What the hell is wrong with Canada?! And what can we do about this?

[Demojen]

The purpose of the guarantee is to permit free expression to the end of promoting truth, political or social participation, and self-fulfilment. That purpose extends to the protection of minority beliefs which the majority regard as wrong or false: Irwin Toy, supra, at p. 968. Tests of free expression frequently involve a contest between the majoritarian view of what is true or right and an unpopular minority view. As Holmes J. stated over sixty years ago, the fact that the particular content of a person's speech might "excite popular prejudice" is no reason to deny it protection for "if there is any principle of the Constitution that more imperatively calls for attachment than any other it is the principle of free thought -- not free thought for those who agree with us but freedom for the thought that we hate": United States v. Schwimmer, 279 U.S. 644 (1929), at pp. 654-55. Thus the guarantee of freedom of expression serves to protect the right of the minority to express its view, however unpopular it may be; adapted to this context, it serves to preclude the majority's perception of `truth' or `public interest' from smothering the minority's perception. The view of the majority has no need of constitutional protection; it is tolerated in any event. Viewed thus, a law which forbids expression of a minority or "false" view on pain of criminal prosecution and imprisonment, on its face, offends the purpose of the guarantee of free expression.



The jurisprudence supports this conclusion. This Court in Keegstra held that the hate propaganda there at issue was protected by s. 2(b) of the Charter. There is no ground for refusing the same protection to the communications at issue in this case. This Court has repeatedly affirmed that all communications which convey or attempt to convey meaning are protected by s. 2(b), unless the physical form by which the communication is made (for example, by a violent act) excludes protection: Irwin Toy, supra, at p. 970, per Dickson C.J. and Lamer and Wilson JJ. In determining whether a communication falls under s. 2(b), this Court has consistently refused to take into account the content of the communication, adhering to the precept that it is often the unpopular statement which is most in need of protection under the guarantee of free speech: see, e.g., Keegstra, supra, at p. 828, per McLachlin J.; R. v. Butler, 1992 CanLII 124 (S.C.C.), [1992] 1 S.C.R. 452, at p. 488, per Sopinka J.



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



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



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

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



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



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



Indeed, the very cases relied upon by Cory and Iacobucci JJ. to support their position reveal the potential of s. 181 for suppressing valuable political criticism or satire. In R. v. Hoaglin (1907), 12 C.C.C. 226 (N.W.T.S.C.), cited at p. 000 of their judgment, the "false" publication asserted "Americans not wanted in Canada". The injury to public interest was, in the words of Harvey J., that "if [Americans] investigate they will find conditions such as to prevent them investing and taking up homesteads" (Hoaglin, supra, at p. 228). Even if one accepts the finding that the statement was undoubtedly "false", it arguably represented a valuable contribution to political debate on Canadian immigration policy. Yet the accused was convicted for publication of such statements contrary to s. 136 (now s. 181). Similarly, in R. v. Kirby (1970), 1 C.C.C. (2d) 286 (Que. C.A.), a case involving prosecution for publication of political satire in the Montreal Gazette (cited at p. 000 of their judgment), Hyde J.A. accepted that the publication fell within the satirical tradition of Chaucer, Swift and Addison. In reversing the trial judge's conviction, he observed that the section may capture "pranks" and that the "prank" in question was "very close to the border" (p. 290).



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



One problem lies in determining the meaning which is to be judged to be true or false. A given expression may offer many meanings, some which seem false, others, of a metaphorical or allegorical nature, which may possess some validity. Moreover, meaning is not a datum so much as an interactive process, depending on the listener as well as the speaker. Different people may draw from the same statement different meanings at different times. The guarantee of freedom of expression seeks to protect not only the meaning intended to be communicated by the publisher but also the meaning or meanings understood by the reader: Ford v. Quebec (Attorney General), 1988 CanLII 19 (S.C.C.), [1988] 2 S.C.R. 712, at p. 767, and Irwin Toy, supra, at p. 976. The result is that a statement that is true on one level or for one person may be false on another level for a different person.

