadians of many different races, religions and nationalities. The recognition of multiculturalism in the Charter is an attempt to achieve the epitome of democratic societies.

The recognition of this principle in the Charter was not something new. Multiculturalism in our country has been acknowledged for many years by way of government policy and parliamentary enactment. For example, it was specifically recognized and cited by the members of the Royal Commission on Bicultural and Bilingualism, some of whose policies were later implemented by the government. See Canada, Report of the Royal Commission on Bilingualism and Biculturalism, The Cultural Contribution of the Other Ethnic Groups, Book IV (Ottawa, 1969).

This Court has applied s. 27 in several cases beginning with R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295. In R. v. Edwards Books and Art Ltd., [1986] 2 S.C.R. 713, Dickson C.J. again referred to s. 27 in connection with the definition of freedom of religion. There he wrote (at p. 758):

...indirect coercion by the state is comprehended within the evils from which s. 2(a) may afford protection ... [a]ny more restrictive interpretation would, in my opinion, be inconsistent with the Court's obligation under s. 27 to preserve and enhance the multicultural heritage of Canadians.

In the same case, Wilson and La Forest JJ. used s. 27 to support their analysis under s. 1 of the Charter (see pp. 804-9).

In Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143, at p. 171, McIntyre J. applied s. 27 in the course of defining s. 15 equality rights. He referred to s. 27 to demonstrate that the goal of promoting equality is much greater than simply that of eliminating distinctions.

In Keegstra, supra, s. 27 was cited to support the reasonableness of the limits on freedom of expression provided by the hate literature sections of the Code. Dickson C.J. dealt with the meaning of s. 27 and wrote (at p. 757):

...I expressly adopt the principle of non-discrimination and the need to prevent attacks on the individual's connection with his or her culture, and hence upon the process of self-development (see Magnet "Multiculturalism and Collective Rights: Approaches to Section 27", in Beaudoin and Ratushny, eds., op. cit., at p. 739).

The section provides constitutional reinforcement of Canada's long standing policy of recognizing multiculturalism. It recognizes that all ethnic groups are entitled to recognition and to equal protection. It supports the protection of the collective rights, the cultural integrity and the dignity of Canada's ethnic groups. In doing so it enhances the dignity and sense of self worth of every individual member of those groups and thereby enhances society as a whole.

Section 27 of the Charter is not merely the reflection of a fleetingly popular concept. Rather it is a magnificent recognition of the history of Canada and of an essential precept for the achievement of those elusive goals of justice and true equality. People must be able to take pride in their roots, their religion and their culture. It is only then that people of every race, colour, religion and nationality can feel secure in the knowledge that they are truly equal to all other Canadians. Thus secure in the recognition of their innate dignity, Canadians of every ethnic background can take pride in their original culture and a still greater pride in being Canadian. Section 27 strives to ensure that in this land there will be tolerance for all based on a realization of the need to respect the dignity of all.

Many authors have written of the importance of multiculturalism. Evelyn Kallen suggests that the cultural integrity and the collective dignity of ethnic communities are inextricably linked. Every ethnic group must be equally respected and afforded equal opportunity to freely practise and transmit over the generations its peoples' distinctive language, religion, and cultural design for living (see "Multiculturalism, Minorities, and Motherhood: A Social Scientific Critique of Section 27", in Multiculturalism and the Charter: A Legal Perspective (1987), 123, at p. 125).

Kallen argues compellingly that s. 27 should be interpreted in its broadest sense in order to protect the collective rights, cultural integrity and group dignity of Canada's many ethnic groups. She writes (at p. 136):

Section 27 recognizes and protects the "multicultural heritage" of Canadians. What is important to consider here is that the cultural heritage of minority Canadians almost invariably includes a history of human rights violations through collective discrimination. And, not infrequently, collective ethnic discrimination takes the form of group defamation. Violations of minority rights through racial and cultural persecution, sometimes to the point of policies of genocide, become a critical feature of an ethnic group's history and cultural heritage. Collective experiences of defamation, persecution, incarceration, and the like become part and parcel of an ethnic group's distinctiveness as a people and as a culture. Ceremonies are developed to commemorate collectively such tragic and traumatic events. These become sacred traditions, hallowed by time, which serve as indelible reminders to ethnic group members of the collective price they have paid for their commitment to the ethnic group and to its distinctive cultural design for living. [Emphasis in original.]

Viewed in light of Canada's history and the interrelationship of ss. 27 and 15 of the Charter, it can be seen that s. 181 has a very useful and important role to play in Canadian society. Section 181 encourages the goals of tolerance and equality for all, as set out in the Charter, by expressing the repugnance of Canadian society for the wilful publications of false statements which seriously injure the public interest.

(v) A Permissible Shift in Emphasis

It has been argued that s. 181 is anachronistic and that to attribute to it the purpose of protecting racial and social tolerance is to trigger the invalid shifting purpose doctrine. Those concerns should now be addressed.

