How far will our freedom of speech protect us?                    

 In many democracies, freedom of speech is protected but it is not absolute. For example, you cannot defame someone and you can’t advocate the violent overtaking of your own country nor can you advocate terroristic acts or genocide.

 However our right to speak our own minds is often fraught with a great deal of controversy despite our constitutional rights to speak freely what is on our minds. Some people believe that the conditions for reasonable justification are vague, thereby granting the government an unreasonable amount of control over our freedom of speech. Others feel that such restrictions are absolutely necessary in order to balance the fundamental freedoms of one party against those of another.

 In Canada, Section 2(b) of the Charter of Rights and Freedoms states that everyone has the right to freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication. However, if someone goes too far when making a public statement that may infringe on the wellbeing of others, then Section 1 of the Charter kicks in. It says; “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.”

This section of the Charter is important because it permits the prosecution of persons who in exercising their rights to their freedom of speech make public statements that are in conflict with the wellbeing of the general public.

 As an example, you cannot say that all black people are criminals even though Section 2(b) of the Charter gives all people in Canada the right to speak their own minds in public. This is where Section 1 of the Charter kicks in.  However, if you say that some black people are criminals, then the government cannot use Section 1 of the Charter to get around Section 181 of the Criminal Code because although the statement is still offensive to many black people, the statement unfortunately is to some degree accurate. 

Section 181 of the Canadian Criminal Code states:  Everyone 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 (felony) offence and liable to imprisonment for a term not exceeding two years.

Limits on speech are incorporated in the Canadian Criminal Code in relation to treason, sedition, blasphemous and defamatory libel, disruption of religious worship, hate propaganda, spreading false news, public mischief, obscenity and indecency.

Is it blasphemy to publicly commit the act of insulting or showing contempt or lack of reverence for God, to religious or holy persons or things, or toward something considered sacred or inviolable? If so, then atheists could be charged under Section 296 of the Code for making the statement that God doesn’t exist. Aside from the fact that there haven’t been any prosecutions for blasphemy in 77 years, it’s highly possible that any prosecution would be met with a successful Charter challenge. Further, Section 296 (3) of the Code states; “No person shall be convicted of an offence under this section for expressing in good faith and in decent language, or attempting to establish by argument used in good faith and conveyed in decent language, an opinion on a religious subject.”

If someone burns the Quran in public they could be charged under Section 175,1 (d) of the Code which forbids any one from disturbing the peace and believe me when I say that burning the Quran in public would create a disturbance of the peace. Section 2(b) of the Charter of Rights and Freedoms wouldn’t apply in a case like that because Section 1 would override it as being in the best interests of the general public. However, the freedom of speech as presented in section 2(b) would be applicable if someone merely states publicly that they don’t believe that all the tenets of the Quran are valid.

 The Internet has become our gates of communication whether it is through interacting with each other or providing a wide selection of information to the public. Free speech and the use of the Internet ties with the capability of governments restricting free expression and the use of the Internet. Although the Internet seems an innovative and sure form of media, it can be associated with irresponsible speech and dangers that go along with it.

This means that anyone who states in their published writings in their blog that Jews should be annihilated, then they will be in serious trouble because we have a law in Canada that makes advocating genocide a crime but if they simply say that they don’t trust some Jews, then no offence has been committed any more than Jews saying that they don’t trust some non-Jews.

I am going to give you two cases which have been dealt with in the Supreme Court of Canada that you will find extremely interesting.

The first one is a case that originally took place in the province of Alberta involving the violation of freedom of expression versus an issue of group libel. The case involved James Keegstra, an anti-Semite, who taught Holocaust denial to schoolchildren in Alberta and after he was charged, Keegstra challenged his violation of his freedom of expression by applying to the Court of Queen's Bench for an order quashing the charge.  The court dismissed his application on the ground that section 319(2) of the Code did not violate his freedom of expression as guaranteed by section 2(b) of the Canadian Charter of Rights and Freedoms. On appeal, the accused’s Charter arguments were accepted by the Court of Appeal holding that subsections 319(2) and 319(3)(a) infringed subsections. 2(b) and 11(d) of the Charter respectively, and that the infringements were not justifiable under section 1 of the Charter. The matter ended up in the Supreme Court of Canada when the decision of the Court of Appeal was appealed by the government of Alberta.

