R.+c.+Zundel

- Zundel published a pamphlet called //Did Six Million Really Die?//, saying it was not proved 6 million Jews died during the Holocaust, and claiming the Holocaust was a myth, a Jewish conspiracy theory. - Zundel was arrested under s.181 Criminal Code: - Zundel was found guilty at his first trial. - He challenged s.181 as unconstitutional. The Court of Appeal pronounced it constitutional, and ordered a new trial (due to errors of evidence and jury). - Zundel was found guilty at the second trial, and the Court of Appeal upheld the verdict.
 * Facts:**
 * // 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. //

(1) Does s.181 violate s.2b (freedom of expression) or s.7 (life, liberty, security) of the Charter? If yes, is it justified under s.1?
 * Issues:**
 * Held:** s.181 is unconstitutional. It violates s.2b and is __not__ justified under s.1.


 * Reasoning (McLachlin J., for 4 judges):**

[ Cory and Iacobucci JJ.'s dissent not included by Megret.]

-  s. 2(b) protects the right of a minority to express its view, however unpopular it may be. All communications are protected unless the physical form by which the communication is made (e.g. a violent act) excludes protection. The purpose of the guarantee is to permit free expression to the end of promoting truth, political or social participation, and self-fulfilment. s. 181 restricts freedom of expression and, therefore, imposes a limit on s. 2(b). - Before a person is denied the protection of s. 2(b), it must be certain that there can be no justification for offering protection. The criterion of falsity falls short of this certainty, given that false statements can sometimes have value and given the difficulty of conclusively determining total falsity.

The Oakes Test, for s.1: Step 1: Is there a pressing and substantial objective? We must find the __original legislative intention__ of s.181. This was:  the prevention of deliberate slanderous statements against the nobles of the realm to preserve political harmony in the state. To suggest now that its objective is to combat hate propaganda or racism is to go beyond its history and its wording and to adopt the "shifting purpose" analysis this Court has rejected. - There is no  "pressing and substantial" objective - we cannot simply say s.181 protects the public from harm (that is so large that too many laws do that). There is no ostensible purpose to s.181. The Crown could point to no other free and democratic country with criminal legislation of this type. - s.181 fails Step 1 of the Oakes Test.

//IF// the court were able to give  s. 181 the objective of promoting racial and social tolerance, a pressing and subtantial objective, what would the rest of the Oakes Test look like? Step 2.1: The rational link. Let's assume this. Step 2.2: The Proportionality Test. -  The section is too broad and more invasive than necessary to achieve social harmony. The phrase "statement, tale or news", while it may not extend to the realm of true opinion, obviously encompasses a broad range of historical and social speech, going well beyond what is patent or provable to the senses as a matter of "pure fact". What is an assertion of fact, as opposed to an expression of opinion, is a question of great difficulty and the question of falsity of a statement is often a matter of debate. - But the greatest danger of s. 181 lies in the undefined phrase "injury or mischief to a public interest", which is capable of almost infinite extension. There is thus a danger that s. 181 may have a chilling effect on minority groups or individuals, restraining them from saying what they would like for fear that they might be prosecuted. - When the objective of s. 181 is balanced against its potential invasive reach, the limitation of freedom of expression is disproportionate to the objective envisaged. The value of liberty of speech, one of the most fundamental freedoms protected by the Charter, needs no elaboration. By contrast, the objective of s. 181, in so far as an objective can be ascribed, falls short of constituting a countervailing interest of the most compelling nature.

McLachlin frequently contrasts this case to [|R. v. Keegstra] in which the provision //WAS// saved under s.1.