It is true the false news provision dates back to 1275. It was submitted that there is really no need at this stage in our history to protect the "great persons of the realm", which was the basis for the section when it was first enacted in the 13th century, and that the provision serves no other purpose.

That position cannot be accepted. This section was specifically retained by Parliament in 1955. It has today a very real and pertinent role to play in Canada's multicultural and democratic society.

Over the years the purpose of the predecessors to s. 181 has evolved to extend the protections from harm caused by false speech to vulnerable social groups and therefore to safeguard the public interest against social intolerance and public alarm. It is true that De Scandalis Magnatum was enacted in a feudal society. That society depended for its existence upon the obedience and allegiance of the peasant class to the Sovereign and nobility. The protection of the public interest from harm focused, therefore, on the prevention of deliberate slanderous statements against the great nobles of the realm. Such statements, it was thought, could lead to feuds among the nobility which would seriously threaten the security of the state and therefore harm the public interest. As the nature of the state changed, it was attacks on religious, racial or ethnic minorities that were seen to threaten the integrity of the social fabric. The centuries have passed and forms of government have changed but the enactment continues to have a salutary aim and effect.

The tragedy of the Holocaust and the enactment of the Charter have served to emphasize the laudable s. 181 aim of preventing the harmful effects of false speech and thereby promoting racial and social tolerance. In fact, it was in part the publication of the evil and invidious statements that were known to be false by those that made them regarding the Jewish people that lead the way to the inferno of the Holocaust. The realities of Canada's multicultural society emphasize the vital need to protect minorities and preserve Canada's mosaic of cultures.

Accordingly, there is a strong public interest in preventing the wilful publication of statements known to be false which seriously injure the basic dignity, and thus the security, and equality of others which ss. 7 and 15 of the Charter strive to provide. This interest is now subsumed within one of the original and continuing aims of s. 181 which is to prevent the harm caused by deliberate lies and to thereby promote racial and social tolerance. At the same time, there remains a public interest in the prevention of false statements of facts which are likely to jeopardize the security of the nation. Although it is not essential to these reasons, we should observe that s. 181 may, as well, apply to an individual who wilfully publishes statements known to be false which are not directed at a group, but do serious harm to the public interest with regard to society as a whole. For example, to broadcast news that intercontinental missiles with nuclear warheads will be launched on Canada within the hour when that is known to be false would come within the purview of s. 181.

It is now clear that, in a multicultural society, the sowing of dissension through the publication of known falsehoods which attack basic human dignity and thus the security of its individuals cannot be tolerated. These lies poison and destroy the fundamental foundations of a free and democratic society.

The characterization of the purpose in s. 181 is readily distinguishable from the shifting purpose analysis which was criticised in R. v. Big M Drug Mart Ltd., supra. First, the original purpose of the impugned legislation in Big M was undoubtedly religious and, therefore, in violation of s. 2(a) of the Charter. This Court observed that the aim of the impugned Lord's Day Act, in compelling sabbatical observance, had been long-established and consistently maintained by the courts of this country (at p. 331). By contrast, the original purpose of the predecessors of s. 181 clearly could not be considered unconstitutional. The provision was always aimed at preventing the harm caused by false speech and thereby protecting the safety and security of the community.

Second, the unsuccessful argument in Big M advocated a complete shift in purpose. Instead of the original aim of enforcing religious observance, it was argued that the new purpose was to implement a purely secular and universal day of rest from work. By comparison, the purpose in the present case has not shifted. Rather than creating a new and different purpose as in Big M, the aim of the section has been maintained. The Canadian commitment to stemming intolerance and the dedication to multiculturalism and equality underline the importance and extent of the public interest in protecting against the harms of false speech and thereby maintaining racial and social tolerance.

Support for the proposition that a shift in emphasis is permissible also stems from the decision in Butler, supra. Centuries ago, obscenity laws were enacted to prevent the corruption of the morals of the King's subjects, and therefore to protect the peace of the King and government (see p. 473 of Butler). In Butler, however, Sopinka J. found that the objective of the obscenity laws is no longer moral disapprobation but rather the avoidance of harm to society. Sopinka J., at p. 495, quoted the words of Charron Dist. Ct. J. in R. v. Fringe Products Inc. (1990), 53 C.C.C. (3d) 422, at pp. 443-44:

Even though one can still find an emphasis on the enforcement of moral standards of decency in relation to expression in sexual matters in the jurisprudence subsequent to the enactment of s-s. (8), it is clear that, by the very words it has chosen, Parliament in 1959 moved beyond such narrow concern and expanded the scope of the legislation to include further concerns with respect to sex combined with crime, horror, cruelty and violence.

