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

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

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

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

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

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