Section 319(2) of the Code constitutes a reasonable limitation upon freedom of expression.  Parliament's objective of preventing the harm caused by hate propaganda is of sufficient importance to warrant overriding a constitutional freedom.  The Canadian Parliament has recognized the substantial harm that can flow from hate propaganda and in trying to prevent the pain suffered by target group members and to reduce racial, ethnic and religious tension and perhaps even violence in Canada, therefore the parliamentarians had decided to suppress the wilful promotion of hatred against identifiable groups such as Jews, blacks and other minority groups. Additionally, the international commitment to eradicate hate propaganda and Canada's commitment to the values of equality and multiculturalism in subsections. 15 and 27 of the Charter, strongly buttress the importance of this objective.

Section 319(2) of the Code is an acceptably proportional response to Parliament's valid objective.  There is obviously a rational connection between the criminal prohibition of hate propaganda and the objective of protecting target group members and of fostering harmonious social relations in a community dedicated to equality and multiculturalism.  Section 319(2) serves to illustrate to the public the severe reprobation with which society holds messages of hate directed towards racial and religious groups.  It makes that kind of expression less attractive and hence decreases acceptance of its content.  Section 319(2) is also a means by which the values beneficial to a free and democratic society in particular, the value of equality and the worth and dignity of each human person can be publicized.

But the real issue is whether or not Kreegstra really believed that the Holocaust didn’t actually exist in Europe prior to and during the Second World War. If he really believed that no such event took place, then he couldn’t be found guilty because a person cannot be adjudged as being guilty if he had no criminal intent to break the law.

Let me say from the get go that I am convinced in my own mind that the Holocaust really did take place. I was alive then but I wasn’t in Europe during those years so I have no first-hand knowledge of that horrible event in history. But because I didn’t experience the horrors of the Holocaust doesn’t mean that it didn’t exist. I have never seen the Australian continent up close but I know it exists because so much has been written about it by people who live and visit Australia.
I have to presume that Kreegsta isn’t insane and instead merely talks like a babbling idiot so I question his sincerity when he says that the Holocaust didn’t occur at all.  And if he really knew that the Holocaust really did happen during those years in Europe, then I have to presume that he willfully with malice in mind, tried to turn the minds of the children he was teaching against Jews in general. And if that was his motive, then his conduct as a teacher was definitely wrong and his school was correct in firing him. 

The word ‘wilfully’ imports into the offence a stringent standard of mens rea (criminal intent) which significantly restricts the reach of s. 319(2) by necessitating the proof of either an intent to promote hatred or knowledge of the substantial certainty of such a consequence.

The court in its decision said that whether or not a statement is susceptible to classification as true or false, such error should not excuse an accused person who has wilfully used a statement in order to promote hatred against an identifiable group. 

What the majority of the court was saying that even if he erroneously stated that the Holocaust didn’t occur, he used that erroneous statement for the purpose of inflicting hatred against Jews per se and that is definitely against the law. 

Justices La Forest, Sopinka and McLachlin dissented. They said that Section 319(2) of the Code infringes the guarantee of freedom of expression.  Where, as in this case, an activity conveys or attempts to convey a meaning or message through a non‑violent form of expression, this activity falls within the sphere of the conduct protected by section 2(b). This section protects all content of expression irrespective of the meaning or message sought to be conveyed, no matter how offensive it may be.  The government's purpose in enacting section 319(2) was to restrict freedom of expression by curtailing what people may say.  Section 319(2), therefore, imposes a limit on section 2(b).

They also said that the promotion of hatred in this case does not assume a form which falls outside the protected sphere of section. 2(b).  They admitted that the accused's communications were offensive and propagandistic, but they did not constitute threats in the usual sense of that word.  The accused's statements did not urge violence against the Jewish people.  They were not made with the intention and did not have the effect of compelling Jewish people or anyone else to do one thing or another to Jews.  Nor did the accused's statements constitute violence.  Violence connotes actual or threatened physical interference with the activities of others.  Moreover, statements promoting hatred are not akin to threats or violence.  There is nothing in the form of such statements which subverts democracy or our basic freedoms in the way in which violence or threats of violence may.  Finally, the dissenting members of the court said that to suggest that speech, like hate propaganda, which undermines the credibility of speakers belonging to particular groups does not fall within section 2(b) of the Charter, is to remove from the protection of the Charter an enormous amount of speech which has long been accepted as important and valuable.