[Demojen]

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



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



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



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



Such an approach is supported by the language of the Charter and the relationship it establishes between s. 1 and the enumerated rights. We start from the proposition that legislation limiting the enumerated rights may be unconstitutional. (There is no presumption of constitutionality: Manitoba (Attorney General) v. Metropolitan Stores Ltd., 1987 CanLII 79 (S.C.C.), [1987] 1 S.C.R. 110, at p. 122, per Beetz J.). If a limitation on rights is established, the onus shifts to the Crown to show that the legislation is justified under s. 1, where the benefits and prejudice associated with the measure are weighed. The respondent's s. 2(b) arguments would require evaluation of the worth of the expression which is limited at the first stage. This is an approach which this Court has hitherto rejected and one which I would not embrace.





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



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



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



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



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



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



Section 1 of the Charter provides:



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



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



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

[Demojen]

I turn first to the state's interest in prohibiting the expression here at issue -- the question of whether the Crown has established an overriding public objective, to use the language of R. v. Oakes, 1986 CanLII 46 (S.C.C.), [1986] 1 S.C.R. 103. In determining the objective of a legislative measure for the purposes of s. 1, the Court must look at the intention of Parliament when the section was enacted or amended. It cannot assign objectives, nor invent new ones according to the perceived current utility of the impugned provision: see R. v. Big M Drug Mart Ltd., 1985 CanLII 69 (S.C.C.), [1985] 1 S.C.R. 295, at p. 334, in which this Court rejected the U.S. doctrine of shifting purposes. Although the application and interpretation of objectives may vary over time (see, e.g., Butler, supra, per Sopinka J., at pp. 494-96), new and altogether different purposes should not be invented. The case is quite different from the anti-obscenity legislation in Butler where the goal historically and to the present day is the same -- combatting the "detrimental impact" of obscene materials on individuals and society -- even though our understanding or conception of that detrimental impact (a "permissible shift in emphasis") may have evolved, as Sopinka J. noted. My colleagues say that it is a permissible shift in emphasis that the false news provision was originally focused on the "prevention of deliberate slanderous statements against the great nobles of the realm" and is now said to be concerned with "attacks on religious, racial or ethnic minorities" (see p. 000). But this is no shift in emphasis with regard to the purpose of the legislation -- this is an outright redefinition not only of the purpose of the prohibition but also of the nature of the activity prohibited. To convert s. 181 into a provision directed at encouraging racial harmony is to go beyond any permissible shift in emphasis and effectively rewrite the section.



It is argued that this interpretation represents a mere shift in emphasis because the thrust of s. 181 and its predecessors, like the obscenity provisions in Butler, disclosed a single goal: "the protection of the public interest from harm" or from that which would "threaten the integrity of the social fabric" (the reasons of Cory and Iacobucci JJ., at p. 000 ). Yet, all Criminal Code provisions -- as well as much statutory regulation in the public and private law spheres -- have as their basic purpose the protection of the public from harm and the maintenance of the integrity of the social fabric. Indeed, one might argue that such was the goal of the obscenity provisions under review in Butler, yet the Court did not adopt that as the legislation's objective. Instead, it relied upon a specific objective concerning the effect of pornographic materials on individuals and the resultant impact on society. If the simple identification of the (content-free) goal of protecting the public from harm constitutes a "pressing and substantial" objective, virtually any law will meet the first part of the onus imposed upon the Crown under s. 1. I cannot believe that the framers of the Charter intended s. 1 to be applied in such a manner. Justification under s. 1 requires more than the general goal of protection from harm common to all criminal legislation; it requires a specific purpose so pressing and substantial as to be capable of overriding the Charter's guarantees. To apply the language used by Sopinka J. in Butler (at p. 496); s. 181 cannot be said to be directed to avoidance of publications which "seriously offend the values fundamental to our society", nor is it directed to a "substantial concern which justifies restricting the otherwise full exercise of the freedom of expression".