It is the harm to society resulting from the undue exploitation of such matters which is aimed by the section. The "harm" conceived by Parliament in 1959 may not have been expressed in the same words as one would today. The court is not limited to a 1959 perspective in the determination of this matter. As noted in Irwin Toy Ltd. v. Quebec (Attorney General), ([1989] 1 S.C.R. 927, at p. 984):

In showing that the legislation pursues a pressing and substantial objective, it is not open to the government to assert post facto a purpose which did not animate the legislation in the first place... However, in proving that the original objective remains pressing and substantial, the government surely can and should draw upon the best evidence currently available. The same is true as regards proof that the measure is proportional to its objective... It is equally possible that a purpose which was not demonstrably pressing and substantial at the time of the legislative enactment becomes demonstrably pressing and substantial with the passing of time and the changing of circumstances. [Emphasis added.]

Sopinka J. concluded by adding that a "permissible shift in emphasis was built into the legislation when, as interpreted by the courts, it adopted the community standards test" (p. 496). Similarly, in the present case, the wording of s. 181 includes a permissible shift in emphasis with its test which is based on injury to the public interest. Looking back to the inclusion of the offence in the Criminal Code, and the last amendment to the section in 1955, one can reasonably conclude that there has been a shift in the values that inform the public interest. As in Butler, this shift has been incorporated into the language of the section itself and is therefore permissible.

Just as the community standards test as applied to the obscenity law "must necessarily respond to changing mores" (Butler, supra, at p. 477), so too should the test to define "injury to a public interest" take into account the changing values of Canadian society. Those values encompass multiculturalism and equality, precepts specifically included in the provisions of the Charter.

Further support for the permissible shift in emphasis built into the legislation can be seen in the original wording of the provision in Burbridge's Digest of Criminal Law of Canada in 1890. As Professor Scott, as previously noted, supra, argues, the inclusion of the clause "or which may produce other mischiefs" in the original formulation is a "bridge" connecting the historical and prospective uses of the provision (at p. 40):

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

Based on the foregoing, we conclude that the objective of s. 181 is sufficiently pressing and substantial to justify this limited restriction on freedom of expression. The first test is therefore met.

(3) Proportionality

The next step in the s. 1 analysis is to determine whether the means chosen to further the objective are proportional to the ends.

(i) Relation of the Expression at Stake to Free
Expression Values

It is at this stage that there must be an examination of the extent to which the expression at stake in a particular case promotes freedom of expression principles. Dickson C.J., in Keegstra, cautioned that (at p. 760): is equally destructive of free expression values, as well as the other values which underlie a free and democratic society, to treat all expression as equally crucial to those principles at the core of s. 2(b).

A careful examination of the philosophical underpinnings of our commitment to free speech reveals that prohibiting deliberate lies which foment racism is mandated by a principled commitment to fostering free speech values. Liberal theory proposes that the state does not exist to designate and impose a single vision of the good life but to provide a forum in which opposing interests can engage in peaceful and reasoned struggle to articulate social and individual projects. We enshrine freedom of speech because it is an essential feature of humanity to reason and to choose and in order to allow our knowledge and our vision of the good to evolve. The risk of losing a kernel of truth which might lie buried in even the most apparently worthless and venal theory is believed to justify absolute freedom of expression. However, where there is no possibility that speech may be true because even its source has knowledge of its falsity, the arguments against state intervention weaken. When such false speech can be positively demonstrated to undermine democratic values, these arguments fade into oblivion.

Our colleague argues that truth may sometimes be in the eye of the beholder. In so far as she uses this assertion as a basis for including even pernicious speech within the ambit of protection afforded by s. 2(b) of the Charter, we agree. However, when it comes time to balance competing interests under s. 1, we must keep in mind that the various members of Canadian society behold deliberately false speech such as that at issue in this appeal from dramatically different perspectives.

A disinterested third party may indeed take from the appellant's work a healthy scepticism towards the production of bodies of knowledge. She may also take from it support for feelings of contempt for Jews, Africans, Asians or for anyone who merely objects to "racialism".

Yet, there is another "beholder" of speech whose perspective is immensely relevant and yet does not figure in our colleague's account. We are warned quite properly that history has many lessons to teach. One is that the marketplace of ideas is an inadequate model; another is that minorities are vulnerable to censure as speakers. Indeed, by stressing the role s. 181 plays in permitting minorities to speak and to be heard, we recognize that grave caution must always be exercised to ensure that a provision aimed at alleviating oppression never becomes one for initiating or perpetuating it.

But history also teaches us that minorities have more often been the objects of speech than its subjects. To protect only the abstract right of minorities to speak without addressing the majoritarian background noise which makes it impossible for them to be heard is to engage in a partial analysis. This position ignores inequality among speakers and the inclination of listeners to believe messages which are already part of the dominant culture. It reflects the position put forth by the dissent but rejected by the majority in Keegstra that the right to freedom of expression entails only the freedom to "loose one's ideas on the world" and not to be respected, "listened to or believed".