It is true that his statement about the non-existence of the Holocaust wouldn’t bring about more violence against Jews per se but it would imply that the Jews are making up the story about so many of the Jews in Europe being murdered by the Nazis in the Holocaust thereby creating a communal hatred against all Jews. It is that kind of conduct that section 319(2) is trying to prevent.

Despite the dissention of three of the justices in that court, Keegstra was convicted and prosecuted for violation of the laws of group libel which promotes the disadvantage of unequal groups through hate propaganda. The offence is similar to white supremacy and its inflictions with respect to its hatred against black people just as anti-Semitism promotes inequality of Jews based on religion and ethnicity.              

The protections of the First Amendment to the U.S. Constitution, and in particular free speech, have always assumed a particular importance within the American constitutional scheme, being regarded as the cornerstone of all other democratic freedoms.

Nevertheless, tolerance for unpopular speech, especially speech which was perceived as a threat to vital security interests, was not initially a hallmark of the U.S. Supreme Court. When the socialist labour leader Eugene Debs made a speech critical of United States involvement in the First World War, the court was content to uphold his conviction for “wilfully causing or attempting to cause insubordination, disloyalty, mutiny, or refusal of duty, in the military or naval forces or wilfully obstructing the recruiting or enlistment service.” The same thing occurred in Canada when a former mayor of Montreal spoke publicly against Canadians being forced to fight in the war. Our courts didn’t help him either.                                                                                                     

In each case in which the courts are dealing with the issue of hate mongering, the courts must ask themselves whether the gravity of the evil is discounted by its improbability, and if so, does it still justify such invasion of free speech as is necessary to avoid the possible danger to the group of people to which the hatred is directed?                                                                                         

In Beauharnais v. Illinois, a U.S. case heard in 1952, a closely divided Supreme Court upheld the constitutionality of a statute bearing some resemblance to section 319(2) of the Canadian Criminal Code, prohibiting exhibition in any public place of any publication portraying depravity, criminality, un-chastity, or lack of virtue of a class of citizens, of any race, color, creed or religion which exposes such citizens to contemptuous derision. 
 Justice Frankfurter., writing the court's opinion, held that the statute prohibited libelous utterances directed against groups, and that these utterances were outside of the protection of the First Amendment. 

He quoted another decisions when he said, “Today, every American jurisdiction punishes libels directed at individuals. There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or ‘fighting’ words which by their very utterance inflict injury or tend to incite an immediate breach of the peace. It has been well observed that such utterances 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.” unquote

Obviously a man saying that all Jews are liars is defamatory and a Jew could legally sue him for defamation even for such a broad statement because he would be included in that classification of Jews as propagated by the man that made the statement. Such a statement is an act that promotes hatred towards all Jews and that is thereby a crime in Canadian law as per section 319(2) of the Canadian Criminal Code. It follows that when Kreegstra denied the existence of a Holocaust against the Jews who have been propagating its past existence ever since the Second World ended in 1945, he was in effect saying that the Jews were making it all up. In other words, he was trying to convince his students that the Jews per se were all liars. Making a statement like that is clearly propagating hatred towards Jews in general.

What should be done about members of a White Supremacy group who instead of condemning a particular race of people by saying that they are all  bad, they simply say that all white people are superior to them? Are they breaking the law?  They are not breaking the law. They are not saying that certain races are inferior human beings. They are simply saying that some races that are not white are inferior to all the people of the white race. It is stupid to make such a public statement but it isn’t illegal. In the 1930s and 1940s, the Nazis went so far as to declare all Jews as sub humans. If anyone in our current era made such an atrocious statement like that publicly, he would be subject to punishment under the law.

I will quote in part from Article 10(2) of the European Convention for the Protection of Human Rights and Fundamental Freedoms;

“The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others.” unquote

The Supreme Court of Canada in the Keegstra case granted the appeal of the Alberta government and Keegstra was convicted of violating Section 319(2) of the Canadian Criminal Code, to wit, promoting hatred to his students towards Jews by denying the existence of the Holocaust.

