R. v. Zundel [1992] 2 S.C.R.

Supreme Court Reports

The Supreme Court Reports is the official reporter of the Supreme Court of Canada. Since the creation of the Supreme Court, all of its decisions have been published in the Reports, in both English and French. The first volume was published in 1877 containing the first case ever heard by the...

 731 is a landmark Supreme Court of Canada

Supreme Court of Canada

The Supreme Court of Canada is the highest court of Canada and is the final court of appeals in the Canadian justice system. The court grants permission to between 40 and 75 litigants each year to appeal decisions rendered by provincial, territorial and federal appellate courts, and its decisions...

 decision where the Court struck down the provision in the Criminal Code of Canada

Criminal Code of Canada

The Criminal Code or Code criminel is a law that codifies most criminal offences and procedures in Canada. Its official long title is "An Act respecting the criminal law"...

 that prohibited publication of false information or news on the basis that it violated the freedom of expression provision under section 2(b)

Section Two of the Canadian Charter of Rights and Freedoms

Section Two of the Canadian Charter of Rights and Freedoms is the section of the Constitution of Canada's Charter of Rights that lists what the Charter calls "fundamental freedoms" theoretically applying to everyone in Canada, regardless of whether they are a Canadian citizen, or an individual or...

 of the Canadian Charter of Rights and Freedoms

Canadian Charter of Rights and Freedoms

The Canadian Charter of Rights and Freedoms is a bill of rights entrenched in the Constitution of Canada. It forms the first part of the Constitution Act, 1982...

.

Background

In 1985, Holocaust denier

Holocaust denial

Holocaust denial is the act of denying the genocide of Jews in World War II, usually referred to as the Holocaust. The key claims of Holocaust denial are: the German Nazi government had no official policy or intention of exterminating Jews, Nazi authorities did not use extermination camps and gas...

 Ernst Zundel

Ernst Zündel

Ernst Christof Friedrich Zündel is a German Holocaust denier and pamphleteer who was jailed several times in Canada for publishing literature which "is likely to incite hatred against an identifiable group" and for being a threat to national security, in the United States for overstaying his visa,...

 was charged with "spreading false news" by publishing a pamphlet entitled "Did Six Million Really Die?

Did Six Million Really Die?

Did Six Million Really Die? is a Holocaust denial booklet written by British National Front member Richard Verrall, under the name Richard E. Harwood, and published by Ernst Zündel in 1974...

" in Canada

Canada

Canada is a North American country consisting of ten provinces and three territories. Located in the northern part of the continent, it extends from the Atlantic Ocean in the east to the Pacific Ocean in the west, and northward into the Arctic Ocean...

, contrary to s. 181 of the Criminal Code.

Section 181 states that "[e]very one who wilfully publishes a statement, tale or news that he knows is false and causes or is likely to cause injury or mischief to a public interest is guilty of an indictable offence and liable to imprisonment . . .".

At trial, Zundel was convicted. However, on appeal the case was sent back for a new trial due to a procedural error at trial in admitting evidence and instructing the jury. He was re-tried in 1988, and convicted again. The judgement was upheld by the Court of Appeal, and Zundel appealed to the Supreme Court.

The issue before the Supreme Court was whether s. 181 of the Code infringed "the guarantee of freedom of expression in s. 2(b) of the Canadian Charter of Rights and Freedoms and, if so, whether s. 181 is justifiable under s. 1

Section One of the Canadian Charter of Rights and Freedoms

Section One of the Canadian Charter of Rights and Freedoms is the section of the Charter that confirms that the rights listed in that document are guaranteed. The section is also known as the reasonable limits clause or limitations clause, as it legally allows the government to limit an...

 of the Charter."

Opinion of the Court

Justice McLachlin, writing for the Court, found that Zundel did violate section 181. The book was examined, and the court concluded that it "misrepresented the work of historians, misquoted witnesses, fabricated evidence, and cited non-existent authorities." However, section 181 violated section 2(b) of the Charter. She noted that section 2(b) protects all expression of a non-violent form, and as such, the content itself is irrelevant (section 2(b) is content neutral). The protection provided by the Charter includes expression of minority beliefs even where the majority may find it false. The imposition of imprisonment for expression has a severely limiting effect on freedom, beyond reason.

McLachlin further found that it could not be justified under section 1 of the Charter as the restriction on all expressions "likely to cause injury or mischief to a public interest" was far too broad.