With respect, we feel bound to follow the majority in Keegstra which held that it may be appropriate to limit expression protected by s. 2(b) under s. 1 where such expression threatens the dignity of members of the target group and promotes discrimination which excludes them from full participation in society. Professor David Partlett explores this delicate balance in "From Red Lion Square to Skokie to the Fatal Shore: Racial Defamation and Freedom of Speech" (1989), 22 Vand. J. Transnat'l L. 431, at pp. 459 and 468-69:

Furthermore, to view the government as villain is to ignore the capacity of the government as a speaker to moral matters. Government actions carry the imprimatur of authority. Silence and action carry social messages. This sits at the base of much anti-discrimination legislation. For government to speak provides not only a greater power to rectify wrongs but carries a moral message that discriminatory behavior does not have a place in that society. ...

Because government is a powerful, sometimes overwhelming, voice, great care should be taken to cabin its exercise.

But it is not sufficient to leave the argument here. Government -- in the defense of interests of tolerance, pluralism, and individual autonomy -- has a duty to speak on moral matters on behalf of those in the society who are inarticulate. Government is then acting as a facilitator for the expression of ideas, and it is difficult to attack the action from a free speech standpoint.

The type of "expression" targeted by s. 181 is only tenuously, if at all, connected to the values underlying freedom of expression. Dickson C.J., in Keegstra, referred to three rationales for protecting free expression (at p. 728):

(1) seeking and attaining truth is an inherently good activity; (2) participation in social and political decision-making is to be fostered and encouraged; and (3) diversity in forms of individual self-fulfillment and human flourishing ought to be cultivated in a tolerant and welcoming environment for the sake of both those who convey a meaning and those to whom meaning is conveyed.

With respect to the search for the truth, the words of Dickson C.J. support the position that the publication of deliberate and injurious falsehoods does not contribute to the attainment of truth (at pp. 762-63):

...the greater the degree of certainty that a statement is erroneous or mendacious, the less its value in the quest for truth. Indeed, expression can be used to the detriment of our search for truth; the state should not be the sole arbiter of truth, but neither should we overplay the view that rationality will overcome all falsehoods in the unregulated marketplace of ideas. There is very little chance that statements intended to promote hatred against an identifiable group are true, or that their vision of society will lead to a better world. To portray such statements as crucial to truth and the betterment of the political and social milieu is therefore misguided.

The publication of deliberate lies is obviously the antithesis of the truth. This publication deceives and misleads in a cruel and calculating manner those that seek the truth.

The values of self-fulfilment and human flourishing are also key to the principles underlying s. 2(b). Self-fulfilment and human flourishing can never be achieved by the publication of statements known to be false. Rather the damaging false statements that are prohibited under s. 181 serve only to impede, in a most despicable and demeaning manner, the enjoyment of these values by members of society who are the subject of these lies.

The third rationale underlying free speech deals with participation in social and political decision-making. As Dickson C.J., in Keegstra, stated (at p. 764):

...expression can work to undermine our commitment to democracy where employed to propagate ideas anathemic to democratic values.

In our view, intentional and harmful falsehoods repudiate democratic values by denying respect and dignity to certain members of society, and therefore, to the public interest as a whole.

It is important to recognize that the American jurisprudence strongly supports the position that the state may restrict the publishing of deliberate and damaging lies. In Garrison v. Louisiana, 379 U.S. 64 (1964), Brennan J. stated (at p. 75):

Calculated falsehood falls into that class of utterances which "are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality..." Chaplinsky v. New Hampshire, 315 U.S. 568, 572. Hence the knowingly false statement and the false statement made with reckless disregard of the truth, do not enjoy constitutional protection.

In sum, this analysis suggests that s. 181, at best, limits only that expression which is peripheral to the core rights protected by s. 2(b). Accordingly, deliberate and injurious falsehoods, like hate propaganda, "should not be accorded the greatest of weight in the s. 1 analysis" (Dickson C.J. in Keegstra at p. 765). It can therefore be concluded that restrictions on expression of this kind will be easier to justify than other infringements of s. 2(b).

(ii) Rational Connection

There can be no doubt that the suppression of the publication of deliberate and injurious lies is rationally connected to the aim of s. 181 in protecting society from the harms caused by calculated falsehoods and thereby promoting the safety and security of the community. The potentially destructive effects of speech were recognized in the 1966 Report of the Special Committee on Hate Propaganda in Canada (and adopted in Keegstra, supra, at p. 747) which reads in the opening paragraph of its preface and at p. 8:

This Report is a study in the power of words to maim, and what it is that a civilized society can do about it. Not every abuse of human communication can or should be controlled by law or custom. But every society from time to time draws lines at the point where the intolerable and the impermissible coincide. In a free society such as our own, where the privilege of speech can induce ideas that may change the very order itself, there is a bias weighted heavily in favour of the maximum of rhetoric whatever the cost and consequences. But that bias stops this side of injury to the community itself and to individual members or identifiable groups innocently caught in verbal cross-fire that goes beyond legitimate debate. ...