This next case is even more interesting because the issue is far more complex.

Ernst Zundel is a German citizen who was living in Canada. He was not a Canadian citizen but rather a landed immigrant. He was accused and charged with spreading false news contrary to section. 181 of the Criminal Code, which provides that “Everyone 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,”

The charge against Zundel arose out of the accused's publication of a pamphlet entitled Did Six Million Really Die?  The accused had added a preface and afterword to an original document, which had previously been published by others in the United States and England.  The pamphlet, part of a genre of literature known as .revisionist history’ suggests, inter alia, that it has not been established that six million Jews were killed before and during World War II and that the Holocaust was a myth perpetrated by a worldwide Jewish conspiracy.  

He even went as far as to state in his pamphlet that the Nazi concentration camps were only work camps and not extermination camps; that the gas chambers were built by the Russians after the War; that the millions of Jews who disappeared through the chimneys of the crematoria at Auschwitz, Sobibor, Maidanek and elsewhere were actually moved to the United States and had changed their names; that the Diary of Anne Frank is a work of fiction; that the emaciated living and dead found by liberation forces died only of starvation and typhus; that the films and photographs are clever forgeries; that there were no witnesses to or survivors of the slaughter and that every perpetrator who later revealed his complicity in the massacre of the Jews was coerced into saying so.                      

Such a collective statement is utter foolishness and surely any reasonable minded person reading his pamphlet would presume that Zundel is a fanatic who is mentally disturbed.

Now I am going to say up front that when he said that the Holocaust was a myth that was perpetrated by a Jewish worldwide conspiracy and making the aforementioned statements in his pamphlet, is clearly legally and morally wrong.  But I do have concern about him being charged because he stated that he didn’t really believe that six million Jews died in the Holocaust.  A great many people have the same belief. The problem is that no one really knows for sure just how many Jews were slaughtered during the Nazi regime. It could have been more and it could have been less.  

Here is the issue. Is it a crime to publically make a statement that you honestly believe to be true? Remember that you cannot be found guilty of a crime if you didn’t form the intent to commit the crime in the first place. For a conviction to occur, the prosecution has to establish that Zundel knew that what he had published in his pamphlet was false. That is a difficult hurdle to climb over.

Nevertheless, the accused was convicted after a lengthy trial.  On appeal, his conviction was upheld on constitutional grounds but struck down for errors in admitting evidence and in the charge by the trial judge to the jury. The matter was sent back for a new trial.  The accused was again convicted and his conviction was affirmed by the Court of Appeal. Then the matter went to the Supreme Court of Canada.

When one is charged under Section 181, the prosecution must prove all three elements of the offence, they being, 1. It must be established as a fact that the accused published a false statement, tale or news; 2. That the accused knew the statement was false; and 3. That the statement caused or is likely to cause injury or mischief to a public interest.

Each of the three elements of the offence created by Section 181 is capable of giving rise to considerable difficulty of application in the context of a trial.  The question of falsity of a statement is often a matter of debate, particularly where historical facts are at issue. Historians have written extensively on the difficulty of ascertaining what actually occurred in the past, given the difficulty of verification and the selective and sometimes revisionist versions of various witnesses and historians who may write about the same events. The element of the accused's knowledge of falsity compounds the problem, when adding the need to draw a conclusion about the accused's subjective belief as to the actual truth or falsity of the statements.  Finally, the issue of whether a statement causes or is likely to cause injury or mischief to the public interest requires the identification of a public interest and a determination of whether anyone has been or is likely to be injured by those statements. 

Difficulties were encountered at trial with respect to all three elements of the offence with respect to what constitutes a ‘statement, tale or news’ being interpreted as constituting an assertion of fact as opposed to opinion; what constitutes injury or mischief to a public interest; and what constitutes proof of knowledge of falsity of the statement. 

In the past, courts have resolved the difficult issue of the distinction between a statement and an opinion by treating it as a question of fact for the jury to resolve.  While this is true in a technical legal sense, in a practical sense the jury was told in Zundel’s trial that the publication at issue was a false statement. By applying the doctrine of judicial notice and telling the jury that the mass murder and extermination of Jews in Europe by the Nazi regime was an historical fact that no reasonable person could dispute, the judge effectively settled the issue for them.

