R v Zundel

R v Zundel [1992] 2 S.C.R. 731 is a landmark Supreme Court of Canada decision where the Court struck down the provision in the Criminal Code that prohibited publication of false information or news on the basis that it violated the freedom of expression provision under section 2(b) of the Canadian Charter of Rights and Freedoms.

R v Zundel
Supreme Court of Canada
Hearing: December 10, 1991 Judgment: August 27, 1992
Full case name	Ernst Zundel v Her Majesty The Queen
Citations	[1992] 2 S.C.R. 731
Docket No.	21811
Ruling	Zundel appeal allowed
Court membership
Chief Justice: Antonio Lamer Puisne Justices: Gérard La Forest, Claire L'Heureux-Dubé, John Sopinka, Charles Gonthier, Peter Cory, Beverley McLachlin, William Stevenson, Frank Iacobucci
Reasons given
Majority	McLachlin J., joined by La Forest, L'Heureux-Dubé and Sopinka JJ.
Dissent	Cory and Iacobucci JJ., joined by Gonthier J.
Lamer C.J. and Stevenson J. took no part in the consideration or decision of the case.

Background

The German-born Ernst Zündel (1939–2017) immigrated to Toronto in 1958. He networked with antisemites and read extensively on antisemitic ideas. He established the publishing house Samisdat Books in his Toronto home in the 1970s to publish Holocaust-denial literature worldwide.[1]

In 1985, Zündel was charged with "spreading false news" by publishing the pamphlet Did Six Million Really Die? (1974) in Canada, contrary to Section 181 of the Criminal Code. This section 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".[2]

Zundel was convicted, but on appeal the case was sent back for a new trial due to a procedural error in admitting evidence and instructing the jury. He was re-tried and convicted again in 1988. The judgement was upheld by the Court of Appeal, and Zundel appealed to the Supreme Court.[2]

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 of the Charter".[3]

Opinion of the Court

Justice Beverley McLachlin, writing for a narrow majority of 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.[3] The dissenting opinion 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 (Morais 2001). The imposition of imprisonment for expression has a severely limiting effect on freedom, beyond reason.

McLachlin further found that section 181 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. The net result of the decision was that section 181 was "struck down" as being of no force and effect (null and void).

References

1. Robinson 2015, p. 140.
2. Robinson 2015, p. 141.
3. Robinson 2015, p. 142.

Works cited

• Robinson, Ira (2015). A History of Antisemitism in Canada. Wilfrid Laurier University Press. ISBN 978-1-77112-167-5.CS1 maint: ref=harv (link)

Further reading

• Kahn, R. (18 June 2004). "Chapter 4: Taking the Blame for R v Zundel". Holocaust Denial and the Law: A Comparative Study. Palgrave Macmillan. pp. 85–100. ISBN 978-1-4039-8050-2.
• Kahn, Robert A. (2000). "Rebuttal versus Unmasking: Legal Strategy in R v Zundel". Patterns of Prejudice. 34 (3): 3–15. doi:10.1080/00313220008559143. ISSN 1461-7331.

External links

• Full text of Supreme Court of Canada decision at LexUM and CanLII