In the 18th and 19th centuries, there was a widespread belief that man was a rational creature, and that if his mind was trained and liberated from superstition by education, he would always distinguish truth from falsehood, good from evil....We cannot share this faith today in such a simple form. While holding that over the long run, the human mind is repelled by blatant falsehood and seeks the good, it is too often true, in the short run, that emotion displaces reason and individuals perversely reject the demonstrations of truth put before them and forsake the good they know. The successes of modern advertising, the triumphs of impudent propaganda such as Hitler's, have qualified sharply our belief in the rationality of man. [Emphasis added.]

Racism tears asunder the bonds which hold a democracy together. Parliament strives to ensure that its commitment to social equality is not merely a slogan but a manifest reality. Where any vulnerable group in society is subject to threat because of their position as a group historically subjected to oppression we are all the poorer for it. A society is to be measured and judged by the protections it offers to the vulnerable in its midst. Where racial and social intolerance is fomented through the deliberate manipulation of people of good faith by unscrupulous fabrications, a limitation on the expression of such speech is rationally connected to its eradication.

(iii) Minimal Impairment

Even if rationally connected, the means must impair the freedom as little as possible. The appellant argues that s. 181 is too broad and could potentially capture expression that does not relate to Parliament's objective. It is argued that this provision could potentially limit works of fiction based on fact, "historical novels", some interpretive journalism and unpopular or unconventional academic writing. These are concerns with respect to a possible chilling effect on expression.

(a) Terms of Section 181

The most cursory perusal of s. 181 will reveal that the Crown will never have an easy task obtaining a conviction under the section. It must be established that the accused

(1) wilfully published a false statement of fact presented as truth (2) that he knew was false, and (3) that the false statement causes or is likely to cause injury or mischief to a public interest.

It might be thought that it would be difficult enough for the Crown to establish that the impugned statement wilfully published by the accused was false and that the accused knew of the falsity of that statement. However the section goes on to require the Crown to establish that the statement is likely to cause injury to a public interest.

In this case the Crown presented clear, powerful and overwhelming evidence to establish every element of the offence. That evidence, set out earlier, certainly provided a sound basis upon which the jury could very properly conclude that Zundel was guilty. At this point, it is important to note that, as was done in this case, the trial judge must instruct the jury that the accused is not to be judged on the unpopularity of his or her beliefs.

To be acquitted under s. 181, there need only be a reasonable doubt with regard to the wilful publication of the statements presented as truth, or the falsity of the statements, or to the knowledge of the falsity or with regard to the likelihood of injury to the public interest. Any uncertainty as to the nature of the speech must inure to the benefit of the accused. Indeed, where the speech at issue lacks a factual base or is so vague that it makes no clear allegation capable of verification or falsification, it will not be caught by this section. These factors clearly weigh heavily in the favour of the accused. The Crown in its factum accurately summarized the aspects of s. 181 which ensure that free expression is minimally impaired:

The section does not purport to prohibit the expression of any idea or simple opinion, although they may pose a serious threat to a public interest. It only captures statements of fact which the Crown can prove to be false beyond a reasonable doubt. In cases in which the Crown cannot discharge this burden the public interest is left unprotected. It does not capture all false statements of fact but only those false to the knowledge of the accused. It does not capture all statements of fact false to the knowledge of the accused but only such statements as the accused deliberately chooses to make generally available to the public. It does not capture all statements of fact false to the knowledge of the accused which cause injury or pose a threat of injury. Injury even serious injury to an individual through falsehood is irrelevant under section 181. The possibility of some injury to even a public interest equally falls outside the scope of the section as the section requires the harm to such an interest to rise to the level of likelihood or to, in fact, occur. [Emphasis in original.]

It is clear that the Crown bears a very heavy onus in proving all the elements of the offence in order to convict an accused under s. 181.

Basically, the thrust of the appellant's argument is that s. 181 is an unjustifiable limit on freedom of expression. Such an argument, in this context, is more accurately characterized as an argument in support of the appellant's freedom to lie. Under s. 181, the appellant is free to tell all the lies that he wants to in private. He is free, under this section, to publish lies that have an overall beneficial or neutral effect. It is only where the deliberate publication of false facts is likely to seriously injure a public interest that the impugned section is invoked. This minimal intrusion on the freedom to lie fits into the broad category of Criminal Code offences which punish lying. These offences include, inter alia, the provisions dealing with fraud, forgery, false prospectuses, perjury and defamatory libel.

The possibility of illegal police harassment really has little or no bearing on the proportionality of legislation which prohibits deliberate and injurious lies to legitimate Parliamentary objectives. It follows that the argument based on hypothetical potential harassment can be rejected, as it was in Keegstra. Although the appellant and the Canadian Civil Liberties Association argue that s. 181 is too broad, it is important to note that there have only been three other prosecutions under this "broad" offence and only one of these (Hoaglin, supra) has been successful. The infrequent use of this section can undoubtedly be attributed to the extremely onerous burden on the Crown to prove the offence. However, the fact that it is seldom used should hardly militate against its usefulness.