The question of knowledge of falsity was left as a question of fact for the jury to decide.  But this was not a question of fact in the usual sense.  The jury was instructed that it was entitled to infer from the judge's instruction that because the Holocaust must be regarded as historically proven as an actual fact, the accused must have known it to be proven and must have published his pamphlet deliberately for personal motives, knowing the falsity of his assertion to the contrary was morally wrong. The trial judge added, that since it was only one factor in this assessment, that the principle that the “more unreasonable the belief, the easier it is to draw the inference that the belief is not honestly held.”

In my opinion, it would be unreasonable to not believe that the Jews suffered from the Holocaust but it would be reasonable to believe that perhaps not as many as six million Jews died in the Holocaust. However in the context of a prosecution under section 181 a jury is, in the face of such instructions, unlikely to be able to evaluate or accept the accused's other assertions that he believed the truth of his publications.  The logic is inescapable: everyone knows this is false; therefore the defendant must have known it was false.

On the final question of injury or mischief to a public interest, the trial judge told the jury that it was sufficient if there was a likelihood of injury or mischief to a particular group of people and directed the jury on the “cancerous effect of racial and religious defamation upon society's interest in the maintenance of racial and religious harmony in Canada.”  Judge Thomas further instructed the jury that “there can be no doubt that the maintenance of racial and religious tolerance is certainly a matter of public interest in Canada,” Once again, the jury's conclusion may have flowed inevitably from the trial judge's instruction.

One is thus driven to conclude that this was not a criminal trial in the usual sense.  The verdict flowed inevitably from the indisputable fact of the publication of the pamphlet, its contents' divergence from the accepted history of the Holocaust, and the public interest in maintaining racial and religious tolerance.  There was little evidence showing that the publication was an expression of opinion, nor of showing that the accused did not know it to be false, nor of showing that it would not cause injury or mischief to a public interest.  The fault lies rather in concepts as vague as fact versus opinion or truth versus falsity in the context of history, and the likelihood of mischief to the public interest.

The Supreme Court when hearing the appeal of Zundel also dealt with the issue of the accused’s right to his freedom of speech. Justice McLachlin said, “The Court must first ask whether a publication such as what is at issue in this court is an expression protected by Section 2(b) of the Charter.  If so, the Court must ask the further question of whether the purpose or effect of Section 181 is to restrict such expression.  If so, it will be found to violate s. 2(b) of the Charter.” unquote

But the question facing the Supreme Court was whether or not Section 181 really restricts freedom of speech in Canada. In my opinion, it does to some degree but certainly not totally. It is difficult to imagine a guaranteed right more important to a democratic society than enjoying our freedom of expression.  Indeed a democracy cannot exist without that freedom to express new ideas and to put forward opinions about the functioning of public institutions.  The concept of free and uninhibited speech permeates all truly democratic societies and institutions.  The vital importance of the concept cannot be over-emphasized. We only have to look at regimes such as Iran and Egypt to realize just how important our right to freedom of expression is to us. Notwithstanding what I have just said, the rights enshrined in Section 2(b) should therefore only be restricted in the clearest of circumstances. The question being raised in the Supreme Court was whether or not Zundel was one of those persons whose right to freely express himself had to be curtailed.

Tests of free expression frequently involve a contest between the majority view of what is true or right in contrast to what is an unpopular minority view. 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 that 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 thusly, 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 second argument advanced by the prosecution was that the Zundel’s publication was not protected because it serves none of the values underlying Section 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. I agree with that premise providing of course that the lie was deliberate.

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 rhetorical nature, which may possess some validity.  Moreover, meaning is not an assumption so much as an interactive process, depending on the listener/reader as well as the speaker/author.  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 speaker/author but also the meaning or meanings meant to be understood by the listener/reader.

Even a publication as crude as that written by Zundel in this case, illustrates the difficulty of determining its rational.  On the government’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 such policy, a meaning which, 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.

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.

There are Criminal Code offences under which a person may be prosecuted civilly for libel such as a defamatory statement 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 Section 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 can result in civil damages and not the rigorous sanction of criminal conviction and imprisonment.