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



1. to protect matters that rise to a level of public interest from being jeopardized by false speech (respondent);



2. to further racial and social tolerance (Canadian Jewish Congress); and



3. to ensure that meaningful public discussion is not tainted by the deleterious effects of the wilful publication of falsehoods which cause, or are likely to cause, damage to public interests, to the detriment of public order (Attorney General for Canada).



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



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

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



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

[Demojen]

Parliament's enactment of s. 319 of the Criminal Code, a provision carefully tailored to combat the propagation of hate -- the evil at which my colleagues believe s. 181 now also to be directed, should not be overlooked. The "further[ance of] racial, religious and social tolerance" and the "safeguard[ing of] the public interest against social intolerance and public alarm", the goals ascribed to s. 181 by my colleagues, are the focus of the Code's proscription of hate propaganda. Racial minorities, as "identifiable groups" within the meaning of s. 319, are not "stateless" persons like those referred to in the powerful remarks of Professor Mari Matsuda quoted in the reasons of Cory and Iacobucci JJ. Like my colleagues, I readily acknowledge the pernicious effects of the propagation of hate; such effects are indeed of relevance to a s. 1 analysis of s. 319, as was evident in this Court's decision in Keegstra, supra. I concur, as well, with the dicta in R. v. Wholesale Travel Group Inc., 1991 CanLII 39 (S.C.C.), [1991] 3 S.C.R. 154, that the Charter should not be used "as a weapon to attack measures intended to protect the disadvantaged" (p. 233), but I find the principle's application in this context ironic. Section 2(b) of the Charter has as one of its fundamental purposes the protection of the freedom of expression of the minority or disadvantaged, a freedom essential to their full participation in a democracy and to the assurance that their basic rights are respected. The proscription of false news was originally intended to protect the mighty and the powerful from discord or slander; there is nothing to suggest any legislative intention to transform s. 181 from a mechanism for the maintenance of the status quo into a device for the protection of "vulnerable social groups".



In the rational connection portion of their analysis (pp. 000-000), Cory and Iacobucci JJ. rely upon the Report of the Special Committee on Hate Propaganda in Canada, which impugned the "19th century belief" that man was a "rational creature" who could distinguish between truth and falsity. We are told that "[w]e cannot share this faith today in such a simple form" -- thus, a limitation of this type of speech is rationally connected to the goal of furthering racial tolerance. This lesson of history is paid heed to, but no credence appears to be given to the similar lesson (or warning) of history regarding the potential use by the state (or the powerful) of provisions, such as s. 181, to crush speech which it considers detrimental to its interests, interests frequently identified as equivalent to the "public interest". History has taught us that much of the speech potentially smothered, or at least `chilled', by state prosecution of the proscribed expression is likely to be the speech of minority or traditionally disadvantaged groups.



The fact that s. 181 has been so rarely used despite its long history supports the view that it is hardly essential to the maintenance of a free and democratic society. Moreover, it is significant that the Crown could point to no other free and democratic country which finds it necessary to have a law such as s. 181 on its criminal books. I would be remiss not to acknowledge here the provisions which my colleagues' research has discovered, under the heading Legislative Responses in Other Jurisdictions (pp. 000-000). A review of these examples reveals their minimal relevance to this appeal. The Italian provision, although not reproduced for our inspection, has clearly been limited in its scope to the preservation of the rule of law or the legal order by the Italian constitutional court referred to by my colleagues; there is no indication that the provision extends to the promotion of racial harmony. Even less relevant are the Danish Criminal Code provisions to which Cory and Iacobucci JJ. refer. On a plain reading, s. 140 of the Danish Code is directed not to false statements of fact, but to insulting remarks about the religious practices of others; s. 266(b), on the other hand, is equally clearly a proscription of hate propaganda similar to s. 319 of our Criminal Code, upheld in Keegstra. Of the German offences mentioned, only that dealing specifically with Holocaust denial would appear to be directed to false statements of fact, a much more finely tailored provision to which different considerations might well apply. As indicated above, the forerunner of our s. 181 was repealed in England over a century ago, leaving no apparent lacunae in the criminal law of a country that has seen its share of social and political upheavals over the ensuing period. It is apparently not to be found in the United States. How can it be said in the face of facts such as these and in the absence of any defined evil at which the section is directed that the retention of the false news offence in this country is a matter of pressing and substantial concern justifying the overriding of freedom of expression? In Butler, this Court, per Sopinka J., at p. 497, relied on the fact that legislation of the type there at issue, pornography legislation, may be found in most free and democratic societies in justifying the restrictions it imposes on freedom of expression. The opposite is the case with s. 181 of the Criminal Code.