(b) Fact vs. Opinion

It has been argued that it is not possible to draw a coherent distinction between statements of opinion and assertions of fact and therefore, that s. 181 is overbroad. A statement, tale or news is an expression which, taken as a whole and understood in context, conveys an assertion of fact or facts and not merely the expression of opinion. As noted earlier, the trial judge suggested to the jury that the key element of the distinction is falsifiability. Expression which makes a statement susceptible to proof and disproof is an assertion of fact; expression which merely offers an interpretation of fact which may be embraced or rejected depending on its cogency or normative appeal, is opinion.

This analysis is supported by the distinctions employed in the Canadian and United States laws of defamation (see R.E. Brown, The Law of Defamation in Canada (1987), vol. 1, at p. 678, and Ollman v. Evans, 750 F.2d 970 (D.C. Cir. 1984) (en banc), certiorari denied, 471 U.S. 1127 (1985)). Four helpful criteria have been identified in order to distinguish fact from opinion: specificity of the terms used, verifiability, linguistic context and social context. All criteria are unified by the theme of exploring the response of a reasonable reader.

The statement must have a sufficiently definite meaning to convey facts. An allegation that X is corrupt is not an assertion of fact because it makes no specific allegation and uses language that lacks a definite meaning. However, an allegation that X is corrupt because he embezzles from his employer bespeaks sufficiently certain facts to permit its characterization as a factual claim.

The statement must be verifiable through empirical proof or disproof. An allegation that X is a KGB agent is empirically verifiable and therefore factual; an allegation that her temperament would suit her for such work is not verifiable and therefore an expression of opinion. A statement that the hot dogs one makes are 100 percent beef is a verifiable factual claim; a statement that they are delicious is an expression of opinion.

The statement must be made in a linguistic context in which it will be understood as fact rather than opinion. Allegations appearing in the context of a satirical article are not likely to be taken to be facts even when expressed in factual form. Sometimes the context itself, such as the irreverent underground newspaper in Kirby, supra, will provide clues to the reader that they are not to accept the contents as literally true. However, allegations prefaced by cautions that they are only opinion may also be found to be factual claims if they are so "factually laden" that the caution is found to be a colourable attempt only to escape responsibility for allegations of fact.

Finally, the statement must be considered in its broader social context. Some forms of expression, such as academic periodicals, are accorded more authority and have traditions of authenticity that influence their interpretation, while others, such as political signs or lampoons, have traditions of hyperbolic rhetoric. Statements, such as the pamphlet at issue in this appeal, which are disguised as the reasoned product of scholarly investigation will be accorded greater seriousness by the reasonable reader.

It was argued that s. 181 is overbroad because it does not require the trial judge to instruct the jury on the distinction between fact and opinion as a matter of law, but leaves it to be determined as a matter of fact. The appellant submits that had the rules in Ollman, supra (i.e., the four criteria set out earlier) been applied to the material in the case at bar, it would never have gone to the jury. It is difficult to see how this case helps the appellant. On the contrary, it seems to make clear that statements couched as "revisionist history" may be taken to be allegations of fact rather than submissions of opinion, despite protestations to the contrary. Did Six Million Really Die? makes specific claims about discrete historical incidents and the contents of publicly accessible historical documents. These statements are susceptible of being verified through examination of these documents. The pamphlet purports to be a serious scholarly endeavour. The work of serious historians who allege that they have arrived at reasoned conclusions after thorough examination of primary sources is a form of expression accorded great authority. An application of the Ollman criteria confirms that the jury was clearly capable of drawing the distinction between fact and opinion as instructed by the trial judge.

The appellant argues that history is all interpretation. It is submitted that there is no objective historical truth because we do not understand facts in any unmeditated fashion, but through the lens of a theoretical perspective. Thus, the appellant contends, to assert that we can come to some conclusions as to what really happened at some point in history is to make an impossible epistemological claim or to give unwarranted authority to a single theoretical perspective. It is indeed true that no theory of history can be proved or disproved, although it may be shown to be more or less compelling or comprehensive. However, the appellant seeks to draw complex epistemological theory to the defence of what is really only, at best, the shoddiest of "scholarship" and, at worst pure charlatanism. The appellant has not been convicted for misinterpreting factual material but for entirely and deliberately misrepresenting its contents. When he points to the Goebbels' diaries and says they say X when in fact they say Y, he is not offering an alternative interpretation of the material but a fabrication proven to be false by the very materials to which he has referred.

Courts deal with the question of truth and falsity of statements on a daily basis. In every case in which the charge is fraud or the making of a false prospectus the court must determine whether false statements have been made. So too can historical "facts" be shown to be true or false in the context of s. 181. Can it be said that France was not occupied by German forces in 1940; or that the Dunkirk evacuation never took place; that the Battle of Britain is nothing but wishful thinking; that London was never bombed; that German cities were never attacked by the allied air forces; that the Normandy landing in June of 1944 is no more than the stuff of dreams. The falsity of these statements can be proven beyond a reasonable doubt by reference to reliable historical documents, such as those in evidence at the appellant's trial. What can be proven as false statements, such as those published by Zundel which were known by him to be false, can and should come within the purview of s. 181.