Before we put a person beyond the pale of the Charter, and 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 especially when there is difficulty of conclusively determining the falsity.  However, I cannot see any value in stating publicly that the Holocaust against the Jews didn’t exist.                                                                      

In my opinion, those who deliberately publish falsehoods should for that reason alone be precluded from claiming the benefit of the Charter guarantees of free speech if the statements are prone to causing psychological harm to others.  This is based on the premise that you can’t yell “FIRE” in a crowded theater when there is no fire since people in their haste to leave the theatre can get crushed to death in the rush.

In concluding that the publication here in issue is protected by Section 2(b) of the Charter, I rely in the final analysis upon the words of Justice Dickson in the Keegstra case when he said;

“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 Section 2(b) of the Charter. It is partly through the clash with extreme and erroneous views that truth and the democratic vision remain vigorous and alive. Condoning 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 Section 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.”

Section 1 of the Charter required the Supreme Court to weigh the intrusion of rights represented by the impugned legislation against the state's interest in maintaining the legislation.  In Zundel’s case, it meant weighing the state's interest in proscribing expression which it deemed 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 prosecutor can show 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.

The law in Canada does not purport to prohibit the expression of any idea or simple opinion, even though they may pose a serious threat to a public interest. It only captures statements of fact made by a speaker/author which the prosecution can prove to be false beyond a reasonable doubt. 

The law does not capture all statements designated by the person making them as fact when in reality they are false to the knowledge of the accused but only such statements as the accused deliberately chooses to make generally available to the general public rather than to an individual. Thusly there is no law in Canada that actually forbids anyone from making a false statement in error however if someone makes that false statement knowing that it to be untrue, then the crime has been committed since criminal intent is attached to the false statement.

Under section 181, any person is free to tell all the lies that he wants to tell in private.  He is also 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 which he knows are false and is likely to seriously injure people that the impugned section is invoked. 

The difficulty results from the premise that deliberate lies can never have value. Exaggeration however, 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 author 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. Although Rushdie had a fatwa issued against him by the Supreme Leader in Iran, what he wrote in his book would not necessarily be punishable in Canada.

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 Section 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.  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. It is not against the law in Canada to express an opinion no matter how misleading or how atrocious it may be.
                                                                                                             





Suppose Zundel had said in his pamphlet, “I seriously doubt that six million Jews died by the hand of the Nazis.” His statement would not be legally offensive because he would simply be expressing an opinion. And suppose he said, “Six million Jews didn’t die at the hands of the Jews.” Would that be legally offensive? Not necessarily because no one knows for sure if it was six million Jews who died or five million or seven million. He is just saying that he doesn’t think six million of the Jews died at the hands of the Nazis. Now if he said, “Very few Jews died at the hands of the Nazis.” then that statement is so outrageous because it defies logic and anyone that would make that kind of statement publicly is either insane or alternatively, has the criminal intent to cause suffering to the survivors and families of those who were murdered by the Nazis, thusly, he would be guilty of violating Section 181.  

Section 181 provides maximum protection to the accused.  It requires the prosecution 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.  However section 1 was applied in this case to demonstrate that section 181 of the Criminal Code is justifiable in a free and democratic society.

 Zundel’s appeal was denied by the Supreme Court of Canada.

Canadian authorities quietly shipped Ernst Zundel to Mannheim, Germany under cloak of night. Once his flight landed, he was placed under arrest and taken into custody to stand trial for hate crime charges that were originally  filed on behalf of the German people in 2005. Aside from that particular flight, Zundel has only briefly seen the outside of a prison cell since his arrest in 2003 at his home in Tennessee by U.S. agents and subsequent deportation to Canada. Zundel was freed from a German prison after serving five years in prison for denying that the Holocaust ever happened. He had also spent some additional time behind bars in Canada because of the extradition request from Germany after having been deported from the United States for alleged immigration violations.

He spent a total of seven years in custody because he couldn’t keep his outrageous views to himself. He said he was unsure if he would return to Canada, where he had lived in both Toronto and Montreal for years after emigrating from Germany to Canada in 1958. He was rejected twice for Canadian citizenship.  Truly this man must be insane if he thinks that he is going to be permitted to return to Canada.

There is something to be learned from the trials of these two twits. If you aren’t sure of your facts, do your homework. And if you are still not sure, then say what you want to say as an opinion and not as a fact.  That way you won’t get free room and board in a prison.