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



Assuming a rational link between the objective of social harmony and s. 181 of the Criminal Code, the breadth of the section is such that it goes much further than necessary to achieve that aim. Accepting that the legislative solution need not be "perfect", it nevertheless must be "appropriately and carefully tailored in the context of the infringed right": Reference re ss. 193 and 195.1(1)(c) of the Criminal Code (Man.), 1990 CanLII 105 (S.C.C.), [1990] 1 S.C.R. 1123, at p. 1138. The effect of s. 181 is to inhibit the expression or publication of any statements which may be found by a jury to be factual, false and likely to cause injury or mischief to a public interest. The territory covered by this prohibition can only be described as vast, as revealed by a brief look at the key phrases on which guilt or innocence turns.



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

[Demojen]

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



Cory and Iacobucci JJ. propose to overcome this difficulty by defining the phrase "public interest" in accordance with selected Charter values. Two observations are relied upon -- that courts regularly define phrases in legislation, and that the courts have not, thus far, adequately defined "public interest" -- as the justification to define anew "public interest" in the context of s. 181's purported application to Mr. Zundel. Although the section's "legislative history" and the "legislative and social context in which it is used" is said by my colleagues to govern the definitional process, their interpretation focuses upon a select range of Charter values, values which do not include freedom of expression. In support of this technique, reliance is placed upon the following authorities: Hills v. Canada (Attorney General), 1988 CanLII 67 (S.C.C.), [1988] 1 S.C.R. 513; Slaight Communications Inc. v. Davidson, 1989 CanLII 92 (S.C.C.), [1989] 1 S.C.R. 1038; and R. v. Salituro, 1991 CanLII 17 (S.C.C.), [1991] 3 S.C.R. 654. These authorities confirm the following basic propositions: that the common law should develop in accordance with the values of the Charter (Salituro, supra, at p. 675), and that where a legislative provision, on a reasonable interpretation of its history and on the plain reading of its text, is subject to two equally persuasive interpretations, the Court should adopt that interpretation which accords with the Charter and the values to which it gives expression (Hills and Slaight, supra). None of these decisions stands for the proposition that an age-old provision whose aim and scope was created pre-Charter can, as of 1982, be redefined by reference to a present-day perception of utility.



The result of my colleagues' redefinition is the equation of "public interest" with "the protection and preservation of those rights and freedoms set out in the Charter as fundamental to Canadian society" (p. 000). Thus, for example, whenever the Crown can establish that the publication of a false statement is likely seriously to injure the dignity and equality of those whom ss. 15 and 27 of the Charter are intended to protect, the offence is made out. In so doing my colleagues have arguably created a new offence, an offence hitherto unknown to the criminal law. The promotion of equality and multiculturalism is a laudable goal, but, with respect, I can see no basis in the history or language of s. 181 to suggest that it is the motivating goal behind its enactment or retention. To import it is to engage not in a valid process of statutory interpretation, but in impermissible reading in of content foreign to the enactment; Salituro, Slaight and Hills were never intended to be taken this far.



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



These examples illustrate s. 181's fatal flaw -- its overbreadth. At pages 000-000, Cory and Iacobucci JJ. attempt to alleviate the fears associated with the problem of overbreadth by arguing that the Crown will always bear a heavy onus in proving all of the elements under s. 181. It is argued that any danger is limited by the phrase "public interest" because even those publishing known falsehoods will not be prosecuted where their lies have an "overall beneficial or neutral effect". In this way, Cory and Iacobucci JJ. claim that the examples proffered above raise no practical problem (see p. 000).



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



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



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

[Demojen]

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



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



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



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



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



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