In The Holocaust Denial: Anti-Semitism, Racism and the New Right (1986), at p. 105, Professor Gill Seidel points out the lacuna in the theoretical perspective of those who uncritically defend the type of "revisionist history" at issue here. She notes that those who would uncritically defend the free expression rights of purveyors of this form of speech do not necessarily act out of bad faith. However, their analysis misses a crucial point:

[I]n encouraging a thousand versions of history to bloom, while refusing an acceptable label to any one, [Thion] replaces a state view of history (which he is surely right to reject) with a range of undifferentiated, equally weighted accounts. The difficulty is that such a range ignores power relations. It is a kind of free-market version of history. ...

... [But this orientation] does not allow him to see, even less accept, that Faurisson and others are bent on replacing the present anti-Nazi climate with a Nazi consensus, and that, in order to do so, they are playing intellectual games using academic, anti-authoritarian language. [Emphasis added.]

As distinguished from works which seek to retell traditional stories from the perspective of minorities and other groups heretofore unheard, the appellant has not adopted a novel perspective, unearthed non-traditional sources or re-interpreted traditional materials. He has lied. The deep-rooted criticism of "revisionism" is not directed, against its views of history but against its manipulation and fabrication of basic facts. This criticism was expressed by 34 French historians in a letter to Le Monde (February 21, 1979) dealing with the controversy over the work of the French historian, Faurisson:

Everyone is free to interpret a phenomenon like the Hitlerite genocide according to his own philosophy. Everyone is free to compare it with other enterprises of murder committed earlier, at the same time, later. Everyone is free to offer such or such kind of explanation; everyone is free, to the limit, to imagine or to dream that these monstrous deeds did not take place. Unfortunately, they did take place and no one can deny their existence without committing an outrage on the truth.

(Cited and translated in Professor Lucy S. Dawidowicz, "Lies About the Holocaust" (1980), 70:6 Commentary 31, at p. 37.)

The appellant submits that he is a modern-day Galileo being sacrificed on the altar of received opinion. Indeed, a Galileo could not be caught under s. 181. Galileo pointed to the apparent movement of the planets and argued, contrary to accepted dogma of church and state, that the earth was not the centre of the heavens but revolved around the sun. His argument was not a deliberate falsification of the facts. Rather, he argued that his theory for explaining the significance of the facts was clearer and more comprehensive.

In contrast, the appellant posits a spurious problem, which cannot be solved by reconciling conflicting interpretations of the same evidence precisely because it is not, in fact, based on the evidence but on misrepresentation or pure fabrication. The conflict between the assertions made by the appellant and those made by orthodox Holocaust historians cannot be resolved through reasoned debate. Orthodox historians point to sources which support their theories; the appellant and other "revisionist" historians point to documents which do not exist or which do not say what they claim they do. The pamphlet Did Six Million Really Die? does not fit with received views of reality because it is not part of reality. In the name of the integrity of knowledge, the appellant demands the right to throw a monkey-wrench into the mechanisms of knowledge.

We must re-iterate that the focus of s. 181 is not on the opinions of the appellant. While they might be caught under s. 319 , the hate propaganda provision, his acquittal on one charge at trial relating to The West, War and Islam! and the withdrawal of a subsequent charge against him for expressing these same opinions (R. v. Zundel, Ont. Prov. Ct., September 18, 1987, Babe Prov. Ct. J., unreported) make it clear that this section is not and has not been used against those who express unpopular, counter-intuitive or socially undesirable points of view. What is being prohibited is an attempt to win converts to this point of view and to inflict harm against disadvantaged members of society by the most unscrupulous manipulation.

The section will not catch an anthropologist proposing controversial theories which point to arguably true facts but draw erroneous assumptions with racist implications. However objectionable the content, inference or motive, this material would not be caught under s. 181 in the absence of evidence beyond a reasonable doubt of the falsity, and of the accused's knowledge of the falsity, of the basic facts upon which such a theory was based. The theorist who argues, for example, that objective differences in cranial capacity translate into the intellectual superiority of men over women would be met on the field of reasoned debate by rival theorists who point to more credible interpretations which do not employ unspoken prejudice as their hidden premise. On the other hand, situations such as the case at bar in which the accused deliberately fabricates basic facts in order to support his theories render reasoned debate impossible.

Nor could s. 181 be invoked in the examples cited by our colleague. McLachlin J. referred to the doctor who exaggerates the number of persons infected with a virus in order to persuade people to be inoculated against a burgeoning epidemic and to the person who knowingly cites false statistics in order to prevent cruelty to animals. Both examples of expression not only fail to raise the possibility of injury to a public interest but, indeed, they would have an overall beneficial or neutral effect on society. In contrast, an accused would only be convicted under s. 181 if there were no reasonable doubt regarding a very serious injury to the public interest.

The appellant's arguments are not new. Deliberate lies which foment racism are an unsavoury relic of our collective history. However, racism with footnotes and chapter headings is still fundamentally racism and should be treated as such. Section 181 serves to prevent the harm caused by deliberate and injurious lies. It is therefore well-suited to respond to the harm caused by vilification campaigns disguised as pseudo-science.

(c) Alternative Modes of Furthering Parliament's

Finally, the presence of existing hate propaganda legislation should not weigh against either the need for or the validity of s. 181. It was argued that s. 181 was a mere duplication of the hate provisions of the Criminal Code and thus was invalid. Such an argument should not be accepted. There are numerous provisions of the Criminal Code which overlap to some extent but which are nonetheless valid. For example, Johnson v. The Queen, [1975] 2 S.C.R. 160, dealt with a charge under then s. 163(2) of the Code prohibiting the taking part in an "immoral, indecent or obscene" performance. This Court found that it was irrelevant that Parliament had enacted a separate offence of being nude in a public place. Nudity, it was noted, was not the sole factor in determining whether the performance was immoral.

Similarly, the fact that Parliament has enacted hate propaganda legislation does not invalidate s. 181. The section seeks to discourage the public dissemination of injurious falsehoods. These statements of fact, it should be remembered, are known by the accused to be lies. There is a pervasive and pernicious air of evil that surrounds their conscious aim to manipulate people. The deceptive nature of the deliberate publication of false statements of fact may, in certain circumstances, be even more invidious than the publication of hateful opinions which at least expresses the beliefs of the publisher. Thus s. 181 still fulfils an important role in a multicultural and democratic society. It emphasizes the repugnance of Canadian society for the wilful publication of known falsehoods that cause injury to the public interest through their attacks upon groups identifiable under s. 15 of the Charter and therefore on society as a whole.

As Dickson C.J. stressed in Keegstra, the government may legitimately employ a variety of measures in order to achieve its objective. On a general level, the promotion of racial and social tolerance and the prevention of harm caused by injurious and calculated falsehoods is best achieved through information and education. Human rights legislation may, in certain circumstances, be sufficient to deal with a particular problem in this area. Nevertheless, the strength of the criminal law must be reserved for the extreme cases, such as the case at hand. In a case such as this, with its potential to cause serious injury to the public interest, it is necessary to send a clear message by repudiating the harm caused by the appellant.

For example, it is true that driver education and the penalties provided by the Highway Traffic Acts may suffice to regulate most drivers. Nonetheless, the criminal law is used to demonstrate society's repugnance for the drunken driver who is likely to injure others. So too the criminal law has an important role to play in discouraging and punishing those who knowingly publish falsehoods that are likely to injure a public interest.

Overall, it would be hard to imagine a measure that would constitute a lesser impairment of a type of expression that is on the extreme periphery of the protected right. We therefore conclude that s. 181 does not unduly infringe the right to freedom of expression.

(iv) Proportionality Between Effects and Objective

At this stage in the s. 1 analysis, there must be an assessment of the importance of the state objective balanced against the effect of limits imposed upon the freedom. As previously noted, the "expression" at stake in the present case is inimical to the values underlying freedom of expression. The type of falsehoods caught by this section serves only to hinder and detract from democratic debate. The impugned provision, s. 181, is narrowly defined in order to minimally impair s. 2(b). In sum, the prohibition of the wilful publication of what are known to be deliberate lies is proportional to the importance of protecting the public interest in preventing the harms caused by false speech and thereby promoting racial and social tolerance in a multicultural democracy.

(4) Summary of the Section 1 Balancing and Conclusion

At the end of this detailed analysis it is worthwhile to step back and consider what it is that is being placed on the balance.

On one side is s. 181. It infringes to a minimal extent the s. 2(b) right to freedom of expression. In reality, it cannot be said that the prohibition of the wilful publication of false statements that are known to be false is an infringement of the core values of s. 2(b). Rather the infringement is on the extreme periphery of those values. In addition, the section can play an important role in fostering multiculturalism and racial and religious tolerance by demonstrating Canadian society's abhorrence of spreading what are known to be lies that injure and denigrate vulnerable minority groups and individuals.

On the other side, s. 181 provides maximum protection of the accused. It requires the Crown to establish beyond a reasonable doubt that the accused wilfully published false statements of fact presented as truth and that their publication caused or was likely to cause injury to the public interest. Any uncertainty as to the nature of the speech must inure to the benefit of the accused. If ever s. 1 balancing is to be used to demonstrate that a section of the Criminal Code is justifiable in a free and democratic society, this is such a case.

Legislation such as this which is aimed at the protection of society from deceit and aggression, yet provides the widest protection for the accused, should be fostered. Applying the Charter to strike s. 181 would be in direct contradiction to the principles established by this Court. The section is justifiable in our free and democratic Canadian society.

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